.„<m.'WMHBKJ.R«ri 


^   &C0.   ^ 


t,  AW 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 


LAW  AND  PRACTICE 


SURROGATES'  COURTS 


IN  THE 


STATE     OF     ISTEW    YORK. 


By  AMASA  a.  REDFIELD,  LL.  D. 


SIXTH    EDITION 

By  ROBERT  L.  REDFIELD, 


OF   THE   NEW    YORK    DAIl. 


NEW  YORK  : 

BAKER,  VOORHIS  &  COMPANY, 
1903. 


Entered,  according  to  Act  of  Congress,  in  the  year  eighteen  hundred 

and  ninety-four,  by 

AMASA  A.  REDFIELD, 

In  the  office  of  the  Librarian  of  Congress,  at  Washin^on. 


Copyright,  1902, 
By  ROBERT  L.  REDFIELD. 


T 


J.  B.  LYON   COMPANY 

fRINTERS     AND     BINDERS 

ALBANY,     N.     V. 


PREFACE  TO  SIXTH  EDITIOK 


The  task  of  preparing  the  present  edition,  owing  to  the  enor- 
mous number  of  new  cases  (many  reported  under  different  titles) 
with  which  the  profession  continues  to  be  inflicted,  has  been 
unusually  onerous,  and  though  it  has  not  been  thought  advisable 
to  make  any  radical  revision  in  the  substance  of  the  text,  except 
in  so  far  as  the  acts  of  the  legislature  have  required  it,  it  is  , 
believed  that  this  edition  will  be  found  more  serviceable  than  its 
predecessors. 

i^o  one,  whose  attention  is  directed  to  the  subject,  can  fail  to 
remark  the  great  increase  in  the  volume  of  litigation  conducted  in 
surrogates'  courts,  since  their  establishment  as  courts  of  record. 
In  the  fourth  edition  of  this  work  (1890)  there  were  cited  3,700 
cases;  in  the  fifth  edition  (1894),  4,000,  while  in  the  present 
edition  no  less  than  5,500  cases  are  mentioned  in  the  notes,  on 
ditferent  pertinent  points.  Very  many  of  these  do  not  appear  in 
the  official  reports,  but  wherever  possible,  all  cases  reported  since 
the  last  edition  have  been  cited  as  well  from  the  official  as  the 
unofficial  series. 

An  effort  has  been  made  to  save  the  reader  the  necessity  of  con- 
sulting reports  which  are  possibly  inaccessible,  by  a  statement 
of  the  points  decided.  To  make  that  possible,  within  a  reasonable 
comi)ass,  the  pages  have  been  somewhat  lengthened,  sharper-faced 
type  has  been  employed,  and  condensation  of  matter  has  been 
freely  indulged  in ;  yet,  notwithstanding,  the  present  work  is 
larger,  by  thirty-nine  pages,  than  the  last.  ])receding  edition. 

It  is  believed,  too,  that  the  numbering  of  the  section  headings, 
thus  permitting  a  closer  indexing  of  the  subjwt-matter,  will 
facilitate  llic  ])ractitioner.  The  forms  have  been  revised,  to  meet 
the  requirements  of  Code  amendments,  and  a  considerable  number 
of  new  precedents  have  been  appended.  In  this  c<mnection  I 
cannot  omit  to  acknowledge  my  obligation  to  the  several  surro- 
gates of  the  State,  for  their  efficient  aid  in  furnishing  me  with 
copies  of  the  forms  used  in  their  respective  courts. 
New  York,  December,  1902. 

ROBERT  L.  REDFIELD. 
[iii] 


776899 


TABLE    OF   CONTENTS. 


PAGE 

Preface iii 

Table  of  Statutes  Cited    xiii 

Table  of  Cases  Cited xxvii 

Introduction    Ixxv 

CHAPTER  I. 

CONSTITUTION  AND  OKGANIZATION  OF  SURROGATES'   COURTS. 

Tit.   1. —  The  court  and  the  surrogate   1 

2. —  Disqualifications   of   surrogate    6 

3. —  Substitutes  for  surrogate,  in  case  of  vacancy  in  office,  disability, 

or   disqualification    8 

4. —  Surrogates'   clerks   and   other   officers   of   the   court,   and   their 

powers  and  duties    12 

5. —  Records  to  be  kept  by  the  surrogate 15 

6. —  Surrogate's  bond  and  the  prosecution  thereof IG 

7. —  Compensation  and  fees  of  surrogate 20 

CHAPTER  II. 

JURISDICTION    AND    POWERS  OF  SURROGATES'   COURTS. 

Tit.   1. —  General  statutory  jurisdiction 23 

2. —  Limitation   of  general    powers ". 28 

3. —  Incidental  jurisdiction  and  powers    34 

4. —  Concurrent  and  exclusive  jurisdiction 42 

5. —  Deposit  and  custody  of  wills 45 

C. —  Deposit  of  moneys  and  securities 47 

CHAPTER  III. 

COMMENCEMENT    OF    PROCEEDINGS;    APPEARANCES,    PLEADINGS. 

ETC. 

Tit.   1. —  Conmionceiiient  of  jiroceedings,  including  service  of  process....  40 

2. —  Appearances,  pleadings,  etc oS 


vi  Table  of  Contents. 

CHAPTER  IV. 

PARTIES  TO  PROCEEDINGS  IN  SURROGATES'  COURTS. 

PAGE 

Tit.   1. —  Who  are  necessary  parties 62 

2. —  Death  of  a  party  and  revivor  of  proceeding 70 

3. —  Intervention  of  third  parties 72 

4. —  Special   guardians    75 

CHAPTER  V. 

TRIAL  PRACTICE.  DEPOSITIONS,  ETC. 

Tit.   1. —  Hearing  before  the  surrogate  or  referee 80 

2. —  Depositions,  discovery  of  papers,  etc 87 

CHAPTER  VI. 

THE  PROBATE  OF  WILLS. 

Tit.   1. —  Proceedings  before  application  for  probate „ 91 

2. —  Jurisdiction  of  probate 9.5 

Art.   1. —  Establishment  of  wills  by  civil  action 95 

2. —  Proof  of  wills  in  surrogates'  courts 99 

3. —  Application    for   probate    103 

Art.   1. —  Application,  Avhere  made    103 

2. —  Application  for  probate,  how  and  by  whom  made 108 

3. —  The  citation   and   its   service 114 

4.—  Proof  of  will    116 

Art.   1. —  Uncontested  and  contested  probate    116 

2. —  Means  of  proof;   competency  and  qiialification  of  wit- 
nesses   120 

3. —  What  law  governs  probate    130 

4. —  Facts  material   to  question  of  probate 133 

Subd.   1. —  Preliminary    considerations     133 

2. —  Execution,    attestation,    and    publication    of 

wills    141 

3. —  Testator's  knowledge  of  contents  of  will....  161 

4. —  Testamentary   capacity    164 

5. —  Fraud  and  undue  influence    175 

6. —  Mistakes   which   invalidate   will    182 

7. —  Revocation   and   alteration    of   will 185 

5. —  Codicils  and  instruments  annexed  to  will 194 

6. —  Lo.st  or  destroyed  wills 196 

7. —  Nuncupative    wills    201 

8. —  Decree  granting  or  refusing  probate,  recording  will,  etc 202 


TAiiLK  OF  Contexts.  vii 
CHAPTEP.  VTL 

PAOR 

THE  VALIDITY,  COXSTRUCTIOX,  AND  EFFECT  OF  WILLS 209 

CHAPTER  VIIT. 

CONTESTING  WILL  ON  ALLEGATIONS  AFTER  PROBATE 239 

CHAPTER  IX.    . 

LETTERS  TESTAMENTARY. 

Tit.  1. —  When  and  to  whom  letters   issue 247 

2. —  Renunciation    and   acceptance   of   appointment 250 

3. —  Necessary  qualifications  of  executor   2.54 

4. —  Ancillary  letters  on  foreign  probate    258 

5. —  Letters  to  testamentary  trustees    264 

6. —  Force  and  effect  of  letters 267 

CHAPTER  X. 

ADMINISTRATION  WITH  THE  WILL  ANNEXED 269 

CHAPTER  XL 

LETTERS  OF  ADMINISTRATION  IX^  INTESTACY. 

■Tit.  1. —  Jurisdiction   in   cases   of  intestacy 280 

2. —  Who  are  entitled  to  letters 285 

3. —  Proceedings  to  obtain  letters   291 

4. —  Qualifications  of  administrator    299 

5.—  Effect  of  grant  of  letters 300 

6. —  Administration  dc  bonis  non 303 

7. —  Ancillary  letters  of  administration 304 

CHAPTER  XII. 

PUBLIC  ADMINISTRATORS. 

Tit.  1. —  Nature  and  object  of  office  307 

2. —  The  county  treasurer  as  public  administrator   311 

3. —  Public  administrators  in  New  York  and  Kings 314 

CHAPTER  XIII. 

TEINIPORARY   ADMIXISTRATIOX    '.  326 


viii  Table  of  Contents. 


CHAPTER  XIV. 

KEVOCATION    OF    AUTHORITY    OF    EXECUTORS,    ADMINISTRATORS, 
AND  TESTAMENTARY  TRUSTEES. 

PAGK 

Tit.   1. —  Incidental  revocation  of  letters 340 

2. —  Direct  revocation  by  proceeding  and  resignation 343 

Abt.  1. —  Letters  of  executors  and  administrators 343 

2. —  Authority   of  testamentary  trustees 35G 

CHAPTER  XV. 

OFFICIAL    BONDS    OF    OFFICERS    SUBJECT    TO    THE    SURROGATE'S 
JURISDICTION:   RIGHTS  AND  LIABILITIES  OF  SURETIES. 

Tit.  1. —  General  provisions  relating  to  official  bonds 365 

2. —  Particular  classes  of  bonds   37& 

CHAPTER  XVI. 

INVENTORY  AND  APPRAISAL  OF  ASSETS. 

Tit.   1. —  Duty  to  make  and  file  inventory 383 

2. —  Compelling  return  of  inventory   392 

3. —  Articles  set  apart  for  the  family  of  deceased 396 

4. —  Effect  of  inventory  as  evidence 401 

CHAPTER  XVII. 

ADMINISTRATION  OF  ESTATE  AND  PERFOR]\L\NCE  OF  WILL. 

Tit.  1. —  The  office  and  estate  of  executors,   administrators,   and  testa- 
mentary  trustees    404 

Art.   1. —  The  title  and  object  of  the  office 404 

2. —  The  surrogate's  control  and  supervision 410 

3. —  The  estate  of  executors,  administrators,  and  testamen- 
tary trustees    412 

Subd.   1. —  The  nature  of  the  estate 412 

2. —  The  quantity  of  the  estate 418 

2. —  Funeral  charges  and  expenses  of  administration 435 

Art.   1. —  Funeral   charges    43.5 

2. —  Expenses  of  administration    440 

3. —  Widow's  quarantine  and  sustenance   452 

4. —  Reduction   of   estate   to   possession 453 

Art.  1. —  Proceedings  before  issue  of  letters 45.3 

2. —  Pursuit  of  legal  remedies,  in  general 455 

3. —  Special   proceeding   to   discover   property   concealed   or 

withheld     46-f 

4. —  Gifts  causa  mortis   471 


Table  of  Contexts.  ix 

PAGE 

Tit.  3. —  Dealin^^   witli  estate    470 

Art.   1. —  Sources  of  authority  and  mode  of  exercise 470 

2. —  Care  and  custody  of  estate,  pending  administration,  and 

liabilities  incurred  therein    48(5 

G. —  Liquidation  and  payment  of  debts  and  taxes 520 

Art.  1. —  Liquidation  of  claims    520 

Subd.   1.—  Ascertaining  creditors    520 

2. —  Presentation  and  proof  of  claims 52.1 

.3. —  Determining  disputed  claims    5.34 

2. —  Payment  of  debts   550 

Subd.  \. —  Classes  of  debts  and  ordel-  of  priority 550 

2. —  Marshalling  assets    558 

3. —  Proceedings  to  compel  payment  of  debts....  5G2 

3. —  Payment  of  transfer  tax 575 

7. —  Payment  of  legacies    Gil 

Art.   1. —  Different   kinds   of  legacies    Gil 

2. —  Ademption  and  satisfaction  of  legacies G28 

3. —  Abatement  of  legacies    G32 

4. —  Lapse    of    legacies    G30 

5. —  Proceedings  to  compel   payment  of  legacies G40 

8. —  The  payment  of  distributive  shares GG 1 

Art.   L — Devolution  of  property  made  vacant  by  death GGl 

Subd.   \. —  The  statute  of  descents   GG4 

2. —  The  statute  of  distributions G75 

2. —  The  rights  of  husband  and  widow G8!> 

3. —  Rights  of  lineal  kindred   G92 

4. —  Rights  of  collateral   kindred    G95 

5. —  Proceedings  to  compel  payment  of  distributive  share..  GOG 


CHAPTER  XVIII. 

DISPOSITION  OF  REAL  ESTATE  TO  PAY  DECEDENTS  DEBTS. 

Tit.   1. —  Nature  and  jurisdiction   of  the  proceeding GOO 

2. —  Procurement  of  the  decree    708 

3. —  Execution   of  decree  for  sale 727 

4. —  Distribution  of  proceeds    737 

5. —  Miscellaneous    provisions    74G 

CHAPTER  XIX. 

ACCOUNTINGS. 

Tit.  1. —  Action  for  an  accounting  740 

2. —  Accoimting  in  the  surrogate's  court    752 

Art.   1. —  Surrogate's  jurisdiction   752 

2. —  The  different  kinds  of  accounting. 753 


X  Table  of  Contents. 

PAGE 

Tit.  1. — Art.  3. —  Intermediate  accountings    755 

4. —  Judicial  settlement  of  account    758 

Subd.   1. —  Whose    accounts    subject    to  judicial    settle- 
ment      758 

2. —  When  settlement  may  be  compelled 766 

3. —  At   Avhose   instance   settlement   may   be   com- 
pelled      - . .  .  770 

4. —  The  petition,  citation,  and  answer   775 

5. —  Filing  account  and  objections  thereto 784 

0. —  Proceedings  upon  contested  accounting 790 

5. —  Form  and  contents  of  the  account,  and  production  of 

vouchers    804 

Subd.   1. —  Form    and   verification   of    the   account    and 

vouchers    804 

2. —  The  subject-matter  of  the  account   810 

6. —  Compensation  of  executors,   administrators,  and  testa- 
mentary  trustees    813 

7. —  The  decree  and  its  effect 830 


CHAPTER  XX. 

GUARDIANSHIP. 

Tit.  1. —  General  guardians  835 

Art.   1. —  Appointment  and  general  powers   835 

2. —  Accounting  of  general  guardian   848 

3. —  Resignation  of  guardians  and  revocation  of  letters....  857 

2. —  Foreign  guardians  and  ancillary  letters 861 

3. —  Guardians  by  will  or  deed , 865 


CHAPTER  XXI. 

SURROGATES'  DECREES :  THEIR  EFFECT  AXD  ENFORCEMENT. 

Tit.   1. —  Impeachment  of  surrogates"  decrees 871 

2. —  Proceedings  to  enforce  decrees  under  the  Revised  Statutes 888 

3. —  Proceedings  to  enforce  decrees  under  the  Code 893 

CHAPTER  XXII. 

COSTS  IN  SURROGATES'  COURTS. 

Tit.  1. —  Rules  formerly  prevailing 902 

2. —  Costs  under  the  Code 904 

Subd.   1. — Award  of  costs 904 

2. — Amount  of  costs 914 


Table  of  Contents.  xi 

CHAPTER  XXIIL 

PROBATE  AND  REVOCATION  OF  PROBATE  OF  HEIRSHIP. 

TAGE 

Tit.   1. —  Probate   of   heirship 017 

2. —  Revocation  of  probate  of  heirship 919 

CHAPTEK  XXIV. 

APPEALS. 

Tit.   1. — Appeals  to  the  supreme  court 921 

2. — ^Appeals  to  the  court  of  appeals 920 


FORMS    947 

INDEX  TO  FORMS 107.3 

GENERAL   INDEX 1083 


TABLE  OF  STATUTES  CITED. 


I.  u.  s 

.  R.  S. 

PAGE 

PAGE 

1  R.  S.          744  §§  3,4 

220 

Page               G!)l   § 

3466 

553 

747   §     21 

387, 424 

S 

3468 

553 

748  §     1 

230 

90G  § 

4718 

429 

§     2 

216 

§ 

4952 

427 

749  §     3 
750 

94 

664 

II.  N.  Y.  Constitution 

752  §§  8,9,10 

667 

184(i         art.     6  § 

14 

1 

754  §     19 

693 

s 

15 

2 

§     22 

64 

18()9         art.     C  S 

15 

1 

§     25 

672 

ts 

16 

2 

755  §     20 

673 

0 

21 

7 
1,120 

773  §§   1-2 

219 

27 

774  ii§  3-4 

220 

art.   14  § 

12 

2 

§     4 

482-560 

1894         art.     C  § 

4 

3 

2  R.  S.             34 

524 

t; 

15 

1,3 
2 

55  §     25 

664 

71 

16 

56  §     1 

164, 165 

0 
§ 

20 

7 

56-60  §§   1-21 
57  §     3 

164 
227 

III.  Revised 

Laws  of 

1813. 

§     5 
§     6 
58 

230 

124 

42 

1  R.  L.  p.       52 

666 

365  § 

7 

42 

§     15 

872,  874 

416  § 

1 

58 

59 

42 

446 
452 

95 
747 

§     18 
60  §     21 

874 
165 

IV.  Revised  Statutes 

§     22 
61  §     29 

201 
872 

(Margina 

1  Paging.) 

§     30 

241 

IR.  S.              71  § 

16 

436 

•§§  30,31 

95 

82  § 

6 

421 

62  §     35 

929 

100  §§ 

3,4 

747 

§§  37,38 

246 

101   § 

11 

2 

63  §     39 

902 

120  §§ 

29,  30 

17 

§     40 

141 

382  §§ 

77,87 

17 

§     41 

155 

388  § 

4 

386 

64  §     43 

192 

718  §§ 

5,7 

866 

§     44 

191 

720  §'§ 

16-20 

671 

64  §     45 

190 

722  §§ 

14-16 

219 

65  §     46 

*  191 

§ 

62 

421 

§     47 

191 

725  §§ 

30,31 

670 

§     48 

191 

726  § 

40 

221 

§     49 

64,192.670 

727   § 

44 

415 

§     50 

124,  125 

§ 

45 

227 

§     51 

125 

728  S 

55 

218 

66  §     52 

636 

730  § 

63 

486,774 

§     53 

193 

§ 

70 

361 

§     55 

925. 929 

736  §S 

119-120 

480 

§     57 

641 

738  S 

139 

560 

67  §§  59,60 

945 

740  § 

1 

452 

§     62 

923 

742  § 

17 

400,  452 

§     63 
iiij 

42, 197 

XIV 


Table  of  Statutes  Cited. 


2  R.  S. 


PAGE 

PAGE 

§§  63a,  68a 

44 

2  R.  S. 

§ 

78 

273 

68  § 

71 

195 

§ 

79 

691 

09  § 

3 

254 

§ 

83 

655 

§ 

4 

254 

102 

§ 

11 

87 

70 

49 

105 

§ 

30 

734 

§ 

8 

251 

108 

§ 

48 

701 

71  § 

14 

271 

109 

§ 

53 

701 

§ 

15 

252 

§ 

55 

416 

i 

16 

93 

,431 

, 454,  481 

110 

§ 

58 

732 

§ 

17 

270,271 

113 

§§ 

1-5 

526 

72  § 

22 

277,418 

114 

§ 

4 

431 

73  § 

23 

24 

§ 

9 

65 

74  § 

26 

295 

§§ 

9-11 

647 

§ 

27 

286 

,289,316 

115 

§ 

13 

647 

75  § 

29 

271 

, 289,  691 

116 

§ 

18 

32,  570,  756 

§ 

31 

276 

§ 

18 

743 

§ 

32 

299 

§ 

19a 

892 

76  § 

34 

291 

§ 

21 

931 

77  § 

40 

337 

118 

§ 

3 

323 

78  § 

45 

271,  303 

§ 

4 

309,  315 

79  § 

48 

7 

§ 

34 

309 

81  § 

60 

93, 454 

119 

§ 

5 

316 

§ 

78 

405 

§ 

6 

309,317 

82  §§ 

6,7 

,8 

384 

§ 

7 

309,  317 

83  § 

5 

390 

120 

i 

8 

309 

84  §§ 

11, 

12 

390 

§§ 

8-13 

318 

§ 

13 

391,  624 

121 

§ 

14 

316 

§ 

14 

391 

§ 

15 

308 

§§ 

15, 

16 

392 

§§ 

16,17 

318 

85  § 

17 

394 

122 

§§ 

18,  19,  20 

319 

§ 

21 

891 

§§ 

21,  22 

323 

86  § 

23 

384 

§ 

23 

309 

§ 

24 

392 

123 

§§ 

24-27 

317 

87  § 

25 

484 

§ 

28 

308,317 

§ 

27 

520 

124  § 

29 

318 

&§  27-30 

552 

§ 

30 

320 

§ 

28 

552, 

553, 556 

§ 

31 

319 

§ 

29 

553 

125 

§§  32,33 

320 

§ 

30 

552 

§ 

33 

310 

§ 

33. 

552, 553 

§ 

35  subd. 

14    315 

88  §§ 

31, 

39 

523 

§ 

35 

322 

§ 

32 

564 

126 

§§ 

36,37 

323 

§ 

33 

530, 

552, 623 

127 

§ 

38 

317 

§§ 

35, 

36 

537 

§§ 

39,40 

310 

89  § 

38 

458, 535 

§§ 

42,43 

315, 324 

§ 

39 

563 

128 

§ 

44 

324 

90  § 

41 

543 

§§ 

45,46 

316 

§ 

43 

640 

129 

§ 

47 

308, 309 

§ 

44 

643 

8 

50 

308, 309 

§ 

45 

632,  641 

§ 

51 

308 

93  § 

57 

514 

130  §§  52-55 

312 

§ 

58 

813,  904 

§§ 

57-59 

312 

94  § 

64 

690 

131 

§ 

60 

314 

§ 

65 

877 

§ 

61 

309 

§ 

66 

764 

§§ 

61-64 

313 

95  § 

67 

929 

§ 

63 

309 

§ 

71 

33 

§ 

65 

308,312 

96  § 

71 

31 

§§ 

66-68 

314 

§ 

75 

676 

132 

§ 

67 

310 

97  §§ 

76, 

77, 

■8 

694 

§§ 

09,70,71 

313 

98 

672 

§§ 

72,73 

310 

§ 

11 

290 

146 

§ 

48 

090 

Table  of  Statutes  Citeu. 


XV 


2  K.  S. 


PAGE 

150  § 

1 

865 

§§ 

2,3 

86(i 

152  § 

9 

892 

§ 

13 

929 

153  § 

18 

929 

§§ 

20,21 

845 

§ 

22 

854 

101  s 

152  ■ 

561 

220  § 

I 

23 

§ 

1  subd 

1 

107,  280 

subd 

3 

36 

221  § 

1 

23,31 

§ 

6 

889 

223  § 

9 

900 

S 

10 

902 

903,  909 

§ 

11 

40 

270 

7 

393  §§ 

11-24 

88 

404  § 

67 

46 

405  t>§ 

68,  69 

46 

§ 

70 

46 

447  § 

1 

433, 528 

§ 

2 

433 

44!)  § 

17  92, 

405 

433,  435 

452  §§ 

32,33 

669 

500 

557 

608  § 

95 

937 

609  §§ 

97,98 

941,944 

§ 

104 

922 

610  § 

105 

929 

61S  § 

35 

907 

620 

904 

636  § 

27 

903 

L. 
L. 


V.  Laws  (Session  Laws). 
1813  c.  92  §  2 


1830  c. 

230 

§ 

17 

c. 

320 

§ 

18 

§ 

19 

§ 

21 

§ 

23 

1837  c. 

460 

S 

1 

§ 

1  subd 

§ 

11 

§§ 

12-15 

§ 

17 

§ 

18 

§ 

19 

§ 

24 

§ 

34 

§§ 

38.  39 

«§ 

63,  64 

§ 

65 

8 

70 

§ 

71 

§ 

72 

§ 

1  t 

c. 

460 

S 

61 

1840  c. 

80 
318 

c. 

e. 

386 

§ 

40 

107 


575 


284 

254 

299 

7 

9 

566 

109 

,280 

95 

89 

210 

872 

241 

338 

255 

747 

,  892 

891 

902 

23 

701 

8S 

36 

428 

222 

903 


page 

1841  c.  129 89 

c.  261 2'^-^ 

1843  c.  172 701 

c.  177  §  4  3 

1844  c.  104  §  1  891 

§  2        575, 891 
c.  300  §  6  7 

1845  c.  115  §  2  071 

§  4  072 

1846  c.  74 222 

c.  274 

1847  c.  80  S§  1,2 
c.  1.33  §  10 
c.  276  §  8 

§  14 
c.  280  §  45 

c.  298 

c.  4.50 

c.  470  §  46 

1848  c.  40  §  12 

c.  200 

c.  319  §  6 

1849  c.  308 

e.  375 

1850  c.  82 700, 

§  1 
c.  1.50  §§  1,2 
e.  272  §  1 
c.  295 

1851  c.  108  §  1 
1853  c.  238  §  1 

1855  0.  432 

c.  547 64,  669, 

§  1 

1856  c.  147  §  4 

1857  c.  82  §  3 
c.   576 

1858  c.  187 

<•.  213 

c.  314  §  1        307. 


1859  c.  261  §  2 

1860  c.  90 

c.  360 

1862  e.  172 

S  ti 

1863  c.  362  §§  3,4 

§  8     441, 813 
c.  358  §  27  subd.  4 
c.  466  §  1 

1864  c.  71  §  12 

1865  c.  592  §  5 

c.  7.33 

1866  c.  115 

§  1 

c  1.3() 

c.  1 55 

c.  656 

c.  802  §  1 

1867  e.  Cu^^ 

c.  722  §  8 

c.  782 690. 


416 

587 

1 

3 

87 
701 

66 

58 
527 
691 
226 
527 
691 

02 

26 

741 

764 

566 

4 

43 
222 
670 
693 
316 
700 
671 
428 

17 
,434 
435 
535 
691 
224 
691 
865 
254 
904 
316 
269 
335 
316 

36 
929 
764 
586 
814 
428 
316 
422 
903 
694 


XVI 


Table  of  Statutes  Cited. 


L.  1867  c.  782  §  1 
§  2 

255, 
§  3 
§  4 
§  5 
§  6 
§  11 
§  12     259, 

1868  c.  513 

1869  c.  22 

§  1 

c.  260 26, 

c.  845 

c.  855  §  7 

1870  c.  20  §  1 

c.  74 

c.  277 

c.  359  §  1 

§  2 

§  6 

§  8 

§  9 

§  11  132,210, 

§  13 

1871  c.     32 

c.  239  §  1 

c.  335 

§  5 
c.  482 

§  1 

§§2,3 
c.  859  §§  5,6 

§  7 

§  8 

1872  c.  92 

c.  120 

c.  141 

c.  358 

1873  c.  19 

c.  79 

§  1 

c.  211 

c.  225  §  1 
c.  335  §  38 

c.  552 

c.   821 

c.  830  §  10 

1874  c.  127 

c.  261 

c.  267 

c.  470 

1875  c.  38 

c.  336 

c.  542 

1876  c.  118  §§  1.2 

c.   448 

c.  449  §  5  subd.  9 

1877  c.  31 

c.  HI 

e.  401  §  4 

c.  416  §  1 


PAGE 

764 

70, 109 

288, 299 

164,  165 

164, 165 

254 

286 

290, 691 

290, 691 

671 

64, 670 

192 

700, 702 

701 

16 

3 

35 

428 

888 

58 

32, 690 

42, 196 

904 

874, 925 

333 

865 

17 

307 

308, 325 

360 

764 

1 

2 

3 

9 

702 

671 

671 

671 

433 

254 

255 

701,710 

389 

314 

917 

428 

673 

917 

671 

440 

398 

672 

671 

388, 424 

100 

25 

921 

587, 706 

671 

18 

25 


PAGE 

1877  c.  456 313 

1878  c.  129 702 

1879  c.   248 428 

c,  311 9 

c.  316 42 

c.  389 741,846 

c.  406 337 

1880  c.  231 734,813 

c.  245 4,  17,  88 

197, 255,  855 

§  1  26 

.   §  1  subd.  2  270 

§  1  subd.  24  58 

§  1  subd.  52  921 

§§  2,4,5  734 

c  561 427 

1881  c.  319 226 

c.  654 369,750 

1882  c.  124 307,325 

c.  185 266,418 

c.  340 54 

c.  410 307,323 

§  216  314 

§  218  323 

§  219  309, 315 

§  220  316 

§  221  309, 317 

§§  222-224  309,318 

§  225  316 

§  226  308 

§  227  318 

§  228  319 

§  2.30  309, 319 

§  231  317 

§  232  317 

§  233  308, 317 

§  234  318 

§  235  319 

§  237  310 

§  239  322 
§  239  subd.  14   315 

§  240  323 

§  241  317 

§  242  310 

§  244  315, 324 

§  245  324 

§§  246,247  316 

§  824  587 

§  827  587 

§  1178  317 

§§  1758-1761  46 

§  2143  3 

1883  c.  65  §§  1,  2  480 

c.  229 943 

c.  309 2 

c.  397 586 

1884  c.  65 588 

c.  133 57 

c.  309 14.28 

c.   408 266 

c.  490  §§1,2,4  9 

c.  530  §  5  14 


Table  of  Statutes  Cited. 


XVI 1 


L.  1884 

c. 

c. 
c. 

530  §§ 

s 
§ 

537 .  . . 

6,  7,  8 

9 

10 

1885 

3(57 .  . . 

f. 

425 .  . . 

e. 

c. 

483 .  . . 
51(i.  .. 

1880 

c. 

I(i4... 

1887 

c. 
c. 
c. 

37(5... 
630. .. 
701.  .. 

c. 

703... 

673, 

c. 

713 

§ 

2 

1884 

c. 
c. 
c. 

307 .. . 
454... 
479... 

1888 

c. 

c. 

495 

571... 

1889 

c. 

42... 

c. 

400  § 

2 

c. 

479... 

c. 

487... 

1890 

c. 
c. 
c. 

62... 
155.  . . 

' 

160... 

•c. 

173  § 

§ 

1 
2 

c. 

329... 

c. 

398... 

c. 

456.  . . 

1891 

c. 
c. 

215.  . . 

284... 

1892 

c. 
c. 
c. 

c. 

25.  .. 
295 

399.  . . 

410  § 

237 

c. 

514... 

c. 

591... 

c. 

618  § 

3 

c. 

627 .  . . 

c. 

642... 

§ 
§ 
§ 

2 

4 

c. 

677  § 

3 

c. 

686. .. 
§ 
§ 

220 
222 

c. 

c. 

713.  . . 

1893 

100.  .. 

c. 

175... 

c. 

248  §§ 

73,74 

c. 
c. 

252 . . . 

452 .  . . 

c. 

586.  .. 

c. 

686... 

254 
531 
676 

c. 

701... 

PAGE  1 

21 

22 

13 

5H() 

14, 83  1 

842 

575 

001 

844 

2 

586 

398 

399 

117 

674 

080 

575 

579 

591 

575 

865 

575 

259 

510 

671 

398 

584 

307 

434 

850 

35 

206 

222 

673 

398 

2 

585 

524 

575 

581 

72 

222 

509 

575 

320 

129 

98 

2 

115 

3,6 

2 

3 

13 

107 

20 

2 

20 

586 

516 

842 

865 

57 

775 

480 

510 

307 

511 

546 

,  552 

775 

,799 

813 

72 

,586 

PAGE 

1893  c.  701  §  1  224 
c.  704 605 

1894  0.  109 2 

c.  118 (;«) 

c.  211 U 

c.  307 4.-)7 

<••  421 775 

c.  503 287 

c.  688 84 

c.  731 101,  115 

c.  735 711 

c.  740 434 

1895  c.  510 366 

c.  525 734 

e.  531 64,669 

•c.  544. 15 

c.  595 32,719 

c.  796 85 

e.  827 307,314 

c.  934 3,274 

c.  946 9,  84,  119 

1896  c.  272  §  18  231 

§  51     842,86.5,867 

§  52  866, 867 

§  53  845 

§  54  .   836 

§  60  28, 63 

§  (i4  674, 680 

c.  508  §  232  605 

c.  547 165,486 

664,  669 

'  §  5  671,672 

§  6  671 

§  7  672 

§  27  219 

§  46  64, 670 

§  51  220 

§  53  221 

§  56  415 

§  76  219 

§  83  774 

§  85  479 

§  91  418 

§  92  361 

§  93  224 

§  146  415 

§  150  480 

§  151  480 

§  154  415,482 

§  176  690 

§  181  622 

§  182  622 

§  184  452 

§  192  388, 424 

§  210  230 

§  214  560 

§  215  482, 560 

§  232  434 

§  280  666, 673 

§  289  64 

§  292  64 

§  294  64 


11 


XVIU 


Table  of  Statutes  Cited. 


PAGE 

L.  1896  f.  553 480 

e.  570 57,111 

c.  908  §  4  subd.  7  58() 

§  220  576, 578 

§  221  583,  585,  580 

§  225  009 

§  227  591 

§  228  594 

§  229  260, 201 

§  230  577,  593,  595 
600,  601 

§  235  610 

§  236  606 

§  242  577 

c.  993 715 

1897  c.  37 678 

c.  104 98 

c.  177 288 

c.  232 20 

c.  284 576,578 

593, 605 

c  378  §  1585  314 

§  1608  3 

§  1609  3 

c.  408 28,674,680 

c.  417  §  2  219 

§  3  220 

§  4  220 

§  5  659 

§  7  434, 435 

§  8  418 

§  9  509 

§  83  486 

c.  492 863 

c.  701 98 

1898  c.  88 577,578,583 

c.  230  §  2  314 

§  3  314, 323 

§  4  309,  315,  316 

§  5  316 

§  6  309,317 

§  7  309, 318 

§  8  318 

§  9  318 

§  10  316 

§  11  308 

§  12  318 

§  13  319 

§  14  323 

§  15  309,319 

§  16  317 

§  17  317 

§  18  316,317 
§  19   53,  59,  307,  318 

§  20  219 

§  22  310, 320 

§  23  310, 320 

§  24  322 
subd.  15    931 

§  25  323 

§  26  317 

§  27  310 


PAGS, 

L.  1898  c.  230  §  28  310 

§  29  324 

§  31  314 

§  32  324 

§  33  31G 

c.  319 677 

1899  c.  76 600 

c.  480 307,311 

0.  498 28 

c.  725 669 

1900  c.  120 109 

c.  306 20 

c.  382 ■  587 

c.  501 307,311 

c.  510 14,27 

c.  552 842 

c.  572 57 

c.  658 596 

c.  759 207 

1901  c.  21 326,333 

c.  141 271 

c.  101 20 

c.  173 260,261,576 

577,  594, 601 
609, 610 

c.  291 224' 

•c.  410 678 

c.  443 842 

c.  458 583,585,580 

c.  466  §     1585  314 

e.  481 069 

c.  505 20 

c.  524 369,370 

c.  540 208 

1902  c.  114 206 

c.  150 418 

c.  151 418 

c.  360 842 

c.  496 595,601 


VI.  Code  of  Peocedure. 


Section 


102 
317 


457 
463: 


VII.  Code  of  Civil  Procedure. 

Section          2 1 

subd.  20  6 

15 666,894 

22-24 52 

27 4 

30 4 

46 6 

49 6 

50 6,    59 

51 6 

55 ."JR 

61 14 

90 14 

100-107 882 

190  subd.  3  191.643 

194 944 


Table  oi'  Statutes  Cited. 


xi\ 


Section 


I'AOE 

0  70 

591 

223 

607 

230 

597,  600 

231 

.5i»7 

232 

601,  604,  60.-) 

262 

265 

203 

736 

280 

665 

288 

667 

200 

666 

292 

670 

293 

670 

294 

670 

295 

671 

317 

540 

373 

61 

376 

892 

382  subd.  0 

197, 457 

subd.  7 

457, 892 

383  subd.  4 

458 

391 

457 

392 

457 

399 

50, 124 

402 

456 

403 

457 
697 

410  subd.  1 

414 

458 

416 

49 

424 

50 

431 

56 

432 

56 

436 

55 

437 

55 

438 

55 

440 

56 

444 

57 

449 

459 

450 

70,  109 

451 

56 

452 

74 

474 

381 

475 

381 

484  subd.  8 

460, 929 

505 

460 

506 

461 

523-526 

110 

524 

60 

721-730 

87 

755 

72,  450 

758 

527 

763 

537 

765 

72 

766 

72,310,728 

779 

894 

784 

929 

785 

458 

87 

796-802 

796 

59 

797  subd.  1 

389 

798 

389 

802 

59 

803 

90 

Section 


PAGIT 

803-809 . .  . 

87 

810-816. .  . 

931 

810 

30.-> 

811 

365,  307 

812 

.  .  300, 308,  309 

750 

813 

300 

816 

308 

828-84 1 . . . 

80 

828 

124 

829 

.  .  124, 479  530 

833 

128 

8.34 

128 

835 

1-^H 

8.36 

.  128,  129,  1.30 

841 

139 

842 

.  .   14,110,253 

712 

842-851... 

80 

844 

253 

852-809..  . 

80 

•870 

90 

870-886... 

87 

871 

90 

885 

90 

887-913 

87,  90 

921-962... 

80 

933 

303 

901 

10.  21 

992 

82 

99.S 

84 

999 

940 

1003 

723 

1018 

790 

1019 

84,  915 

1023 

84 

1146 

94r> 

1180 

13 

11S9 

13 

1191 

13 

1204 

13 

1210 

557 

1200 

402 

1282 

37,  40 

1283 

462 

1284 

402 

1290 

37.  40 

129.3-1323.  . 

938 

129.-) 

928 

1297 

462. 92S 

1298 

40->  <.1-'S 

1299 

4ti2.  920 

1.303 

!)30 

1305 

931 

1.300 

932 

1.308 

932 

1309 

932 

1310 

932 

1312 

404 

1310 

922 

1317 

i,-)-> 

1337 

943 

XX 


Table  of  Statutes  Cited. 


PAGE 

Section    1344 935 

1353 935 

13(i5 5(i4 

1309 564,896 

1371 563 

1376 462 

1379 566 

1380 555,566,567 

568 

1381 756 

subds.  1,2      568 

1384 732 

1385 732 

1386 732 

1390 706 

1395 706 

1396 706 

1397 706 

1398 706 

1399 706 

1400 706 

1401-1404. ...       706 

1434 732 

1435 732 

1436 732 

1447 431 

1537 43 

1596-1625...         28 

1652 431 

1666 846 

1670-1674...        710 

1679 846 

1759-1760...         66 

subd.  3        690 

1814 458,461,563 

565 

1815 460 

1817 459,461 

1818 252,459 

1819 647 

1820 647 

1822 32,529,534 

535, 719 

1823 413,461,563 

1824 460,523,563 

647 
1825 495,524,564 

648 

1826 524,564,565 

648,  755 
1827 495,  566,  647 

648 
1828 72,310,456 

728 

1829 564 

1830 456 

1831 460 

1832 401,403,810 

812 

1833 402 

1834 402 

1835 542.543,545 


PAGE 

Section    1836 446,  542,  543 

544, 545 

1837 634 

1843 699 

1844 701 

1861 43,197,276 

subds.  1,  2    96,  100 

1862 96 

1863 97,249 

1864 97,200,206 

1865 197,200 

1866 42,  97 

1867 96,100 

1868 64,192,635 

670 

1869 •       269 

1880 18 

1881 18 

1882 18 

1883 19 

1884 19 

1885 19,  20 

1886 18 

1888 18 

1891 19 

1892 18 

1893 495 

1902 430,433 

1903 430 

1916 446 

2266 893,897 

2268 897 

2209 898 

2277 898,901 

2280 898 

2281 898 

2283 898 

2284 898 

2285 898 

2339 324 

2345 431 

2345-2348...        354 

2440 393 

2457 393 

2472 24,26,27,410 

subd.  1  247 
subd.  2  343 
subd.  3  36 
subd.  4  31 
subd.  7         835 

2473 26,727,882 

886 

2474 26,137,284 

727,  883,  888 

2475 283 

2475-2477...        918 

2476 103,106,247 

260, 273,  281 

283,  305,  329 

702 

subd.  3         753 

2477 108,283,305 


Table  of   Statitks   Citkd. 


XXI 


Section 


PACE 

2478 

107,  200, 408 

Section 

2479 

3 

24Sn 

3 

2481 

24,34,881 
880 

subd.   1 

49 

suhd.  2 

110 

sul)(l.  3 

80, 109,  295 

subds.  4, 

5       835, 800 

subd.  0 

341,880,880 
914,919,938 

subd.  7 

80, 893 

subd.  8 

11,    51 

subd.  9 

11,200 

subd.   11 

24 

2482 

35, 131 

2483 

4 

2484 

8,9,    10 

248.-) 

9,    10 

248() 

9 

2487 

8,9,    10 

2488 

10,11,    17 

2489 

11,    40 

2490 

4,    11 

2491 

12 

2492 

1,8,9,11,    17 

94!);i 

20, 393 
12 

2494 

249.5    

7 

2490 

7 

2497 

7 

2498 

15, 893 

subd.  2 

253,  303 

subd.  5 

352 

2499 

15, 352 

2500 

10,  305,  308 

2501 

21,    22 

2502 

13 

2503 

207 

2504 

3,      5 

2505 

2,      5 

2500 

5 

2507 

4 

2508 

12,    13 

2509 

13,    14 

subd.  5 

305 

2510 

14 

2511 

14 

2512 

15 

2513 

15 

2514 

264,  765 

subd.    1 

280,  917 

subd.  2 

101,4283,383 

subd.  3 

00. 100, 109 

435.437.535 

570,711 

subd.  4 

195 

subd.  5 

342 

subd.  0 

204.  705 

sulwi.  9 

/O.) 

subd.  IC 

►                  298 

PAGE 

2514   subd.   11      08,  109.  ;J27 

349, 393, 773 

778 

subd.   12  05,  112 

subd. 13  100,  107 

2515 900 

2510 49,  .50,  51 

2517 '>0 

2518 53,  55,    02 

112,714,8.39 
918 

2519 52,290,717 

2520 53,110 

2521 55 

2522 55,    50 

2523 55,  112,  29(i 

717 

2524 56 

2525 57 

2520 54 

2527 54, 75,  381 

2527-2530...  75 

2528 50,57,    59 

111,116 

2529 58 

2530 110,381,840 

2531 54.110 

2532 72.132 

2533 00,118.788 

789 

2534 00,110 

2535 57 

2530 57 

2537 20.  47,    48 

2538 25,41,    59 

87,88,    90 
122. 737 

2539 89,122 

2540 89,121,122 

2541 15 

2543 16 

2544 124 

2545 80.82,204 

935. 937 

2540 32.83,    84 

85,  39t),  722 
790, 915 

2547 87.120.722 

941) 

2548 722.908,914 

940 

2549 723.908.940 

2550 893.921 

2551 8.30 

2552 505.574,872 

894. 923 

2553 504. 575.  895 

2554 504.575,890 

2555 575,840 

subd.  1-4  897 

subd.  4  895 


XXll 


Table  of  Statutes  Cited. 


PAGE 

Section    2556 396,  893,  894 

905,  914 

2557 914 

2558... 78.723.907 

908,910 
subd.  3         909 

25.59 909.915 

2.500 908,916 

2561 78, 747,  909 

914,915 

2562 451,912,913 

2563 746 

2565 389 

2.567 21,  46 

2568 922,925 

2569 926 

2570 246,605,921 

922, 925 

2.571 922 

2572 929,935 

2.573 73,74.927 

2574 930 

2575 921,928,929 

930, 931,  932 

2.576 934,936 

2577 931,932,935 

2578 846,931,932 

2579 846,932 

2580 931,9.32 

2581 932 

2582 933 

2583 246,352,355 

861, 933,  934 

2584 ;.        932 

2585 935,944 

subd.  3         346 

2586 938 

2587 938 

2588 87,119,914 

941 

2590 247,253 

2591 268,302.876 

2592 268,301 

2593 267,331,371 

2594 253,275,844 

868 

2595 351,367 

2596 338,371 

2597 308 

2598 369 

2599 342,309,861 

906 

2600 309 

2601 342,  370,  801 

2002 411 

2003 247,354,355 

763, 860,  861 

2604 3.56,860 

'  2605 36,  .303,  338 

354, 450.  763 

760,801 


PAGE 

Section  2606 71,3.54,365 

372, 700,  701 

762,  765,  78(> 

851,  861 

2607 308 

2608 372 

2609 373 

2010 365 

2011 44,96,100- 

111,  132,276 

2612 lOO 

2613 93,100,2.52 

25.5,  277 

2614 51,  66,  109> 

110,111,247 
285 

2615 69,115,393 

2616 52, 115,  lis 

202, 393,  875 

2617 72,73,    95- 

113,115,  118 
916 

2618 95,117,120 

202 

2619 89,121,122 

2620 121,  122.  1.5fr 

205, 388 

2621 42,109,197 

2622 119.136,247 

2623 203,206,247 

2624 42,97,134 

211 

2626 872 

2627 875 

2628 94 

2629 13,204,205 

874 

2630 206 

2631 94,208 

2632 94,208 

26.35 206 

2636 249,  257,  2n 

868 

2637 258 

2638 253,348,378 

868 

26.39 251,252,270 

2U0 250 

2641 250 

2642 252,270,271 

2643 269,270.271 

274, 275.  309 

2644 274 

2645 258,275,351 

378,  379 

2647 40,95,241 

641 

2648 95,241 

2649 243 

26.50 244,656 

2651.' 244 

2652 245 


Txni.K  c)i-  Statl'tes  Citkd. 


PAGE 

Section    2053 240 

2a53a 98,340,872 

941 

2654 917,918 

2055 918 

2050 918 

2057 919 

2058 919,920 

2059 920 

2000 280,287,288 

289,290,291 
294,310,310 

2661 291,294,295 

299,918 

2662 291,294,295 

290, 329 

2663 295,290,297 

298 

2664 276,294,299 

300, 327,  370 
377 

2665 297,307,308 

309,310,312 

2666 298,307,308 

309,312,313 
314 

2667 275, 299.  300 

307,310,314 
351,370,377 

2008 307,313 

2669 288,310,325 

331 

2670 320,327,328 

330, 379 

2671 379 

2672 332,333,335 

392, 442,  655 

2673 331,334 

2674 331,334 

2675 333,335,711 

733 

2676 333 

2677 334 

2078 330 

2079 330,343 

2080 336 

2681 332 

2082 331 

2083 326 

2684 246,247,342 

895 

2685 271,299.337 

349, 495 
subd.  1,  2  344 

subd.  4  340.  8.>9 

subd.  5  347,  378 

subd.  6  348 

subd.  8  337,348 

2686 349,  .350 

2687 351,352 

subd.  3         378 
2688 355 


PAGE 

Section    2689 337,  352,  353 

759, 770 

2090 337,352,3.53 

2691 342 

subd.  1     337,  390 
subd.  3         390 

2692 303 

2693 303,  304,  .3.55 

379 

2694 211 

2095 207,  2.J0,  259 

2090 305,  .300 

2697 262, 379 

2098 201 

2699 202,379 

2700 203,004 

2701 204 

2702 263,711 

2703 207 

2704 207,259,802 

2705 2.59 

2706 9.'5,404.  405 

2707 309,  404,  405 

407 

2708 405,460,407 

2709 407,409.470 

2710 407,409,470 

471 

2711 389,390,409 

2712 384,385,424 

470 
subd.  4  385 
subds.  5,6,7  387 
subd.  8  389 
subd.  9     385.  389 

2713 398.399.470 

2714 390.391,392 

470. 024 

2715 343.384.392 

2710 392.390 

2717 32.00.322 

334, 484.  485 

495, 570, 049 

eubd.  2        648 

2718 4.57.495,524 

529, 537.  540 

542j  503 

subd.  1         570 

subd.  2     573,  053 

2719 415.  4S.->.  510 

520, 530.  552 

555, 550.  557 

623,  655. 057 

097 

2720 388.424 

2721 640.  041.04;< 

831 

2722 00.495.570 

573. 574. 048 
649. 053. 097 
698,  755,  756 


XXIV 


Table  of  Statutes  Cited. 


Section 


2723. 


2724. 
2725. 
2726. 


2727 


2728. 
2729. 


subd.  3 


2729-2732. 
2730. 


2731 . 
2732. 


subd.  9 
subd.  11 
subd.  13 
subd.  14 
subd.  15 


2733. 
2734. 


27.35. 
2736. 
2737. 

2738. 

2739. 

2741. 
2742. 
2743. 


2744. 
2745. 
2746. 


2747. 
2748. 
2749. 
2750. 


2751. 

2752 . 
2753. 


PAGE 

565, 655,  657 

697,  7.55 

401,766,831 

337,  7.55 

337, 354,  423 

747, 755,  765 

766,771.777 

785 

■"758,  771,  775 

777. 783,  784 

785, 852 

775,  776,  785 

786,787,788 

801 

514, 532,  758 

760,  787,  808 

809,  852 

437,  77.5,  783 

759 

338, 339,  441 

518. 788,  801 

813.  814, 815 

822.  823,  8.52 

33, 73, 338 

516,531,533 

676,679,776 

693 

693 

692 

64. 692 

64. 693 
694,  808 
852,  869 

290, 688,  691 

808 

783, 787 

338, 813, 822 

623,813,815 

869 

338,  3.39,  813 

823, 852 

415,531,533 

623, 799 

514, 852,  869 

877 

32,33,  67 

73,  518,  696 

698, 759,  794 

831,  833 

831,  8.52,  869 

832 

380, 658,  659 

661, 698, 833 

846 

833 

833 

703 

702,706,708 

709,711,715 

710.711 

712 

714,715 


672, 


PAGE 

Section    27.54 715,717 

2755 33,718,720 

721 

2756 721 

27.57 721 

2758 38,721,725 

2759 724 

subd.  4  703 

2760 726 

2761 726 

2762 723 

2763 730,731 

2764 730,731 

2765 725,728,731 

2766 728 

2767 729 

2768 729,738 

2769 731 

2770 72» 

2771 731 

2772 732 

2773 731 

2774 501,732 

2775 733 

2776 734 

2777 735 

2778 79,735 

2779 736 

2780 73ft 

2781 736 

2782 ,    737 

2783 737 

2784 26,702,718 

727 

2785 26,702,747 

2786 737,746 

2787 738 

2788 737,7.38 

2789 738 

2790 739 

2791 735,739 

2792 739 

2793 735,741,742 

subd.  4  908 

2794 742 

2795 740 

2796 741,846 

2797 744 

2798 48,422,562 

745 

2799 422,745 

2800 740 

2801 748 

2802 755,756,76.5 

814 

2803 756 

2804 648,657 

2805 658 

2806 6.58 

2807 767 

2808 771,777 

2809 784 


Table  of  Statutks  Cited. 


XXV 


PAGE 

Section    2810 

.  707, 770,  780 

2811 

.  787,808,815 

831, 833 

2812 

.   33,  540,  7!t4 

801,  s;iii 

2814 

.  .358,707,770 

2815. . 

207  35!)  3(iO 

382 

281() 

3(iO,  382 

2817 

3(iO,  382 

2818 

.  266,303.304 

417 

28H).  ...... 

355,  3.57 
357 

2820 

2821 

830, 842 

2822 

.  83G, 837, 838 

2823 

838,  83!) 
839 

2824 

2825 

840 

282(i 

838 

2827 

.  836,  837, 838 

839,  841 

2828 

837 

282!) 

840 

2830 

380, 844 

2831 

381,844 

2832 

858,  8(i0 

subd.  4 

[                    859 

2833 

860 

28,34 

800 

2835 

857 

28.30 

857, 858 

2837 

.  380,  837,  858 

2838 

862, 803 

283!) 

803 

864 

2840 

2841 

864 

2842 

848 

2842-2845.. 

80!) 

2843 

848, 850 

2844 

849, 850 

2845 

850 

2846 

847, 800 

2847 

800 

PACK 

Section    2848 851 

2849 850,851 

28.-)0 8.52 

2851 838,807 

2852 808,  809 

2853 .381,857,  80!> 

2854 381 

28.55 809 

28.50 809,870 

2857 870 

2858 381 

28.59 857,870 

2800 870 

2870 40 

3230 390,905 

3240 .54,S 

3240 462,  ,54.5,  547 

3251 908 

subd.  3  396,914 

subd.  4  914 

3256 905,908,91.5 

3271 403 

3278 905 

3304 46 

3.300 46 

3311 15 

3320 367 

3333 49 

3334 49 

3343  subd.  2  52 

subd.  3  G 

subd.  (i  123 

subd.  7  100 

subd.  15  8 

subd.  10  712 

3347 24 

subd.  0  72,  107 

subd.  9  !)21 
subd.   11   888.921,943 

subd.  13  904,905 

subd.  22  402 

3352 708 

3356 402 


TABLE  OF  OASES  OITED. 

(References  are  to  Pages.) 


Aaron,  Matter  of,  G7,  73,  334,  912,  913, 

914 
Abbett,  ilatter  of,  581 
Abbey  v.  Avniar,  229 
V.  Christv,  938 
Abbott,  Matter  of,  221,  822 

V.  Cunan,  2(i8,  876 
Abell  V.  Biadner,  414 
Abercioinbio,  flatter  of,   147 
Abernetliv  v.  Catlin,  (i29 
Ackels,  Matter  of,  187 
Acker.  Matter  of,  143,  G08 
Ackerman,  :Matter  of,  138,  847 

V.  Ackerman,  231,  943 
V.  Emott,   50G 
V.  Herrick.  473.  477 
Ackermann,  flatter  of,  219 
Ackley   v.    Dypert,    75,    208,    700,    702, 

713,  710.  738 
Adair  v.   Brimmer,  391,  480,  487,  488, 

402,  493,  806 
Adams,  Matter  of,  487,  911 

V.  Anderson,  639,  665 

V.  Becker,  98 

V.  Beekman.  231,  638 

V.  Brady,  539 

V.  Fassett,  699 

V.  Glidden,  796 

V.  Olin,  545,  623 

V.  Outhouse,  779 

V.  Perry.  222.  223,  225 

V.  Smith.  667,  670 

V.  Van  \'lecJ<,  510 

V.  Westbrook.  718 

V.  Winne,  185,  190 
Adee  v.  Campbell,  287,  676,  686,  696 
Adier,  Matter  of,  923 

V.  Davis,  537,  549 
Adsit  V.  Adsit,  622 
V.   Butler,  30 
Aherns,  :Matter  of,  592 
Ahrens  v.  Jones,  405 
Aiken  v.  Dunlap.  553 
Ainslie  v.  Radcliff.  555.  557 
Ainsworth  v.  Aldrich,  845 
Akelv  V.  Akelv,  526.  538 
Albert.  Matter  of.  153.  243 
Albrecht.  Matter  of,  425,  516   ' 
Alden  V.  Clark,  56G 

[xxv 


Alexander,  Matter    of,    138,    248,    650, 
866,  888 
V.  Greacen,  491 
Alger,  Matter  of,  187 
Allemann.  Matter  of,  83,  117 
Allen,  Matter  of,  275,  359,  397,  399,  639, 
783,  817,  936 
V.  Allen,  440 
V.  Bishop,  523 
V.  Dundas.  884 
V.  Ei<,'hmie,  .301 
V.  Kelly.  372,  380 
V.  Ketchum.  138 
V.  Public     Administrator,      128, 

169,  174,  177,  182,  909 
V.  Sanford.  700 
V.  Stevens.  224 
Allerton  v.  Lang.  476 
Alsop  V.  Southold  Savings  Bank,  474, 

478 
Alston  V.  Jones,  174,  246,  925 
Althause,  Matter  of,  583 
Altman  v.  Hofeller.  879,  880 

v.  Wile.   370,  489 
Altrock   v.    Vandenburgh,    186. 
Alton  V.  ^Midland  K.  Co.,  433 
Alvord  V.  Sherwood,  186 
Am.  Bible  Soc.  v.  Hebard,  647 

Church,  etc.,  Soc.  v.  Griswold  Col- 
lege,  619 
Geographical    Society    v.    Commis- 
sioners, etc.,  587 
Amer.  Seamen's  Friend  Soc.  v.  Hopper, 

.  175.  183 
Amcrman.  flatter  of,  901 
Ametrano  v.  Downs,  190 
Ames  v.  Downing,  402,  448,  494 
Anderson,  Matter  of,  164.  613,  764 
V.  Anderson.  97 
v.  Ap])leton.  873 
v.  Daley.  405 
V.  McCann.  549 
V.  Thompson.  429 
Andrade  v.  Cohen.  762.  851 
Andrews,    Matter  of.  142.  144,  G28.  836 
v.  Goodrich.  824 
V.  X.  Y.  Bible  Soc.,  618 
v.  Townshend.  837 
Angevine.  Matter  of,  352 

ii] 


XXVI  n 


Table  of  Cases  Cited. 


Angevine  v.  Angevine,  126 

V.  Jackson,  81 
Annan,  Matter  of,  843 
Annctt  V.  Kerr,  3(5.  373,  763 

V.  Teriy,  375 
Anonymous,  7r>8 
Anthony  v.  ]5ioiiwcr,  638 
Applegatc  V.  (aiiicron,  399 
Appleton  V.  Fuller,  186 
Arbogast,  Matter   of,  390 
Archer,  :Matter  of,  445,  498,  772,  807 

V.  Furniss,  572 
Arcularius  v.  Geisenhainer,  228,  229 

V.  Sweet,  218 
Arden.  Matter  of,  796 
Arkenburgh,  Matter    of,    30,   346.   445, 
450,  526,  532,  554,  795, 
802,  815,  881,  898,  932 
V.  Little,  442 
V.  Wiggins,  750 
Armstrong,  Matter  of,  71,  654,  883 
V.  McKelvey,  616 
V.  Moran,  636,  639 
V.  Warren,  866 
Amett,  ^Matter  of,  576 
Arnold,  Matter  of,  173 
V.  Arnold,  526 
V.  Haroun,  631 
Arnoux  v.  Pbyfe,  481 
AiTowsmith   v.   Arrowsmith,   673,   703, 

740 
Arthur  v.  Arthur,   190 
V.  Dalton,  615 
V.  Nelson,  815,  909 
Ashley  v.  Lamb,  572,  773 
Asinari  v.  Bangs,  113 
Astor,  Matter  of,  593,  595 
Atkins  V.  Kinnan,  702,  713,  727,  734 
Atkinson  v.  Barnard,  271 
V.  Striker,  350 
Atlas,  etc.,  Co.  v.  Smith,  567 
Attar  V.  Atkinson,  162 
Attorney-General  v.  Kent,  105 

V.  The  Minister,  etc., 

237 
V.  Reformed     Dutch 
Church,  237 
Atwood,  Matter  of,  799 
Auburn  Theo.  Seminary  v.  Cole,  626 

V.  Kellogg,  626 
Auken  v.  Kiener,  517 
Austen  v.  Varian,  898 
Austin,  flatter  of,   146,  654,  657 
V.  Munro,  279,  441,  492 
Averill  v.  Taylor,  408 
Avery  v.  Everett.  285 

V.  Smith,  544 
Ayrault,  flatter  of,  752,  767 
Ayres  v.  Trustees,  etc.,  227 

Babeock,  Matter  of,  504,  530,  554,  600, 
819 


Babeock  v.  Booth,  92,  406,  431 
V.  Lillis,  526,  570 
V.  Stoddard,  622,  633 
Babzer,  Matter  of.  532 
Baekes,  Matter  of,  223 
Backus,  Matter  of,  180 

V.  Kimball,  882 
Bacon,  Matter  of,  763 
V.  Bacon,  266 
Badger,  Matter  of,  914 
Baer,  Matter  of,  231,  638 
Baggott  v.  Boulger,  374,  529,  892 
Bagley  v.  Blackman,  148 
Baier  v.  Baier.  358 
Bailey,  Matter  of,  443,  902,  911 
v.  Briggs,  43,  216 
V.  Hilton,  37,  239,  240,  341,  872 
V.  Inglee,  751 
v.  Stewart,  37,  110,  886 
Bain  v.  :Matteson,  278 

V.  Pine,  456 
Bainbridge  v.  :\IcCullough,  809 
Baird,  Matter  of,   121 
Baity,  Matter  of.  39,  881 
Baker,  Matter   of.    176,    180,    181,   577,. 
802,  817,  825,  826,  882 
V.  Baker,  421,  901 
V.  Brown,  882 
V.  Disbrow.  513 
Y.  Woodbridge,  145 
Baldwin,  Matter  of,  251,  908,  944 
V.  Palen,  215 

V.  Smith,  210,  759,  798,  879' 
Ball,  Matter  of,  515,  618 
V.  Millar,  707 
V.  Slaften,  434 
Ballard  v.  Charlesworth,  347 
Balleis,  Matter  of,  586 
Balz  v.  Underbill,  441,  518 
Banfield  v.  Rumsey,  540 
Bank  of  California  v.  Collins,  527 
Fishkill  V.  Speight,  537 
Lansingburgh  v.  Crary,  387 
Poughkeepsie   v.    Hasbrouck^ 
526,  755,  871,  877 
Bankard,  Matter  of,  330,  339 
Banks  v.  Phelan,  237,  614 

V.  Taylor,  500,  845,  850 
v.  Walker,  64 
V.  Wilks,  488 
Banning  v.  Gunn,  411,  660 
Banta  v.  Willets,  181 
Banzer  v.  Banzer,  229 
Barber  v.  Barber,  136,  160,  188,  416 
V.  Brundage,  666 
V.  Converse.  296,  355 
Barbineau,  ^Matter  of,  169,  174 
Barbour  v.  De  Forest,  222 
Barclay  v.  ]\Iaskelvne.  229 
Barefield.  Matter  of.  812 
Barker,  Matter  of.  852 

V.  Laney,  29,  797,  895 


Taiili;   oi-  Cases   Citkd. 


XXIX 


Tiarkor  v.   Smith,  HIO 

V.   W  onds.  (i;{S 
I'arlow,  Matter  of.  r)l;5.  ;")77 

V.  Coflin,   1S() 
Karnes,  ^fatter  of.    128.   ISO.   187,   193, 
197.  :i94,  39,-),  439.  503,  oOfi, 
045,  7fl9.  770 

V.  Addy,  752 

V.  Barnes,  Goo,  G57 

V.  Hathaway,  421 

\.  Huson.  037 

V.  Underwood,  289,  091,  092 
Barney  v.  Saunders.  506 
Barras  v.  Barras,  800 
Barre,  Matter  of.  842 
Barrett,  Matter  of,  487 
Barrinfjer,  :\ratter  of.  04,  393 
Barrow  v.  Barrow.  044 
Barrv  v.  liovle.  103 

V.  Brown.  149.  185 
V.  Lambert.  257.  491.  492,  507 
Barstow  v.  Cioodwiii.  190 
Bartholick.  Matter  of.  119.  182 
Bartlctt.  Matter  of.  030.  S37,  840,  911 
Barto  V.  Tom])kins  Co.  Bank,  735 
Baseh,  ^Matter  of,  407 
Bascom  v.  Albertson.  225,  227,  797 
Baskin  v.  Baskin.  14().  148.  335,  503 
Batflielor    v.    P.atchelor.  274 
Bate  V.  Craham,  434.  751 
Bates  V.  llillman,  229 
V.  riulerhill,  500 
V.  Virolet,  003 
Battelle.  Matter  of,  018 
Battle,  ilatter  of.  899,  900 
Bauer  v.  Kastner.  29 
Baueus  v.  Barr.  374 

V.  Stover.  391.  398,  827,  899 
Baumann  v.  Mosely.  543 
Baumgras  v.  Baiimjiras,  025 
Baxter  v.  Baxter.  875 
Bay  V.  Van  Rensselaer,  929 
Bayeaux  v.  Bayeaux,  248 
Bayer,  Mutter  of.  84 

V.  Bhillips,  840 
Baylies  v.  Hamilton,  217 
Bavlis  V.  Swartwout,  573,  574 
i'.eacli.  Matter    of,    39,    124.    439,    450, 
485.  583,  882 
V.   Kin<j,  459 
Beak<'s.  Matter  of.  251.  273 
Beard.  Matter  of.  820 

V.  P.eard.  827.  830 
Ik'ardsley  v.  Ilotchkiss,  847,  806 
Beam.  Matter  of.  781 
Beams  v.  CJould.  375.  880 
Beck,  Matter  of.  125.  152.  052,  941 

V.  McOillis.  190,  028,  029 
Becker.  Matter  of,  75,  578 

V.  r.oelms,  242 

V.  llajier,  773 

V.  Lawton,  353 


Beckett,  Matter  of.  151 

V.  Place,  374 
Beckham  v.  Drake,  433 
Beddoe  v,  Wadsworth,  431 
Bedell,  IMatter  of,  155,  181 
V.  Barnes,  403 
V.  Carll,  478,  479 
V.  Clark,  470 
V.  Guyon,  017 
Bedlow,  Matter  of,  120,  128,   168,   177, 

178.   180,   181,  937 
Bcebe,  Matter  of,  404 

V.  Estabrook,  072,  695 
V.  Gritfinf,',  070 
Beecher  v.  Barber.  430 

V.  Yale.  223 
Beecker  v.  Beecker.  017 
Beekman  St.,  Matter  of.  435 
Beekman,  Matter  of,  435,  451 

V.  Bonsor,  227,  236,  278,  418, 

014 
V.  Vanderveer,  610,  658 
Beers,  Matter  of,  150 

V.  Shannon,  107,  260,  459,  886 
Behrle  v.  Sherman.  375 
Belchicr,  Matter  of.  487,  491 
Belden  v.  Meeker.  302,  885 

V.  Wilkinson.  072 
P.oldin^'  V.  Leichardt.  149 
P.elknap  v.  Waters,  49 
Bell,  Matter  of,  856 
V.  Champlain,  672 
V.  ilcMaster,  173 
V.  Pierce,  104 
V.  Warn,  025 
Bellinger  v.  Ford,  93,  454 

V.  Potter,  402,  646,  802 
Bellisheim,  Matter  of.  700,  735 
Belmont  v.  O'Brien,  417 
Bender,  Matter  of,  915 
Benedict,  Matter  of,  220,  494,  555 
V.  Arnoux,  481,  485 
V.  Caflfe,  546 
V.  Cooper,  14 
V.  Ferguson,  437 
Benjamin  v.  Dimmick,  030,  031 
V.  Ver  Nooy,  547 
V.  Welch,  217 
P.ennedict,  :VIatter  of,  499 
Bennet  v.  Bennet,  031 
Bennett,  Matter  of,  824,  825,  826,  839 
V.  Bennett.  127 
V.  Byrne.  841 
\.  Grain.  700.  718 
V.  Culver,  020 
P>ensen  v.  JIanhattan  R.  Co.,  874 
Benson,  Matter  of.  014.  090 
V.  Corbin.  231 
V.     Le  Roy.  502 
lientlev.  Matter  of'.  573,  581 
Herdeli  v.  Schell.  335 
Bergeu  v.  Valentine,  514 


XXX 


Table  of  Cases  Cited. 


P.orkolpy  v.  Kennedy.  376 

lienu's  V.  Weisser,  557 

]}ein}iard,  Matter  of,  898 

Bernsee,  Matter  of,  12(>,  158,  159,  181 

Bernstein.  Matter  of.  251,  353.  357 

Berrien.  Matter  of.  250,  300,  517,  575 

Berry,  :\Iatter  of,  597,  659 

Bertiiolf  V.  Carr.  545 

Bertine  v.  Hubbell,  908 

Berwick  v.  Halsey,  463 

Beste  V.  Burger,  426 

Betsinger  v.  Chapman,  66,  647 

Bettison,  Matter  of,  435     . 

Bettman,  Matter  of,  85,  934 

Betts  V.  Averv.  373 

V.  Betts,  233,  421,  445,  451,  618, 
811,   817,   818,   824,   826,   827, 
828 
V.  Jackson,  123,  189 
Bevan   v.   Cooper.   26,  29,   32,   36,   133, 
211,   212,    410,    572,    611,   615,   632, 
719,  793,  794,  799 
Bevier,  Matter  of,  817,  911 
Bevea,  Matter  of.  67,  625,  626,  770,  774 
Bible  Society  v.  Oakley,  249,  766 
Bick  V.  :Murphv,  370 
Bicknell  v.  Bicknell,  179 
Bidgood,  Matter  of,  399,  821 
Bidwell  V.  Greenshield.  409 
Bieder  v.  Steinhauer,  1000 
Bigelow  V.  Darol,   449 
V.  Tilden,  816 
Biggs  V.  Angus,  113 
Billar  v.  Loundes,  625 
Billings  V.  Baker,  673 
Bingham,  Matter  of,  704,  705,  710,  711, 
712,  714,  720,  899 
V.  Jones.  278 
V.  Marine  Xat.  Bank,  458 
Biolley.  Matter  of,  862,  864 
Bird.  Matter  of,  582,  584 
Birdsall,  Matter  of.  167,  181,  583.  584 

V.  Hewlett,  617,  640 
Bischoff  V.  Angle,  373 
Bishop,  Matter  of,  183 

V.  Bishop.  130,  636 
Bissell  V.  Bissell,  298 
Bisson  V.  West  Shore  R.  Co.,  232,  638 
Black,  Matter  of,  443,  504,  590,  698 

V.  Woodman,  304,   759 
Blackburn  v.  Crawford.  128 
Blackstone,  Matter  of,  581.  604 
Blackwood  v.  Darner,  183 
Blair,  Matter  of,  142,  153,  245,  328,  443, 

444 
Blake  v.  Barnes.  750 
V.  Blake,  820 
V.  Sands,  361 
Blakeney.  :Matt€r  of.  822 
Blancan]  Matter  of,  248 
Blanchard  v.  Nestle,  166,  175,  180,  183 
Blanck,  Matter  of,  287 

V.  Morrison,  272,  287 


Blank,  Matter  of,  309 

I'.Iaiivelt,  .Matter  of,  370,  425,  509,  514 

Blceckcr    v.    Lvnch,    70,    172,    174,    175, 

177,  181 
Bliss,  Matter  of,  582 

V.  Fosdick,  420,  474,  477 
V.  Olmstead,  644 
Bliven  v.  Seymour,  230,  632 
l?lood  V.  Kane,  413 

Bloodgood  V.  Bruen,  423,  518.  768,  798 
V.  Mass.  Ben.  L.  Assn.,  409 
V.  Sears,  441 
Bloom  V.  Burdick,  75.  700,  713,  715,  716, 

725.  888 
Bloomer  v.  Bloomer.  187,  192,  239,  478, 

070 
Blossom  V.  Barrett,  298 
Blow,  Matter  of,  425 
Board  v.  Board.  53,  59 

of  Domestic  Missions  v.  Mechan- 
ics, etc..  Bank,  476 
of  Foreign  Missions,  Matter  of, 

588 
of  Missions  v.  Scovell,  238,  797, 
79S 
Boardman,  Matter  of,  90,  119,  123,  223 
Bodine  v.  Brown.  231 
Bodle  V.  Hulse.  2.50 
Boell  V.  Schwartz.  184 
Boerum  v.  Betts.  .52.  .53.  59.  71 
Bogardus  v.  Clark.  71.  72.  872.  873,  874 
Bogart,  Matter  of.  160,  618.  910 

V.  Van   Velsor,   509,   754,   756, 
771 
Bogert,  Matter  of.  606 

V.  Furman.  385.  680,  687 
V.  Hertell.  415.  485 
Bohde  V.  Bruner.  507,  828 
Bollerman  v.  Blake.  64,  669 
Bolles,  Matter  of.  179 

V.  Bacon.  445.  636 
Boiling  V.  Coughlin,  859 
Bolt  V.  Rogers.  732 

Bolton,  Matter    of,    25,   484,   485,   560, 
603,  604,  608,  660,  766,  835, 
846,  943 
X.  Brewster,  884 
V.  Jacks.  51.  481 
V.  Jones,  423 
V.  Myers,  766 
V.  Schriever.  423.  876.  884 
Bonard,  Matter  of,  166,  175,  221,  227 
Bonati  v.  Welsch.  663 
Bond  V.  Smith,  528 
Bonfanti  v.  Deguerre,  67,  73,  779 
Bonnell  x.  Griswold.  4.56 
Bonner,  flatter  of.  179,  180 
Bonnet.  Matter  of.  639 
Bonnett.  :\Iatter  of.  51,  241,  243,  244 
Booth,  Matter  of.  87.  132,  142.  443 
V.  Ammerman.  044.  646,  824 
V.  Kitchen.  65,  72,  182,  239,  242, 
340,  938 


Tahi.k   oi'   Cases  C'itkd. 


Booth  V.  Tinionoy,  102,   110,   1.32 
j>onell  V.  llai{,'li,  22!» 
IJorrowe  v.  Corbin,  749 
Koriip,  Matter  of,  oTO 
IJosfh,  Matter  of.  182 
Hoskowitz  V.  Held,  4S0 
liostwick,  IVIiitter  of.  'u7,  847,  8."}2 
V.  Atkuis.  733,  845 
V.  ]?ca(li.  480    • 
Botsford,  Matter  of,  223.  039 

V.  Krake.  202 
]5ou(lon,   :\Iatter  of,  r)81 
Houphton  V.  Flint,  29.  ti23,  791,  799,809 
Boulle  V.  Tompkins,  494 
l?owditeh  V.  Ayraiiit,  618,  879 
liowen  V.  Tdley.   197 

V.  Sweeny,  875 
Bowers  V.  Emerson,  277 
Iknvman  v.  Tallman,  441 
Hown    V.    Su])renie    Conneil    of    Cath. 

Assn.,  429 
Bowne,  Matter  of,  75,  77 

V.  Lange,  797 
Boyoe,  Matter  of,  230 

V.  City  of  St.  Louis,  227 
Boyd,  Matter  of,  424,  (ilO,  789 

V.  Bigelow,  .541,  542 
Hover  V.  l^ecker,  3(),  38,  80 

V.  East.  846 
Boylan,  Matter  of,  770 
Bovle,  Matter  of,  290 
V.  St.  .John,  375 
Bovnton  v.  Hovt.  220 

V.  Laddy,   109,  446 
Bradhurst  v.  I'.radliiirst,  229 

V.  Field,  217 
Bradley,  ]\Iatter  of,   80,   242,   243,   244, 
441,  503,  518,  706 
V.  Bradley,  271,  272 
Bradner  v.  Faulkner,  387,  043 
Bradstreet  v.  Clarke,  94,  228 
Brady  v.  MeCosker,  340 

V.  McCrosson,  144,  153 
Brainerd  v,  Birdsall,  392 

V.  De  Gniei,  540,  550 
Hraker,  .Alatter  of,  723 
Brathwaite,  ^Matter  of,  003 
Bramhall  v.  Ferris,  233 
Bramley  v,  Forman,  374 
Brand,  Matter  of,  195 

V.  lirand,  128,  221 
Brandreth.  ^[atter  of,  577 
Brant,  :Matter  of,  105 

V.  TJvermore,  94 
V.  Wilson,  180 
Brater  v.  Hopper.  0!)9 
Bratt,  ]\Iatter  of,  020,  052 
Braunsdorf,  :\Iatter  of,   448,  499.  559, 
810 
V.  Braunsdorf,  423 
Brawlev  v.  Forman,   1000 
Ureevoit   v.   M'Jinisev,   301,   422,   482, 
723 


Brenfleck,  :Matter  of,  789 
Brennan,  Matter  of,  412 

V.  Lane,  412 
Breslin  v.  Smvtli,  30,  703 
Brett,  Matter' of,  013 
Brewster,  Matter  of,  OV,  318,  319,  048, 
054 
V.  Baleh,  374,  375 
15rick,  Matter  of,  23,  24,  37,  302,  421, 
830 
V.  Briek,  70,  107,  174,  170,  180, 

181,   887,  93(i.  944 
Pres.  Cliurch,  Matter  of,  421 
Bridge  v.  Swain,  719 
Bridger  v.  Pierson,  210 
Bridgewater  v.  Brookfield,  482,  732 
Brigg,  :\Iatter  of,  (i21.  870 
Briggs,  ^Matter  of,  155 
BrinckeriiofF  v,  Bostwiek,  751 

V.  P.rinekerhoff,   135 
Brink  v.  Gould,  475 
V.  Layton,  418 
V.  :Ma'sterson,  033 
Brinker  v.  Loomis,  547 
Brissell,  Matter  of,  155 
Bristed  v.  Weeks,  179,  182 
Brittin  v.  Phillips,  20,  29,  616 
Britton  v.  Lorenz,  128 
Brockett  v.  Bush,  403,  528 
Brockway  v.  .Jewett,  907,  927 
Brolide  v.  Bruner,  809 
Brondey  v.  Miller,  207 
Broinmer,  [Matter  of,  103 
Bronner,  ]\Iatter  qf,  759,  770 
Bronson,  Matter  of,  32,  248,  516,  570, 
581,  937 
V.  Bronson,  360,  451 
V.  Wavd.   754,  929 
P.rookrnan,  :Matter  of,   193 
Hrook.s,  Matter  of,  429,  577,  633 

V.   Brooks,  532 
Broome  v.   Van   Hook,   492,   499,   512, 

518,  782,  799 
Broughton  v.  Flint,  84 
Brewer  v.  Bowers,  230,  298,  768 
Brown,  Matter  of,  30,  72,   125,  217.  270, 
271.  272,  451,  487.  491,  007. 
773.  7<'«,  805,  825,  8.32,  912 
V.  Brown,  7,  93,  190,  259,  408, 

455,  877 
V.  Burlingham,  007.  008 
V.   Chest ernian,   508,   514 
V.  Clark,    140,    152,    157,    191, 

194,    195 
V.  De  Selding,  149,  150,  153 
V.  Evans,  927 
V.  Harris,  219 
\.  Houck,  751 
V.  Knai)p.  043,  044.  047 
V.  Landon.  208.  876 
V.  London,  259 
V.  Lvneh.    104.  837 
V.  Lvon,  217,  230 


xxxu 


Table  of  Cases  Cited. 


Brown    v.  Nicholson,    G17 
V.  riielp.s,  ()5;J 
V.  Public  A(hn"r,  557 
V.  Richtcr,  039 
V.  Spraf^iio,  072 
V.  Toncy,   Ki!).  170.  174 
V.  Whoeier,   877,  878 
Bro^^^le,  Matter  of,  525,  571 
V.  Bedford,  791,  847 
V.  Lange,  534 
Brownell,  Matter  of,  516,  045 
Browning  v.  Vandorhoven,  375,  904 
Bruce,  ]\ratter  of.  005,  752 

V.  Griscom,  094 
Bruen,  Matter  of,  01.  097 

V.  Gillet,  489 
Bruin  v.  Knott,  847 
Brundage,  Matter  of,  598 

V.  Brundage,  215,  611 
V.  Rust,  781,  783 
Brunor,  Matter  of,  171,  181,  938,  941 
Brush,  Matter  of,  175,  170,  220 

V.  Holland,  123,  174,  181 
V.  Smith,  824 
V.  Wilkins,  192 
Bryan  v.  Stewart,  492 
Bryant  v.  Bryant,  434 

V.  Thompson,  926 
Buchan,  Matter  of,  136,  175 

V.  Rintoul,  70,  335,  772,  788, 
789,  790 
Buchanan  v.  Belsey,  98 
Buckland  v.  Gallup,  458,  911 
Buckley,  Matter  of,  104,  166,  181,  182, 
924 
V.  Buckley,  386 
Bucklin  v.  Bucklin,  219 

V.  Chapin,  518,  536,  538,  541 
V.  Ford,  457 
Buckhout  V.  Fisher,  151 
V.  Hunt,  548 
Bucknam  v.  Brett,  51 
Buckout  V.  Hunt,  523,  524,  546 
Buckwell,  Matter  of,  136,  194 
Budlong,  Matter  of,  78,  108,  909,  922. 
941 
V.  Clemens,  441 
Buel,  Matter  of,  149,  411 
BuflFalo  Catholic  Inst.  v.  Bitter,  330 

L.  &  T.  Co.  V.  Leonard,  010,  635 
Bulkley  v.  De  Pevster,  130 

V.  Redmond,  42,  189,  198,  297, 
342 
Bull,    Matter    of.    355,    627,    7C4,    907, 
908,  909,  943 
V.  Kendrick,  88 
V.  Wheeler,  108 
Bullard,  Matter  of,  577,  932 
V.  Benson,  022,  807 
Bullock  V.  Bogardus,  525,  547 

V.  Downes,   229 
Bumstead  v.  Read,  884 


Bunce,  Matter  of,  193 
V.   Bunce,  070 
V.   \'an(lergrift,  255 
Bundy  v.  Bundy,  230,  486,  626 
Hunn  V.  Vaughan,  418 
I'.uinicll  V.  Ranney,  762,  906 
lUmner  v.  Storm,  416 
Burdin  v.  Williamson,  167 
Burdsall,  Matter  of,  630 
Burger,  v.   Burger,  81,   934,   935,   936, 
943 
V.  Hill,  42,  45,   134,  174,   183, 
184,  204 
Burhans  v.  Haswell,  194 
Burk,  Matter  of,  158,  255 
Burkard  v.  Crouch,  879 
Burke,  Matter   of,    120,    1.50,    181,   182, 
207 
V.  Nolan,  150,  158 
V.  Valentine,  073 
Burkhalter  v.  Norton,  516 
Burling,  Matter  of,  277,  766 
Burmester  v.  Orth,  841 
Burnfett,  Matter  of,  788,  924 
V.  Gould,  546 
V.  Noble,   126,  439 
Burnham  v.  Comfort,  185,  191,  628 

V.  Harrison.  722 
Burr,  Matter  of,  581 

V.  Sherwood,  603 
Burrill  v.  Boardman,  228 

V.  Shell,  018 
Burritt  v.  Silliman,  124,  125,  140,  150, 

174,   182,  416 
Burt  V.  Burt,  70,  411.  417,  764,  772 
Burtis  V.  Brush,  846 

V.  Dodge,    504,    644,    826,    902, 
903 
Burton,  Matter  of,  191 

V.  Burton.  452,  071 
Bur  well  v.  Shaw,  778 
Busch  V.  Busch,  751 
Bushnell,  Matter  of,  848,  854,  855 
Butler,  Matter   of.   68,   391,   408,  420, 
437,  450,  498.  501,  505,  506, 
.507,  511,  584,  762 
V.  Benson,  144,   149,   153,  155, 

174,  177,  182 
V.  Boston  &  Albany  R.  R.  Co., 

463 
V.  Butler,  229 
V.  Emmett,  711 
V.  Hempstead,  564,  572 
V.  Johnson,  518,  718,  769 
V.  Perrott.  286 
V.  Townsend,  421 
V.  Trustees,  etc.,  223,  224 
V.  Walsh,   414 
V.  Weeks,  420 
Button  V.  Mr.uroe,  513 
Byrnes,  INIatter  of.  049,  859 
V.   Baer.  233 
V.  Dibble,  298 


Table   ok   Casks   CnKD. 


Cadv.  Mattor  of.  2.').-),  .301 

Cadnius  V.  Oakley,  88,  124,  125,  120 

Cadwoll  V.  Colf,'aU',  880 

Caper,  Matter  of,  ()0() 

Cahan,  Matter  of,  2:J7 

Cahen,  ]\Iatter  of,  !)38 

Cahill  V.  Russell,  481 

Cain,  IMatter  of,  0.').) 

Cairns  v.  Cliaubert.  4ol,  020.  820 

Callafjlian,  Matter  of,  709,  745 

Callahan.  :\Iatter  of,  32,  536,  780,  783, 

844,  922 
Callan,  ^Matter  of,  901 
Calanan  v.  McClure.  537 
Callanan  v.  Clement,  475 
Calver  v.  Calyer,  410 
Caiiieron.  Matter  of,  285,  293,  297,  342, 

618,  021 
Cannnann  v.  Canimann,  824 
Camp,  Matter  of,  72.  770,  851,  852,  853 
V.  Camp,  G30 

V.  Fraser,  90,  420,  408,  470 
V.  Smith,  040 
Campbell,  Matter  of,  87,  119,  178,  193, 
194,   211,   215.   338,   509, 
705,  718.  734,  709,  941 
V.  Briien,     335,     570,     572, 

754,  757,  758 
V.  Cowdrey,  043 
V.  Harding,  229 
V.  Jennings.  278 
V.  Logan,    24,    20,    33,    37, 
119,    145,    150,    152,   872, 
880,  880 
V.  ]Mackie,  449,  021. 
V.  Purdv.  430.  449.  483,  771 
V.  Rawdon.  228,  230,  232 
V.  Renwick,  719 
V.  Thateher.  23,  34 
V.  Tonsey,  409 
Canfield  v.  Crandall,  245,  690 

V.    Fallon.  230 
Cant,  Matter  of,  509 
Capron.  ^Matter  of,  584 
Carberrv  v.  Fnnis.  014 
Card,  .\iatter  of.  175 
Carey.  ^Matter  of,  41.  105,  465 
Carhart,  Matter  of.  53 

V.  P.laisdell.  544 
Carle  v.   Underliill.   74,   114,   135,   150, 

195 
Carland.  Matter  of,   182 
Carman.  :\Iatter  of,  451,  819.  820,  854. 
855 
V.   Brown.  425.  708 
V.   Coles.  831.  846 
Carnes  v.  Piatt.   128 
Carney  v.  Pernheimer.  403 
Carpenter  v.  Carpenter.  501 

V.  Bonner.  233.  278,  483 
V.  Historical    Soc,    73,    227. 
228 
Carr,  Matter  of.  0.32 
iii 


Carr    v.  Bennett,  043,  645 
V.   Smith,  (ilS 
\.  'Ihompkins.  38 
Carroll   v.  Carroll,  205 

V.  Collins.  28,  673 
V.  Hughes,  802,  809,  829 
V.  Norton.  145.  154,  174,  181 
Carter  v.  Harnum,  549 
V.    I'.eekwith.  549 
V.    Hoard     of     Kdueation.     220, 

039.  042 
V.  Hunt,  228 
Carver,  Matter  of,  104,  182,  188 
Carey,  Matter  of,  143,  148,  151,  157 
Cary  v.  Dooley,  491 

V.  Gregory,  491 

Case,  Matter  of,  153 

V.  Abeel,  502 

V.  T«\vle,  938 

Casev,  Matter  of,  556,  557 

V.  f;ardiner,  250,  294 
Casoni  v.  .Terome,  275,  354,   374,   375, 

763 
Catlin  V.  St.  Paul's  M.  E.  Church,  586 

V.  Trinity  College,  586,  587 
Caujolle  V.  Ferrie,  204.  298 
Cauifield  v.  Sullivan.  112,  194,  623 
Cant  field  v.  Sullivan.  132 
Cavanagh.  ^Matter  of.  800 
Cavin,  IMatter  of,   259 
Caw  v.  R()l)ertson.  125,  205.  019 
Center  v.  Finch,  844 
Chabot,  iSIatter  of.  570 
Chaffee    v.    Baptist    ^fiss.    Convention, 

145,  150.  151.  158.  100.  103.  928 
Chalker  v.  Chalker,  439.  478.  914 
Cliaraberlain,  Matter  of.  387,  937 

v.  Chamberlain.  132,  225, 

228.  (i03 
v.  Dunlop.  493 
v.  Cleason,  499 
V.  Tavlor,  704 
V.  Williamson.  433 
Chambers  v.  Chambers,   181 

V.  Cruikshank.  412 
Champion,  ]\ratter  of.  039 

V.  Williams,  484 
V.  P.aldwin.  004.  670 
Champlin  v.  C]i:inii)lin.  482 

V.  Seelier.  474 
Chanipnev  v.  Blanchard.  472 
Chandler".  :Matter  of.   148 

V.   X(irthro|i.   702 
Chanler  v.   X.   V.   Elevated   R.   R.   Co., 

483 
Chapman,  iMalter  of.  128.  183.  184,  494 
V.   Fish.   259,  341 
V.  Moulton,  231 
V.  Rodgers.  43.  98 
V.  Tibbets.  845.  846 
Chardavovne.  Matter  of.  575 
Charlick's  Estate.  29 
Chase.  Matter  of.  330 


Table  of  Cases  Cited. 


Chase  v.  Ewinfr,  G04 

V.   i^ord,  527 
Chatficld  V.  llfwlott,  31,  443 
Chauncey,  ]\Iattor  of,  82 
Checney  v.  Arnold,  155 
Cheney  v.  Arnold,  298 

V.  Price,  174 
Chesebroujxh,  Matter  of,  586 
Children's    Aid    Society    v.    Loveridge, 

124,  125.  166,  174,*  175,  176,  181 
Childs,  Matter  of,  402,  503,  515,  532, 

810 
Chipnian,  Matter  of,  703 

V.  Montgomery,     215,     216, 
749 
Chittenden,  IMatter  of,  73,  78,  588,  846 
Chouteau  v.  Suydam,  516 
Christie,  Matter  of,  278 
Christy  v.  Libbv,  44,  749,  767 

V.  Clarke,  936 
Chrystie  v.  Phvfe,  217,  229,  636 
Chuck,  Matter  of,  785 
Church  Charity  v.  People,  589 
Church,  MatteV  of,  840 
V.  Olendorf,  709 
of  St.  Monica  v.  Mayor,  etc., 
587 
Churchill  v.   Prescott,  256,  300,  800 
Chwatal  v.  Sclireiner,  231 
City  of  Johnstown  v.  Wade,  942 
Rochester,  flatter  of,  705 
V.  Smith,  705 
Clapp,  Matter  of,  878 

V.  Brown,  300.  423 

V.  Byrnes,  223 

V.  Clapp,  495 

V.  Fullerton,  171,  172,  173,  183, 

930 
V.  Meserole,  277.  633,  834 
Clapsaddle,  Matter  of,  532 
Clark,  Matter  of,  84.  85,  119,  120,  181, 
187,    189,    266,    278,   489,    504, 
507,   516,   557,   574,   580,   600, 
612,   730,   762,    847,   910,  915, 
939 
V.  Bogardus,  625 
V.  Butler,  643,  645 
V.  Clark,  222,  423,  490,  501,  532, 

626,  846 
V.  Coe,  530 
V.  Corwin,  549 
V.  Fisher,  177,  183,  873 
V.  Ford.  73,  647,  769,  778,  782 
V.  Kingsley.   187 
V.  Leupp,  625 
V.  Montgomery,  846,  866 
'  V.  Poor,  96 

V.  Post,  547 
V.  Sawyer,  340 
V.  Schell,  182 
V.  Smith,  187,  188 
V.  Todd,  520 
Clarke,  Matter  of,  526,  572 


Clarke     v.  Bogardus,  624 

V.   Davis,    174,    175,    179,    181^ 

183 
V.  Clarke,  500,  554 
V.  Cummings,    138 
V.  Sawyer,  106,  174 
Clarkson  v.  Clarkson.  514.  012 
V.  De  Peyster,  506 
V.  Root,  548 
Clason  V.  Lawrence,  014 
Clausman,  Matter  of,  103,  179 
Clauss,  Matter  of.  795 
Clav  V.  Wood,  229 
Clayton,  Matter  of,  709,  782 
V.  Lord  Nugent,  230 
V.  Warden,  298,  397,  523,  939 
Clemans,  Matter  of,  387 
Clements,  IMatter  of,  847 

V.  Babcock,  222,  226,  621 
Cleveland,  Matter  of,  132,  179 

V.  WHiiton.  25,  569,  721 
Clifford  V.  Morrell,  418 
Clift  V.  Moses.  705,  706 
Clinch  V.  Eckford.  449,  816 
Cline,  Matter  of,  180 
Clinton,  Matter  of,  819,  824,  825,  82G 

V.  Hope  Ins.  Co.,  428,  500 
Clock  V.  Chedeagne,  697,  698,  774 
Clocke  V.  Igglesden.  744 
Close  V.  Eldert,  622 

V.  Shute,  767,  773 
Clowes  V.  Van  Antwerp.  853 
Cluff,  Matter  of,  930,  932,  935 
V.  Day.  834 
V.  Tower,  40.  50 
Clute,  Matter  of,  251,  270,  273 

V.  Gould,  445.  820 
Coakley  v.  I.Iahar.  846 
Coale  V.  Coale,  940 
Coates  V.  Cheever,  59 
Cobb,  Matter  of,  583 

V.  McCormack.  650 
Coburn,  Matter  of,  132 
Cochrane  v.  Hawver.  519,  561 

V.  Ingersoll,  899,  944 
Cockey,  Matter  of,  602 
Cocks,  Matter  of,  488 

V.  Haviland,  09,  488,  647,  651 
Codding  v.  Newman,  250,  251 
Coe,  Matter  of,  175,  926 
V.  Coe,  541.  542 
V.  Irvine.  t)70 
Coev,  Matter  of,  386 
Coffin,  Matter  of,  17,  47 

V.  Coffin,  127,  151,  154,  176,  178, 
179,  182,  183 
Cogan  V.  McCabe,  231      ' 
Coggshall  V.  Green.  256.  299.  346 
Cogswell,  Matter  of,  333,  577 

V.  Cogswell.  559.  612,  646 
Cohen,  Matter  of,  143.  329 
Cohn,  Matter  of,  434,  442,  592 


Table  of  Cases  Cited. 


Coit  V.  Grey,  C73 

V.  Patchc-n,  1(56 
Colburn  v.  Lunsinj,',  428 
Cole  V.  Gouilay,  95 
V.  Niles,  l)3'J 
V.  Tei|K'iiiiiiij,s  'JIG 
V.  Wado.  2lii) 
Coleprove  v.  Horton,  350 
Coleman,  Matter  of.  128,  129,  130 
\'.  Coleman,  554 
V.  Van   Rensselaer,  5G0 
Coles,  :Matter  of,  930 
Colhoun,  Matter  of,  597,  G08 

V.  Jones,    180,    181 
Collamer,  Matter  of,  911,  915 
Collier  v.   Idlev,   14(t,   141,  241,  244 

V.  Munn,  449 
Colligau  V.  MeKernan,  18G 
Collin  V.  Collin,  232 
Collins,  Matter  of,   143,   144,  419,  423, 
G38 
V.  15eebc,  575 
V.  Collins,  477 
V.  Hoxie,  232,  445 
V.  Stewart,  409 
V.  Wavdell,   7G9 
V.  Wilcox,  G13 
Collistcr  V.  Fassitt,  GIG,  G20 
Collver,  Matter  of,  209,  429,  447,  788 
V.  Collver,  189,  197,  198,  504. 
908.  910 
Colored  Orphans  v.  Mayor,  etc.,  587 
Colson  V.  Brainard,  721 
Colt  V.  Lasnier,  485 
Colton,  flatter  of,  327 

V.  Ross,  134,  340,  872,  88G 
Columbia  Ins.  Co.  v.  Stevens,  55G 
Columbus  \\ateh  Co.  v.  Hodenpyle,  492 
Colvin  V.  Young,  G15,  616,  618 
Colwell,  IVIatter  of,  29,  653,  796 
Combs,  Matter  of,  645 
Comey  v.  Clark,  48 
Coniins,  Matter  of,  67.  393 
Comstock,  :Matter  of.  171.  172 

v.  Olmstead,  538,  548 
Conant  v.  Wright.  .363,  885 
Conaty,  Matter  of,  172 
Conboy  v.  Jennings,  144 
Concklin  v.  Taylor,  905 
Conklin  v.  Moore,  638 
Congregation,  etc.  v.  Sindrock,  4.36 
Congregational  Soc.  Matter  of.  569 

Church    of    (^utehogue. 

Matter  of.  G51 
Soeietv    v.    Kale,    132. 
228' 
Conkie  v.  Orisson.  231 
Conklin,  Matter  of.  818 

V.  Conklin,  473,  478 
v.  Egerton.  278,  418 
V.  Moore.  638 
Conkling.  Tifatter  of.  2(i3 
Conner,  Matter  of,  226 


Conner  v.  Watson,  622 

Connor,  Matter  of,   172,  178,  181,  G57, 

70G 
Conolly  V.  Pardon,  233,  237 
Conover  v.  lloll'man,  18(),  194,  4lG,  4Hl 
Consalus,  Matter  of,  788 
Constantine,  Matter  of,  868 
Converse  v.  Kellogg,  219 

V.  Miner,  540 
Conwav,  Matter  of,   142,   143.  .322 
Coogan,  Matter  of,  38,  39,  882 
Coogan  V.  Ockershausen,  704 
Cooley.  Matter  of,  29,  430 
Cook,  Matter  of,  30,  40,  796,  882 
V.  Lee,  846 
V.  Lowey,  222,  818 
V.  Ryan,  501 
V.  White,  118,  152,  194 
V.  Woodard,  743,  747 
Cooke  V.  IMeeker,  643,  644 

V.  Piatt.  278 
Coonlev,  .Matter  of.  912 
Coop,  Matter  of,  128,  174 
Coope  V.  Lowerre,  256,  299 
Cooper,  Matter  of,  420,  531,  817,  858, 
859 
V.  Benedict,  139,  163 
V.  BuiT,  476 

V.  Feller,  32,  535,  558,  572,  719 
V.  Heatherton,  186,  219 
V.  Illinois  Cent.  R.  Co.,  413 
V.  Remsen,  619 
V.  Weston,  413,  751 
Copley  V.  0"Xeil,  845 
Corbett,  :Matter  of,  570,  573,  583 
Corbin  v.  Baker,  512 

V.  Westcott,  850 
Cordier  v.  Thompson,  459 
Cordova,  IMatter  of.  863 
Corley  v.  McElmeel.  873.  875 
Corn,  Matter  of.  859 

V.  Corn.  S.39 
Cornelius,  Matter  of.   175.  226 
Cornell,  Matter  of,    181,  210,  248,  251, 
434,  5.55,  576,  577,  604,  781, 
783,  816 
V.  Cornell,  473 
V.  AVooley,  125 
Cornes   v.   Wilkin,   375,   525,   527.   528, 

535,  537 
Corning.  Matter  of.  580 
Cormvall.  Matter  of,  706 
Cornwcll  v.  Clement.  770 
V.  Coniwell.  330 
V.   Deck.    401.    4.39.    451.    498. 

499.  500,  515.  809,  831 
V.  Riker.   165,  ItiG 
V.  Woolev.  1,  123 
Correll  v.  Lauterbach.  482 
Corrigan  v.  Kiernan.  230.  HC)Ci 
C<)rse  V.  Chapman.  229.  481,  878 
Cortwright.  Matter  of.  54 
ICorwin,  Matter   of,  437,   711 


XXXVl 


Table  of  Cases   Cited. 


■Corwin    V.  :\rorritt,    25,    2G,    700,    713, 

710,   720 
Coryell,  Matter  of,  00,  72.  118 
Cosgriff  V.  Hudson  City  Sav.  Inst.,  477 
Cosgrove,  Matter  of,  198 
Coster  V.  Coster.  104 
Cotheal  v.  Cotheal.  193 
Cotter  V.  Quinlan.  518,  529 
Cotterell  v.  Brock.  347.  349.  351,  352 
Cottle  V.  Vandorheyden,  273,  289 
Cottman  v.  Grace.  227 
Cottrell,  Matter  of,  151,  158,  IGO,  943 
Couch  V.  Delaplaine.  748 
Coughlin  V.  Fa  v.  840 
Counrud,  ^Matter  of,  224 
Coutant,  Matter  of.  705 
V.  Schuyler,  473 
Covenhoven   v.  'Shuler,   228,   229,    626, 

627 
Cowdrev,  Matter  of.  572,  780 
Cox  A-.  ':McBurneT,  385 

V.  Sclieniierhorn,  823.  827,  927 
V.  Wisner.  232 
Cozine  v.  Horn.  273.  840,  841 
Crabb  v.  Young,  507 
Cragg  V.  Riggs,  626 

Craig  V.  Craig,  221.  357,  473,  481,  644 
Crain  v.  Cavana,  452 
Cram  v.  Cram.  816.  824 
Cramer.  Matter  of^  231 
V.  Bedell,  535 
v.  Cramer,  613 
Crandall  v.  Shaw.  327.  328.  330 
Crane,   Matter    of,    126,    158,    194,   222, 
224.  227.  618.  913 
V.  Decker.  415 
Crary,  Matter  of.  577 
Craver  v.  Jermain,  421 
Crawford,  :\Iatter  of.  820 

V.  Crawford,  762.  785 
V.  McCarthy.    613,    614,    615 
V.  Ormsbee.  540 
V.  "Winston,  411 
Creamer  v.  AValler.  60,  392 
Creely  v.  Ostrander,  174,  182.  183,   184 
Cregin   v.   Brooklyn   Crosstown   R.    R. 

Co.,  433 
Crerar.  Matter  of,  580.  592.  593 
Cridler  v.  Curry,  374.  376,  1001 
Crispell  v.  Dubois.  140,  177.  181 
Crocheron  v.  .Jaques,  619.  645 
Croft  V.  Williams.  487.  489 
Crolius  V.  Stark.  175.  939 
Cromer  v.  Pinckney.  229.  232,  236 
Cromnell  v.  Cromwell.  231 
Cromwell  v.  Kirk,  36.  845,  858 

V.  Pliipps,  735 
Croner  v.  Cowdrey.  191 
Cronkite  v.  Cronk'ite.  020 
Crosby,  ^Matter  of,  476,  502,  576 

V.  Wendell,  229 
Crosier  y.  Cornell   Steamboat  Co.,  268 
876 


Cross  V.  Long  Island  Loan  Co..  626 

V.  U.  S.  Trust  Co..  226 
Crossman,  Matter  of.  113,  355.  639.  764 
y.  Crossman.  59,  112,  188, 1S9 
Crouse,  Matter  of,  587 
Crowe  y.  Brady,  429 
Crowley,  Matter  of.  769 
y.  IMurphy,  456 
Cniger,  Matter   of,   131,   174,   180,  684, 
810 
y.  Halliday,  357,  417 
y.  Phelps. '620.  663 
Cruikshank  y.  Cruikshank,  548 

y.  Home   for    the   Friend- 
less, 228,  636,  639 
Crum  y.  Bliss,  263 
Crumb.  Matter  of.  113,  163,  836 
C.  S.  Trust  Co.  y.  Maxwell,  231 
Cudney  y.  Cudney,  174.  178,  179,  181 
Cullom.  Matter  of.  579 
Cumberland  y.  Codrington,  560,  561 

y.  Grayes,  94 
Gumming,  Matter  of,  257 
Cummings  y.  Banks.  263,  407 
Cunard,  IMatter  of,  465,  466 
Cunliffe  y.  Cross,   161 
Cunningham  y.  Burdell,  298 

y.  Parker,  619,  699,  705 
y.  Souza.  349 
V.  \Aliitford,  709 
Curren  y.  Sears,  225 
Currin  y.  Fanning,  213,  225,  226 
Curry,  Matter  of,  464,  468,  913 
y.  Keil.  846 
V.  Powers,  473 
Curser,  ]\Iatter  of,  289 
Curtis,  Matter  of,  598,  600 
y.  Dutton,  546 
y.  Stilwell,  572 
V.  Williams.  276.  377 
Curtiss,  Matter  of.   271,  352.  355,  359, 
587,  814,  820,  826,  828 
y.  Banus,  472,  477 
Cushman  y.  Horton,  230,  617.  797 
Cuthbert  y.  Babcock,  250 
y.  .Tacobson.  760 
Cutting,   Matter   of,  77,  250,  257,  299, 

359,  812 
Czech  V   Bean,  138    328,  330.  335,  876 

Da  Costa,  :\ratter  of.  588 
Dack  y.  Dack.   144.   149,   194.  9.39 
Daggett.  :Matter  of.  403 
y.  Daggett.  398 
y.  Mead,  544.  548 
Daily,  :\latter  of,  2.39 
Dakin  y.  Demming,  762,  814,  817,  854, 
883 
y.  Hudson,  25,  753 
Dale,  Matter  of,  150,' 158 

y.  Stokes,  90 
Dalrymple  v.  Arnold.  436 
Dalton  y.  Sandland,  529 


Taiu.k   oi-   Casks   Cit 


ED. 


XX.Wll 


Daly,   Matter  of.  003 
V.   Hwr,  till 
v.  ( Iiccuhcrii;.   230 
Dainaifll   \.  W  alUiT,  808,  870 
Daiuiiiart   \.  Oshuin,  1:52,  223,  227 
DaiiK.ii.  Matter  of,  934 
Dannitli    v.   I^eo,  (il(i 
Daniels,  Matter  of,  837 
Danser  v.  Jereiiiiali,  2'),  tiO 
Danzi^rer  v.   Deline,  481 
Darbv  v.  (oiulit,  4(13 
Darl.^y  v.  Darley.  174 
Darling  v.  Arthur,  146 
V.  Halsey,  548 
V.  Pierce,  (5 
V.  Powell.  491 
y.  Kofrcrs,  21  (J 
Darragh,  Matter  of,  908,  930 
Darrow,  Matter  of,  943 
V.  Calkins,  427 
Dates,  Matter  of,  112.  122,  168 
Daunat   v.  Jones,  496 
Davenj)ort.  :\Iatter  of.  30,  86.  210,  680, 

696 
Davids.   Matter  of,  705 
Davidson.  Matter  of,  894 

V.  Rose.  463 
Davies  v.  Skidniore.  922.  931 
Davis,  Matter  of.  175.  185.  210.  281.  519, 
576,    595,   600,   605,   607, 
803,   1024 
V.  Brown,  298 
V.  Clark,  937,  943 
v.  Cornue,  132 
V.  Culver,   175 

v.  Davis,  669,   670.   739,  744 
V.  Gallagher,  549 
v.  Kerr,'  237,  415,  417 
v.  Myers,  549 
V.  Skidniore.   895 
v.  Stover,  441,  461 
Davison,  :\Iatter  of,  132,  900 

V.  De  Freest.  385 
Davoue  v.  Fanning,  416 
Dawson,  IMatter  of,  839,  841,  842,  846, 

862 
Day,  Matter  of.  113,  190 

v.  Stone.  750 
Daygcr,  ^Matter  of,  152 
Davton  V.  Johnson.  300,  308,  338,  371, 

■  375 
Dean,  Matter  of.  434 
V.  Negley,  180 
Dearing,  Matter  of,  355 
Deas  V.  Wandell,  178.  179,  183 
De  Bauni,  ^Matter  of,  181 
De  Baun,  Matter  of.   127 
De  Bussierre  v.  Ilolladay.  43,  239.  340 
De  Castro.  Matter  of.  163 
Decker.  l^Iatter  of.   846.  853,   855,  856 
S57.  858 
V,  Elwood.  38,  881 


Decker    v.  Miller,  391.  416,  552.  750 
V.   Morton,  298 
V.   Waternian.  611 
Dedrich,  :Matter  of,  512 
Deegan  v.  Von  r;iahn,  337 

V.   Wade.  2 1  it 
De  Crano  v.  Moore,  699 
De  Forest,  ^Matter  of.  66.  775 
Degen.  Matter  of.  937 
De  Graaf.  :Matter  of.  597 

V.  Cochrane.  629 
De  GrofT  v.  Terpenning.   630.  631.   647 
De  Groot.  Matter  of.  189 
De  ITaas,  Matter  of.  145.  155.  241.  942. 

945 
Deitscli.  Matter  of.  264 
De  Kalb  Ave.,  etc..  Church  v.  Kelk.  550 
De  Kay  v.  Erving.  230 
Delabarre  v.  McAljjin.  750 
Delafield  v.  Barlow.  222 

v.  Parish.   139.   140.   165,   177, 

181,  185.  335.  926 
V.  Schuchardt.  765 
V.  Slii])inan.  222 
De  Laniater  v.  Havens.  935 
Delainater  v.  ^McCaskie.  442.  470 
Delaplaine.  Matter    of.    109.    120.    412. 
442 
V.  Lawrence.  731,  733.  925, 
926 
Delavergne  v.  Dean,  617 
Del.  &  Lacka.  R.  R.  Co.  v.  Gilbert.  494 
Delmott  V.  Taylor.  475,  478 
Delprat,  :Matter  of.  158 
De  ^larcellin.  Matter  of.  842 
Demarest,  ]Matter  of.  253,  489 

V.  Wynkoop.  431 
Demmert.  flatter  of.  297 

V.  Schnell.  176.  17S 
Demott  V.  Field.  441 
Denipsey.  :\Iatter  of.  250.  636 
Denehv  v.  McCloud.  463 
Denike.  Matter  of,  787.  803 
Denise  v.  Denise.  541,  543.  544 
Dennis  v.  Jones.  705.   712.  713.  716 
Dennett  v.  Tavlor.  143.  144 
De  Nottebeck'v.  Astor.  229.  611 
Denton,  :Matter  of.  231.  454.  879.  944 

V.  Sanford.  345.  511 
Deobold  v.  Oppeniiann.  505.  880 
De  Oraindi.  Matter  of.  924 
Despard  v.  Churchill.  240 
De  Pan.  :\Iatter  of.  269 
Depew.  Matter  of.  821 
De  Pevster  v.  Clarkson.  503.  846 

V.  Clendinning.      1.30.     232, 

264.  278.  417.  627 
V.  Ferrers.  815 
De  Pierris.  Matter  of.  752.  768.  778 
Deraisnies  v.  Deiaisnies.  499 
Derickson.  Matter  of.  843 

V.  Derickson.  843 
De  Russy.  Matter  of,  758 


xxxviu 


Table  of  Casks   Cited. 


Despard  v.  Churchill.  100,  132.  203.  204, 
420.  004 
V.  Walbridge,  29 
Detmold.  Matter  of,  554 
De   Veaux    College   v.    Highlands    Co., 

Oil) 
Devin  v.  Patehen,  902.  903,  923,  938 
Devoe,  IMatter  of.  05.  231,  662 
Dewey,  ^Matter  of.  579,  587,  614 
V.  Goodenough.  65 
V.  Mover,  30,  434 
Dewitt  V.  BarlVv.  173 

V.  Chandler,  228,  237 
V.  Yates,  (i22 
Devo,  Matter  of.  881 
V.  Morse,  099 
Diaper  v.  Anderson.   849 
Dickel  V.  Yates,  82 
Dickie  v.  Van  Vleck.  139.  176 
Dickins  v.  N.  Y.  Central  R.  Co.,  66 
Dickson.  Matter  of,  148 
Dietzel,  Matter  of.  936 
Diez,  Matter  of,  44,  113,  145 
Dill  V.  Wisner,  017 
Dilleher  v.  Home  L.  Ins.  Co.,  129 
Dillon.  :\Iatter  of.  894 
Dininiick  v.  Patterson,  018 
Dinsnian.  Matter  of.  579.  929 
Din'kelspiel.  ^Matter  of,  660 
Dinsniore.  Matter  of.  494 
Dippel,  Matter  of,  018 
Disbrow  v.  Disbrow.  361.  499,  500 
V.  Henshaw,  836 
V.  Mills,  17 
Dissosway,  ^Matter  of,  896 

V.  Bank  of  Washington,  788 
V.  Hayward,  564,  896 
Ditmas  v.  Baas.  639 
Dixon,  Matter  of.  165.  174.  941 

V.  Storm.  618.  640.  645 
Doane    v.    Mercantile    Trust    Co.,    421, 

639,  078 
Dobie  V.  Armstrong,  98.  167,  172,  178 
Dobke  V.   McClaren.   23.   37,   239,   886, 

936 
Dockstader.  Matter  of,  156.   157 
Dodge.  Matter  of,  82.  710.  747 

V.  ^Manning.  ()14,  617,  645 
V.  Pond.  221.  222 
V.  Cornelius.  155 
Dodin  V.  Dodin,  237,  073 
DodvA'orth  v.  Crow,  158 
Doe  V.  Provoost,  234,  236 
V.  Roe.  151,  153.  238 
Dohenv,  Matter  of.  554.  878 

A\  Lacy,  175,  179 
Dolan,  :Matter  of.  715,  716,  717,  726 
Dolbee  v.  Casev.  525 
Dole  V.  Irish.  284 
Dominick  v.  ]\Iichael.  278.  418 
Donlon,  Matter  of,  .39.  75,  241 
Donner.  ]\Iatter  of.   142 
Donohue  v.  Kendall,  499 


Doolev.  Matter  of.  482 
Doolittle  V.  Lewis,  259,  407,  408,  423 
Doran,  Matter  of.  536 
V.  Dempsey,  899 
Doritv  V.  Doritv.  405 
Dorhuid  V.   Dorland.  420,  622 
Dorman,  Matter  of,    168 
Doty,  Matter  of,  590 
V.  Hendrix,  226 
V.  Wilson,  812 
Doubleday  v.  Newton,  1.30.  232 
Dougherty,  Matter  of,  565 

V.  Thompson,  638 
Doughty  V.  Stillwell.  026,  628,  029,  676, 

683 
Douglas,    Matter   of,   37,   38,   335,   817, 
821,  878 
A'.  Hazen,   027 
V.  Low.  853 
V.  Mayor,  etc.,  104 
Douglass,  Matter  of,  787 
V.  Ferris.  375 
V.  Rowland.  375 
V.  Leonard.  442 
V.  Satterlee,  406,  490 
V.  Yost,  443,  445,  451 
Dow  V.  Dow.  302 
Down  V.  McGourkey,  904 
Downey  v.  Downey,  118 
Downing,  INIatter  "of.  030 

V.  Marshall,    380,    559,    614^ 

638.  639.  816,  902 
V.  Smith.  854 
Dows.  Matter  of,  602,  603 
Doyle  V.  Doyle.  467 
Dox  V.  Backenstose,  406,  564 
Drago  V.  Kavanagh,  403 
Drake,  Matter  of,  174,  180,  938,  941 
V.  Drake,  230 
V.  Gilmore,  66 
V.  Pell.  231 
V.  Price,  818.  824,  912 
V.  Wilkie,  769 
Dresser  v.  Dresser,  493 
Drexel  v.  Berney,  349 
Dreyer.  Matter  of,   123 
Drischler  v.  Van  Den  Tenden.  113 
Drowne.  Matter  of.  102,  272,  275 
Duane   v.   Page.   780 
Dubois  V.  Brown,  32,  209.  795.  832,  902,. 
931.  9.32 
V.  Dubois.  046 
V.  Rav.  218.  229.  618 
V.  Sands,  30.  463 
Duclos  V.  Benner.  058 
Dudley  v.  Griswold.  793 
y.  :\rayhew.  883 
Duell  V.  Alvord,  1016 
Duffy,  Matter  of.  282.  780 

y.  Smith.  08.  409.  753.  759 
Dugan  y.  Denyse.  840 
Duke  of  Cumberland  y.  Graves,  94r 
Dukelow  V,  Searles,  549 


T.viii.K   <)i-    Casks   Citfd. 


T)iimon(l  V.  KifT,  172 
Duncan,  Matter  of,  .388 
V.  DuTuan,  215 
V.  Gacst.  774,  780 
Dunc-klce  v.  Butler.   -)()!»,  ti22 
l)unf(.i(l   V.  Weaver.  :W,A.  S8!),  nO:{ 
Dunham.  Matter  of.  ()4!),  (wO.  (7J7,  709 
V.   Dcraisnies.  01") 
V.  Duiiliani.  174 
Dunkel,  Matter  of,  780,' 817,  828     . 
Dunn,  .Matter  of.  74.  203,  :i:r2,  4!);3,  557, 
793.  790,  927 
V.  Anieriean  Surety  (.'o.,  403 
Dunne    v.    American    Surety    Co.,    304, 

372 
Duniiiii^r  V.  Dunnin<r.  r.l3.  010,  033 

V.  Oci'an  Nat.  P.ank.  251,  278, 
3.")7.   418.  422,  4.50 
Dunseoml),  :\Iatter  of.  049 

V.  Dunseomb,  507 
Dunton  v.  Carter,  043 
Dupre  V.  Thompson.  210.  018 
DuPuv.  Matter  of.  574 

V.  Wurtz.   104.  105,  131,  003 
Durando  v.  Durando.  452 
Dur.scheidt,  :Matter  of,  399 
Durvea  v.  .Mackey.  442.  720.  880,  914 
Dus("'nl)ury,  Matter  of.  709,  745 
Dustan.  Matter  of,  51 

V.  Dustan.  019 
Dutcher  v.  Dutcher,  455 
Dutton  V.  Dutton.  807,  843 
Dwight,  Matter  of,  757 
Dwver,  Matter  of,  109.  180,  188 

V.  Wells.  025 
Dye  V.  Kerr,  518 
Dyer,  Matter  of,  352,  836,  837 
V.  Erring,  115,  185,  188 
V.  Erving,  195 

Eager  v.  Robers,  817 
Eagle  V.  Emmett.  138,  484 
JCakins,  Matter  of.  147 
Ean  V.  Snvder.  Kii),   170 
Earle,  ]Matter  of,  592 

V.  Earle.  487,  490 

V.  Metioldriek,  415 
Earlv,  flatter  of.  295 

V.  Early.  199 
East  River  Bank  v.  McCafTerty,  722 
Eastman,  Matter  of.  135,  446 
Easton.  ^Matter  of.   135 
Eaton  V.  Benton.  024 
Eberhardt  v.  Schuster,  047 
Eberle  v.  Seliilling.  375 
EcJcert,  :Matter  of,  204 

V.  Wilklow.  038 
Eddy.  ^Matter  of.  330.  388 

V.  Traver,  729.  743 
Edgerton.  Matter  of.  577 
Edington  v.  ^ifutual     Jfe  Ins.  Co.,  129 
Edmonds.   :\IaH''r   of,    530 
Edsall  v.  Wuterbury,  090 


Kdson,  Matter  of,  182,  589 
v.  Bartow,   223,   (}2l 
v.  Pars(in.,,  113.  ISo.  186 
Edwards,  Matter  of,  570 

v.  Edwards.  0!).  771 
EfTray  v.  Masson,  550 
Egan',  Matter  of,  339,  820 

V.  Pease,   100 
Egbert  v.  ^leGuire,  415 
Egberts  v.  Wood,  425 
Egerton  v.  Conklin,  228,  232 
Ehminne,  Matter  of,   174 
Ehrenreich  v.  Lictiienberg,  546 
Eichman,  Matter  of,  530 
Eilers,  :\Iatter  of,   181 
Eisner,   Matter   of,   33,   337,   338,   759, 
774.  800 
v.   Koehler,  020 
Klder  v.  Bogardus,  433 
Kldred  v.  Eames,  84,  540,  541 
Eldridge,  Matter  of,  000 
Elgin,  Matter  of,  255 
Elias,  Matter  of,  407 

v.  Schweyer,  3(i2 
Klkins.  :\ratter"of.  709 
Elliott  V.  Cronk,  535 

V.  Gibbons,  840 
v.  Eewis.  445 
Ellis,  Matter  of.  73.  80.  113.  209,  213, 
245 
V.  Filon.  545 
Ellsworth  V.  Fulton.  930 
V.   Hinton.  879 
Ellwood  V.  Xorthrup,  530 
Elmer,  Matter  of,  140 
Elmer  v.  Kechele.  255 
Ely,  Matter  of,   175 

y.  Taylor,  549 
Enians  y.  Hickman,  439 
Emanuel  v.  Ennis.  64.  070 
Kml)ree.  Matter  of,  018 
Embury  y.  Sheldon,  580,  038,  666 
Emerson,  ^Matter  of,  704 

y.  Bowers,    254,    256,    344, 

346 
y.  Spicer,  845 
Emery,  Matter  of,  253 
Emmet  y.  Emmet.  230 
Emmons  v.  Cairns.  219 
Eiulers  v.  Enders.  01 2 
Engelbrecht.  Matter  of.  350.  911.  915 
English  y.   Mclntyre,  08,  509.  513 
Ennis  y.  Pentz.  018 
Ensign,  :\latter  of,  60.  290.  690 
Enston.  Matter  of,  578,  580.  581 
Erlacher.  :\ralter  of,  439 
Eniiand.  Matter  of,  38 
Erwin  v.  Lojjer.  484,  529,  010 
Esi)ie,  Matter  of.  41.  880.  931 
Essex.  Matter  of.  478 
Esterbrook  y.  Gardner.   108 
Estes  y.  Wilcox.  30 
I  Ettenheimer  y.  HolTerman.  672 


xl 


Taiu.k  ok  Cases   Cited. 


Evans,  Matter  of.  30.  31,  175,  181,  92.j 
V.  Picrson,  521 
V.  Schoonmaker.  2G0 
Everinghani  v.  Vandorbilt,  556 
Everitt  v.  Everitt.   l!l!).  200,  219,  228, 

G17,  G38 
Everts    v.    Everts,    59,    110,    444,    451, 

753,  800,  803 
Evortson  v.  Evertson.  840 
V.  Tappen.  799 
Ewen  V.  Perriiic.  181 
Excelsior  Petroleuiij  Co.  v.  Lacey,  588 
Eyre  v.  Higbee,  427 
Eysaman,  Matter  of,  937 

Faburn  v.  Dimon,  540 
Facimdi,  ZSIattcr  of.  300 
Fagan  v.  Diigan,  178,  180,  183 
Fagnian  v.  Knox,  171 
Fan-brass  v.  Purdv,  223 
Faircbild  v.  Edson,  219,  226,  227 
Falls,  Matter  of,  81 
Fargo,  Matter  of,  482 

V.  Squires,  613.  617 
Farleish  v.  Cadman,  429 
Farlev,  Matter  of,  582.  585,  592 

V.  :\IcConnell.  295,  298,  3C2,  886 
Farmer  v.  Devlin,  478 
Farmers'  L.  &  T.  Co.,  :\Iatter    of,   420. 
909 
V.  Eno.  277 
V.  Ferris.      194, 

409.  618 
V.  Hall.  805,  806 
V.  Hill.  37 
V.  Hughes.     362 
V.  McKenna,  76 
Farnam,  ^Matter  of,  884 
Farnsworth  v.  Oliphant,  34,  858 
Farquharson  v.   Xugent.  609,  826 
Farrar  v.  Chauffetf-te,  386 
Favrell,  Matter  of.  93,  759,  845 
Farrington  v.  American  Loan  &  T.  Co., 
459 
v.  King,  702,  723,  727 
Farwell  v.  Tweddle,  514,  626 
Fattosini,  Matter  of,  288,  376 
Faulkner,  flatter  of,   93 
Fav,  Matter  of,  585,  590 

V.  Taylor.  278 
Faverweather.  :Matter  of.  586,  608 
Feehan.  :\Iatter  of,  897,  898,  900 
Feelev,  ^Matter  of,  75,  77 
Feely",  :Matter  of.  838 
Feig  V.  Wray,  463 
Fenn,  Matter  of,  716 
Fen  ton.  Matter  of,  167 
V.  Fenton.  622 
Ferguson  v.  Proome.  699,  700,  718 
V.  Cummings.  899 
V.  TTarrison.  68.  408.  409 
Fernbaoher,    Matter   of,    31,    246.    442. 
625 


Fernliaclicr      v.    Fernbaoher.    209,    625, 

627,  902,  931 
Ferrer  v.  Pyne,  797 
Ferrie  v.  Pub.  Administrator,  286,  298, 

695 
FerrJL'an.  Matter  of,  83,  345 
Ferrin  v.   :\Ivrick,   279,   436,   439,  441, 

492 
Ferris  v.  Brush,  844 
V.  Disbrow,  911 
V.  Ferris,  361 
V.  Nelson,  482 

V.  Van  Vechten.  107,  500,  507 
Ferry  v.  Sampson,  138 
Fetherly  v.  Waggoner,  200 
Fevre  v    Toole.  622 
Fidelity,  etc.,  Co..  Matter  of.  230,  484 
Field,  Matter  of,  600 

v.  Field.  525.  526,  535,  547.  549 
V.  Gibson.  408,  409,  493 
v.  Van  Cott,  301,  374,  375,  880 
V.  SchieflTelin,  414,  845,  846 
Fielding,  Matter  of,  708 
Fiester  v.  Shepard,  652,  774,  923,  924 
Figueira  v.  Taafe,  181 
Fillev,  Matter  of.  38.  50 
Finch  v.  Wilkes,  678 
Finciiam  v.  Edwards,  163 
Fincke  v.  Fincke.  C17 
Finlev  v.  Bent,  637 
Finn.'  Matter  of,  168,  184,  210 
First  Xat.  Bank,  etc.,  v.  Mortimer,  774 
V.  National,  etc.. 
Bank.  413 
First  Presbyterian  Soc.  v.  Bowen.  227, 
233 
Ch.     V.     :\rcKallor, 
225,  227 
Fisch,  Matter  of,  584 
Fischer,  Matter  of,  651 
y.  Fisclier,  697 
Fish,  Matter  of,  142,  643 
v.  Coster,  278 
y.  Crar.c,  546, 
Fisher,  IMatter  of,  220,  354,  706 
y.  Banta.  421.  638,  877 
v.  Bennett,  542 
V.  Clark.  134 

y.  Fisher.  129.  451,  493,  824 
y.  Hubbell,  647 
Fitch,  Matter  of,  595.  863,  864 

y.  Witbeck,  707,  711 
Fithian.    ^Matter   of.    84,    93,    762.    771, 

787.  788.  802 
Fitzgerald,   :Mattpr    of.    127.    142,    159, 
IfiO 
y.  Fitzgerald.  865 
Fitzmahony  v.   Caul  field.  454 
Fitzpatrick  a-.  Brady.  572 
Fitzsinions.  'Matter  of.  224 
Fitzsimmons.  ^Matter  of.  226 
Five  Points  House  of  Industry  v.  Am- 
erman,  617,  619 


Tablk  of  Casks  C'itku. 


xli 


yia-;<j:,  MaltcT  of,  8:> 
V.  Harbcck,  844 
V.   Kudcn,  535,  572 
Flanagan  v.  Fidelity,  etc.,  Co.,  .'572 

V.  Tincn,  5(iG 
KhiiKliosv,  Matter  <if,  1)3,  431,  454 

V.  Ilaiiiinond,  liS,   408 
Flansburgli,  Matter  vf.  1U5 
Fleiiiiiij;.  .Matter  of,  335,  GOO,  053 

y.   Pe()])le,  21)8 
Fletelier  v.   Ilunl.  ()21 
Flinu  V.  Cliase,  251,  302,  352,  431 

V.   Diefendorf,  518 
Flintham,  :Matter  of,  440 
Flint,  Matter  of,  570,  773 
Flood  V.  Cain,  478 
Florence  v.  Sands,  012 
Floyd  V.  Barker.  038 

V.   Fitelier,  018 
Flynn,  Matter  .jf,  37,  40,  881,  943 
V.  Croniken,  015 
V.  Diefendorf,   518 
F'oeliiior  v.  lluher,  091 
Vo<xi\l,  IMatter  of,  400 
Fo-r.,',  flatter  of,  045 
Foland  v.  Davton,  441 
Foley,  Matter  of,  223.  226,  707 

V.  E^an,  820,  854,  850 
Follett,  Matter  of,  119 
FoUs,  Matter  of,  124,  100,  174,  908 
Fonda  v.  Clia])niaii,  708,  709 

V.  Penfield,  417 
Fontain  v.  Kaveiiel,  227 
Foos,  Matter  of.  92 
Foole,  :\latter  of,  498 

V.  ]?rvi«rji:erliof.  010,  751,  820 
V.  Valentine,   930 
Forbes,  Matter  of,  184,  187 
V.  Chichester.  539 
V.  Halsey.  702,  713,  714,  733 
Ford  V.  Cobb,  38(i 
Foreman  v.  Foreman,  385 
Forman,  Matter  of,  133,  149,  100,  175, 
187,  189,  190.  199,  939 
V.  Lawrence,  571,  750 
V.  Smith,  178 
Forrest  v.  Mayor,  459 
Forrester,  IMatter  of,  588 
Forster  v.  Kane,  78,  909 

V.  Winfield.  021 
Forsyth  v.  Uurr.  394 

V.  Kathbone.  233 
Fort  V.  Cioo(lin<;-,  54(!,  548,  623 
Fortune,  Matter  of,  71 
Fosdick  V.  Dela field,  210,  249.  349,  405 

V.  Hempstead.  222 
Foster,   Matter   of,   (!7,    358,   411,   509, 
555,  025.  057,  658,  792,  803 
V.  Coe,  219 
V.  Foster,  73,  925 
V.  llawlev,  298 
V.  IMott,  841 
V.  Tvler,  927 


Foster    v.  \\'etmore,  .j07 

V.  Wilber,  51,  110,  753,  778 
Fotliergill  v.  J-oilu-rgill,  217 
Foulds,  Matter  of,  387,  424 
Fouiks  V.  Foulks,  7!J7 
Fountain  v.  Carter,  51,  244,  350 
Fowler  v.  Depau,  233 

V.   llebbard,  520 

V.  Lockwood,  33,  448,  451,  471, 

473,  475,  812 
V.  Kamsdell,  175 
Fox,  .Matter  of,  182,  227,  424,  700,  700, 
707 
V.  Burns,  397 
V.  Carr,  459 
V.  Fee,  95 
V.  Fox,  546 
V.  Lipe,  702.  728,  734 
Fraenznick  v.  [Miller,  780,  796 
Frame  v.  Willets,  789.  821,  824 
Francisco  v.   Fuch,  527.  528 
Frank,  Matter  of,  84,  802,  855,  858,  911 
Franklin.  Matter  of,  5.54,  823,  828,  830 
Fraser  v.  Ho<Tuet,  215 
Frazer,  :\[atter  of,  399,  797 

V.  Peoj)le,  593,  010 
Frear,  [Matter  of,  899 
F'redenburg    v.    Biddlecome,    541,    545, 

944 
Free]  and  v.  South  worth,  386 
Freeman,  Matter  of,  533 

V.  Coit,  21(),  435,  440,  938 

V.  Dutcher,  4()2 

V.  Freeman,    391,    505,    506, 

507.  511,  814,  829 
V.  Kellofrg.  348 
A'.  Nelson.  509 
Freligh  v.  Piatt,  385 
I'Vench,  [Matter  of,  209,  213 
Frey,  [Matter  of,  155 
Fricke,  [Matter   of.    108,  442 
Fried  v.  X.  Y.  C.  R.  E.  Co.,  432 
Friedell.  [Matter  of,  244 
Frink  v.  [Morrison,  5()0 
Fritts,  jMatter  of,  059 
Frost  V.  Brisbin,  104 
Frowe,  [Matter  of,  010 
I->v  V.  Smith.  078,  091 
Frye,  [Matter  of,  8 
Fuller,  Matter  of,  39,  213 

V.  Yates,  022 
Fullerton   v.  Jackson.  835,  805 
FiUton,  Matter  of,  37,  592 
V.  Andrews,   102 
V.  Fulton,  473 
V.  Whitnev,  512.  877,  878 
Fults,  Matter  of,  144,  195 
Furman  v.  Coe,  515 

V.  \an  Sise,  847,  807 

Gabriel,  [Matter  of.  911 
(iagan.  [Matter  of.   124.  1.30 
Gaines,  [Matter  of,  118,  131 


xlii 


Table  of  Cases  Cited. 


Gaines   v.  Fnontos.  45 

V.  Winthrop,   190 
Gale  V.  Wells,  84tJ 
Gall,  Matter  of,  192,  374,  5G9,  765,  877 

881 
Gallagher  v.  Brewster.  539 

V.  Crooks,  231,  676 
Gallavan  v.  Gallavan.  639 
Gallup.  :Matter  of,  941 
Galway  v.  Bryee,  231 
Ganiage.  Matter  of,  144 
Gamble  v.  Gamble,  151,  175,  183 
Gannon,  ]\Iatter  of,  167,  168,  940 

V.  :McGuire.  420 
Gano  V.  McCunn,  421 
Gansevoort  v.  Nelson.  530 
Gantert,  Matter  of,  704 
Gardiner  v.  Gardiner,  174 

V.  Raines,  147 
Gardner,  Matter  of.  533,  584,  637,  721 

V.  Gardner,  181,  788,  800,  808, 
927.  939 

V.  Hever.  232 

V.  Miiler,  415. 

V.  Printnp.  629,  638 
Garlock  v.  Vandervoort,  798 
(Taruiss  v.  Gardiner,  505 
Garrett  v.  Scouten.  620 
Garrison.  Matter  of.  829 
Garth,  Matter  of,  821.  877 
Gartner.  :Matter  of.  392 
Garvey  v.  McCue.  32.  302,  420,  719 

V.  Union  Trust  Co.,  225 
Gasquet  v.  Pollock.  658 
Gasten,  Matter  of,  628 
Gates,   Matter   of,   555,   567,   902,   903, 

907,  921 
Gazlev  v.  Comwell,  688,  689 
Geariis,  Matter  of,  802,  806 
Gednev,  Matter  of,  142,  385,  422,  745 
Gee,  Matter  of,  89 
Geer  v.  Ransom,  787 
Geerv  v.  Geen',  30 
Geis.'  Matter  of,.  26,  29,  795 
Geisler.  ^Matter  of,  625 
Geissler,  :Matter  of,  231 
Genesee  River  Xat.  Bank  v.  Mead,  30 
Genet  v.  Binsse,  530,  549 

V.  Tallmadge,  658,  845 
Geoghegan  v.  Folev.  868 
George,  Matter  of,*  346,  780,  796 
Georgi.    flatter   of,    72,    712,   713,   717, 

720,  728.  735 
Gerard.  :\Iatter  of.  645,  817 
Gerlach,  :\Iatter  of,  347 
German  Bank.  ^Matter  of,  711,  712,  713 
German  Savings  Bank  v.  Sharer,  745 
Gerould  v.  Wilson.  246.  374,  375,  763 
Gerow,  ^Matter  of,  505,  810 
Cxerry  v.  Post,   138 
Geseheidt  v.  Drier,  475 
Geyer  v.  Snyder,  512 
Gibbins  v.  Campbell,  215 


Gibbons  v.  Shepard,  787 
Gihbs  v.  Flour  City  Bank,  427 
(iibhardi.  Matter  of,   158 
Gibson,  Matter  of,  643 
Giddings  v.  Seward,  613,  629,  632 
Gihon,   Matter   of.   174.    179,    181,  591 

598.  933 
Gilbert,  Matter  of.  422.  820,  878,  923 
V.  Gilbert,  190 
V.  Knox,    145,    147,    149,    150, 

154 
v.  IMorrison.  640 
V.  Tavlor.  616.  617,  035,  650 
Gilchrist,  Matter  of.  310 

V.  Rea,  278,  707,  927 
V.  Stevenson,  629 
Giles,  Matter  of,  32 

V.  De  Talleyrand,  832 
Gill,  Matter  of,  367,  854 

V.  Brouwer.  796 
Gilleran.  :\Iatter  of,  260 
Gillespie,  Matter  of,  499 

V.  Brooks.  483,  516,  809,  810, 
817.  827 
Gillies,  Matter  of,  240 

V.  Kreuder.  894,  900 
Gilligan,  Matter  of,  67,  692.  773,  774 
Gillingham.  Matter  of,  349.  351 
Gilman,  Matter  of.  9,  40,  133,  143,  151, 
411,  516 
V.  Gilman.  5,  51,  105,  441,  443, 
447,  507,  630,  639,  651,  926, 
927,  940 
V.  McArdle,  691 
V.  Reddington,  220. 
V.  Wilber,  494,  526,  755 
Ginoehio  v.  Porcella,  523,  803 
Girvin  v.  Hickman.  844 
Glacius  v.  Fogel,  423,  488,  581 
Gladding  v.  Follett,  800 
Glaskin  v.  Sheehy.  756 
Gleason,  Matter  of,  345 
Glen  V.  Fisher,  617 
Glenn  v.  Buitows.  491,  492 
Gloucester.  IMatter  of,  186 
Glover  v.  Glover,  628 

V.  Holley,  754,  764 
v.  Mayor,  324 
Goddard  v.  Pub.  Adm'r,  325 
Godding  v.  Porter,  526,  543 
Godon.  ^Matter  of.  645 
Goetschius.  Matter  of,  425,  504 
Goetz.  :Matter  of.  616 

v.  Mott,  555 
Goldsmith  v.  Swift.  514 
Gombault  v.  Public  Administrator,  115, 

149.   150,   170.  174 
Goodell  V.  Harrington.  173 
Goodenow  v.  Livingston.  905 
Goodrich,  ]\ratter  of.  618 

V.  Russell.  4.52.  672 
Goodwin  v.  Coddington,  217 
V.  Crooks,  643 


Tahle  of  Cases  Cited. 


xliii 


fioodwin  V.  Xolvin.  704 

Gooseberry,  Matter  of,  287    297,   G80, 

Gordon,  Matter  of,  7!)7 
Gordon,  Matter  of,  428 
CJorhani  v.  Kipley,  54(5 
(Jorman,   Matter  of,  8(J 
(Joss,  Matter  of,  475 
Gott  V.  Cook,  210 
Gottsberger  v.  Smith,  30,  337 

V.  Taylor,  XiH,  371 
Gould,  :\ratter  of,  'lO.'),  285.  oOO,  r.98 
({oundrv,  Matter  of,  37(i,  300,  305 
Gouraud,  Matter  of,  242,  243 
Gourlev  v.  Campbell,  421 
Govan,'  Matter  of,  300,  376,  378 
Gove  V.  Hanis,  G6 
Govers.  IMatter  of,  70 
CJovin  V.  De  Miranda,  770 
Graber  v.  Haaz,  120 
CJraf,  Matter  of,  17G 
Graham,  Matter  of,   75,   155,   160,  448, 
452 
V.  De  Witt,  414 
V.  Dickinson,"  500,  748 
V.  Linden,  720,  727 
V.  Livinirston,  233,  421 
V.  Lnddinf^ton,  073 
V.  People,    128 
V.  Public  Adni'r,  GG2 
■Grant,  Matter   of,    332,    425,   489,   70G, 
810,  853 
V.  Grant,   150,  108,  200,  222 
Gratacap  v.  Phyfe,  73,  757,  778 
Grattan  v.  Metrop.  Life  Ins.  Co.,  129 
Graves,  jMatter  of.  58G,  587 
V.  Watemian,  511 
Gray,  Matter  of,  483,  5(i2,  905 
V.  Barton.  473,  475 
V.  Gray,  622 
V.  Murray,  815 
V.  Eyle.  400 
Greagan  v.  Buchanan,  512 
Greeley,  Matter  of,  73,  93,  109 
Green,  Matter   of,    163,    171,    177,    181, 
577 
V.  Green,  265,  357,  385 
V.  N.  Y.  Central,  etc.,  R.  Co., 

4.56 
V.  Sanders,  338,  339,  815 
Greenblatt  v.  Hermann.  714 
Greene  v.  Day.  32.  ti().  74.  832 
Greenhouf^h  v.  Greenhoufjh,  395 
Greenland  v.  Waddell.  278.  364 
Greenwood    v.  llolbrook.  679 

V.  SutelitVe.  220 
Gregory,  Matter  of.  57,  111,  112,  103 
Grev  V.  Grev,  472 
Gridley  v.  Gridlev.  616 
GrifTen  v.  Ford,  229 
Grifliu  V.  Ford.  228 

V.  Sarsficld.  841.  862,  866 


(Irillith  V.  Beechor,  .301,   421,  422,  431, 
903 
V.  Frazier,  884 
Grim  v.  Dyar,  218 
Griswold,  'Matter  of.  109,  185,  903 
V.  Chandler,  440 
V.  Griswold,  555 
Gioss,  Matter  of,  16.5,  181 

v.  Gross,  458,  4(il 

v.  Mathewson,   625 

V.  ]Moore,  447 
Grotran,  Matter  of,  614,  622,  705,  718 
Grout,  :M after  of,  447 
v.  Cooper,  (i22 
Grove,  jNIatter  of,  3()() 
Grubb  V.  Hamilton,  256,  348 
Grymes  v.  Hone,  472,  474,  475 
Guarantee  Sav.,  etc..  Co.  v.  Moore,  492 
(iuelich  v.  Clark,  l!tO.  615 
(iu^cl  V.  Vollmer,   187 
Guibert  v.  Saunders,  434.  751 
Guild  v.  Peck.  70.  754,  029 
Chiion  v.  Underbill.  105,  412 
(iuldenkirch,  flatter  of,  515 
(Julick  v.  (Griswold,   482 

v.  Gulick,  102,  400,  750 
fiulke  v.  Ublig.  458 
(Junninp:  v.  Lockman,  75,  904 
Guy  V.  Craighead.  (iS 
Gw'in's  Estate,  201 
Gwycr  v.  Gwyer,  216 

Haas  v.  Childs,  3.30 
Haberman  v.  Baker,  414 
Hackett,  ]\Iatter  of,  .591 
Hackney  v.  \'rooman.  472 
Hadden',  Matter  of.  ()13 
Iladdow  V.  Lundy.  751 
Haebler  v.  Fichler  Brewing  Co.,  620 
Hafner,  IXIatter  of,  636 
y.  Hafner.  618 
Hagan   v.  Sone.   174 
V.  Ward,  435 
A'.  Yates,  163.  178,  170 
Hagerty  v.  Andrews.  873 
V.  Hagerty.  SiW 
Haig.  Matter  of,  713.  714.  716 
Haight,  Matter  of.  210.  620.  817 

V.  Brisbin.  344,  345,  370,  373 
V.  Havt,  546 
y.  Pine,  217,  220.  645 
Haines  v.  Meyer.  371 
Halbert  Matter  of  165.  167,  180 
Hale,  Matter  of.  83.  758 

v.  Edwards.  544 
Haley.  :\ratter  of,  254.  306 
Hall" Matter  of.  163.  479.  488,  509,  515. 
570,    580,    (i02,    600.    787,    780, 
027.  043 
v.  Bennett.  526 
v.  Brennan.  543.  550 
y.  Brooks.  882 
y.  Campbell.  451,  814,  819 


xli\ 


Taki.k  of  Cases  Cited. 


Hall   V.  r)Tisoii1)OiTv.   ")70.  572 
V.   Hall,  4r)l,"(i71,  818 
V.  Partiidj-e,  709.  735 
V.  Thompson,  218 
V.  Tryon.  82(5 
Hallcnbcck' V.  Pixlcy,  453 
Hallett  V.  Hare,  (Ui,  (187,  754 
Halley,  Matter  of,  50 
Hal  lock  V.  Bacon,  541 
Halsev,    Matter    of,    31,    50,    130,    443, 
912,  924 
V.  Beer,   071 
V.  Halsev,  240,  934 
V.  Reed," 482.  561 
V.  Van  Aniringe,  34,  814,  817, 
902,  903,  939 
Halstead  v.  Sherrill,  479 
Halsted  v.  Hyman,  507.  812 
Ham  V.  Van  Orden,  619 
Hamer,  Matter  of,  915 
Hamersley,  Matter  of,  168 

V.  Lockman,   113 
Hamilton,  Matter   of,    40,    50,   67,    118, 
181,  239,  586,  938 
V.  Dallas,   104 
V.  Faber,  69,  361 
Hamlen,  Matter  of,  844 
Hamlin  v.  Osgood,  018,  636 

v.  Smith.  492,  493.  518 
Hammond,  Matter  of,  052.  819 
Hampton  v.  Stoehr,  33,  848 
Hancock,  Matter  of,  6,  37,  38,  352 
Hancox  v.  Meeker.  481,  483,  498,  825 

V.  Wall,  481,  483,  620 
Hangen  v.  Hachemeister,  308,  434 
Hanlev.  Matter  of.  127 
Hannah,  Matter  of.  119,  938 
Hannahs  v.  Hannahs,  494,  505,  506 
Hannan  v.  Osborn,  65,  431,  666 
Hanneman,  Matter  of,  862 
Hanover.  ^Matter  of.  309 
Harbeck,  ]Matter  of,  450,  603 

V.  Pupin.  527,  528.  562 
Hard  v.  Ashley,  189,  198,  217,  749 

V.  Shipnian,  886 
Hardenburg,  ]Matter  of,  149,  155 

V.  Manning,  409,  550,  551, 
581,  663 
Hardy,  Matter  of,  226,  248 

V.  Ames,  525 
Harkins.  ^Matter  of,  157 
Harlow,  :Matter  of,  881 

V.  Mills,  502 
Harnett.  :Matter  of.  818 

V.  Wandell,  888 
Harper,  Matter  of,  817 

V.  Chatham  Xat.  Bank,  616 
V.  Harper,  937 
Harring   v.   Coles,    680,   684,   846,   847, 

854 
Harrington  v.  Keteltas,  793 

V.  Libbv,  336,  502 
•       V.  Strong,  907 


Harriot,  Matter  of,  389,  944 
Harris,  Matter  of,    165,    178,    399,    653,. 
787,  825,  828 
V.  Am.  Bible  Soc,  225 
V.  Clark,  233,  472,  473 
V.  Elliott,  792 
V.  F:1v,  774,  780 
V.  Flv,  617.  640 
V.  Harris,  199,  200,  874 
V.  Meyer,  25,  387,  558 
Harrison  v.  Avres.  548 
V.  Caswell,  94 
V.  Clark,    53,    375,    772,    880, 

886 
V.  Jewell,  229 
V.  McAdams,  231,  452 
V.  McMahon,  37,  256,  886 
Harstrom.  Matter  of,  34 
Hart,   :Matter  of.  348,  366,  789 
V.  Coltrain,  280,   702 
V.  Hart,  549 

V.  Marks,  233.  237,  638,  678 
V.  Ten  Eyck,  383 
Hartnett  v.  Wandell,  93,  248,  250,  405 
Hartwell  v.  McMaster.  82,  144 
Harvard  Colleae  v.  Quinn.  634.  643 
Harvey,  Matter  of,  289,  290,  688,  886 
V.  ]\lcDonnell,  434,  744 
V.  Skillman,  525 
V.  Van  Cott,  439 
Harward  v.  Hewlett.  645 
Hasbrouc.k  v.  Hasbrouck,  811,  812. 
Ilascall  V.  King,  220 
Haskell,  Matter  of.  627 
Haskett,  Matter  of,  334 
Haskin  v.  Teller,  503.  829 
Haslehurst,  Matter  of,  847 
Hasler  v.  Hasler,  440,  441,  504 
Hassard  v.  Rowe,  845 
Hassey  v.  Keller,  254,  349 
Hastilow  V.  Stobie,  101 
Hastings,  Matter  of,  407 
Hatch  V.  Bassett,  421,  690 
V.  Sigma  n,  200 
V.  Stewart,  541,  543,  544 
Hatfield  v.  Sneden,  115,  673 
Hathaway,  IMatter  of,  9,  565,  595 

V.  Russell,  787 
Hatten,  Matter  of,  119,  163,  179,  907 
Haiick  V.  Craighead,  527 
Hauenstein  v.  Kiill.  846 
Hang,  Matter  of,  54,  270.  272,  369 

V.  Schumacher,  229 
Haughian,  ^Matter  of,  285 
Hauptmann  v.  First  Nat.  Bank,  413 
Hauselt  v.  Gano,  565,  509 

V.  Vilmar,  910 
Haussman,  Matter  of,  301 
Havemeyer,  flatter  of,  84,  242,  345 
Haven  v.  Haven,  229 
Havens,   Matter  of,  210,  585,  591 
V.  Havens,  196,  614,  628 
v.  Sherman,  75,  717 


Tai;i.i-;   of  Casks  Citkh. 


xlv 


llavons  V.  Van  Donbuijili.   Ilt2 
Hiiviiand.  Matter  of.  1S4.  2:U'> 

V.  Wi lifts.  M-2 
Haukc  V.  Jlawkc.  !)S 
Hawk'V,  Matter    of.    :V.)    iSO.    820,    849. 

8.Ti.  Kr)5.  STil.  !»:j8 
V.  James.    220.    4r)2,   481,   558, 

(i22,  742 
V.  Singer.  82t;.  855 
Haxton,  IMatler  of.  531 
Haxtun,  .Matter  of.  :«,  710,  720,  944 

V.  Corse,  221 
Ilavden,  Matter  of.  448.  450.  817,  822, 

827,  829 
V.  Pieree,  5.35 
Hayes  v.  Kerr.  177.  181,  475 
Haynes  \.  Brooks.  42t> 

V.  .Sherman.  (il9 
Hays  V.  Goiulev,  017 

V.  llil)hard.  0.30,  031,  G94 
Havward.    Matter  of,  38 

V.   Hewlett.  913 

V.  I'hu-e.  300 
Haywood  v.  Tow  nsend.  308 
Hazard,  Matter  of.  555.  705 

V.  Hazard.   182 
Heady.  :\[atter  of.  143.  152 
Healy.  :Matter  of,  787 

V.  Murphy.  548 
Heard  v.  Ilorton".  230 
Hcarman.  flatter  of.  718 
Hearn  v.  Sullivan,  545 
Heath  v.  Cole.  150,  151,  163 
Hetht,  :Matter  of,  303 
Heetor.  Matter  of,  785 
Heddin<r   ]\leth.    Epis.    Church,    Matter 

of,  052 
Hedger,  Matter  of,  79(; 
Hedges,  iMatter  of,   120,  181 
Heenev  v.  St.  Peter's  Church,  385 
Heeruians  v.  Hill,  114 
liegeman  v.  Fox,  105 
llegemann.  Matter  of,  203 
lleidenheimer  v.  Wilson,  400 
lleilman  v.  -Jones,  60 
Hein.  :Matter  of,  370 
Heinmuller  v.  (Jrav.  528 
]leileiil)erg  v.  IVnai  P.erith.  429 
Hemhury.  Matter  of.  308 
Hemmje  v.  ^leiiien.  225.  220 
II.Miiphill  V.  Hemphill.  1()3 
Henderson.  :Matter  of.  37.  40,  881 

V.  Fullerton.  29 

V.  Merritt.  217 
Hendricks.  Matter  of.  577,  598 

V.  Isaacs.  544.  545 
Hendrickson  v.  Ladd.  200.  203.  304 
Hennessey,  Matter  of.  400 
Hennessy  v.  Patterson.  019 
Henning  v.  Miller.  545 
JIcnri(iues  v.   Sterling.  093 

V.  Yale  University,  093 


llenrv,  Matter  of,  73,  77,  445.  910,  924 

V.  Henry.  05,  73,  88.  243,  924 
Henshaw,  Matter  of,  832 
Hepburn  v.  Hepburn,  501 
Herl)eck,  Matter  of,  830 
Herbert  v.  Stevenson.  72,  702 
Herkimer  v.  Riie,  428,  500,  099 
Hermance,  flatter  of,  842 
Hermes.  Matter  of,  477 
Hernandez.  Matter  of,  350 
Heroy.  Matter  of.  705 
HeiT."  Matter  of,  588 
Herrick,  Matter  of.  505.  510 
V.  Grow.  482 
V.  Snyder.  113,  1.53 
Herring.  Matter  of,  785 
Herrington  v.  Budd,  190 

V.  Lowman,  301 
Herriott  v.  Prince.  415 
Hesdra,   [Matter   of,   81,    122,   150,   461, 

505,  704,  881 
Hetherington.  Matter  of,  347 
Hetzell  V.  Barber.  300 
Heuser,  Matter  of,  788 
Hewett  V.  Bronson.  437 
Hewitt,  Matter  of,  153,   174 
V.  Hewitt,  703,  723 
Hewlett  V.  Elmer,  82,  937,  943 
V.  .Tewesson,  539 
V.  Wood,  171,  172,  173 
Hickey,  Matter  of,  345.  495,  773 

V.  Peterson,  278 
Hicks,   flatter  of,  84,  851,  861 
V.  Gildersleeve,  694 
V.  Hicks.  327 
V.  Stebbins.  742 
V.  Townserd.  851 
V.  Walton,  533 
Hicks-Alixanian  v.  Walton.  540 
Iligbie  V.  Westlake.  739.  740 
Higgins,  [Matter  of.'  147.  158,   159,  002, 

943 
Hildebrand.  Matter  of,  398,  439 
Hill,    Matter  of,  437,  518,  530 
V.  Burger,  184,  298 
V.  llanford,  840 
V.  Horton.   105 
V.  Nelson.   S27 
V.  Xye.  073.  087 
Hillerson  v.  Lowe.  229 
llilliker  v.  Bast.  230 
Hillis  V.  Hillis.   1.33.  213,  016,  639,  640 
Hillman  v.  .Stevens.  .301,  422.  482 
Hilton.  Matter  of.  3.30 
Ilindman  v.  Haurand.  014,  015 
Hine.  Matter  of.  304 

V.  Hine.  030.  031 
Hinman.  [Matter  of.  033 
Hitchcock  V.   Linslv.  047 

v.  Marshall.  07.   71 
V.   Peaslee.    OlS,   944 
V.  Thompson,   143,  152 


xlvi 


Table  of  Cases  Cited. 


Hitchlor.  Matter  of,  140,  144,  G49.  656, 

915 
Hoagland.  Matter  of,  425 
Hoar  V.  Hoar.  472,  475,  477 
Hobart  v.  Hobart,  672 
Hobson,  Matter  of,  792 

V.  Hale,  704 
Hoctor  V.  Lavery,  279 
Hodge  V.  Leaning,  430 
Hodges  V.  Tennessee  Ins.  Co.,  29 
Hodgeson  v.  Micklethvvaite,  231 
Hodgnian,   iMatter  of,  31,   39,   88,  612, 
639,    642,   645,    649,    690,    769,   772, 
816,  817,  882,  925,  926 
Hoes,  Matter  of,  83,  790 

V.  Van  Hoesen,  558,  614 
Hoey  V.  Hoey,  166,  175 

V.  Kinney,  385,  702 
Hoffman,  Matter  of,  583,  600,  610 
V.  Kanze,  437 
V.  Penn.  Hospital,  645 
Hogan  V.  Curtin,  620 

V.  Kavanaugh,  615,  699,  700 
V.  Stone,  98 
Hogarty,  Matter  of,  819,  914 
Hogle  V.  Hogle,  54 
Holbert,  Matter  of,  440 
Holbrook  v.  White,  431 
Holcomb  V.  Harris,  130 

V.  Holcomb,   127 
Holden  v.  Metropolitan   Life  Ins    Co., 

130 
Holdrige  v.  Scott,  463 
Holland  v.  Alcock,  223,  227 
V.  Cruft,  30 
V.  Ferris,  189,  198,  342 
Trust  Co.,  Matter  of,  849 
Hollenbeck  v.   Van  Valkenburgh,   145, 

151 
Holley  V.  Chamberlain,  842 

V.  S.  G.,  912 
Hollingsworth  v.  Spaulding,  422 
Hollis  V.   Drew  Theo.    Sem.,  225,   226, 

227 
Hollister  v.  Burritt,   511,   515 

V.  Hollister,    108,   280,   702 
Hollohan,  Matter  of,  182 
Holly  V.  Hirsch,  190 
Holmes,  Matter  of,  413 

V.  Cock,  347,  352,  484 
V.  Mead,  219,  225,  227,  236 
V.  Remsen,  663 
V.  St.  John,  905 
V.  Smith,  9 
Holyoke  v.  Mut.  Life  Ins.  Co..  408 
Home  V.  Fisher,  560 
Homes,  Matter  of,  188 
Hone  V.  De  Pevster,  546 

V.  Van    Schaick,    229,    232,    618, 
646,  670 
Hood,  Matter  of,  81,  345,  505,  764,  770, 
779,  781.  858,  884.  907 
V.  Hay\vard,-372,  374,  378,  880 


Hood   V.  Hood,  54,  61,  81,  .349,  371,  373, 

760,  771,  777,    801,  1000 
Hook  V.  Pratt,  42 
Hooley  v.  Uieve,  426,  494 
Hooney,  Matter  of,  438 
Hooper  v.  Adce,  450 
Hope  V.  Brewer,  132,  223,  226,  228,  421, 

663 
Hopkins,  Matter  of,  166,  189,  243,  561. 
581,  600,  602,  817 
V.  Cameron,  622 
V.  Genraud,  629 
V.  Gourand,  4S4 
V.  Hopkins,  232 
V.  Lane,  6,  124 
V.  Lott,  545 

V.  Van  Valkenburgh,  719 
Hopper.  Matter  of,  102,  107,  160 
Hoppock  V.  Tucker,  229,  232,  638,  797 
Horn,  Matter  of.  801 

V.  Pullman.   165.  176,  936 
Hornbeck  v.  Am.  Bible  Soc,  237 
Hornberger  v.   Miller,  638 
Hornby,  Matter  of,  88,  237 
Horndorf  v.  Horndorf,  221,  619 
Horstmann  v.  Flege.  622 
Horton  v.  Brown,  548,  1010 
V.  Cantwell,  98 
V.  Horton,  733,  734 
V.  McCoy,  385 
Hosack  V.  Rogers,  446,  493,   504,   827, 

899 
Hosea  v.  Skinner.  628 
Hosford,  Matter  of,  421,  445,  482,  483, 

515,  519.  837.  861 
Hotchkiss,  ]\Iatter  of,  337,  338,  467,  712 
Houdayer,  Matter  of,  581 
House  V.  Agate,  650 

V.  Grant,  472,  574,  670 
V.  House,   386,   561 
V.  Raymond,  415,  417 
Hovell  V.  Noll,  847 
Hovey  v.  McLean.  347 

V.  Smith,  386,  5.58 
Howard,  Matter  of,  4.39,  449,  504,  578, 
579,  609.  637,  638.  639,  646, 
712.   815,  866 
V.  Dougherty,  330 
V.  Heinerschit,  493 
V.  Howard.  231 
V.  Moot,  886 
Howe,  Matter  of,  575 

V.  Lloyd,  543,  546 
Howell,  Matter  of,  587,  600 
V.  Blodgett.  517 
V.  Howell,  938 
V.  Taylor.  .173 
V.  Wallace.  035 
Howland  v.  Taylor.  140,  204,  934,  941, 
943 
V.  Union    Theo.     Sem.,     194, 
196,  229,  236 
Hove  V.  Flvnn,  549 


Taisli;  oi'   Cases  Cited. 


xlvii 


ITovsradt,  Mattor  of.  ?X,\ 

V.   Kinfrinaii.    141,    14(1.    14!», 
ir)4 
Hoyt,  Matter  of.  SJ,  l^l,  -'.U.  002,  (i5.-), 
tint),  878.  !t.^") 
V.  Bonnett,    52."j,    ".27,    528,    5.35, 

5.'?(;.  797 
V.  Hilton.  835.  845.  8(;5 
V.   Hovt.   120.  1(;S. -244,  245,  010, 

047 
V.  .lacks.m,    114.    121.    170,   244, 
055 
lluhhanl.  Matter  of.  580.  8.37 

V.   lliihhard.  201,  202,  248 
llubbi'II  V.  C'oudrev,  5.57 
Hudson,  ]\Iatter  of.  250.  287 

V.  Repve.  040 
Hupstis,  IVfattpv  of,  124,  180 
Hughes,  Matter  of,  102,  239,  203,  664, 
837 
V.  Davpn])ort.  539 
V.  :Ma(kin.  217 
Huhna   v.  Tlipllcr.  4.30 
HiiiplI,  :Mattpr  of,   193 
Hull  V.  Cartlpdfrp.  93.  426 
V.  Pearson.  224,  225 
Hulse,  Matter  of,  590 
V.  Rppvps.  273 
Ilumhcrt  v.  ^^'llrst(■r.  93.  405,  423.  454, 

455 
Hunifri'viHo.  ?*Iattpr  of.  .38.  5.32,  897 
Humphrey.  Matter  of.  159,  100 
Hun,  jNIatter  of,  555 
Hunn  V.  Case.  151.  1.").  1,58 
Hunnier  v.  Rogers.  413 
Hunt,  Matter  of.  S7.  140.  151.  .583,  627, 
059,  793.  804.  939,  941 
V.  Connor,  547 
V.  Kingston.  009 
V.  Mootrie.   1.50 
Hunter,    :\latter   of.  424.   587,   589,   812 

V.  Hunter.  238 
Huntington,  Matter  of,  587 

V.  Ciilniore,  473 
Huntley,  INIatter  of,  4;46 
Hurd,  "Matter  of.  8t),  915 
y.  Callahan.  722 
V.  Warren,  904 
Hurlburt,  Matter  of.  41,  59,   174,   175, 
177.  178.  923 
V.  Durant.  040,  050,  814,  820 
Hurrell   v.  Hurrell.  481 
Hurt.  Matter  of.  434 
llurtin  V.   Proal.  07(i,  080,  087 
Huss,  :Matter  of,  220,  228,  003 
Husted   V.   Tlionisoi>,  057 
Hiistis  V.  Aldrido-e.  .538 
Hut  things.  Matter  of.  924 

V.  Cochrane.  151.  153.  182 
Hutchins  V.  Hutehins.  015 
Hutchinson,  Matter  of.  445.  514.  779 
V.  Campbell,  420 


Hvatt  V.  Lunnin.   103 

V.  Pngsley,  229,  007 

V.  Seeley,  41 
Hyde,  Matter  of,  002,  923 

V.  Hyde,  298 

V.  Tanner,  709,  735 
Hvland,  Matter  of,   123,  156 

V.  Baxter,  .30,  781,  791,  847 
Hynes  v.  McCreery.  929 

Ibert,  Matter  of,  713 
Idley  V.  Ho  wen,  189,  198 
Iggiesden,  Matter  of,  712 
Ingraham,  :\Iatter   of,  912 
Ingrem  v.  ^laekey,  804 
Iredale,  Matter  of,  107,  174 
Ireland  v.  Corse,  810 
Is'jell,  Matter  of,  225.  020 
Isenhart  v.  Brown.  558.  033.  044 
Isham  V.  Cibbons,    34.    104.    105,    132, 
141,   2.59.   284,  297,  407 

V.  Post,  413.  511 
Irish  V.   Nutting.  474 
Irvin,  Matter  of.  702.  770.  880 
Irwin,  Matter  of,  000,  820 

V.  Irwin,   140 
Ive  V.  King,  231 

Jackson,  Matter  of,  223,  652,  846 

V.  Betts,   123 

V.  Blansham,  94,  218 

V.  Christ  man.  94.  1.53.   160 

V.  Crawfords,  713,  727 

V.  Green.  04.  071 

V.  Giiswold,   375 

V.  Holladav,  728 

V.  Ilolloway.  188 

V.  Irwin.  702.  725.  7.32 

V.  .Tackson.  142.  145,  154,  183 

V.  Kniffcn.   178.  185 

V.  Luciuere.  94,  230 

V.  Larowav.  94 

V.  O'Donaghy.  452 

V.  Potter,    188 

V.  Robinson.    400,    415.    711, 
713.  727.  880 

V.  Rumsev,  874 

V.  Sears.  845.  846 

V.  Sill.  2.37.  238 

V.  Thompson.  94 

V.  Westerfield.  435 
Winne.   298 

V.  Van  Dusen.  170 
Jacob,  Matter  of,  345 
.laeobson.  Matter  of.  142 
Jaeot  V.  Emmett.  504.  ."lOO 
Jacques  v.  Pub.  Admr..  298 

V.  Short.  424 
Jaeger  v.  Bowery  Bank.  4(il 
Jagger  v.  Bird.  428 
James,   Matter   of,   217,   388.  420,   580, 
010.  020 
V.  Adams.  282 


XlVlll 


Taulk  of  Cases   Cited. 


James    V.  Beasley,  204,   425,   55G, 

563 
Janes,  Matter  of,  242 
Jansen,  Matter  of.  o()5,  570 
Janssen  v.  AYeinple,  37 
Jarv-is,  Matter  of.  443 
Jauncev  v.  Rutherford,  927 

V.  Thorne,    131,    141,   155, 
Jav  V.  Kirkpatrick,  4G1 
Jenkins  v.  Freyer,  232,  233,  617 , 
V.  .Jenkins,  410 
V.  rhillips,  492 
V.  Shaffer,  367 
V.  Young,  714,  716 
Jenkinson  v.  Harris,  542 
Jennings  v.  Jennings,  478 
V.  Jones,  719,  732 
V.  Newman,  229 
V.  Phelps,  572 
Jeroms  v.  Jeroms,  384 
Jewett  V.  Keenholts,  699,  708,  736 
Jochumsen  v.  Suffolk  Bank,  884 
Joel  V.  Eitterman,  896,  897,  899 
John,  Matter  of,  2.54,  715 
Johnson,  Matter  of,  125,  165,  167, 
351,  423,  576,  602,  605, 
705,  796,  820,  823,  824 
V.  Bennet,  233 
V.  Brasington,  231 
V.  Borden,  838,  841,  842 
V.  Cochrane,  124,  126 
V.  Corbett,  453,  482,  490, 
526,  537,  558,  802,  81 
V.  Hicks,  123,  1.50,  938 
V.  .Johnson,   129,  865 
V.  Ivellogg,  494,  495 
V.  Lawrence,    814,    818, 

820 
\.  Mvers,  548 
V.  Richards,  830 
V.  Smith,  427,  886 
V.  Spies,  472,  475 
V.  Valentine,  232 
V.  Wallis,  409 
V.  Weir,  31,  642 
Johnston,  Matter   of,  41,  78,  152, 
182,  185,  485 
V.  Smith,   41,    102,    295, 

.301,  375 
V.  Beattie,  864 
Jones,  Matter  of,   29,   30,   68,   73, 
174,    180,    361,   443,   496, 
579,    589,   595,    598,    653, 
770,   771,   774,   797,   800, 
807,  817,  823,  893,  915 
V.  Feleh,  51 
V.  Hamersley,  73,  211,  213, 

242,  330  ' 
V.  Hopper,  509 
V,  Jones,  132,  147,  150,  163, 

238,  409,  477 
V.  Kelly,  225 


561, 


160 


182, 
608, 
,922 


519, 
1 


819, 


175, 
300, 


105, 
532, 
657, 
805, 


21i 


169, 


Jones   V.  Le   Baron,  30,   422,   707,   719, 
720 

V,  M.  E.  Sunday  School,  796 

V.  Richards,  97 
•Jordan,  Matter  of,  769,  782 

V.  Nat.  S.  &  L.  Bank,  461 
•Jost,  Matter  of,  925 
.Jouffret  V.  Jouffret,  5.59,  616 
Journault  v.  Ferris,  442,  450,  780,  802 
Journeay,  Matter  of,  175,  ISO,  181 
.Judah  V.  Stagg,  547 
.Judson  V.  Gibbons.  2-50,  278,  4^23 
Judv  V.  I\ellv,  409 
.Julke  V.  Adam,  174,  179,  ISl 
.Jumel   V.   Jumel,   800 
Jurgens  v.  Rogge,  622 

Kade  v.  T^auber,  690 
Ivager  v.  Brenneman,  879 
Ivahn,  Matter  of,  182 
V.  Chapin,   512 
V.  Hoes,  197 
Kain  v.  Fisher.  387,  400 

V.  Masterton.  733 
Ivalbfleisch  v.  Kalbfleisch,  233.  236,  615 
Kalish  V.  Ivalish,  216,  217.  219,  229 
Kammerrer  v.  Ziegler,  32,  714,  715,  716, 

717 
Kane,  Matter  of.  156.  159,  388,  626,  806, 
846,  847,  854 
V.  Astor,  194 
V.  Connoly,  123 
V.  Gott,  217,  233 
K:app  V.  Public.  Admr.,  400 
Karge,  Matter  of,  705 
Kasson,  Matter  of,  351 
Kastner  v.  Kastner.  426 
Ivarstens  v.  Ivarstens.  138,  217,  618 
I\;atz  V.  Schnaier,  98,  99 
Kaufman,  :\Iatter  of,  81.  191 

V.  Schoeffel,  406. 
Ivauze,  jNIatter  of.  153 
Ivavanagh,  Matter    of,    226,    587.    654, 
898.  929.  932.  936 
V.  Wilson,  721,  722    . 
Kay  V.  Erving,  230 
Ivearnev,  Matter  of,  145.  172 

V.  McKeon,  530,  539,  944 
V.  ]\Iissionarv  Soc,  225,  237, 
678.  691 
Keating  \.  Bruns,  644 
Keech,  Matter  of,  588.  589 
Keef,  Matter  of,  29,  85,   181,  523,  798, 

799 
Iveefe.  Matter  of,  179,  944 
Iveegan  v.  Smith,  371,  375,  880 
Keeler,  Matter  of.  33,  239 

V.  Frost,  885 
Keenan,  Matter  of.  606,  619,  630,  638 
Keeney  v.   Whitmarsh,  70 
Keery  v.  Dimon,  197 
Keezly  v.  Ivoezlv.  233 
Keinz,  Matter  of,  344.  GOO 


Taulk  of  Cakes  Cited. 


Kclalicr  v.  .McC  :iliill.  S,-)S 

Keleiiiaii,  Matter  of,  l:{:{,  1:57,  2i:},  214, 

1)4.' 
KelliT,   Matter  of,    ITo 

V.  Stiu-k,  l:5S.  V.iW.  ->:ii 
Kellett  V.   IJatlihiin,   .'):i,   SOI 
Kelley,  iMattcr  of.  7:54 
Kellinger,   Matter  of,   8i)7 

V.  l^oe.  S40,  928 
Kellogg,  Matter    of,    :J0,    «1,    530,   572, 
82U.  S.-)7.  D.'i'J 
V.  Ogdon,  53!) 
Kelluni,  IMatter   of,   13!),   140,  155,  241. 

245.  88(5 
Kellv,  :Ma(ter  of.  585,  599 
V.   ilooY.   421 
V.  .lav!  302 
V.   Kelly.  ti(i7 
V.  .Moore,    399 
V.  West,  302,  88G 
Kelsev,  Matter  of.  505 

V.  Van  Cam]),  210,  359 
V.  Western,  ()14,  017 
Kelso  V.   Cuming.  018 
Kemeys,  Matter  of.  575,  570,  584 
Kendall  y.  Case,  020 
V.  Grey,  129 
Kendriik.  Matter  of,  457,  518 
Kene.  Matter   of,  500,  597 
Kennedy.  .Alatler  of.  178,  189,  197,  507, 
518,  581,  585,  829 
V.  Piihlie  Admr.,  472 
V.  Kyall.  284 
V.  Steele,  442 
Kenny,  Matter  of,  80 
Kent  y.  Hopkins,  072 

y.  Kent.  457 
Kenworthy,  Matter  of,  829 
Kenyon  v.  Olney,  420 
V.  See, '020 
y.  Talbot,  737,  743 
Kernoehan,  Matter  of,  514,  020,  817 
Kerr  v.   Doiigherly,   22(5,  ()'l4,  043,  045 
V.  Kerr,  34(1,  880,  880 
V.  Krender,    1015 
Kerrigan  v.  Kerrigan,  045,  050,  058 
Kersey  v.  Bailey,  453 
Kerwin,  Matter  of,  847 
Kessler  y.  Hessen,  435 
Ketchum  v.  Morrell.  304.  310 

V.  Kelchinii.  025,  911 
Keteltas,  :Mallcr  of,  509 

V.  (Jardner,  858 

V.  Keteltas.     (;.-,.     230,    231, 

074 
V.  Tenfold.  010 
Keyser  y.  Kelly,  5(i5,  509,  572 
Kiah  y.  Grenier.  229.  230 
Kiek,  Matter  of.  278,  387,  501,  798 
Kidd  y.  Chapman,  530 
Kilhurn  v.  See,  278 
Kilfoy  y.  Powers.  04.  071 
Killan.  :\ratter  of.  771.  SSI 


Killett    V.    Kal  111. till.  502 

Kilpatriek    v.   .loliiisoii,   220,   221,   222, 

232 
Kimball   v.   Cliappel.   (;:;0,   039 
Kimbel    \.   Kimbei,   ()22 
Kiniberley  v.  Stewart.  4(i3 
Kimherly,  Matter  of,  587,  G3S 
King,    Matter    of,    1S2.    5S1,    707,    859, 
870 

y.  Doiinellv.  417 

V.  Paddoeli,  138 

V.  Kundell,  221 

V.  Strong,  014 

V.  Talbot.  .508,  044 

V.  Todd.  547 

y.   Woodlmll,  233 
Kingsland,  :\Ia()er  of,  711.  720 

V.  :\1  array,    099,    700,    720, 
943 
Kingsley  y.  Blanchard,  139,  149,  941 
Kinkelc  y.  Wilson,  218 
Kinne  v.  .Tolinson,  105,  170,  179 

y.  Kinne,  140,  149,  100 
Kinnier  a*.  Rogers,  481,  704 
Kintz  V.  Friday,  29 
Kinyon  y.  Kiiiyon,  030 
Ki])p,  jNIatter  of.  437,  780 
Kirby,  :Matter  of,  32 

V.  Car])enter,  520 
y.  Turner.  844 
Kircheis  y.  Scheig,  272 
Kirk  y.  Cashman,  233 

V.  MeCusker,  473,  478 
y.  Kieh.irdson,  073 
Kirkman  v.  Kirkman,  427 
Kirkpatrick,  ISIatter  of,  709 
Kirwin,  Matter  of,  847 

y.  Malone,  377. 
Kitching  y.  Shear,  591 
Kits(m,  IMatter  of,  0()0 
Kittle  V.  Ilunllev,  437 
Kiver  v.   Olddeld,  229 
Kivlin,  :Matler  of,  153,  910 
Klein  v.  Hayek,  022 
Kletl.  Matter  of,  155.  157 
Klingen.smith,  INlatter  of.  091 
Kloek  V.  Stevens,  024 
Klnnek,  :Ma(ter  of,  853.  854 
Knap]),  Matter  of.  152,  450 

V.  Cnrtiss.  525 

V.  Keilly.  140.  142 
Knickerbocker  v.   Decker.   723 
V.    Seymour,  05 
Knight,  :Ma((er  of.  502 

V.    i'lymouth.  4S7.  491 

V.  Weatherwax.  190 
Knights  V.  Quarlcs.  432 
Knittel.  Matter  of.  405.  408 
Knoedler,  Matter  of,    .590 
Knot  he  v.  Kaiser,  845 
Knox  y.  .Tones,  43,  131,  132 
Koch,  Matter  of.  50,  71,  398.  443,  700 
v.  Alker.  573 


1 


Table  of  Cases   Cited. 


Koeh  V.  Woehr,  833. 

Koeviv  V.  Kocylv,  ()22 

Kolik'V  V.  Knapp,  24,  102,  107,  387,  40!) 

Koons  V.  Wilkin,  r)35 

Kopp,  Matter  of,  840,  853,  85.5 

Koppel  V.  Holm,  131 

Kowinj?  V.  Moran,  700,  707,  723 

Krakauev,  Matter  of,  31 

Kranz,  Matter  of,  3!) 

Kraiis.  :\Iatter  of,  80 

Kroischer.  IMatter  of,  705,  924 

Krill  V.  r>rowiiell,  541,  544,  545 

Krueger  v.  Schlinger,  554 

Kruse  v.  Fricke,  333 

Kiillnian  v.  Cox,  840 

Kummer,  Matter  of,  100 

Kurtz  V.  Smithers,  473 

Kurtzman,  Matter  of.  894.  808.  900 

Kyle  V.  Kyle,  484,  531,  799,  940 

La  Bail  v.  Vanderbilt,   171,   175,   178, 

179,   183.  244,  050 
Lacev  V.  Davis,  490,  509 
La  Chapelle  v.  Biir])ee,  020 
Lacy,  Matter  of,  182 
Ladd,  Matter  of,  711 

V.  Stevenson,  37 
Laffertv  v.  Laffertv,  71,  72,  73,  113 
Laflin  v.  Griffiths,  380 
Lain  v.  Lain,  923 
Laird,  Matter  of,  713,  740,  944 

V.  Arnold,  430,  440 
Lake    v.    Ranney,    104,    170,    177,    182, 

940 
Lamar's  Estate,  00 
Lamar  v.  Micoii,  491,  508 
Lamb.  ]Matter  of.  130,  279,  833,  870 
Lamberson,  Matter  of,  740,  944 
Lambert  v.  Beeman,  562 

V.  Craft,    .530.    531,    572,    573, 

774,   797,   1010 
V.  ^letropolitan    St.    Rv.    Co., 
377 
Lamphere  v.  Lamphere,  547 
Lampson.  Matter  of,  220 
Landa,  Matter  of,  027 
Landers   v.   Staten   Isl.  R.   R.   Co.,   44, 

749 
Lane,  Matter  of,  338,  842 

V.  Lane,  124.  120.  149,  159 
V.  Lewis,   301.   302,   304 
Lanev,  Matter  of,  497 

v.  Lanev,  498,  878 
Lang,  Matter  of.  29.  31,  132,  140,  174, 
188,  237,  034,  042 
V.  Howell,  519,  818 
Langbein,  :\Iatter  of.  207,  260 
Langdon,  Maiter  of,  578 

v.  Astor.  185,  194,  196,  630 
Lange.  Matter  of,  602 
Lansford,  Matter  of,  249 
Langlois.  Matter  of,  805,  809,  810 
Langton,  Matter  of,  182 


Langwortliy  v.  Crissey,  474 
I^aniiing  v.  Swarts,  456 
Lansing,  Matter  of,  59i),  759,  776 

V.  Lansing,  450,  504,  506,  818,. 

824 
V.  Russell,  176,  182 
Lapham,  Matter  of,  167,  169 
Larabee  v.  Ballard,  149 
Laramie,  Matter  of,  796 
Larkin.  v.  Salmon,  012 
Larkins  v.  Maxon,  541,  544 
Larocque  v.  Clark,  618 
Larrour  v.  Larrour,  448,  789 
Lasak,  Matter  of,    114,    183,   272,   644,. 

908 
Lathrop  v.  American  Board.  107 
v.  Borden,  108,  175 
V.  Dunlop,  191 
V.  Smith,  280 
Latz.  Matter  of,  709.  770.  942 
Landv,   Matter  of,    119,    144,   145,    140, 

938,  941,  942 
Lavelle  v.  Skellv,  929 
Law,  Matter  of,"  131,  870 
Lawrence.  Matter  of,  41,  84,   100,   166, 
175.    382,    622,    725.    728, 
729,  756,  771,  820,  827 
V.  Brown,  735 
V.  Elliott,  226 
V.  Elmendorf,  551,  743,  750 
\.  Embree.  644,  046 
V.  Hebbard,  131,  232,  233 
V.  Lawrence,  259,  645 
V.  Lindsav,    195,    630,    631, 

797 
V.  Miller,   735 
V.  Niagara    Fire    Ins.    Co., 

428 
V.  Norton,   123,   155 
V.  Parsons,  327,  888 
Lawson,  Matter  of,  375,  759,  776,  831^ 

938 
Lawton  v.  Green,  905 

V.  LaA\-ton,  509 
La^i;in,  Matter  of.  242 

V.  Davidson.  814,  819,  820 
Lazelle,  Matter  of,  565 
Leach  v.  Leach,  673 
Leahy  v.  Campbell.  535,  541 
Leary,  Matter  of,  225 
Leavitt,  IMatter  of,  345,  351.  497.  002 
Leavy  v.  Gardner.  450 
Leavcraft   v.    Simmons,    158,    174,    177^ 

'l81,  185 
Le  Baron  v.  Long  Island  Bank,  493 
Lecocq  v.  Potter,  538 
Le  Count  v.  Le  Count,  702 
Le  Couteulx  v.  City  of  BufTalo,  222 
Ledwith  v.  ClafTev,  173.  181 

v.  Ledwith,  838.  839.  !U1,  842 
V.  Union  Trust  Co.,  850,  859 
Ledvard  v.  Bull,  395,  531 


Tabi.k  of  C.^vsks  Citkd. 


Lee,  Matter  of,  2^0,  024 
V.  Adsit.  nOO 
V.  Dill,  174,  177,  419 
V.  Lee.  .'J42,  !K)2,  !I0:},  93G 
V.  Van  Voorhis,  442 
Lefever,  Matter  of,  000,  (i02 

V.  Hasbrouek,  500 
Lefevre   v.    Am.    Fein.    (Jiiardian    See, 
22() 

V.   Lefevre,  22r),  220,  238,  678, 
0!)0 
LefTintrwell,  Matter  of,  84 
Le  Fort  v.  Delafield,  27il,  759 
Legg  V.  Meyer,  139,  170 
Lefj^ratt,  Matter  of,  822 
Lef.rf:ott  V.   llmiter,  252,  357,  416,  417 
Lehman.  ?ilalter  of,  018,  059 
I.cinkauf,  Matter  of,  77,  801,  818,  821 
I.eitch  V.  Wells.  484,  485 
Lcland  V.   ManninfT.  407,  516 
Lenicn  v.  Wdiul,  540 
Lenox.  Matter  of,  587,  588,  589 
Lent,  Matter  of,  388 

V.  Howard,  450,  774 
Leonard  v.  Columbia  Steam  Nav.  Co., 

302,  876 
Leonliard.  :\ratter  of,  423 
Leopold,  :\Iatter  of,  581 
Leo-^^"(llf,  Matter  of,  226 
Lerehe  v.  iiraslier.  533' 
Le  Koy.  Matter  of,  152,  327 
Lerov  V.  IJavard,  393,  770,  782 
Leslie,  Matter  of,  32,  572,  625,  719,  800 

V.  Marsliall,  039 
Lesourd,  Matter  of.  738 
Lesser  v.  Keller,  529 
Letson  v.  Evans,  700,  702 
Levin  v.  Kussell,  308,  324 
Leviness  v.  Casseheer,  32,  572,  719,  800 
Levy,  Matter  of,  124,  125 

V.  Levy,  227 
Lewis,  Matter  of,  105,  337,  626,  852 

v.  Cook,  98 

V.  Jones,  81.  926 

V.  Lewis,   140,   147,  148 

V.  Malonev,  51,  047,  707,  768 

V.  Smith,  452 

v.  Watson,  370 
Libbey  v.  Masdii,  287,  289,  942 
Liehtenberjr  v.   lierdtfelder,  30,  434 
Liehtenstadter.  Matter  of.  835,  866 
Lichtenstein,  Matter  of,  718 
Liddin-rton,  :Matter  of,  244.  245 
Liddle.  Matter  of.  430.  706 
I>imbur-,rer  v.  Rauch,  177,  182,  846 
Lindley,  Matter  of,  843 
Lindo  v.  ^Murray,  481 
Lindsay,  Matter  of,  136,  185 
Liney,  Matter  of,  175 
Linn  v.  Clow,  541,  544 
Linthieum  v.  Caswell.  640 
Lippincott,  Matter  of,  894 


Lister  v.  Smith,  135 

Little  Falls  Nat.   Hank  v.   King,   702, 

703 
Litzenber{,'er,  Matter  of,  489 
Livermore  v.  Wortman,  330,  503 
Living.ston,    Matt.r    of,    29,    461,    597, 
870 
V.  Freeland,  617 
V.  (iardner,  5(il 
V.  Gordon,  221,  232,  619 
V.  Greene,  232 
V.  Livingston,     190,     500, 

617,  703 
V.  ]\Iurray,  027 
v:  Newkirk,  414,  558,  707 
V.  Sul/.er,  386 
Lloyd,  Matter  of,  797 
V.  Lloyd,  403 
V.  ^'an  Antwerj),  017 
Lobrasciano,  Matter  of,  288,  370 
Locke  V.  Farmers'  Loan  &  T.  Co.,  190 

V.  Rings,  195 
Lockhart  v.  Pub.  Admr.,  323,  483,  504 
Loekman,  Matter  of,  801 
v.  Reilly,  422 
Lockwood,  Matter  "of,  186 
V.  Faweett,  (i99 
V.  Lockwood,  120,  207,  386, 

397,  030.  055.  050 
V.  Stdckliolin,  431,  617 
V.  Younglove.  429 
Lodcr  V.  Hatfield,  (il7,  040,  044 
Loenstine,  ]\Iatter  of,   129.  175 
Loesche  v.  Griffin,  392,  904 
Loew  V.  Christ,  458 
Logan,  Matter  of,  718 
V.  Deshay.    029 
Logiorato,  Matter  of.  288.  376 
Lombard  v.  Columbia  Steam  Nav.  Co., 

268 
Long  V.  Olmstead,  702,  74(;.  747 

V.  Rodgers,  99 
Longbotham,  Matter  of,  769 
Look,  Matter  of,  147,  158,  160,  213,  796 
Loomis  V.  Loomis,  191 
Loop  V.  Xorthrup,  373 
Loper,  Matter  of,  517 
Lore  V.  Dierkes,  434 
Lorillard  v.  People,  579 
Loscc.  ]\Iatter  of,  147 
Losey  v.  Hanley,  363 
Louck  v.  Johnson,  477 
Lougheed    v.    Dvkeman's    Baptist    Ch.. 

228 
Lounsburv  v.   Sherwood,  542.  548,  550 
Lovell  V.  Q)uitman.  187 
Lovett  V.  Oil  lender.  228 
Lowery,  Matter  of,  027 
Low  V.  Purdy.  845.  846 
Lowman.  INIatter  of.  178,  181,  245,  910 

v.  Flmira,  876 
Lowenstein.  :Matter  of,  288 
V.  Schiirer,  426 


lii 


Table  of  C\vsks   (Vted. 


Lowry  v.  Farmers'  L.  &  T.  Co.,  62G. 
Lucas  V.  Hesseii,  437 

V.  N.  Y.  Central  K.  R.  Co.,  G6 
Luce,  Matter  of.  717,  885 

V.  ]?urchard,  193 

V.  Duniiani,  (if),  2.30,  797 
Ludlain  v.  Otis.  1!)1,  1!).'),  230,  231 
Ludlow,  :\Iatter  of,  70,  598 
Ludwig  V.  I)iiiii<;art,  44,  750 
Lucrs  V.  l^runjes,  41!4 
Lulirs  V.  Eimer,  071 
Lund  V.  Blansliard,  751 
Lunt  V.  Lunt,  494 

Lupton  V.  Lupton,  014,  022,  035,  044 
Lussen  v.  Tinnnernian,  287 
Lvitheran  Ref.  Ch.  v.  ]\Iook,  227 
Lyddy,  INIatter  of,  140,  181 
Lydecker,  Matter  of,  550 
Lvendecker  v.  Eisemann,  399,  821 
Lyman,  Matter  of.  154,  572,  782,  879 

V.  Pliillips,  154 
Lvnch.  :\Iatter  of,  283,  407,   044,   734, 
735 
V.  Loretta,  585,  790 
V.  Patchen,  573,  802 
T.  Pendergast,    190,  229 
Lynes  v.  Colev,  551 

V.  Townsend,  232,  093 
Lyon,  Matter  of,  049 

V.   Industrial   School  Asso.,  045 

V.  Smith,  145,  153,  154 
Lyons  \.  Malian.  232,  039 

V.  Steinhardt.   014,   034,  044 

V.  Weeks,  231 
Lyth,  Matter  of,  782 
Lytle  V.  Beveridge,  229,  511 

McAleenan,  Matter  of,  428,  934 
McAlpine,  Matter  of,  819,  822,  820 
V.  Potter,  819,  821,  820 
McBride  v.  Chamberlain,  547 
McBride  v.  Farmers"  Bank,  408 
McCabe,  Matter  of,  470,  795 
V.  Fowler,   487,  515 
McCahill.  Matter  of,  210 
McCaffrey,  ]\Iatter  of,  390 
McCann  v.  Bradley.    540' 

V.  Hazard,  420 
McCartee  v.  Camel,  138.  574.  050 
McCarter,  ^Matter  of,  707,  780 
McCarthy,  Matter    of,    128,    129,     172, 
173,  174,  182,  407,  010 
V.  Marsh,  04,  071 
McCartv  v.  :\Ivers,  190     ' 
McClouth,  IVIatter  of,  211,  051 
MeClure,   Matter   of,   025 

V.  Woolley.  00,  214 
McComb,  Matter  of,  550,  704 

V.  Title  Guarantee  &  T.  Co., 
220.  223 
McCord.  :\ratter  of.  810 

V.  Louns"burv,  143 


McConnack,    Matter   of,    113 

V.  McCormack,  070 
McCorniiek,  Matter  of,  248,  370,  000 
V.  Burke.  038 
V.  St.  Joseph's  Home,   434 
]\IcCorn  V.  McCorn,  033 
McCosker  v.  Brady,   417 

V.  Golden.  289,  091 
McCoskey,  :\ latter  of.  580 
:McCoskiy,  :Matter  of,  89 
McCray  v.  IMcCray.  41 S 
McCreadv    v.    Metropolitan    Life    Ins. 

Co., '481 
^IcCrcery  v.  Somerville.  04 
McCullo'ugh,  Matter  of,  505,  570 
McCue.  Matter  of,  108 
V.  Finek,  490 
V.  Garvey,   435 
y.  O'Har'a,  78 
McCunn,  ]\Iatter  of,  881 
:\IcDermut  y.  Lorillard.  480 
-McDonald  y.  O'Hara.  421,  GIG 
McDonnell.  Matter  of,  248 
McDonough  y.  Loughlin.  124,  125,  151, 

153 
McDougall,   Matter   of,    147,    277,   370, 

027 
McEchron.  Matter  of,   908 
McEyoy,  Matter  of.  202,  791 
McFarfand.  :\latter  of,  30 
:\rcFeeley,  :\Iatter  of,  732 
:\IcGafIin  y.  City  of  Cohoes,  887 
McGahey  y.  Nassau  El.  R.  Co.,  4.30 
McGaryey,  :^L^tter  of,  583 
:\rcGee.  Matter  of,  712,  718,  721,  740 
McGill,  Matter  of,  180 
McGilliyray,  Matter  of.  344 
McGorray,"  Matter  of,  39 
McGovern,  ^Matter  of.  121 

y.  McGoyern.  914 
McCT0\yan,  Matter  of,  244,  040,  041,  043, 

055 
McGraw,  INIatter  of,  154,  105,  175,  227, 

938 
McGregor  v.  Buel.   257,   330,  923 

y.  ]\lcGregor,  255,  250,  410 
?*IcGuiness,  ]\Iatter  of,  3 
:\IcGuire  y.  Kerr,  143,  174.  182 
:\rp.Intyre,  ]\Iatter  of.  392.  395 

y.  Barnard,  387 
McKay,   Matter  of.   29,   387,   507,   559, 
500,  014,  033,  045,  705,  825 
y.  Green,  558 
y.  McAdam,  018.  051 
^IcKeage  y.  Hanoycr  Fire  Ins.  Co.,  386 
McKean,   IMatter  of,   175 
]\IeKee  y.  Weeden,  825 
rvIcKeiina,  Matter  of,  100,  407 
McKenzie  y.  L'Amoureux,  51 
:^IcKeon,   Matter   of,   3,   300 

y.  Kearney,  43 

Mc-Keown  y.  Fagan.  573 

y.  Officer,  225 


T, 


\i;j.K   OF   ('asks   ('riKi). 


McKio  V.  (lark,  Sl!» 
jVIcKitTiian,  .Mattt-r  of.   'ill 
McKinlcy  v.  I.aiiil),  \M,  ItiO,  !)41 
McKinsliy  v.   Benson,  -i'M 

V.   Sanders,  CIS 
MeKnij,rlit    v.   Morfran,   433,   435 
IVIfKoan   V.   Devries,  M 
]\I(Lareii,  .Matter  of,  823,  825 

V.  .Mc.Martin,  402 
MeLariiPV,  Matter  of,  KM 
JMcI.auglilin,  Matter  of,  133,  ITC,  210 

V.  MeDevilt,       174,      178, 

irn,  180,  182 
V.  \\'cl)stor,  539 
^IcLoan  v.  I'recnian,  017,  038 
V.  La  (Id,   414 
V.  Swanton,  04,  071 
McLood,  :Matter  of,  OOl 
McLoskev  v.   Ileid.   185,   ISO,  038,   041, 

80l,'8(i2,  Sti4,  800 
McLoutli  V.  Hunt,  020 
McMahon,   Matter   of,   002 

V.  Allen,  1!»1,  441,  818 
V.  Harrison,  250,  925 
V.  Jones,  OitC) 
V.  .Macv,  29 
V.  Sniitli,  375,  913 
3rc:\raims,   :\Iatter  of,  37,   881 
]McMastcr,  :\hitler  of,  300,  893,  898 
McMath  V.  O'Connor,  478 
McMillen  v.  :\Ic:\Iillen,  144 
MclNIulkin,  :klatter  of,  132,  140 
McXal)!)   V.    Pond,  385 
MeXally   v.   Hrown,  197,  200 
!MeXainara  v.  Dwycr,  750 
McXuughton  v.  ('have.    14.   41,   893 

V.  :\I(Xaup;hton,  190,  230, 
232,   797 
McX'eil  V.  ilerriiini,  4()3 
MoXulty  V.  Hurd,  29.  571.  572.  797 
McPherson.  :\Iatter    of,    575,    578,    599, 
()05 
V.  Clark,  187 
McQueen,  Mattfer  of.  541 
lIcRae  V.  :McRac,  509,  ()73,  094 
McRea  v.  Cent.  Xat.  Bank  of  Troy,  380 
McSorley  v.  Learv,  704 

V.   McSnrley.  174 
McVoan  v.  Slieldon.  581 
McWhaley.  Matter  of,  303 
McWhorter  v.  ISenson.  451 
Maack,  Matter  of,  397,  401,  402,  810 
Maas  V.  German  Sav.  Hank,  408 
Mabie,  ^Matter  of.   174,  170 
Macaulay,   Matter  of,  57,  59,  01,  049, 

050,"  053.  773 
Macdonald,  Matter  of.  490 
IMaee,  :Matter  of,  740.  902.  905 
Maoliini  v.  Zanoni.   138 
Mackay,  Matter  of.  147 

V.  Fullerton.  8.59.  870 
Mackey,  :\Iatter  of,  140 
Mackenzie  v.  Mackenzie,  105,  132 


Macknett  v.  Mackni'tl,  440 
.\Iae(jnii)or,  Mattt-r  uf,  533 
Macy  V.  Sawyt.,  425,  481 
Magee  v.  .\Iagee,  233 

V.  \'<'(ld('r,  25,  572 
Magill   V.   McMillan,  Ols 
Mahaney  v.  Walsh.  4S5 
Mahlstedt,  Matter  of,  577 
Mahoney,  Matter  of,  557.  710.  727.  041 
V.   Bernhardt,  527,  878 
V.  (iunter,  375,  572 
Maine,  Matter  of.  040 
Mairs,  Matter  of,  330 

V.  Freeman,  140,  174,  l8l 
Mallon,  :Matter  of.  300,  377 
Mallorv,  :\ratter  of.  539 
Malloy,  Matter  of,  377 
Maloney  v.  Woodin.  302 
.Manalian  v.  (iihhons,  488 
Mandelick,  flatter  of,  195 
Mandeville  v.  Mandeville,  347 
Manhattan  Co.  v.  Evertson.  557 
Manhardt.  Matter  of.  170,  354,  911 
Manice,  :\ratter  of,  229 

V.  ^Manice,  221.  225.  078 
Manley,  ilatter  of,  255,  250,  271 
Mann  v.  I'cnedict,  501,  512 
V.  Lawrence.  493,  818 
V.  :Manri,  237.  238 
Manning,  :\Iatter  of,  194,  598 

V.  INLmning,  505,  815 
Mansbach  v.  Xew,  421 
Manstield,  INIatter  of,  499.  554,  559.  052, 

828 
Manton,  Matter  of,   181 
Manufacturing  Comi)any.  ^Matter  of,  6 
IMapes.  .Matter  of.  470.  503 
^laples  V.  Howe.  731,  735 
Marcellin,  :\latter  of,  333,  334 
-Marcellus.  :\Iatter  of.  33.  09.  531,  532 
Marcial,  :Matter  of,  213 
^Marine  Bank  v.  Van  Rrunt,  50G 
Maritch,  Matter  of,  915 
Market    Nat.    Bank    v.    Pacific    Xat. 

Bank,   50 
:Marks  v.  Halligan,  210 
Marlett  v.  Marlett.  215 
Marre    v.    tJinochio.    70.   353,   425,    754, 

811 
Marrvatt  v.  Rilev,  547 
Marsii,  Matter  of.  SI.  197.  075.  087 
V.  Avery.  929 
V.  Brown,  (531 
V.  Gilbert,  030 
V.  Hague,  229,  232 
V.  Wheeler.  018.  040 
V.  Whituiore,  512 
Marshall.  :Matter  of.  750.  909 
V.  Bresjer,  750 
V.  He  Cordova.  413 
V.   ^loseley.  387 
Marstnn  v.  I'aulding.  30 
:Martens.  Matter  of,  500.  820 


]iv 


Table  of  Cases   Cited. 


jMarim,  :Mattcr  of.  179.  181,  770,  941 
V.   Ballon,  2U) 
V.  Dry  Dock,  etc.,  K.  R.  Co., 

299 
V.  Duko,  250,  348 
V.  Funk,  475.  470 
V.  Gape.   782 
V.   Haiin.  .375,  880 
V.  Hillen,  113 
V.  riatt,  442,  492 
V.  Koot,  30 
Martine,  Matter  of,  32,  780,  796 
Martineau   v.    Simonson,   638 
Martinhoff,  Matter  of,  11,  41 
Marvin  v.  Marvin,  43.  69,  73,  74,  169. 
175.  179,  923,  926.  929,  938,  941,  942 
Marx  V.   McGlvnn,   171,   177,  178,   181, 

182,  213,  227,  943 
Mason,  Matter   of,   623,   820,   822,   824, 
826 
V.  Jones,  220.  229,  670,  925 
V.  Williams,  114 
Masten  v.  Bndington,  539 
Master,  Matter  of,  122.  15^ 
Masterton.  [Matter  of.  467 
Masnry,  ilatter  of,  577 
Mathews,  Matter  of,  600 
Matson  v.  Abbey,  427,  565 
Matteson  v.  Palser,  099 
Matthews,  Matter  of,  78,  693 

V.  American     Central     Ins. 

Co..  335 
V.  Mayor,  324 
V.  Stndley,  421,  615 
Mattheweon,  Matter  of,  746,  747,  818, 

911 
Manran  v.  Hawley,  467 
Maverick  v.  KeA'nolds,  174,  182 
Maxwell,  :\latter  of,  502 
Mav,   Matter  of,   71,   83,  85,   647,   649. 

'  6.50,  882 
Mayer,  [Matter  of,  938 

V.  Gilligan,  539,  721 
[Maynard  v.  [Mavnard,  671 
[Mayor,  etc..  Matter  of,  228 

V.  Gorman,  529 
Maze  -v.  Brown,  762 
Meach  v.  Meach,  472 
Mead  v.  .Jenkins,  702,  70S,  709,  713,  722 
V.  Merritt,  423,  793 
A-.  [Miller.  53 
V.  Shenvood,  712,  714 
V.  Sommers,  466 
V.  Willoughby.  772,  773 
Meagley,  Matter  of,  720 
Meakim,  Matter  of,  706 
Meakings  v.  Cromwell,  233,  423 
[Meech.  Matter  of,  842 
Meehan,  flatter  of.  425 

V.  Brcnnan,   210,    217.   481 
v.  Rourke,   127.   145,  152,   174 
:\reeker  v.  Crawford.  451.  814.  818 
Meekin  v.  B'klvn  [Heights  R.  Co.,  456 


Meeks  v.  [Meeks,  230,  750 
Mehler,  Matter  of,  867 
Meiggs  V.  Hoagland.  207 
Meilke,  Matter  of,  449,  450 
Melcher  v.  Fisk,  505 

V.  Stevens,  38,  881.  886 
Meldon  v.  Devlin,  222,  .507 
Mellen,  Matter  of,  84,  85.  937 

v.  Mellen,  216,  616 
Meltzer  v.  Doll.  549.  550 
Menck,  Matter  of,  700 
Menge,  Matter  of,   149,  156,   157 
Merchant,  Matter  of,   123,   160 

Ins.  Co.  V.  Hinman,  65 
V.  3Ierchant.    30,    474,    478, 
800,  812 
Mericlo,  Matter  of,  64.  669 
Merriam,  Matter  of,  160,  203,  212,  213, 

227,  579,  875 
Merrick  v.  Waters,  512 
Merrill  v.  Farmers'  Loan  &  T.  Co.,  511 

V.  Rolston,  180.  182 
Merriman,  Matter  of,  638 
Merritt,  Matter  of,  54,  57,  768,  783 
V.  Corlies,  411 
V.  .Jackson,  73,  113 
V.  Merritt.   278.  421.   770.  871 
V.  Tliompson.  138,  546 
[Mersereau,  [Matter  of,  452 
V.  Ryerss,  543 
Mertens  v.  Roche,  035 
Mesereau,  Matter  of,  231 
[Meserole,  Matter  of,  824 

V.  Meserole.  215,  216 
Mesick  v.  Mesick,  441.  490 
Messenger  v.  Casey,  481 
Messerve  v.  Sutton,  942 
Messman  v.  Egenberger,  672 
Metealf,  Matter  of,    163,   105,   178,  210 

V.  Clark,  408,  750 
Methodist,  etc..  Church  v.  Hebard,  613 
Metropolitan    Trust'  Co.  v.  McDonald, 
491 
V.  Rogers,  468 
Metzger  v.  Metzger,  802,  809 
v.  Rankine,  424 
V.  Schneider,  911 
Meyer,  Matter  of,  590 
V.  Cahen,  501 
Meyers,  jMatter  of,  350,  018 

V.  Becker.  901 
Middlebrook  v.  Merchants'  Bank,  4hS 
Middlehurst  v.  Johnson,  101 
Milbank  v.  Crane,  301 
Miles,  Matter  of,  572,  905,  912,  915 

v.  Crocker.  547 
Milhau,  Matter  of,  272 
:klillard,  ^Matter  of,  515 
Miller,   Matter   of.   1.39.   152,   175,   182„ 
193.  217,  380,  399,  427,  438, 
446,  453,   5.36,  .540,  .571,  .573, 
570.  577.  581,  583,  587,  596, 
050,  713,  769,  847 


Table  of  Cases  Ci'.ed. 


1  . 


Miller    v.  Brinkorlio(T.  884 
V.  Cliurcliill,  231 
V.  Coudort,  (i.SO 
V.  Crawford,   :W8 
V.  Franklin  Hank.  308,  309 
V.  (;ill)crt.  4-21 
V.  Miller,  (14.  231,  232,  544,  545, 

fi22.  (5ti3.  CM) 
V.  Montf^oniciv,  127 
Miller  v.  Plumb,  380  " 

V.  White,  ].3n.  107,  189 
Milli-an  v.  Allen.  159 
IMillikcii,  Matter  of.  71 
Mills,  Matter  of.  583,  709 
V.  Fofjal,  132 
V.  llofTnian.  80.  921 
V.  Mills.  92,  220.  405,  456,  5G1 
V.  SMiith.  (135.  78G 
V.  Thursby,  523 
Millward,  Matter  of.  598 
Milne,  Matter  of,  008 
Miner.  Matter  of,  937 
Minges  v.  ^Vlathewson,  626 
Minor  v.  Jones.  298 
Minot  V.  :Minot.  193 
Minuse  v.  Cox.  190,  504 
Mitchell,   Matter   of.   505.   540,  812 
V.  Blain.  (130.  670 
V.  Mitchell.  140 
V.  Mount,  546.  565 
V.  Stewart,  768 
Moak  V.  Moak,  216 
Moderno.  :\rattcr  of.  225.  333,  570,  648 
Moehring,    IMatter  of.  275.  625,  649,  763 
V.  :\ntchell.  138 
V.  Thayer,  164 
Moffat.  Matter  of.  826 
Moffatt  V.   ■\Ioffatt.  750.  768,  924 
Moflfett  V.  Klniendorf,  217,  639 
Moke   V.  Xinrie.   247 
Mollan  V.  Oriffeth,  561 
Monahan  v.  Fitzpatrick.  67.  786.  795 
TVfn-idorf.  Matter  of,  181.  909 
Moaell,  :\ratter  of.  42,  75,  76,  831,  837, 
894 
V.  Denison,  884 
V.  Monell.  488,  848 
Monroe,   Matter   of.   30,    123,   177,   182, 

183,  422,  513,  800 
Monson    v.    New    York    Security,   etc., 

Co..  626 
Montalvan  v.  Clover,  409.  750 
^lontanve  v.  Montanve.  637 
IMontcit'h.  Matter  of,"  38.  882 
I^Tontfort  v.  ilontfort.  258.  627 
Montgomery  v.  Hurgess,  538 

V,  Dunning.  403.  425.  812 
V.  mUor.  472.  475.  479 
Montignani  v.  Blade.  216.  219,  231,  612 
^Montross  v.  Wheeler,  30.  762 
Moody.  :Matter  of,  659,  S66 
Moooi-s  V.   White.  701,  718 
Moon,  Matter  of,  174 


Moore,  :Matter   of.    52,    231,    577,    5>;4, 
60H,  858 
V.  Darton,  473 
V.  (iriswold,   155.  187 
V.  Lyons.    230,   231 
V.  Manscrt.  576 
V.  Mayor,  etc.,  452 
V.  Moore,    150,    174,    700,    719, 
937 
Moorhouso    v.     Hutchinson,    350,    651, 

657 
Mootrie  v.  Hunt.  327.  330 
Moran.  Matter  of.  289 
More  V.  Finch,  302,  87(! 
Morehouse  v.  Cooke.  840,  842 
Morgan,  Matter  of,  137,  256,  273,  300, 
360.  581,  592,  631,  673,  821, 
833 
V.  Andariese.  939 
V.  Cowie,  592 
V.  Ilanna.s.  4.50,  824,  827,  835, 

847.  855,  856 
V.  Morgan.  362.  817.  827.  907 
V.  Skidniore.  528,  543,  546 
V.  Valentine.  644 
V.  Warner,  605 
V.  Williams,  619 
Morganstern,   Matter  of,  213 
:Moriarity,  :Matter  of,  339 
Morrall   v.  Sutton,  228 
:\Ionell  V.  Dickey,  135,  407.  802,  872 

V.  Van  Buren,   541 
Morris,  Matter  of,  821,  898 
V,  Hunkcn,  458 
V.  Kent.  621,   646 
V.  Keys.  205 
V.  Knillen.   144,   152 
V.  ]\rorange.  930 
V.  Porter.   158.   160 
V,  Sicklv,    136 
V.  Ward.  21() 
Morrison  v.  ^lutual   Life  Ins.  Co.,  421 

V.  Smith.    175,   183 
Morrow  v.  Morrow,  456 
Morse  v.  Scott,   168 

V.  Tilden,  125.  410,  632,  633 
Mortimer  v.  llartlev,  220 
Morton,  ^Matter  of,  526,  529 

V.  :Morton,  219,  232,  233 
IMosely  v.  ^Marshall,  560 
Moses  V.  Murgatrovd.  562 
:\roshcr  V.    Hubbard.   8.34 
Moss.   :\rattcr  of.   119,  .344 
Mott,    Matter   of.   60 

V.  Mott,  431 
:Motz,   :Mattcr    of,  468 
ifoulton.  Matter  of,  85,  296,  .345 
Moidtrie  v.'  Hunt.   100,   131,  (iti3 
Mount,  :\rattcr  of,  38,  439.  824,  827.  881 
V,  Mitchell.  38.  787,  931 
V.   Mount,  69,  761.  762.  770 
:Mnwatt  V.  Carow.,  232 
Mowrv  V.  Pcct.  74.  540 


Ivi 


Table  of  Cases   Cited. 


:\ro\vrv  V.  Sill)Or.     1;10.     1  (•.:!,     174,     ITC. 

177,   ISl,  183 
Mover  v.  Moytr,  720 

V.  Weil,  201,  533 
]\Iiiir  V.  Trustees,  etc.,   92,  455 

V.  Wilson,  844 
Mulheran    v.    Oillespie,   624 
AIull,  Mattef  of.  804.  911 
Miillarkv  v.  Sullivan.  231 
Mullen,  Matter  of.  214,  223,  935 

V.  Guinn,  402 
:Mullor.  :\Iatter  of,  505,  650.  848 
Mulligan,  :\Iatter  of.  398.  853 
V.  Cannon,  545,  548 
Mullon,  Matter  of,  402,  505,  529,  811 
Mulrein  v.  Smillie,  491 
Mulry,  Matter  of,  784 
IMulvey  v.  Reilly,  69 
Mumford  v.  ^Murray,  488 
Mundav  v.  Slaughter.  125 
Mundoi-ff  v.  Wangler.  888 
:\lundt  V.  Glokner,  430,  456 
Munoz,  :Matter  of,  802 
IMunro.  :^latter  of.  39 
Munsell  v.  Munsell,  846 
Munson,  Matter  of.  631 

V.  Howell,  74,  541,  545 
Munter,  ^Matter  of,  038,  910 
Munzor,  Matter  of.  497 
Murdock  v.  Gifford.  386 
V.  Kelly,  481 

V.  Ward,  65,  231,  676,  689 
Murphv,  Matter  of.  130.  143,  149,  156, 
103.  175,  177,  179,  182,  193, 
585,  070 
V.  Marcelliis,  012 
A\  Xaughton,  436 
Murray,  INIatter^of,  219,  833 

y.  Blatchford,  406,  415,  516 
v.  Bronson.  216 
V.  Smith,  525 
y.  Vanderpoel,  762 
^lurtha  y.  Curley.  907 
iSIurznowski   v.    Delaware,   Lack.,   etc.. 

R.  R.,  377 
]\Iusgraye,  Matter  of.  262 
Mutual  L.  Ins.  Co.  v.  Bailey,  421 

y.  Sclnvaner,  879 
Myer  v.  Cole,  441 

Myers,  Matter  of,  187,  497,  504,  812 
V.  Becker,  901 
V.  Bolton.  815 
v.  Cronk,  538 
v.  Eddv.  210 
v.  :\rcCullagh.  417 
Mygatt  V.  Wilcox,  441,  879 

Nagle  V.  ]\rcGinnis,  519 
Nahmens  v.  Copely,  644 
Nanz  y.  Oakley,  .372 
Xash.  :\Iatter  'of,  207 
Xav,  :Matter  of,  465 


Xavlor  y.  Brown,  236,  875 

y.  Gale,  814 
Xeale,  Matter  of,  588 
Xeaves  v.  Xeaves,  653 
Xeder  v.  Zinimer,  644 
Xeergaard,  jNIatter  of,  243 
Xeiheisel  v.  Toerge,  160,  182 
Xeil,  Matter  of.  532 
Xeilley  v.  Xeilley,  531,  800 
Nellis  v.  Duesler.  549 

y.  Xellis,  019 
Xelson,  Matter  of,   154,  159 
y.  Brown,  022 
y.  McGillert,     133,     149,     155, 

186,   187 
y.  Public   Administrator,    18.5 
y.  Russell,  231 
Xesbitt  y.  Lockman.  176 
Xesmith,  Matter  of,  275,  505,  506 
Xeugent  v.  Xeugent.  149,  153 
Xevins,  Matter  of,  147 
Xew  y.  Xicoll,  279,  441,  495 
Xewcomb.  flatter  of,  581 
y.  Lush,  231 
y.  Xewcomb,  217,  639 
Xewcombe,  ^Matter  of,  7 
Xewell  y.  Nichols,  421 
Xewhouse  y.  Gale,  342,  933 

y.  Godwin,    155,    166.    175, 
179 
Xewkerk  y.  Xewkerk,  020 
Xewlands,  Matter  of,  829 
Xewman,  ]\Iatter  of,  032 
XeA\'tons,  INIatter  of,  160 
X'ewton  v.  Bronson,  423,  479,  481 
V.   Stanley,  013,  032 
y.  S^^•eet,  545 
X.  Y.  Inst,  for  the  Blind  v.  How,  225, 

237 
X.  Y.  Life  Ins.  Co.  v.  Baker,  508 
X\  Y.  Life  Ins.  &  Trust  Co.,  Matter  of,. 

626 
X.  Y.  Life,  etc.,  Co.  v.  Viele,  132,  231, 

602 
Xexsen  y.  Xexsen,  141,  151,  174,  179 
Xiblo  V.   Binsse,  546 
Xicholas  v.  Xicholas.  135 
Xicholls,  Matter  of,  782 
Xichols,  :\Iatter  of,  189,  327,  446,  583, 
809 
\.  Chapman.  523,  557 
V.  Xichols,  647 
y.  Romaine,  205 
Xicoll,  Matter  of,  837 

y.  X.  Y.  &  E.  R.  Co.,  620 
Xies,  Matter  of,  84,  144,  153 
Niles,  Matter  of,  85,  487,  915 
y.  Chace,  388 
V.  Stevens,  416 
Nipper  v.  Groesbeck,  150 
Xisbet,  Matter  of.  152 
Xiskern  v.  Haydock.  721 
Xiven,  Matter  of,  605 


Table  of  Cases  Cited. 


1, 


Noblp  V.  Thavor.  217 
Nockin,  Matter  of,  80:5,  912 
Nolan    V.    C'oiiiiiiand,    (i71 
Noll,  Matter  of,  372 
Noite,  Matter  of,  174,  177,  181 
Nottiiif,'.  Matter  of.  1:58 
Noon.  Matter  of,  142.  14:5 
N(.rlinfr  v.  Atlee,  4!H.  400 
Norris  v.   IJeyea.  228,  f)38' 

V.    Breed,  4(i:5 

V.  Norris,  87;") 
Norton,  ^llatter  of,  1:58,  220 

V.  I.awraTU'c.  (>7.  7.3,  95 
V.   Norton.  421,  425 
Nottlx-ck  V.  Wilks,  100 
Nottinfrham.  Matter  of,  445,  024 
Noyes,  :\Iatter  of.  400 

V.  Children's       Aid      Society, 
002,  003,  004,  910,  923 
Xuirent  V.  Vetzera.  864 
Ni-.ttinjr  V.  Pell.  182 
Nutzhorn  v.  Lit  tig,  190 

Oakes.  Matter  of,  447.  G43 
Oaklev  v.  Oaklev.  847 
O'Brien,  Matter  "of.  74.  81.  85.  443,  464. 
468,  705.  711,  761,  763,  769. 
781.' 025,  044 
V.  Bark  lev,  620 
V.  General    Svnod.  etc..  846 
V.  Glenville  Wool  Co.,  882 
V.  Neubert,  255,  257,  287,  859 
V.  Jackson,  462,  491 
V.  People.   173 
Ocean  N.  Bank  v.  Olcott.  30 
Oekersliausen.  ?ilatter  of.  653 
O'Connell.  IMatter  of,  420,  741 
O'Connor,  ^Matter  of,  654,  656,  774,  781, 
703 
V.  (!arri<ran.  771 
V.  Cifrord.  74,  515,  510,  703 
V.  Hupgins,  26.  295 
O'Dea,  :Matter  of,  168.  169.  174 
Udell.  Matter  of.   39.   74.   86.    113.  240 

498.  642,  756,  700.  802.  881,  893 
O'Donoghue,  flatter  of,  505 

V.  Boies.  481.  846 
O'Flvn  V.  Powers,  424,  53:},  704,  708, 

718.  721 
O'Oara  v.  Clarkin.  441 

V.  Eisenlohr,  208 
Ogden  V.  Smith.  416 
Ogpr,  ]\Iatter  of.  847.  854 
Ofiilvie  V.  Opilvie.  504.  803 
0<,'sburv,  IVIatter  of,  577 
O'Hara".  IMatter  of.  123.  362,  585,  644 

V.  Dudley.  236 
Olcott  y.  De  .Torrin,  401 
y.   Ossowski.    613 
Oldham.  "Matlcr  of.  140.  157 
Olin  y.  Arendt.  401 
Oliyer.  flatter  of.   122 
V.  Frisbie,  361 


Olmsted,  Matter  of,  37,  354.  515 
y.   Keyes,  691 
y.  Loiig,  37.  710,  734 
y.   \'rcdeiiburf(h,  564 
Olyphant  y.  I'hyfe.  708,  709 
Oiidfrdonk,  Matter  of,  81 
O'N^il.    Matter   of,    39,    142,    144,    840, 
850 
V.  Barry,  530 

V.  Murray,  171,  174.  177,  182, 
183 
O'Niel,  Matter  of,  200 
Onondatja  Trust  &  D.  Co.  y.  Price,  405, 

640 
Oosterhoudt,  Matter  of.  518,  519 
Oppenlieim  v.  Wolf,  138 
Oppernian,  Matter  of.  507 
Oram  y.  Oram,  296,  208.  346 
Ordish  y.  McDermott,  102 
Ordronaux  y.  Helie.  409 
Ormiston  y.  Olcott.  487,  511 
Orser.  ;Matter  of,  832 
OReilly  y.  :\Ieyer,  913 
ORourke.  :\Iatter  of.  518 
Ori>han  Asylum  y.  \Ahite,  278 
Orser,  flatter  of,  125 
y.  Hoag,  671 

y.  Orser,  140.  158,  150,  160,  802, 
800 
Orton  y.  Orton.  611.  706 
Osborne  y.  ^McAlpine,  905 

y.  Parker,  529.  544 
Osterhout  y.  Ilardenbernrh.  521 

y.   Shoemaker.    166 
Otis,  Matter  of.  175.  177 

y.  Hall.  :Matter  of,  81,  526 
Otto  y.  Van  Eiper.  373 
Outhouse  y.  Odell,  548 
Oyerheiser  y.  ^lorehouse,  544 
Oyiedo  y.  DufTie.  104 
0\yens,  Matter  of.  125.  210.  272 

y.  Bloomer.  430.  706.  727.  025 
y.  Missionary  Soc,  227,  228 
y.  0\yens,  637 
0x1  ey  y.  Lane,  217 

Paddock  y.  Kirkham.  530,  540 
Paflf  y.  Kinney.  25.  26.  878.  892 
Pape.  :\rat<er  of.  310.  318,  910 
Paget  y.  ^lelcher.  618 
V.  Steyens,  417 
Paige,  Matter  of,  164.  177,  182.  93G 
Paine,  Matter  of.  108 

y.  Aldrich.    174 
Palmateer.  Matter  of.  124.  178 
Palmer.  :Matter  of.  420.  585.  783,  802 

y.  Culbertson.  630 

y.  Green.  (i07 

y.   Morrison.   388 

y.  Palmer.  662 

y.  Ph.enix  Mut.  Life  Tns.  Co., 
407.  408 
Pari  a.  Matter  of,  288 


Vlll 


Table  of  Cases  Cited. 


Paramoro.  Matter  of,  4GG 
Piirlian  v.  Moran,  302 
Parish.  ]\Iatter  of,  !)U 
Park.  :\Iatt(M-  of,  (inO 
Parke  v.  Parko.  89!) 
Parker,  Matter  of.  :U,  3G,  410,  847,  854 
V.  Beer,  705 
V.  Piitler,  217 
V.  Dav,  279,  441 
V.  Gainer,  523,  556 
V.  Linden,  690 
Parker  v.  McCluer,  694 
Parkinson  v.  Jaeobson,  708 

V.  Parkinson,  645 
Parks  V.  Parks,  230 
Parmalee   v.    The   Oswego   &    S.    R.   R. 

Co.,  020 
Parsee  Merchants'  Case,  450 
Parsons  v.  Bowne,  699 

V.  Lvnian,  102,  264,  407,  408, 
409,  662,  063,  797 
Partridge  v.  Kearns,  474 
Pascalis  v.  Canfield,  562 
Patchen  v.  Wilson,  418 
Paton,  IVIatter  of,  649,  825 
Patten,  Matter  of,  517 
Patterson,    Matter    of,    120,    174,    342, 
350,    443,    640,    644,   881, 
935,  941 
V.  Buchanan,  430,  548 
V.  Copeland,  459 
V.  Ellis,  618 
V.  Hamilton,  717,  927 
V.  Patterson,  436,  439,  461 
Patullo,  Matter  of,  369 
Paulding  v.  Marvin,  489 
V.  Sharkey,  489 
Pawling  V.  Bird,  557 
Paxton  V.  Brogan,  109 

V.  Patterson,  109,  114,  792 
Pavne,  Matter  of,  392 

V.  IMatthews,  526,  799 
Pearl,  Matter  of,  539 
Pearsall,  Matter  of,  796,  924 

V.  Elmer,  129 
Pearson,  Matter  of,  33 
Pease  v.  Egan,  561,  906 

V.  Gillette,  71 
Peaslee,  Matter  of,  07,  215,  242,   656, 

792 
Peck,   Matter   of.    167,    172,    174,   487, 
582,  934 
V.  Belden,  181 
V.  Carv,    145,    151,    154,    160, 

167,  174 
V.  Mead,  423,  747 
V.  Peek.  376,  796.  909,  927 
V.  Richardson,  459 
V.  Sherwood,     453,     658,     756, 
789,  809 
Peebles  v.  Case,  139,  159.  160 
Pelkey  v.  Town  of  Saranac,  464 


Pell,  Matter  of,  600 

V.  Folger,  223,  625 
Pelletreau  v.  Smith,  730 
Pelton,  [Matter  of.  893 
Peltz  V.  Learned,  499 
V.  Schultes,  760 
Pendle  v.  Waite,  392 
Pendleton  v.  Fay,  480.  752 
Pennell  v.  DutlVll,  751 
Pennevet,  Matter  of,  159 
People  V.  Barnes,  25,  26,  373,  374 

V.  Boice,  865 

ex  rel.   Hecar  v.   Struller,   1001 

ex  rel.  Brooklyn  Indus.  School 

V.    Kearney,  846,  867 

ex  rel.  Brush  v.  Bro\vn,  870 

V.  Byron,  844 

V.  Carr,  2 

V.  Chapin,  833 

V.  Coffin,  803.  830 

V.  Colborne,  49 

ex  rel.  Collins  v.  Donohue,  363, 
371 

V.  Corlies,  25,  26,  373 

V.  Co.  Judge  of  Rensselaer,  49 

V.  Cowles,  890,  901 

V.  Davenport,  514 

V.  DoA\'ning,  374 

V.  Falconer,  374,  880 

V.  Faulkner,  501 

V.  Gates,   128 

V.  Guild,  891 

V.  Hascall.  375 

V.  Hartman,  350 

V.  Irvin,  t)4^  671 

ex  rel.  Jones  v.  Davidson,  893 

V.  Judges  of  Albanv  Co.,  564 

V.  Judges  of  Erie,  520,  521,  522 

V.  Justices,  etc.,  880 

V.  Kearney,  842 

V.  Keyser,  415 

V.  Laws,  892 

V.  Lewis,  49 

V.  Marshall,  890 

V.  Norton,  361 

V.  Petty,  8 

V.  Pleas,  515 

V.  Powers,  223 

V.  Prout,  607 

ex  rel.  Prnvne  v.  Watts,  836 

V.  Purdv.  589 

V.  Riley,  896,  901 

ex  rel.  Sackett  v. Woodbury,  896 

V.  Shaw,  11 

ex  rel.  Sholes  v.  Supervisors,  20 

V.     Simonson,  228 

ex    rel.   Sprague   v.    Fitzgerald, 

350 
ex  rel.  Stevens  v.  Lott,  791 

V.  Stout,  129 
V.  Struller,  374 

V.  Sturtevant.  884 

V.  Supervisors,  etc.,  5,  576 


Taulk  oi'  Casks  Cited. 


lix 


People  V.  SurropjitP    of    rutnain     Co., 
HHC> 
V.  Townsciul,  2.  877,  H!)2 
V.  Wiiiiislcv,  801,  8()r> 
V.  Wilcox, "841 
Peoples'  Trust  Co.  v.  Smith,  220.  021 
Pepoon,  Matter  of,  14!).  If)"),  159 
Perofjo,  Matter  of,  103.  041 
Perkins,  Matter  of,  210.  878 

V.  Stininiel,  373,  702,  840 
Perley  v.  Sands.  340 
Perry,  Matter  of.  .'lOS,  4i)(».  770.  797.  800 
V.  Cornell  St('anil)oat  Co..  295 
V.  PeiTV,    135,    197 
Person  v.  Wanvn,  KiO.  175 
Peters,  Matter  of.  209,  229,  595 
V.  Carr.  59 
V.  l^ihlic.  Admr.,  280,  289,  291, 

295 
V.  Stewart,  536 
Peterson   v.    Chemical    Bank,   08,    104, 

408 
Petrie,  Matter  of,  345 
V.  Petrie.  033 
V.  Shoemaker.  166,  175 
Pettigrew  v.  Foshay,  341 
Pettit,  Matter  of,  580 
Pew  V.  Hastings.  23.  37,  119.  239,  886 
Pevman  v.  ]?owerv  Hank.  401 
PeVser,  Matter  of.  410.  408,  409,  009. 
829.  912,  913 
V.  Wendt.  07,  048,  890 
Pfarr.  ^Matter  of.  287 
Pfeifer  v.  Supreme  Lodge,  403 
Pfolil,  [Matter  of,  720 
Phalen.   Matter  of,    179,   243,  244,  652, 

924 
Phelps,  Matter  of,  507 
V.  Phelps.  233 
V.  Pond,  228,  233 
Philbin,  Matter  of,  514,  517,  554 
Philip.  [Matter  of,  189 
IMiilipe  V.  Levy,  408 
Phillips,  Matter  of,   140,  153,  154,  155, 
172 
V.  Chater,  178 
V.  Liebmann,  374,  801 
V.  Loekwood.  850 
V.  jMcComb.  233,  030 
Philp,  Matter  of,  335.  330 
Philson  V.  Moore,  227,  020 
Phipps.  [Matter  of.  581 
Phivnix  V.  Livingston,  820,  825 
Phvfe.  Matter  of.  525 
Pierce,  Matter  of.  837,  841,  843 
V.  Chamberlain.  044 
V.  Pierce.  30 
Pierpont  v.  Patrick.  190.  229 
Pierrei).)nt   v.   Edwards,   230,   013,  029, 

032.  ()33 
Pierson.  [Matter  of.  52S.  53(!.  882 
Pilling  V.  Pilling.   174,  175 


Pike.  Matter  of.  105.  175,  182,  817.  828, 

038 
Pinckney,    Matter    of.    180,    187,    270 
V.  I'inckney.  230.  824 
V.  Smith.  77,  710 
IMnkemclli  v.  Hischoff.  548 
I'inney   v.   Fancher,  OIH,  045 
Piper \-.   Barse,  030.  072 
Pirnie,   [Matter   of.   824 

V.  Purdy.  (il4 
Pitcher,  Matter  of,  7()7 
Pitkin   V.   Wilcox,  770 
Pittman   v.  Johnson.  (133,  907 
Pitts  V.  .Jameson.  427 

V.  Pitts,  452.  001 
Place,  Matter  of.  257,  200,  304.  805,  813, 

933 
Plaisted.  Matter  of,  143 
Plant  V.  Harrison.  00 
Plasterstein  v.  Hoes,  473 
Plath,  [Matter  of.  331 
Piatt,  Matter  of,  007 

V.  Mickle.  05.  231,  089 
V.  [Moore.  428.  012,  045 
V.  Piatt,  442,  700 
Plopper,  [Matter  of.  715 
Plum.  [Matter  of,  500.  000 
Plumb,  Matter  of,  80,  88,  00,  847,  853, 

800,  025 
Plummer,  [Matter  of,  578 
V.  [Murray,   103 
Podmore  v.  Dime  Sav.  I>ank,  476 

V.  Seaman's    Hank    for    Sav- 
ings. 403,  404 
V.  South     Brooklyn    Savings 
Inst..  403.  477' 
Pollen.  [Matter  of,  441 
Pollock,  Matter  of,  Oil,  791,  804,  808, 
811 
V.  Hoolev.  207,  481 
Pond  v.  Bergh,  218,  229,   007 

V.  Curtiss,  840 
Pool,  Matter  of,  804 
Po])ham  v.  Spencer,  274,  753 
Porter.  Matter  of,  54.  57,  59,  123,  157, 
513,  770,  953 
V.  Kingsbury,  047 
Porteus  v.  Holm.  14S 
Portingall.  Matter  of.   181 
Post,  Matter  of.  57.  25(i.  200.  278.  GOA, 
709.  770.  000.  012 
V.  Hover.  220.  (>18 
V.  Ketchum.  4(!8 
V.  Mason,  170.  181.  880.  884 
Postlev  V.  Chevne.  254,  347.  348.  480 
Potter,  Matter"  of.    81,    120.    140.    172, 
188.  (i03.  700.  037 
V.  Chapin,  228 
V.  Cromwell.  3S(i 
V.  [McAlpine.  100.  108.  170.  222, 

302 
V.  Ogden,  77.  305,  371,  843,  883, 
922 


Ix 


Table  of  Cases  Cited. 


Potter   V.  rnrdv,  883 
V.  Sachs,  513 
Potts  V.  Baldwin.  '^M,  5G2 
Ponltnev  V.  Randall,  845 
Powell,  "Matter  of,  273 
V.  Tuttle,  885 
Power  V.  Cassidy,  223,  421 

V.  Speekinaiij   374 
Powers,  :Matter  of,   79,  424,   533 

V.  Powers,  485,  644 
Pratt  V.  Roman  Catholic  Oi-phan  Asy- 
lum, 223,  228,  (550 
Pray,  Matter  of,  842 

V.  Hegeman,  222 
Prentice,  JMatter  of,  483 

V.  Janssen,  616,  647,  876,  942 
V.  Whitney,  525 
Prentiss   v.    Weatherly,    303,   372,   373, 

839.  846 
Prescott,  ^Matter  of,  187,  505 
Preston,  Matter  of,  581 

V.  Howk,  225,  236,  600 
Price  V.  Brown,   131,   141,   772,  802 
V.  Fenn.  76,  77.  716 
V.  Hollman,  504,  506 
V.  Price,  433 
Prichard  v.  Kirsch,  226 

V.  Thompson,  223,  236 
Priest  V.  Watkins,  93 
Priester  v.  Hohlochs,  424 
Prime,  Matter  of.  348,  465,  514,  586 
Prince  v.  Hazelton.  201 
Pringle  v.  Burroughs,  130 

V.  Long  Island  R.  Co.,  456 
Prior,  Matter  of,  643 
Prive  V.  Fouclier,  213 
Proctor  V.  Clarke,  152 

V.  Wanmaker,     33,    239,     313, 
346.  859 
Proude  v.   Whiton,  546 
Prout,  Matter  of,  82,  85,  262,  774,  898 

V.  McNab,   137 
Pruvn,  Matter  of,  780,  853,  854 

V.  Brinkerhoff,   124,   125,  926 
Pryer  v.  Clapp,  31,  41,  59,  244,  888 
Public  Adm'r  v.  Burdell,  309 

V.  Elias,  318,  469 
V.  Hughes.  286,  295,  662 
V.  Peters.  286,  296 
V.  Ward.  466,  468 
V.  Watts,  73,  287 
Pugsley  V.  Aikin.  385,  493 
Pullman,  Matter  of,  581 

V.  Willets,  449,  450 
Pumpellv  V.  Tinkham,  274 
Purdv,  Matter   of.    146,    147,    153,    196, 
198,  200,  598 
V.  Dovle,  562 
V.  HaVt.   209 
V.  Pufdy,  615,  622 
Purrov,  ]\ratter"of,  608 
Pursell  V.  Fry.  544,  548 
Pursley  v.  Rodgers,  463 


Putnam  v.  Lincoln    Safe    Deposit    Co.,. 
132 
V.  Ritchie,  845 
Pye,  Matter  of,  640,  898,  923,  932,  939 

Quackenbos,  Matter  of,  878,  896 
Quackenboss    v.    Southwick,    349,    361^ 

411,  417,  764 
Quackenbush  v.  Quackenbush,  93 
Quatlander,  Matter  of,  707 
Quick  V.  Ludborrow,  432 
Quin,   Matter  of,  426,  450,  452,  483,  499, 
501,  589,  791 
V.  Hill,  349.  437 
V.  Skinner,  216 
Quinn,   Matter    of,    39,    445,    517,    694, 
830 
V.  Hardenbrook.  230,  232 
V.  Quinn,   187,  188 
Quintard  v.  Morgan.  272,  273,  275,  289 

Raab,  Matter  of,  549,  550,  620 
Rabb,  Matter  of,  783 
Raborg,  Matter  of.  842,  870 
Radde,  Matter  of,  798 
Radley  v.  Fisher.  541,  542,  544 
Raflferty  v.  Clark,  615 
Ragan  v.  Allen,  616 
Rainey,  Matter  of,  67,  773 
Rainforth,  Matter  of,  775,  777 
Rait  V.  Rait,  846,  853 
Ramsdell,  Matter  of,  39 
V.  Viele,   169 
Ramsey  v.  De  Rimer.  223 

V.  Wandell.  480 
Rand,  Matter  of,  181 
Randall,  Matter  of,  513,  796 

V.  Sackett,  527 
Randel  v.  Dyett,  751 
Randell,  Matter  of,  30,  427,  556 
Rank  y.  Camp,  211.  333,  652,  656 
Rankin  y.  James,  875 
Ransier,  Matter  of,  768 
Ransom  y.  Nichols,  289,  691 
Rapalje  y.  Hall.  506,  854,  857 
Rapalye  y.  Rapalye,  561 
Rapp  y.  Masten,  845 
Rappelyea  y.  Russell,  436,  437 
Rapplee,  Matter  of.  171.  173,  941 
Rasch,  Matter  of,  31,  832,  905,  909 
Rathbone  y.  Dyckman.  229 
Rauchfuss  y.  Rauchfuss,  616,  639,  693-. 
Raupp,  Matter  of.  113 
Rauth  y.  Dayenport,  548 
Rayen  v.  Norton.  114,  723 
Ray,  Matter  of.  583 

y.  Van  Hook,  903 
Raymond,   Matter  of,  30,  210 

y.  Dayton,  450 

y.  Fitch.  432 
Rayner  y.  Pearsall,  515 
Raynor  y.  Gordon.  711.  718,  721 
y.  Laux,  539,  540,  543 


Table  of  Cases  Cited. 


TJca  V.  Mc'.Eafliron,  734 
Head,    .Matter  of.  17;"),  1K2,  774,  7.S0,  7s-2 
V.  Knill,  olii 
V.  Patterson,  700 
V.   Williains.  414 
3{edfiel(l.  .Matter  of.  'M),  7Sti,  7!».'),  700 
Kediiioiid  V.  Kly,  HH2 
Kedpatli  v.  Kieh.  (i4.  07 1 
Keed,  .Matter  of.  Iti7.  174.r)09,  820,  911 

V.   J^-ed.  :JH.  47-2.  S82,  il4r) 
Reeve  v.  Croshv,  41.  125,  127,  149,  ir)0. 

KiO,  182 
Reeves,  :Matter  of.  781 
Recran.  Matter  of.  31,  942 
Re^na  v.  Stewart,  435 
Reioliert.  .Matter  of.  255 
Reid  V.  \'anderlieyden.  95,  902,  925,  920 

V.  Curtin,  98 
Reiffeld,  Matter  of.  199 
Reilley  v.  Duf^y,  73,  774,  780 
Reilly,  Matter 'of,  590 
Reinisoh,  flatter  of.  301 
Renibo,  ;Matter  of.  811 
Remington  v.  Walker.  500.  787 
Renisen  v.  iJrinekeiliotl'.  150 
Renhohn  v.  Puh.  .Adni'r.  298 
Renihan  v.  Dennin.  12S.  12!) 
Renner  v.  Muller,  071 
Renwick  v.  Kenwiek.  091,  719 
Rettig.  Matter  of,  344 
RejTiolds,  Matter  of.  150,  800,  807 
v.  Collin,  535 
V.  Mason.  527 
V.  Parkes.  90 
V.  Reynolds,    441.    478,    G15 

824 
V.  Robinson,  023 
V.  Root.  174.  175,  178 
V.  Sisson.  504,  500 
Rhodes  v.  Caswell.  878,  879 
Riblet  V.  Wailis,  520 
Ricard  v.  Layton.  40 
Rice,  Matter' of.  005 

V.  Harbeson.  559,  561 
Rich  V.  Tiffany.  215 
Richards  v.  Northwest   P.    D.   Church 
210 
v.  Stillnian,  547 
Richardson.  Matter    of.    166,    174,    215, 
242.   290.   343.  450.  408! 
40i).    505.   517.   590,   759. 
803.  829,  880 
v.  .Tiidah,  719 
v.  Root.  30.  800 
Riches.  :Matter  of.  038 
Richmond.  Matter  of.  277,  703.  70S.  020 

v.  Foot.  703.  712.  713.  714 
Riehter  v.  Poppenhausen.  497 
Rickard,  ^Matter  of.  840.  842,  845 
Rickets  v.   Livingston.  024 
Ricketts  v.  Weaver.  432 
Ridden  v.  Thrall,  474,  476,  478 


Rider.  .Matter  of,  531 

v.  Legg,  123,   141,  155.  200 
v.  .Miller,  181 
Ridgeley  v.  Johnson,  415 
Ridgeway,  Matter  of,   138 
Rielten  v.  Hicks,  149,  780,  781 
Rieck  V.  Fish,  380,  (;58,  844 
Riegelman  v.  ^IcCoy,  (550 

V.  Riegeiman.  333,  056 
Riggs   V.  American  Tract  Soc.  108 

V.  Cragg.    20,    (iO,  209,  514,   517, 

052,  75().  774,  794,  790,  912 
V.  Palmer,  053 
Rigney  v.  Coles,  702 
Riker  v.  N.  Y.  HospitiU,  220,  237 
Riley,  iMatter  of,  050 

V.  Diggs,  227,  228,  237 
V.  Waller,  430 
Rintelen,  Matter  of,  174,  182 
Risley  v.  Brown.  527 

V.  Wightman.  459 
Pitch,  Matter  of.  447.  790 
Roarty  v.  McDermott.  414 
Robbins,  Matter  of.  394,  400,  533 
Robert,  Matter  of,   195 
V.  Corning,   030 
V.  Ditmas,  538.  543,  544 
V.  Morgan,  787,  893 
Roberts,  Matter  of,  132 

V.  Pike,  541,  540 
Robertson,  Matter  of,  37.  39.  215,  226, 
598.  000,  042 
V.  McCieoch.  250.  929 
V.  Scheili.  528 
Robins  v.  Coryell.  145 

V.  IMcClure,  289.  088.  091,  092 
Robinson,   Matter  of,  357,  301,  826,  909 
V.  Adams,  405 
V.  Appleby.  429 
v.  jMcOregor,  385 
V.  Raynor,  204.  030.  940 
V.  Robinson,    73,    078.    770. 

775.  870 
V.  Schmidtt.  418 
V.  Smith.    150.   180.  939 
Robison  v.  Robison.  221 
Rockwell  V.  Geery.  035,  070 

v.  Saunders.  301 
Roderigas  v.  East  Riv.  Sav.  Inst.,   14, 
117.    137,    285,   202,    302.   883,    884. 
885 
Roe  V.  Boyle,  540.  042 

v.  Swezey.  280 
Roffo,  ]Matter  of.  027 
Rogers,  Matter  of.   498.    590,    603,    626, 
041.   057,  709,  770.  801.  938. 
943 
V.  Hosack.  552,  502 
V.  King.  768 
V.  Lvon.  128 

V.  ]\fcGuire.  410,  625,  631 
V.  iliirdock,  792 
'.  Patterson.  090 


Ixii 


Table  of  Cases  Cited. 


Rogers  v.  Rogers,    232,    248,   518,   559, 

631 
Rohe.  Matter  of,  175 
Rolla  V.  Wright,  159 
Rollwagen,  Matter  of,  73 
V.  Powell,  444 
V.  Rollwagen,  139,  145,  163, 
160,    173,    174,    177,    178, 
181,  940 
Rolph,  Matter  of,  482.  498 
Romaine,  Matter  of.  182,  580,  581 
Roman  Catli.  Asvlum  v.  Emmons,  233, 

236,  237.  238 
Roome  v.  Phillips,  190.  278,  418 
Rooney,  Matter  of,  322,  438 

V.  Lcnman,  546 
Roos,  Matter  of,  221 
Roosevelt,   Matter  of,  361,  600,  814,  821 
V.  Ellithorpe.   431 
V.  Porter,  232 
V.  Roosevelt,  219,  503 
V.  Thurman,  218 
V.  Van  Alen,  820 
Root,  Matter  of,  291 

V.  Stuyvesant,  130,  131,  194 
Rose,  Matter  of,  810 

V.  Clark,  679,  089,  698 
V.  Lewis,  879 

V.  Rose,  228,  512,  513,  803,  810 
V.  Rose  Assn.,  746 
Roseboom  v.  Mosher,  416 

V.  Roseboom,  493 
Rosenfield,  Matter  of,  705,  721,  723 
Ross,  Matter  of,  173,  181,  823,  825,  826, 
830,  937,  943 
V.  Gleason,  181 
V.  Harden,  441 

V.  Roberts,  357,  417,  421,  617 
V.  Ross.  403,  927 
V.  Willett,  305 
Rothschild  v.  Goldenberg,  72 
Rounds,  Matter  of.  159,  175,  227 
Rouse  V.  Whited,  803 
Rousseau  v.  Bleau,  434 
Roiix,  Matter  of,  272,  830 
Rowe  V.  Parsons,  375,  1001 
Rowell,  Matter  of,  533,  540 
Rowland,  Matter  of,  802,  803 
V.  Howard,  539 
V.  Morgan,  821,  826 
RoTce  V.  Adams,  363,  417 
Rudd  V.  Cornell,  617 

V.  Rudd,  29,  792 
Ruddon  v.  McDonald,  146,  153 
Ruge,  Matter  of,  660 
Rugg  V.  Jenks,  900 

V.  Rugg,  124,  149,  153,  154,  160 
Rumsev,  Matter  of,  496,  772 

V.  Goldsmith,  147,  153 
Runcic.  Matter  of.  602 
Rundell  v.  Do'\\Tiing,  163,  169 
Rundle  v.  Allison,  647 


Ruppaner,  Matter  of,  99,  241,  242,  662, 

909 
Ruppert,  ^Matter  of,  805 

v.  Union  ]\lut.  Ins.  Co.,  427 
Ruser,  Matter  of,  200 
Russak  v.  Tobias,  301,  364 
Russell,  Matter  of,  84,  465,  638,  790 
V.  Hartt,  74,  109,  110 
V.  Hilton,  027,  815 
V.  Lane,  530,  549 
V.  Ruckman,  882 
V.  Russell.  481,  705 
Rust,  Matter  of,  783 
Rustin.  Matter  of.   147 
Rutherford,  Matter  of,  29.  507,  796 

V.  Rutherford.     147,     148, 

150.   154,  158 
V.  Soop,  540 
V.  :\lvors,  44,  801 
Ruthven  v.  Patten,  32,  572 
Rutledge,  Matter  of,  818 
Ryalls,  Matter  of,  70i,  803,  812 
Ryan,  Matter  of,  584 

V.  McElroy,  549 
Rvckman  y.  Gillis,  210 
Ryder,  Matter  of,  483,  531,  615 

V.  Hulse,  691 
Rvers,  Matter  of,  6 
Ryerss  v.  Wheeler,  236,  238 
Rylance,  Matter  of,  914 

Sacia  v.  Berthoud,  413 
Saddlemire.  Matter  of,  173 
Sage  V.  Lockman,  421 
V.  Wheeler,  217 
V.  Woodin,  425 
St.  F.  Xavier  College  v.  Doherty,  645 
St.  John,  Matter  of.  823,  827 

V.  McKee,  442,  450,  802 
v.  Northrup.   669 
v.  Voorhies,  565,  570 
St.   Luke's   Home   v.   Assoc,   of   Indig. 

Females,  238 
Salisbury,  ]\latter  of.  881 

v.  Slade,  233,  421 
v.  Van  Hoesen,  373 
Salmon  v.  Stuvvesant,  131.  194 
Salomon  v.  He'ichel,  389,  571 
Salter  v.  Neaville,  526,  557 
Salters  v.  Pruvn,  459 
Saltus,  Matter  of,  353.  426,  811 

V.  Saltus,  891,  899 
Same  v.  Brvant,  375 

V.  Kellogg,  626 
Sampson,  Matter  of,  163 
Sanders  v.  Soutter,  29,  795 

V.  Stiles.  184 
Sanderson,   Matter   of,    143,    155,    195, 

196 
Sands,  Matter  of,  222 

V.  Craft,  526,  528 
V.  Miner.  426 
Sanford  v.  Goodell,  217,  222 


Table  of  Cases  Cited. 


Ixili 


Sanford   v.  OranppJ",  711.  71.'>,  7:il,  722 
V.  Jackson,  (»22 
V.  Siindford,     128,     457,     541, 

oir.,  (;:?.},  (i.io,  (i;o,  (j72,  812 

V.  VVliile,  50 
Sanson  v.  lUiJslinclI,  2:?3 
Santos,  Matter  of.  84,  015 
.Sapersteiii  v.   I'lliiian,  4!»4,  5G3 
Sargent,  Matter  of,  7(!!l     ■ 
Sarvent  v.  Hesdra,  155 
Saunders,  Matter  of,  505,  507,  518,  .527, 

531,  5.S2 
Savage  v.  lUinilian).  217,  220.  (i3G 
V.  (Jould,  3til.  !»10 
V.  Slieniian.  822,  823,  825 
Savre,  :\Iatter  of.  021 
Saw  Mill  Co.  V.  Dock,  5G,  327 
Sawyer  v.  Cubby,  220,  «18 
Sayre  v.  Ladd,  797 
Scallen  v.  Brooks,  420 
Schaefer,  :Matter  of.  7(10,  701 
Soharniaiin  v.  Selioell,  373 
ScheideJcr,  Matti  r  of,  (i53 
Schell,  Matter  of,  81G 

V.  Hewitt.  78.  007,  000,  OIG 
Schenck  v.  Agnew,  231 

V.  Dart.    204.    811.    82G.    03G. 
044 
Seliernurlioni,  Matter  of.  502 

V.  Barliydt,    GOO 
Scherrer  v.  Kaufman.  12G 
Schettler  v.  Sniitli.  222 
Schieffelin  v.  Stewart,  503 
Schiller  v.  Diotz,  GOl 

V.  Pruden.  GOO 
Schlegel  v.  Winekel,  73,  785 
Schlesinger.  Matter  of,  73,  7G9 
Schnieig  v.  Kochersbergcr,  217 
Schmidt,  Matter  of,  .32,  702,  8GG 

V.   Ileusner,  305,  778 
Schmittler  v.   Siiiu)n,  4i)2 
Schmitz  V.  Laiigliaar.  55G,  5G4,  5GG 
Schneider,  :Matter  of,  84.  802,  855,  Oil 
V.  McFarland,  75,  701,  715, 
71G 
Sclioley  V.  Ilalsey,  815,  870 
Sciiolli'  V.  Scholle.  704 
SchoonmaKer  v.  Wolford.  124.  126 
Sclireyer  v.  Holborrow.  532.  .)43 
Schro'eder.  Matter  of,  842,  8G7 
Sehroejjpel  v.  Hoo])er,  431 
Schulter  v.  Howerv  Savings  Bank.  407. 

408 
Schultz  V.  DaitiliiiKUiii,  132 
V.   Tiilver.  810 
V.   Schultz,   180.  108 
Schulz.  :Matter  oi    43G.  437 
Schutz  V.  M(nrette.  4!tl.  518.  53G 
Schuyler.  :Matter  of.  248 
Schmeibert.  Matter  of.  000 
Schweigert.   :Matter   of.    157.   212.   233. 

708 
Schwencke  v.  Ilaffner.  232.  G03 


Scofield  V.  Adams,  632 

V.  Adriance.  374.  762,  804 
V.  Churchill,     351,     371,    375, 
880 
Scott,  Matter  of,  223,  362,  468,  516,  034 
V.  Guernsey,  218 
V.  Ives,  224,  G52 
V.  McMilhin.  4<i2 
V.  Monell,  423 
V.   Scott.  627 
V.  Stebbins,  617 
Scovel  V.  Koosevelt.  (;2(; 
Scovil  V.   Scovil,  456 
Scoville  V.  Post,  468 
Scranton  v.  Bank  of  Rocliester.  532 
Scribner,  Matter  of,  71 
V.  Crane,   148 
V.  Williams,  938 
Scudder,  Matter  of,  487,  502,  503,  760, 

818. 
Seabra,  Matter  of,  76 
Seabury  v.  Bo  wen,  555 
Seagrist,  :Matter  of.  140,  163,  165.  172, 

170,  180,  !I07.  910.  037 
Seaman,  [Matter  of.  882 

V.  Durvea.  25,  830,  846.  853, 

880,  899 
V.  \Yhitchead,    39,    002.    004, 
023 
Seaman's  Friend  Soc.  v.   Hopper,    167, 

168 
Searles  v.  Brace,  561 
Sears,  Matter  of,  84,  128,  155,  361,  529 
V.  Mack,  735,  743 
v.  Schafer,   176,  178 
Seaver,  Matter  of,  502,  603 
Secor  V.  Sentis,  814,  817 
Sedgwick  v.  Ashburner,  102,  400 
Segelkin  v.  Meyer,  455 
Seguine  v.  Segiiine,  125.  140,  170,  181, 

183 
Seibert  v.  Miller,  230 
Seiter  v.  Straub.  105.  164.  180.  846 
Seitz.  Matter  of.  354,  772 
Selden  v.  Vermilvea,  482 
Selleck.  [Matter  of.  451,  409,  803,  824, 

923 
Selling.  Matter  of.  651,  655,  657,  911 
Sell  is.  Matter  of.  526 
Selover  v.  Coe,  527,  534,  536 
Senior  v.  Ackerman,  25(i.  427 
Sere  V.  Coit.  400 
Severance  v.  (Jrillith.  560 
Sexton.  Matter  of.  005 

V.  Sexton.  800.  879 
Seymour,  Matter  of,  287.  362 
V.   Butler.  645.  657 
V.  Seymour.  44.  7.50 
Shafer.  Matter  "of.  773.  774 
Shafter  v.  Bacon.  441 
Sliakespeare    v.    ^[arkhani.    447.    531, 

5.32.  538.  572.  719.  800 
Shangle  v.  Halleck,  217.  618.  637 


Ixiv 


Table  of  Cases  Cited. 


Shanley  v.  Shanlev,  616 
Shannon,  Matter  of,  182,  560 
Sharp,  Matter  of,  494,  495,  773 
V.  Dininiick,  218 
V.  Pratt,  416 
Sharpe  v.  Freeman,  542 
Sharpsteen  v.  Tillon,  618 
Shaw,  Matter  of,  168 
V.  Davis,  429 
V.  Shaw,  140 
Shea  V.  Cofnish,  542 
Shearer,  Matter  of,  207 
Shedd,  Matter  of.  400 
Sheehan  v.  Huerstel,  463 
Sheerin  v.  Pub.  Adm'r,  323,  403,  501 
Sheldon,  Matter  of,  163,  182 
V.  Bliss,  396,  397 
V.  Button,  474 
V.  Dow,  165 
V.  Hov,  458 
V.  Sheldon,  624,  877 
V.  Wright,  26,  725,  726,  728, 
734,  747,  886 
Shepard  v.  Patterson,  507 
V.  Saltus,  517 
Y.  Stebbins,  847 
Shepherd  a-.  McEvers,  417 
V.  Stebbins,  441 
Sherar,  Matter  of,  609 
Sherer,  Matter  of,  577 
Sheridan,  Matter  of,  150 

V.  Houghton,  128,  196,  200 
V.  The  Mayor,  29 
Sherman,  Matter  of,  578,  602,  623,  843, 
926 
V.  Ballou,  841 
V.  Page,  249,  391,  420,  923 
V.  Parish,  487 
V.  Willett,  484 
V.  Youngs,  907 
Sherrer,  Matter  of,  659 

V.  Bartlett,  615 
Sherry,  Matter  of,  891 

V.  Lozier,  185,  192 
Sherwell,  Matter  of,  582 
Sherwood  v.  Am.  Bible  Soc,  227 
V.  Johnson,  552 
V.  Judd,  104,  127,  891 
V.  Mer.  Mut.  Ins.  Co.,  476 
V.  Sherwood,  230 
V.  Wooster.   409 
Shields  v.  Ingram,  181 

V.  Shields,  256,  347 
V.  Sullivan,  443,  556 
Shiffer  v.  Dietz,  481 
Shilton,  Matter  of,  256 
Shinier  v.  Kinder,  461 
Snimmel  v.  Morse,  878,  879 
Shipman,  Matter  of,  138,  257,  370,  378, 
388,    402,    439,    499,    627, 
779,  785,  810,  812 
V.  Fanshaw,  618,  767 
V.  Long  Island  R.  Co.,  456 


Shipman    v.  Rollins,  237 
Sholl  v.  Sholl,  624 
Shook  V.  Goodard.  369 

V.  Shook,  349,  352,  417 
Shorter  v.  Mackey,  538 
Shrader,  Matter  of,  213 
Shulters  v.  Johnson,  234,  236 
Shultz  V.  Pulver,  0G3,  902 
Shumwav  v.  Cooper,  289,  385 

v.  Harmon,  233,  421,  424 
Shute  V.  Shute.  518.  556,  707.  715,  742, 

793 
Shuttleworth   v.  Winter,  473,  503,   812 
Sibley  v.  Waffle.  25,  715,  7^ 
Siegel  V.  Cohen,  635 
Sickles,  Matter  of,  804 
Sidell,  Matter  of,  591 
Siglar  V.  Van  Riper,  452 
Silverbrandt  v.  Widmayer,  392,  394 
Simmons   v.  Bunell,  215,  227 
v.  Simmons,  186 
V.  Taylor,  278 
Simonson  v.  Elmer,  194 

V.  Waller,  420,  421,  662,  663, 
679 
Simpson,   Matter  of.  144,  157,  226,  449, 
916 
V.  Moore,  514 
V.  Simpson,  425,  750 
Singer,  Matter  of,  152 
V.  Hawley,  37 
Sinzheimer,  Matter  of,  231 
Sippel  V.  Macklin,  556 
Sipperly  v.  Baucus,  23,  37,  881 
Sisson  v.  Conger,  173 
Sistare,  Matter  of,  267,  774,  796 
Sisters  of  Charity  v.  Kellv,  142,  154 
Skaats,  Matter  of,  165,  181,  6.56 
vSkelton  v.  Scott.  876 
Skidmore  \.  Collier.  497,  749 

V.  Davies,  33,  37,  239,  922 
V.  Post,  528 

V.  Romaine,  560,  701,  707,  715 
V.  Shaw,  923 
Slater.  Matter  of,  714,  717 
Slingerland.  Matter  of,  465,  923 
Sloane,  Matter  of,   576,   598,   599,   600, 

602 
Sloeum,  Matter  of,  498,   644,  817,  818,. 
819,  820 
V.  English,  708 
Slosson  V.  Lynch,  66,  231 

V.  Navlor,  814.  824 
V.  Tavlor,  822 
Small,  Matter  of,  942 
Smith,   Matter  of,  37,  85,  90,  123,  141, 
150,   163,   168,   179,   182,  213, 
362.  443,  446.   448,  4(53,  484, 
488,  489,  498,  500,  530.  539, 
541,  554,  583,  586,  592,  598, 
605,  635,  762.  769,  802,  913» 
937,  941,  943,  944 


Tahi.k   <>i"   Casks   C'itku. 


\xv 


Smith     V.  A.  1).  Fanner,  etc.,  Co.,  424 
(11;'),   tild 

V.  Albany,  449 

V.  Allen,  (574 

V.  Havlis,  73 

V.  liixby,  8o8 

V.  Uritton,  4(i2 

V.  Buchanan,  823,  826,  828 

V.  Central  Trust.  Co.,  08,  409 

V.  Chase,  421 

V.  Christopher,   12(1,  031,  800 

V.  Collainer,  402,  802 

V.  Cornell,  490,  748 

V.  Coup,  700 

V.  PMnionds,  277 

V.  Floyd.  214 

V.  Gage,  431 

V.  Hilton,  97.  873 

V.  IIo\\ell,  r)00 

V.  Jackson.  4.)2 

V.  Kearney.  023,  792 

V.  Keteltas.  498 

V.  Lansing,  038.  815 

V.  Lawrence,  70,  410,  501,  750, 
757,  772 

Y.  Lusk,  850 

V.  Meakini,  700,  722 

V.  Murray.  023,  792 

V.  Parsons,  018 

V.  Patten,  547 

T.  Randall.  543 

V.  Reillv.  071 

V.  Remington,  51,  110,  050,  937 

v.  Robertson,   193 

V.  Rockefeller,  210,  017,  619 

V.  Second  Xat.  Bank,  203 

V.  Secor,  222 

V.  Smith.    149,    150.    154,    233, 
237,  452.  072.  840,  841 

V.  Scholtz.  230 

V.  Soper.  705,  708 

V.  TifTanv,  408 

V.  Van    kuren,    335,    758,    778, 

787,  922 
V.  Van  Ostrand,  025,  027 

V.  Velie.  540 

V.  Wait.  188.  189.  199 

V.  Wyckotr,  233.  237 
•Snedeker  v.  Snedeker,  430 
Snell,  flatter  of.  142 

V.  Dale.  535,  537 
Snelling,  Matter  of,   124,  100,  172,  174, 

179,  181 
Snider  v.  Snider,  05.  230,  231 
Snook  V.  Sullivan.  170 
"Snow  V.  Hamilton,  98 
Snyder,  Matter   of.  219.   220.   222,  388. 
897.  898.  899,  900,  944 
V.  Sherman,  120,  937 
V.  Snyder.  435.  531,  546 
V.  Young,  547 
Soden,  :Matter  of,  171,  175 
Sohn,  Mutter  of,  01,  348 


Solomon.  Matter  of,  67,  570 
Solomons  v.  Kursheedt.  402,  804 
Sonierville,   Matter  of,  475,  008 
Sondheim.  Matter  of,  924 
Sonheim,  Matter  of,  590 
Soper  V.  Brown,  230 
V.  Halsey.  020 
Sorzano  v.  Coudert,  203 
Soule.  Matter  of.  41.  182,  198,  209,  215, 

242.  244.  245,  924 
Southard  v.  Benner.  30,  434 
Southgate    v.    Continental    Trust    Co., 

194,  037 
Southworth,  Matter  of,  087 

V.  Adams.  45 
Soutter.  Matter  of.  7(>1,  707,  781,  881 
Soverhill  v.  Suydam.  025 
Sparks,  flatter'  of,  233 
Spaulding,  Matter  of.  577 

V.  Gibbons.  145,   147,  153 
Spear  v.  Tinkham,  025 
Spears.  :\[atter  of,  448,  484,  499 
Speight  V.  (iaunt.  491 
Spelman  v.  Terry,  44 
Spencer,  Matter  of,  584,  615,  632 

V.  De  Witt    C.    Hay    Library 
Assn.,    223,    226,'  227,    013, 
639 
y.  Hall,  530 

y.  Popham,  41.  700,  702 
V.  See.  <)18 
V.  Spencer,  014,  817 
V.  Weber,  508 
Sperb  y.  McCoun.  372,  763 
Spicer,  Matter  of,  58.  77 

y.  Raplee.'  518 
Spillane  y.  Duryea.  015 
Spinning,  Matter  of,  271 
Spoorer,  Matter  of,  445 
Spotts  y.  Dumesnil.  929 
Sprague,  flatter  of,  802.  934 
Spratt,  Matter  of,  179,  180,  183 
Spreekles  v.  Pub.  Adm'r.  288 
Spreen,  Matter  of.  51.  470 
Springstead,  ^Matter  of,  109 
Springsteen  y.  Samson.  439 
Spurrell.  Matter  of,  231 
Squire  y.  Bugbee.  277,  278 
Staats  y.  Staats.  229 
Stack,  Matter  of.  ()t)3 

y.  Stack.  003 
Stagg  V.  Beekman.  517,  025 

y.  Jackson,    423.   484,    774,   797, 
907 
Stall  y.  Wilbur.  387 
Stanfield.  :Matter  of.  044 
Stanford.  Matter  of,  599 
Stanton,  Matter  of.  345,  911 
y.  King.  441 
V.  Mill.'r.  221 

V.  Weatherwax.   107,  168,   175 
Stapler  v.  llotlman.  73.  349 
Stapl(}S  V.  rairchild,  883 


Table  of  Cases   Cited, 


Staples  V.  Hawes,  219 
fetapleton,  Matter  of,  181,  926 
Starbuck  v.  Farmers'  L.  &  T.  Co.,  531 
Staring  v.  Bowen,  94 
Stark,  IMatior  of,  509 
V.  Kobbins,  540 
Starke  v.  jMyers,  4()1 
Starr,  Matter  of,  818 
Staunton  v.  Parker,  129,  251 
Stearns,  Matter  of,  330 
Stebbins  v.  Hart,  127 
Stedman  v.  Feidler,  441 
Steencken,  Matter  of,  71,  908 
Stein,  Matter  of,  412 

V.  Wilzinski,  150 
Steinan,  IVIatter  of,  505 
V.  Scheuer,  540 
Steinele  v.  Oeoliler,  U18,  658 
Steinert,  Matter  of,  900 
Steinway,  Matter  of,  765 

V.  Stein  way,  219 
V.  ^'on  Bernutli,  750 
Stephani  v.  Lent,  165 
Stephens  v.  Brooks,  88 
Stephenson  v.  Clark,  548 

V.  Short,  209,  226 
Sterling,  Matter  of,  254,  486,  576.  577 
Stern,  Matter  of,  349,  495 
V.  Newberger,  932 
Sterns,  Matter  of,  330 
Stevens,  Matter  of,  67,  058,  774,  881 

V.  Melcher,  499,  505,  508,  645, 

818,  827 
V.  Stevens,   55,   188,   233.   350, 
368,  309,  391,  473,  630,  750 
Stevenson,  Matter    of,    251,    252,    416, 
532,  570,  573,  802 
V.  Lesley,  617,  825 
v.  Weisser,  552 
Steward,  Matter  of,  398,  400,  451 
Stewart,  Matter  of,   120,  126,  138,  154, 
174,  183,  465,  508,  578,  599, 
600,  602,  607,  652,  926,  934, 
935 
V.  Crysler,  615 
V.  Lispenard,  165,  166,  175 
V.  O'Donnell,  68,  526,  767 
V.  Phelps,  626 
V.  Robinson,  497 
Stickney,  Matter  of.  152,  193 
Stiger,  Matter  of,  579 
Stiles  V.  Burch,  799,  880 
Stillman,  Matter  of,  151 
Stilwell    V.  Mellersh,  194 

V.  Melrose,  385,  422 

V.  Swarthout,    702,    716,    717, 

734 
V.  Carpenter,  29,  458,  531,  571, 

572.  583,  792 
V.  Mills,  373 
Stimson  v.  Vrooman,  234,  942 
Stinde  v.  Ridgeway,  215 
Stires  v.  Van  Rensselaer,  232,  233 


Stockwell,  Matter  of,  146,  160 
Stoddard  v.  Johnson,  616,  617,  620 
Stoohr,  Matter  of,  848 
Stokes,  Matter  of,  90 
V.  Dale,  442 
V.  Hyde,  481 
V.  Weston,  231,  232 
Storm,  Matter  of,  489 
Stozel  V.  Cruikshank,  248 
Stone,  Matter  of,  225,  012 
V.  Demarest,  68,  409 
V.  Morgan,  754,  929 
V.  Scripture,  407,  408,  456 
Stoples  V.  Hawes,  058 
Storm,  Matter  of,  489 
Storms,  Matter  of,   194 
Story  V.  Dayton,  38,  40,  881 
Stout  V.  Betts,  933 
Stouvenel,  Matter  of,  353,  770,  772,  77{> 

V.  Stephens,  138 
Stouvenell,  Matter  of,  353 
Stow  V.  Stow,  122 
Stowell,  Matter  of,  707 
Straut,  Matter  of,  708 
Strever  v.  Feltman,  459 
Strickland,    Matter  of,  424,    518,    793, 

797 
Striker,  Matter  of,  562 
Stringer,  Matter  of,  39 
Strobridge  v.  Strobridge,  899 
Strong,  Matter  of,  152,  621 
V.  Strong,  795,  881 
Strubbe  v.  Kings  County  Trust  Co.,  836. 
Sturtzkober,  ^Matter  of,  290 
Stubbs  V.  Holywell  R.  Co.,  432 

V.  Stubbs.  824 
Studlev,  Matter  of,  750 
Studwell,  Matter  of,  935 
Sturgis.  Matter  of.  226 
Stuyvesant,  Matter  of,  361 

v.  Hall,  415 
Suarez,  Matter  of,  251,  273 

V.  The  Mayor,  264,  315,  663 
V.  De  ]\Iontigny,  414,  482 
Suckley,  Matter  of,  679,  687,  692 
Sudds,  Matter  of,  504 
Sudlow  V.  Pinckney,  895,  932 
Suffern  v.  Lawrence,  927 
Sullivan,   Matter  of,  138,  253,  377,  833, 
837 
V.  Fosdick,  102,  276,  416,  88ft 
v.  Herrera,  315 
V.  Remington   Sewing   Mach. 

Co.,  463 
V.  Tioga  R.  R.  Co.,  268,  876 
Sulz    V.    Mutual    Reserve    Fund    Life 

Assn.,  294.  421,  429 
Summers,   Matter   of,   721,   742 
Sunderlin,  Matter  of,  .542 
Supervisors,  etc.,   v.  Briggs,  905 
Supplee  V.  Savre,  547 
Susz  V.  Frost",  349 


Table  of'  Cases  Cited. 


SutlicrhuKl,  Matter  of,   174.   182 

V.  Brush,  414.  485,  488 
V.   Ronald,  215 
Sutton,  Matter  of,  M'.i.  jV.tT 
V.  Newton,  544 
V.  Pub.   Adrn'r,  291.   311 
V.  Kav.  !t07,  !>41,  942 
V.  Weeks,  275,  306 
Suydain,  Matter  of,   1(18,  182 
Swade,  Matter  of,  474,  47(i 
Swales,   Matter  of.  290 
Swart,  Matter  of,  448 
Swartout  v.  Schwerter,  743 
V.  Curtis,  846 
V.  Oaks,  845 
V.  Swartout,  842 
Sweeney  v.  Warren,  519 
Sweet  V.  Burnett,  216,  229 

V.  Chase,  228,  640,  690 
V.  Irish.  (J24 
V.  Nortlirup,  694 
V.  Sweet,  187,  188 
Sweethxnd,  Matter  of,  584 
Sweezey  v.   Willis,  286,  287,   385,   675, 

680,  087 
Sweezy  v.  Thayer,  385 
Swenarton  v.  Hancock,  442,  444 
Swift,  Matter  of,  41,  579,  598 
Swortliout,  .Matter  of,  499 

T.  B.,  Matter  of,  204 

Taafe  v.  Connor,  231 

Taher  v.  Wiiiets,  473,  481 

Tabernacle      Cliurch      v.      Fifth      Ave. 

Church.  219 
Tabor.  :\latter  of,  797 

V.  Robinson.  386 
Tacke,  Matter  of,  910 
Taft,  Matter  of,  448 
V.  Marsily,  430 
Taggard,  Matter  of,  756 
Taggart,  Matter  of,  285.  756 
V.  Murray,  217,  229 
Taintor.  iMatfer  of.  256 
Talbot  V.  Talbot,  124,  942 
Tallniadge  v.  Seaman,  577,  600 
I'appen  v.  Kane,  747 

V.  :Methodist   Church,  209,   790 
Tarraglio,  Matter  of,  833 
Tarrant  v.  \\'are,  123 
Tatuni.  I\ratter  of.  421,  642 
Taylor,  Matter    of,    90,    123,    128,    136, 
1,37,   138,   150,   170,  282,  583, 
580,  867,  906,  964 

V.  Brodhead,  159 

V.  Bryden,  557 

V.  Dodd,  615,  6.32 

V.  (iardner,  176,  905 

V.  ^lorris,  416 

V.   Pub.  Adrn'r,  325 

V.  Slant ,  402.  488,  489 

V.  Synie.  68.   207.  259,  260 

V.  Wardlaw,  143 


Taylor  v.  Wendel.  .561,  638 
Te  Culver,  Matter  of,  833 
Teed,  Matter  of,  225 

V.  Morton,  2.32,  797 
Tehan   \.  Tehan,  (t22 
Tciiiiile.  Matter  of,  624 
Terhune  v.   Hr<iokfield,   179 
Terpenning  v.   Skinner,  216,  236 
Tcrrill  v.  Pub.  Administrator,  237,  62H, 

638 
Terry,  Matter  of,  846 

V.  Bale,  429,  526 
V.  Dayton,  532,  694 
V.  Wiggins.  217 
Terwilliger  v.  Brown,  501,  512,  733 
Texidor,  Matter  of,  276 
Teyn,  Matter  of,  448 
Thacker  v.  Henderson,  845,  846 
Tiuiyer  v.  Clark,  374,  375,  880,  892 
Theo.  Seminary  of  Auburn  v.  Calhoun, 

140,    160 
V.    Kellogg, 
617 
Thomas,  Matter   of,   233,  290,  580,   584 
V.  Bennett,  846 
V.  Cameron,  431,  455 
V.  N.  Y.  Life  Ins.  Co.,  455 
V.  Pardee,  222 
V.  Stevens,  237 
V.  Thomas.  98 

V.  Troy  City  Nat.  Bank,  413, 

468 

Thompson,    Matter    of.    18(>,    201,    202, 

210,   2.39,   261,   272,  300, 

366,    565,    005,   927 

V,  Brown,    487,    491,    494, 

562,  845 
V.  Carmichael,     030,     072, 

694 
V.  Connor.  136 
V.  Hart,  421 
V.  Hicks,  489 
V.  Leastedt,   149 
V.  Mott.    26,    36,   410,   788,- 

789 
V.  Quimby.    144,    175     182, 

19(i 
V.  Ste])hens.  151 
V.   Stevens.  941 
V.  Taylor,  569,  570,  574 
V.  Thompson,   174 
V.  Whitl(M-k.  229 
V.  Whitmarsh.  460 
Thomson,  Matter  of,  511 

V.  American  Surety  Co.,  371 
V.  Mott,  835 

V.  Thomson,  73,  393,  403.  425, 
426.  757.  769.  770.  780,  865 
V.  Taylor.  (>49 
V.  Tracy,  933 
Tliorn  V.  Oarner.'506.  643.  645 
V.  Sheil.    lOS.    109,  875 
V.  Underbill.  402 


I  XVI 11 


Table  of  Cases  Cited. 


Thorne,  Matter  of,  14,  28,  181,  577,  943 

■ihoniliill   V.  Hall,  229 

'riiorntoii  V.  Moore,  401 

Thorp,  flatter  of,  505 

Thrall,  Matter  of,  445,  586 

Thurber,  Matter  of,  569 

V.  Cliarabers,  616 
Tiekel  v.  Qiiinn.  439,  499,  500,  041 
Tiers  V.  Tiers,  211 
Tiirany  v.  Clark,  512 
TilTt  V.  Torter.  (ill.  032 
Tighe,  Matter  of,  188 
Tilby  V.  Tilby,  82,  177,  935 
Tilden,  Matter  of,  37,  40,  240,  815,  816, 

825,   873,   878,  881,  882,  887, 

923,  942 

V.  Dows,  73,  648,  787 

V.  Fiske,  358 

V.  Green,  223 

Tilford  V.  Bank  for  Savings,  478 

Tillman  v.  Davis,  05,  00,  231 

V.  Sullivan,  60 
Tillotson  V.  Race,  628 
Tilton  V.  Ormsby,  409,  470 
Timon  v.  Claffy,  187,  200 
Tinipson,  Matter  of,  900 
Tindal  v.  Jones,  520,  546 
Tipple,  Matter  of,  398 
Titus  V.  Poole,  529,  537 
Tobev,  :\latter  of,  238 
Tobin,  Matter  of,  138,  295,  397,  812 
Toch  v.  Toch,  277,  559,  616 
Todd,  Matter  of,  821 
Toerge  v.   Toerge,  230 
Tole  V.  Hardy,  617,  640 
Toler  V.  Landon,  806 
Tolles  V.  Wood,  774 
Tolman  v.  Syracuse,  B.  &.  X.  Y.  R.  R. 

Co.,  464 
Tompkins,    Matter    of,   421,    632,    774, 

941 
Tompkins  v.  Moseman,  361,  364 

V.  Verplanck,  231 
Tone,  Matter  of,  409 
Tonnele,  Matter  of,  125,  195 

V.  Hall,  144,  145 
Tooker  v.  Bell,  327 
Topping,  Matter  of,  708,  720 
Torkington,  Matter  of,  127,  937 
Torry  v.  Bowen,  150 
V.  Black,  845 
V.  Frazier,  846 
Totten,  Matter  of,  104 
Tousey,  Matter  of.  184 
Towle  V.  Remsen,  020 
Townsend,   Matter    of,    165,    477,   555, 
819 

V.  Bogert,   103,  164 

V.  Ingersoll,  456 

V.  Kendall.  864 

V.  N.  Y.  Life  Ins.  Co.,  530, 
540 

V.  Pell,  102 


Townsend  v.  Whitney,  375,  895 
Tracey  v.  Slingerland,  465 
Tracy,  Matter  of,  174,  909 
V.  Frost,  430 
V.  Suydam,  540,  541 
V.  Tracy,  615 
Trask,  Matter"  of,  761 
V.  Annett,  306 
V.  Sturges,  233,  361,  483 
Traver,  Matter  of,  620,  881 
Travis,  Matter  of,  577,  644,  651 
Traznier,  Matter  of,  851 
Treadwell,  Matter  of,  344 
Treat  v.  Fortune,  533.  623,  782 
Tredale,  Matter  of,  105 
Trevelyan  v.  Trevelyan,  135 
Trianiia,  Matter  of^  29 
Trimble  v.  Dzieduzyiki,  203,  861 
Trost,  Matter  of,  152 
Troup  v.  Reid,  150 

v.  Smith,  528 
Trow  V.  Shannon.  477,  479 
Truesdell  v.  Bourke,  435 
Truslow,  Matter  of,  832 
Trust,  Matter  of,  78 

v.  Harned,   555 
Trust  &. Deposit  Co.  v.  Pratt,  371 
Trustees  of  Auburn  Theol.  Sem.  v.  Cal- 
houn, 150 
Trustees   of   Theological    Sem.    v.    Kel- 
logg, 221,  228 
Trustees,  etc.  v.  Ritch,  225.  621,  878 
Tucker,  Matter  of,  603,  659,  817,  820, 
825 
v.  Ball,  018 
V.  Bishop,  232,  017 
T.  Field,  180,  181 
V.  McDermott,  446,  447,   506, 

754,  757,  778,  824 
V.  Tucker,   32,    180,   216,   230, 
535,  572,  719,  794,  877,  883 
V.  Westgarth,  289 
Tuigg,  Matter  of,  578,  586 
Tulanc,  Matter  of,  581 
Tunison  v.  Tunison,  149,  180,  181,  183 
Tuohav  V.  Pub.  Adm'r,  320 
Turelk  INIatter  of.  140 
Turfier,  Matter  of,  448 
Turfler,  flatter  of,  499,  028,  788,  792, 

816 
Turhune  v.  Brookfield,  73,  181 
Turk,  Matter  of,  618 
Turner,  JNIatter  of,  700 

V.  Brown,  475.  479 
v.  Amsdell,  716,  719,  721 
Turrell,  Matter  of,  149.  151.  158 
Tusch  V.  German  Sav.  Bank,  473 
Tuttle  V.  Hea\'y,  846 

V.  Heiderman,  180 
V.  Tuttle,  619 
Twomblv,  :\ latter  of,  190 
Tvlcr.  Matter   of.    10.   20,   272 
V.  Ballard,    430 


Taiw.k   ok   Casks   ( 'rrKU. 


1X1 X 


Tvlcr    V.  rinnlinor,   IC"),   174,    178,   181, 

!»41 
Tyrcll   V.  Chirk,  :{SS 
Tyson  V.  I'.lakc,  ()27 

lY'low,  .MiiU.T  (.f,  7!)0 

riliiiiin,  Matter  of.  209,  595 

Ulrich   V.   LHrich,   539 

Ulster    Co.    Saviiij;s    Inst.    v.    Fourth 

Xat.  Rank.  407 

Ulster  Co.  Saving's  Inst.  V.  Young,  535 

XJiKlerhill,  Matter  of.  25,  31,  405,  582, 

588,.5!)0,  591,  ()42,  782,  794 

V.  Dennis,  273,  839,  840,  841, 

842,  928 
V.  Newburger,  401    448,  451, 

532 
V.  Nie]iols.  897 
V.  Rodwell.   877 
V.  Vandervoort,   21G 
V.  ^^'ord.  227 
Ungrieh.  flatter  of,  G27 
ruion  Trust  Co.,  Matter  of.  820 

V.  Cage,  896 
X'nited  States  v.  Duncan,  553 
V.  Fisher,  ,553 
U.  S.  Life  Ins.  Co.  v.  Jordan.  70S 
V.  S.  Trust  Co.,  Mattar  of.  230,  878 
U.  S.  Trust  Co.  V.  Bixbv.  505 
V.  Rlae'k,  039 
V.  Stanton,  401 
XVson  V.  Badeau,  803 
Utica  Ins.  Co.  v.  Lynch,  506 

Tail  V.  L.  I.  R.  R.  Co.,  620 

V.  Vail.  078,  094 
Valentine,  Matter  of.  .30,  207,  410,  765, 
793.  877,  909,  912,  943 
V.   Relden,  501 
V.  Duryea,  513 
V.  Jackson,    406,    431,    454, 

455 
V.  Schreiber,  480 
V.  Valentine,   119,  439,  514. 
750,    771,  802,   818,   828, 
912 
V.  Wetlierill,  604,  670 
Tallanoe  v.  Rausch,  289,  691 
Van  Alen  v.  Hewins,  71 
Van  Alst  v.  Hunter,  174 
Tan  Alstyne  v.  Van  Alstyne,  232 
Tan  Arsdale  v.  King,  942 
Van  Beuren.  flatter  of,  75,  445 
V.  Dash,  636 
A-.  Lo]ier,  429 
Van  Brocklin  v.  Van  Rrocklin.  456 
A'^an  Buren    v.     First     Nat.     Rank    of 

Coopcrstown,  356 
Tan  CorHandt  v.  Kip.  1.52.  230 
Van  Camp  v.  Se.Trle.  277 
Vandeniarkv.  Vandeniark.  100.  191 
Vandcvbilt.   ATnttcr  of,   587,   589,   .591, 
592,  GOO,  003 


Vantlerlieydcu  v.  Crandall,  664 

V.  \'anderlieyden,  449 
Van  Derlieyden  v.  lU-id,  'XiH 
Vanderniark  v.  Vanderinark,  474,  476, 

926 
Van  Derinoor,  Matter  of,  30.  428 
Vanderpoel  v.  \'an  Alk-n,  38(» 

y.  \'an     Valkenburgii,     72, 
872,  886 
Vanderveer  v.  McKane,  224,  226 
Vandervoort,  Matter  of.  423,  923 
\iu\  Derzee,  Matter  of,  853 
Van  Deusen  v.  Sweet,  702,  883,  886 
Van  Deuzen  v.  Trustees,  etc.,  225 
Van  De  Veer,  flatter  of,  498 
Vandevoort,  flatter  of,  210,  482,  509, 

610 
Vandewater,  Matter  of,  841,  924 
Van  Duvne  v.  Thavre,  452 
Van  Dyke,  :Matter  of,  650,  769 
Van   Eniburgli  v.  Ackennan,  678 
Van  Epps  v.  Van  Deusen.  845 
Van  Eps,  :\Iatter  of.  18,  374 
Van  Giesen  v.  Rridgford,  274 
Van  Guysling  v.  ^'an  Kuren,  165 
Van  Hans\nck  v.  Wiese,  145,  179,  181 
Van  Hoffman  v.  Ward,  151 
Van  Hooser  v.  Van  Ilooser,   150,   151, 

155,  158 
Van  Home,  Matter  of.  216.  630,  853 

V.  Fonda.  516 
Van  Houten,  Matter  of,  147,  158.  181, 

413,  922,  941 
Van  Kleeck,  Matter  of.  451.  585.  914 
V.  Dutcli  Church.  639 
V.  Phipps,   177 
Van  Nest,  ^Matter  of,  828.  912 
Van  Nostrand,  ]Matter  of,  441,  443.  450 
V.  :\roore,  228.  2i!t 
V.  Wright,  713,  715 
Van  Ordcn  v.  Krause.  435 

V.  Ledwitii,   43t! 
Van  Orman  v.  Van  Ornian,  941 
Van  Pelt,  INIatter  of.  270 

V.  Van  Pelt,  163,   175,  177, 
907 
Van  Rensselaer,  ^Matter  of.  602 
V.  .Tones,  424 
V.  Van  Rensselaer,  645 
Van  Schaack  v.  Saunders,  93 
Van  Schoonlioven.  Matter  of,  251,  252 
Van  Sickler  v.  Craliam.  544.  545 
Van  Sinderin  v.  Lawrence.  29.  749.  800 
Van  Sise.  :\latter  of.  S12 
Van  Slooten,  :\Iatter  of.  403 
V.   Dodge.  538 
V.  Wheeler.  420.  539,  ti24, 

'  \'an  Tiiyl  v.  Van  Tuyl.  298 

\'an  \'alen.  Matter  of.  426 
i  Van  Valkenburirh  v.  Lasher.  32.  796 
V.  Van  Alen.  905 
I  Van  Vechten  v.  Keator,  217,  228,  484 


Ixx 


Table  of  Cases  Cited. 


Van  Veclitea  v.  Pparson,  218 

V.  ^'an  ^'ef:ht()n,  232 
Van  Vleck,  Ivlattcr  of,  70."),  708 

V.    Hurrou-rhs,  547,  788 
V.  Eno,  413 
Van  \'liet,  IMattcr  of,  (il3 
Van  Vrankcn,  Matter  of,  840 
Van  Wagner  v.  Royee,  539 
Van   Wagonen,  Matter  of,  6,  841 
Van  Wagoner,  Matter  of,  7(5 
Van  Wert,    :\latter    of,   445,    449,    450, 
769 
V.  Benediet,    74,    114,    186, 
195,  230 
Van  Wyck,  Matter  of,  417 
V.  Alley,  938 
V.  Bloodgood,  618 
V.  Brasher,   167 
Van  Zandt  v.  Grant,  372,  844,  851 
Varick  v.  Bodine,  431 
Varnum  v.  Taylor,  494 
Vassar,  Matter  of,  578,  588,  589,  598 
Vaughan  v.   Burford,  150 
Vaughn  v.  Strong,  541,  545,  548 
Vedder,  Matter  of,  166 
V.  Saxton,  397 
Veeder  v.  ^Mudgett,  523 
Vermilya  v.  Beatty,  408,  409,  697 
Vernam  v.  Spencer,  142,  146 
Vernet  v.  Williams,  645 
Vei-non,  Matter  of,  253 

V.  Vernon,  217,  229,  423,  424, 
636 
Verplanck,  Matter  of,  209,  797 
Very,  Matter  of,  707,  720 
Viele  V.  Keeler,  186 
Vielie  v.  Osgood,  385 
Vinot,  Matter  of,  580,  589,  602 
A^isscher  v.  Wesley,  518 
Voelckner  v.  Hiidson,  397,  452 
Voelpel,  Matter  of,  850 
Voessing  v.  Voessing,  43,  846,  847 
Vogel  V.  Arbogast,  390,  395 

V.  Lehritter,  131 
Von  der  Lieth,  :\Iatter  of,  534 
Von  Glahn,  Matter  of,  788 
Von  Hernianni  v.  Wagner,  541 
Von  Hoflfnian  v.  Ward,  105,  284 
Von  Keller.  Matter  of,  613 
Von  Post,  :Matter  of,  592 
Voorhees,  Matter  of,  188 

V.  :McGinnis,  386 
V.  Voorhees,  198,  199 
Voorhis,  :\Iatter  of,  143,  149,  155 

V.  Voorhis,  177,  189 
Vowers,  Matter  of,  214 
Vreedenbnrtrh  v.  Calf,  34,  37,  352,  880 

886 
Vreeland  v.  :MeClelland,  42,   107,   174, 

176,  182,  190 
Vroom   V.   Van   Home,   259,   408,   459, 

663 
Vulte  V.  Martin,  764 


Waaek,  Matter  of,  881 
Wachter,  Matter  of,  440,  453 
Wade,  Matter  of,  784 

V.  Holbrook.  176,  181,  210 
V.  Kalbfleisch,  433 
Wadhams  v.  Am.  H.  Miss.  Soc,  164 
Wadlev  v.  Davis,   939 
Wadsworth,  Matter  of,  79,  357,  360 
V.  Aleott,  388 
V.  Murray,  217,  230 
Wager  v.  Wager.  44,  9*8,  215,  216 
Wagner,  :Matter  of,  29,  395,  653,  781, 

791,  794,  796,  809 
Wagstaflf  V.  Lowerre,  194,  825 
Wain  Wright  v.  Low,  671 
Wait  V.  Breeze,  181 

V.  Van  Demark,  538 
V.  Wait,  690 
Waite,  :Matter  of,  456,  770 
Wakeman  v.  Everett,  461 

V.  Hazelton,  515 
Waldo  V.  Waldo,  81 
Waldron,  INIatter  of.  189,  200,  870 
V.  :\[oComb,  480 
V.  Waldron,  561 
Walke  V.  Hitchcock.  817 
Walker,  Matter  of.  137,  213,  214,  224, 
570,  590,  794 
V.  Dow,  911 
V.  Gardener,  545 
V.  Sherman,  386 
V.  Tavlor,  215 
Wallace,  :\ratter  of,  38,  597,  600,  643 
v.  Pavne.  r,8.  340 
v.  Storry.  940 
v.   Swinton.  506 
Walrath,  Matter  of,  33,  934 
Walsh,  Matter  of,  144,  156.  255,  904 
v.  Bowery  Sav.  Bank,  476 
v.  DoA\Tis,  466 
V.  Laflfan,  148 
V.  Ryan,  73 
Walter  v.  Fowler.  873 

V.  Ham.  218 
Walton  V.  Walton,  100,  277,  612,  628, 
762 
V.  Howard.  410.  902,  906,  912, 
913 
Walworth.  Matter  of,  603 
Wambaugh  v.  Gates,  699 
Wamslev  v.  Wamslev.  526 
Wandeli,  Matter  of,'  847 
Wanninirer,  [Matter  of,  330 
Ward,   Matter  of,   271,  291,   420,  475, 
477 
v.  Ford,  451,  819,  824 
Wardlow  v.  Home,  etc..  226.  796 
Waring,  Matter  of.  878.  896,  900 

V.  Waring,  426,  709 
Warner,  Alatier  of,  938 
V.  Durant,   617 
Warren  v.  Banning,  480 
V.  Leland,  387 


'I'Aiii.K  «)]    Cases   Cited. 


ixxi 


TVarren  v.   PnfT.  770,  782 

V.  liiion    Bank   of   Kocliester, 
841) 
Warrin,  Matter  of.  7!»7,  80:{ 
Waniiier  v.  IVnpIc,  'u't 
Washhon.  Matter  of,  81.3,  825 

V.  Co]).-,  -ill.  2:{1,  G27,  878, 
S8:i 
Wa^liburn,  Matter  of,  .")2,  ^A,  of! 
Waterman  v.  Wliitney,  l:^:i,  178,  18!) 
Waters  v.  Collins,   174,  (J:V2 

V.  Cullen,   13.3,   183,  872 
V.   Fa  her,  822 
Watrous  v.  Sniitli,  (513 
Watson,  Matter  of.  213.  24."),  .58.J,  r^87, 
842.  870.  88!».  890 
V.  Abl)ey,  5.50 
V.  Bonney,  280,  001 
V.  IJonnelv,   183 
V.  Nelson!  880.  800.  001.  925 
Watts,  :Matter  of,  30.  ()18.  (i38,  771,  882 

V.   Public  Adm'r,  135,  141 
Waiiph  V.  Wauirli,  238 
Way,  Matter  of,  110 
Wead  V.  Cantwell,  215 
Weatherwax  v.  Shields,  305 
Webb,  Matter  of,  408 

V.  Day,  105 
Webster  v.  (Jray,   631 

V.  Xiciiols,  548 
Weed  V.  Ellis,  840 

V.   Waterbury,  287.  306 
Weeks,  Matter  of.  388,  532,  815,  912 
Weetjen  v.  Vibbard,  751 
Wehrhane,  Matter  of,  233,  706 
Weil,  Matter  of,  165,  168,  350 
Weir  V.  Fitzgerald,  155,  163,  174,  177, 

182 
Welch,  Matter  of,  361,  841,  870,  024 
V.  Gallagher,  33,  847,  854 
V.  N.  Y.  Cent.  E.  E,  Co.,  302. 
885 
W^ellbrock  v.  Often.  615 
Weller  v.  8ng<,'ett.  68.  786 

V.  Weller,  530 
Welling,  Maiter  of,  818.  005,  912,  913, 
938 
V.  Welling,  814,  829 
Wells,  Matter  of,  t>36,  941 

V.  Disbrow.  451,  549,  644 
V.   Knight.  500 
V.  Maples.  38() 
V.  Wallace.  30 
V.  Wells.  561 
Welsh.   :Matter  of.    174.    177,    182,   204, 
570.   860 
V.  Welsh.   620 
Welte  V.  Roseh,  786 
Wendell,  Matter  of,  427,  429 
Wenning.  Matter  of.  784 
Wentz.  flatter  of.  846 
We])peler,  Matter  of,  625 
Wesley,  Matter  of,  221 


West,  .Matter  of,  345,  346 
V.  (Junther,  8(i2 
V.  Mapes,  289 
Westcott  V.  Cady,  627 

V.  Higgin.s,  637 
Westerfield,  Matter  of,  487,  400,  882 
V.   liogers,  740 
V.  Westerlield,   818,   827 
Westerlo  v.  iJe  Witt,  472 
Westernian,  ^Matter  of,  181 
Western  v.    Koinaine,  903 
Westervelt  v.  Gregg,  25,  70,  335,  691, 
754,   758,   778,  787,  802, 
800,  904 
V.   Westtrvelt,  470,  885 
Weston,  Matter  of,  483,  905 

V.  Ward,  483 
Westover  v.  .lOtna  Ins.  Co.,  120 
Westphal  v.  Carter,  402 
Westurn,  flatter  of,  181,  596,  598,  605, 

924 
Wetherow  v.  Lord,  477 
Wetmore,    Matter    of,    303 

V.  Brooks,  476,  477,  478 

V.  Carrvl,  188 

V.  Parker,  53.  116,  186.  221, 

225,  232,  88(),  888 
V.  Peck,  481,  613,  630,   644 
V.  Porter,  270 
V.  St.  Luke's  Hospital.  634, 

630 
V.  Wetmore,  767 
Wcver  V.  :\Iarvin,  66,  03,  252,  455,  760, 

764,  778 
Weyman  v.  Ringold,  618.  638 
Wheaton,  Matter  of,  345 
V.  Gates,  385 
Wheeler,  Matter  of,  82,   174,   176.   177, 
178,     180,    238.    340.    351, 
419,  r)83,  584.  600 
V.   Clutterbuck.  (i66,  670 
V.   Eastwood.  530 
V.  Lester,  618,  620 
V.  Ruthven.  645.  707 
V.  Wheeler.  415 
Wheelwright  v.  Rhoades,  402,  505.  814, 
.817.  820.  937 
V.  Wheelwright.  820.  830 
Whelan.  Matter  of.  010 
Whelpley  v.  Loder.  124.  127.  176.  000 
Whitaker  v.  Young.  600 
Whitbeek.  Matter  of.  878 

V.   Patterson,  140,  !»07 
Whitconib  v    Whitcoinb,  550 
White,    Matter    of.    37.    40.    130.    161, 
168.  451.  802.  8.36.  870 
V.   Bullock.  828 
V.  Hicks.  236 
V.  Howard.  227.  614.  662 
V.  Kane.  706.  709 
V.  Lewis.  304 
V.  Lowe.  208 
V.  Nelson.  102 


Ixxii 


Table  of  Cases  Cited. 


AVliitf       V.  Parkor,  845,  840,  854 
V.  J'oillon,  457 
V.  PonuTov,  839 
V.  Price.  403,  752 
V.  Rankin,  818 
V.  Ross,  1G7 
V.  Story.  527.  528.  938 
V.  Wasror.  472 
Whitohcad.   :\Iatter   of,   361,   364,   382, 

573 
Whitfield  V.  Whitfield,  160 
Whitincr.  Matter  of.  399.  578,  581,  639 
Whitlock,  IMatter  of,  527 

V.  Bowerv     Savings     Bank, 

301,  303 
V.  Washburn.  479 
V.  Whitlock,  058 
Whitmore  v.  Foose.  525 
Whitnev,  Matter  of,  142,  188,  536 
V.  Britton.  98 
y.  Coapnian,  255 
V.  Phcenix,     490,     505,     627, 
768,  829,  830 
Whitson  V.  Whitson,  443,  797,  824 
Whittemore,  :Matter  of,  862 
V.  Beeknian,  514 
Whittlesey  v.  Hogiiet,  942 
Wickwire  v.  Chapman,  289 
Widniaver.  :\latter  of,  81,  169,  170,  175, 
934 
V.  Widmayer,  816 
Wiener,  ]Matter  of,  569 
Wigand  v.  Dejonge,  6 
Wiggins,  ^Matter  of.  362 

V.  Stoddard,   174,   181,   182. 
183,  233,  237 
Wilber,  :Matter  of.  854 
V.  Wilber.  219 
Wilcox,  ^ilatter  of.   151,  188.  447,  452, 
722,  726,  743,  895,  913,  939, 
941 
V.  Hawlev,  429 
V.  Quinbv,  345,  362,  499,  805 
V.  Smith,    25.    442.    555,    698, 

805,  806.  809.  903,  907 
v.  Van  Schaick,  845 
V.  Wilcox.  836.  846,  870 
Wildberger,  ISIatter  of.  837 
Wilde,  Matter  of,  171,  174 

V.  Smith,  211 
Wilder  v.  Keeler,  425,  562 

V.  Ranney.  415 
Wildev  V.  Robinson.  820 
Wiley".  Matter  of,  760.  851 
Wilo-us  V.  Bloodgood,  566 
Wilkes,  Matter  of,  604 
V.  Rogers,  847 
Wilkinson  v.  Littlewood,  549 
Willard.  Matter  of.  829 
AVillcox  V.  Smith,  923.  927 
Willets,  ZMattr.v  of.  801,  808,  820,  821, 
822,  879 
V.  Titus,  618 


Willett,  Matter  of,  909,  915 

V.  Willetts,  585 
Williams,  Matter  of,  123,  143,  166,  177^ 
179,  183,  187,  287.  355.  398^ 
519,  631,  634,  643,  703,  713^ 
784,  911,  930,  935,  937 
V.  Connolv,  154 
V.  Conrad.  018 
V.  Crarv.  024.  639 
V.  Eaton,  527,  561 
V.  Fitch.  925 
V.  Freeman,  216 
V.  Haddock,   190,  421 
V.  Kiernan,  371 
V.  ^Montgomery,  220 
V.  Purdv.  532,"  623,  808,  849 
V.  Quimbv,  483 
V.  Seaman,  638 
V.  Storrs.  259,  407,  408,  862 
V.  Whedon,  426 
V.  Whittell.  880 
V.  Williams,     216,     221,    222. 
224.  227 
Williamson,  ]Matter  of,  500 

V.    Williamson,    153,    632,- 
645.  938 
Willick  V.  Ta<.-gart,  845 
Willis    V.  Sharp.  426,    494,    495,    496. 
556 
V.  Mott,  146.  147,  149 
Willoughby  v.  ]\IcCluer.  402,  747 
Willson  V.'  Willsop    450 
Wilmerding  v.  ]\IcKesson,  487.   507 
Wilson,  Matter  of,   123,   124,  127,   156, 
290.  759 
V.  Baptist,  etc..  Society,  25,  473 
V.  Hetterick,  156 
V.  INIoran.  182 
V.  White,  716,  727 
V.  Wilson.  709 
Wilt,  Matter  of.  155 
Wing,  Matter  of.  469 
Winne,  Matter  of,  673 

V.  Hills.  539,  545 
Winnington.  Matter  of,   260 
Winslow,  Matter  of,  41 
V.  Miller.  481 
Winsor,  Matter  of.  847 
Wintermever    v.    Sherwood,    534,    535,. 

536,  .537 
Winters.  Matter  of.  609 
Wirt,  :\ratter  of.  477 
Withers.  Matter  of,  783,  913 
Witmark,  Matter  of,  930,  932 
Wolfe.  :\ratter   of.   443,   509,  579,   586, 
592,  603 
V.  Lynch,  735 
Wood,  Matter  of.  38.  74.  188.  271,  272, 
273,  275,  351,  439,  440,  644, 
760,  771,  774,  786 
V.  Bishop.  171 

A-.  Brown.  44.  70.  344.  346.  349, 
.357,  410,  417.  750,  764,  772, 
778 


Table  of  Cases  Cited. 


Ixxiii 


Wood  V.  7{yinpton,  722 
V.  (rookc,  781 
V.   Hubbard,  (i93 
V.   .M((  licsney,  711.  713 
V.  .Mitthaiii.'-J.JO.  GtiG 

V.  Kusco.  ry.i-z.  ml,  7(50 

V.  Tiiiiiiiclin'.  old,  "i.'jd 
V.  Vandcrburjrli.  H'i,  430,  6.33 
V.  Wood,  132,  2r>H,  347,  348,  357, 
(i22,  840 
\Voodard,  MatttT  of,  743,  911 
Woodburv,  Matter  of,  48.5 
Woodliead.  Matti-r  of,  890 
Woodliouse,  :Matter  of,  803 

V.  Woodliouse,  402,  897 
Wood  in  V.  Baj,'ley,  538 
Woodruir,  Matter  of,  514 
V.   IJovden,  512 
V.  C'ocik,   43,   403,   540,    707, 

713,  733 
V.  Cox,  70,  255 
V.  WoodrufT,  30,  07,   08,  70, 

772,  790 

V.  Young.  779 

Woods,  Matter  of.  40,  225,  237,  019 

V.  :\Ioore,  238 
Woodward,  Matter  of.  84,  85,  00,  120. 
178.  447,  701.   79;j.  803 
V.  James,  232,  652,  884 
Woodwortli,  Matter  of,  29,  36,  376,  402, 

422,  504,  708.  812 
Woolever  v.  Knapp,  493 
Woollev  V,  Woollev,  158 
Woolsev,  :Matter  of.  148.  167,  583,  818 
Worniser,  Matter  of,  425.  597,  605,  608 
Worrall  v.  Driorps.  67,  71,  73,  773,  815 
Worthinpton,  Matter  of,  40,  815,  829, 

926 
Wortnabv,  :\Iatter  of,  204 
Wotton,  "Matter  of,  818 
Wright,  Matter  of.  223,  847,  854,  858 
V.  Beirne.  537 
V.   Du-ran,  488 
V.  Fleming,  110,  811,  880 
V.  lloll)rook.  501 
V.  :Marshall,  425 
V.  ^lereein,  479 
V.  "Methodist    Epis.    Ch.,    237. 

879 
V.   Wright.  532.  944 
Writner.  :\ratter  of,  25,  31 
WuesthofT  V.  Germania  Life  Ins.   Co., 
805 


Wurtz  V.  Jenkins.  410,  750,  877 
Wyekoff  v.  Nan  Sielen,  489 
W'veth  V.  Stone,  074 
Wyles  V.  Gibbs.  298 
Wyman  v.   Woodbury,  223 
V.  Wyman,  428 

Yale  V.  Baker,  37,  881 
Yates,  Matter  of,  435 
V.  Root,  539 
V.  Yates,  222,  227 
Yetter,  Matter  of,  85,  512,  811,  9.34 
Yonkers    Sav.    Bank    v.    Kinsley,    422^ 

501 
York,  Matter  of,  706 
Yorks  V.  Peek,  528,  546 
Young,  Matter  of,  210,  421,  555,  018^ 
801.  810.  013 
V.  Bru.  h,   108,  444 
V.  Case.  018 
V.  Da  vies,  231 
V.  Hicks,  307 
V.  Purdy,  20 
V.  Robertson,  231 
V.  Young.  305.  430,  471,  476 
Young  Mens   Christian  Assn.,  Matter 

of,  227,  051 
Young  ;Men"s  Christian  Assn.  v.  Mavor. 

etc,  of  X,  Y.,  587 
Y'ounger  v.  Duffie,  144 
Youngs  V.  Youngs,  559,  639 

Zacherias  v.  Coll  is.  134 

Zahrt  V.  Zahrt,  740 

Zapp  V.  Miller.  435 

Zefita.  Matter  of.  002 

Zeisweiss  v.  James.  053 

Zeller.  :\ratter  of,  842,  867 

Zeph.  Matter  of,  285 

Zerega.  Matter  of.  82.  104 

Zeusehner,  ]\[atter  of,  780 

Ziegler,  flatter  of,  107,  175 

Zilkin  V.  Carhart.  402 

Zimmer  v.  Chew.  405 

Zimmerman,  ^Matter  of,  223 
V.  K inkle,  751 
V.  Solioenfeldt,  104.  075 

Zinke,  Matter  of  542 
V.  Zinke.  542 

Zone  V.  Zone,  217 

Zweigle  v.  Ilohman.  016 

Zwickert,  Matter  of,  866 


INTRODUCTION. 


The  courts  of  this  country  which  possess  original  jurisdiction 
of  matters  rehitiiig  td  wills  and  the  adniinistrati(ju  of  the  estates 
of  deceased  persons,  have  occasion  to  resort  constantly  to  the 
])recedents  established  hy  the  ecclesiastical  courts  of  England,  to 
whose  jurisdiction  in  such  matters  they  have  succeeded  in  this 
country.^ 

Down  to  a  very  recent  period,  the  ecclesiastical  courts  fonned 
a  fundamental  division  of  the  judicial  power  of  England,  dating 
their  origin  from  the  principal  epoch  in  the  history  of  the  origin 
of  English  courts  of  justice  —  the  period  from  Edward  I.  to 
Edward  III.  For  a  very  long  time,  both  before  and  after  that 
period,  their  jurisdiction  was  a  subject  of  vehement  dis])ute  be- 
tween the  clergy  on  the  one  hand,  and  the  parliament  and  law 
courts  on  the  other.  Repeated  instances  of  collision  between  the 
judges  and  the  bishops  as  to  the  extent  of  the  jurisdiction  of  the 
latter  occurred,  and  the  law  courts  frequently  issued  prohibitions 
against  proceeding  in  the  ecclesiastical  courts  with  suits  not  legally 
cognizable  there.  From  time  to  time  the  jurisdiction  of  the  latter 
courts  was  restricted  by  legislation,  until  1S57,  when  it  was  very 
materially  diminished  by  the  establishment  of  the  courts  of 
prol)ate  and  divorce  and  matrimonial  causes. 

The  ordinary  ecclesiastical  courts  were  the  provincial  or  archi- 
opiscopal  courts  of  the  provinces  of  Canterbury  and  York,  being, 
in  the  former  province,  the  court  of  arches,  the  ])rerogative  or 
testamentary  court  and  the  court  of  peculiars ;  and,  in  the  latter 
province,  the  prerogative  or  testamentary  court  and  the  chancery 
court.  There  were  also  diocesan  courts,  the  principal  of  which 
is  the  consistory  court,  which  was  formerly  held  in  the  cathedral 
or  some  aisle  or  cha])el  of  the  cathedral,  the  bishop  presiding,  but 
now  usually  held  by  the  bishop's  chancellor  in  some  convenient 
place  in  the  diocese. 

1  In    an    intvnduotorv   note    prefixed    diction   over  the  probate  of  wills  and 
to    the    first    volume    of    his    reports,    tiie    administration    of    the    estates    of 
the  late  Surr(i<j:ile  Bkadi'OHD  has  piven    deceased  persons    which  the  reader  will 
a    suociiicl    and    intere^^tinir   skelcli    of    find  well  worth  perusal, 
the  origin  of  the  ecclesiastical  juris- 

[Ixxv] 


Ixxvi  Intkoduction. 

The  prerogative  courts  had  jurisdiction  of  wills  and  administra- 
tions of  personal  property  left  by  persons  having  effects  of  a  cer- 
tain value,  in  the  various  jurisdictions  within  the  province.  The 
court  of  arches,  so  called  because  anciently  held  in  the  church 
of  Saint  Mary-le-Bow  (S.  Maria  de  Arcubus),  exercised  appellate 
jurisdiction  in  the  j^rovince  of  Canterbury,  and  had  also  original 
jurisdiction  in  some  testamentary  matters.  From  this  court  an 
appeal  lay  to  the  judicial  committee  of  the  privy  council. 

There  were  also  the  faculty  court  and  a  court  of  j)eculiars  of 
the  Archbishop  of  Canterbury,  the  former  having  had  a  voluntary 
or  non-contentious  jurisdiction,  and  the  latter  both  contentious 
and  voluntary  jurisdiction,  in  matters  relating  to  wills  and  lettera 
of  administration,  though  the  voluntary  jurisdiction  of  the  former 
courts,  and  a  great  part  of  that  of  the  latter,  have  now  been 
abolished. 

In  general,  causes  cognizable  in  the  ecclesiastical  courts  were 
fonnerly  classified  as  beneficial,  matrimonial,  testamentary,  and 
criminal.  The  jurisdiction  in  testamentary  matters  is  now  trans- 
ferred to  the  probate  courts  and  others.  The  matrimonial  juris- 
diction, except  as  to  granting  marriage  licenses,  is  transferred  to 
the  court  for  divorce  and  matrimonial  causes.  The  jurisdiction 
in  criminal  suits,  including  church  discipline  and  the  correction 
of  offenses  of  a  spiritual  kind,  and  the  beneficial  jurisdiction 
relating  principally  to  ecclesiastical  dues  and  fees,  rights  of  eccle- 
siastical patronage,  validity  of  presentations  to  livings,  and 
dilapidations  of  the  chancel  or  parsonage-house,  are  still  exercised 
by  these  courts. 

As  before  observed,  all  jurisdiction,  both  voluntary  and  conten- 
tious, of  the  ecclesiastical  and  other  courts,  in  testamentary  causes, 
and  with  respect  to  granting  or  revoking  letters  of  administration, 
is  now  taken  away  from  those  courts  and  transferred  to  other 
courts,  of  which  the  principal  is  a  court  of  probate  -sitting  in 
London,  having  jurisdiction  throughout  all  England.  Where 
there  is  no  contention  as  to  the  grant  of  probate  or  of  letters  of 
administration,  the  grant  is  in  ''  common  form,"  and  is  now  made 
either  in  the  principal  registry  in  London,  or  in  the  district  regis- 
tries throughout  England  and  Wales.  Where  there  is  a  conten- 
tion, the  questions  of  probate  or  grant  of  letters  are  determined 
judicially  in  "  solemn  form  "  in  the  court  of  probate,  except  where 
the  estate  does  not  exceed  a  certain  amount,  in  which  cases  the 
county  courts  exercise  jurisdiction.     The  probate  court  may  try 


Ixi'KODL  (IION.  Ixxvii 

questions  of  fact  itself,  <>r  may  direct  an  issue  to  be  tried  lx'f<;re 
any  of  the  su|X»rior  courts.^ 

In  tlu^  lMi<iiisli  coloiiics  of  America,  the  jurisdiction  of  the  eccle- 
siastical courts  of  the  mother  count rv  in  testament ai-_v  causes,  etc., 
was  exercised  by  the  trihunals  established  for  ordinary  civil  busi- 
ness, according  to  the  precedents  and  ])rincij)les  of  the  S])iritual 
courts.  In  the  Dutch  colony  of  Xew  Yoi-k,  this  jurisdiction  was 
governed  by  the  Dutch  Ifonian  law,  the  custom  of  Amsterdam, 
and  the  law  of  Aasdon,  by  a  tribunal  composed  of  members  of  the 
colonial  council;  afterward,  in  1053,  by  the  court  of  l)urgomasters 
and  sche])ens;  and  afterward  (10G5)  by  the  court  of  orphan 
masters,  and  then  by  the  mayor's  court,  after  the  occupation  of 
the  province  by  the  English.  The  history  of  the  testamentaiy 
courts  of  Xew  York  since  that  time,  and  the  limitations  of  their 
jurisdiction,  have  been  the  subject  of  careful  examination  by  an 
eminent  judge,  in  a  judicial  proceeding  before  him,  as  surrogate 
of  New  York  county ;  and  the  reader  will  thank  us  for  taking  a 
few  passages  from  his  opinion,  conspicuous  alike  for  profound 
learning  and  gracefulness  of  statement.' 

After  the  English  occupation,  in  1064,  says  Judge  Daly,  the 
court  of  burgomasters  and  schepens  was  changed  into  the  mayor's 
court,  a  name  Ijy  which  it  was  ]cno"wn  for  one  hundred  and  forty- 
six  years  afterward,  until  the  present  name  was  given  of  the  court 
of  common  pleas.  Eor  some  years,  under  the  English  rule,  it 
continued  to  exercise  the  same  functions  as  before,  its  proceedings 
being  conducted  in  the  Dutch  language.  The  court  of  orphan 
masters  was  discontinued,  and  the  mayor's  court,  for  a  long 
period  after  its  proceedings  were  conducted  in  the  English  lan- 
guage, exercised  the  same  jurisdietion  in  respect  to  testamentaiy 
matters  and  estates  of  persons  dying  intestate  within  the  city,  as 
it  or  the  court  of  or])han  masters  had  exercised  previously,  ^^•ith 
some  modifications  and  restrictions. 

When  the  government  of  the  province  was  committed  to  Gover- 
nor Nicholls,  by  James  II.,  then  Duke  of  York,  a  body  of  laws 
was  framed  for  its  government,  afterward  known  as  "  The  Duke's 
Laws,"  and  this  (^lde,  with  such  additions  as  were  made  to  it  by 


1  20  &  21  Vict.  0.  77  :  21  &  22  Id.  c.  Brick'.s  E.state,  reported  in  15  Abb.  Fr. 
!>.").     See  Cox's  Institutions,  otc,  570.  12.     See  also  a  valuable  monojiraph  on 

2  Opinion  of  Cliicf  .Tustiee  C'h.\I{LE.s  the  History  of  the  Judicial  friltunals 
1'.  I)ai,y,  of  the  couinion  pleas,  acting  f)f  Xew  York,  by  tlie  same  eminent 
surrogate  durinjj;  a  vacancy  caused  by  judfje.  prefixed  to  E.  D.  Smith's  Com- 
the  death  of  the  incumbent  of  that  of-  mon  Pleas  Reports,  vol.  I. 

lice    (Nov.,    1S02),    in    the    Matter    of 


Ixxviii  Introduction. 

the  governor  and  conncil,  or  at  the  annual  sitting  of  the  court  of 
assize,  the  written  instructions  received  by  the  governors  from 
the  home  government,  the  principles  of  the  common  law,  together 
with  certain  usages  and  customs  derived  from  the  Dutch,  con- 
stituted the  law  of  the  province  until  the  sitting  of  the  first 
legislative  assembly  in  1683. 

By  the  Duke's  laws,  a  constable  and  two  overseers  were  re- 
quired to  proceed  to  the  house  of  a  deceased  person,  forty-eight 
days  after  the  death,  and  inquire  respecting  his  estate,  and 
whether  he  had  left  any  will.  They  were  required,  further,  to 
make  an  inventory  of  his  effects,  appraise  the  value,  and  make  a 
return  of  their  j)roceedings,  under  oath,  to  the  next  court  of 
sessions. 

The  province  was  divided  into  three  ridings,  and  in  each  of 
these  ridings  there  was  a  court  of  sessions,  composed  of  the  jus- 
tices of  peace  living  within  the  riding,  which  was  held  twice  a 
year.  The  probate  of  wills,  the  granting  of  administration  in 
cases  of  intestacy,  the  final  accounting  of  executors  and  adminis- 
trators, together  with  such  compulsory  measures  as  were  neces- 
sary to  compel  it,  the  removal  of  executors,  the  distribution  of 
estates,  and  the  appointment  of  guardians,  took  place  in  the  first 
instance  before  the  court  of  sessions,  except  in  the  city  of  Xew 
York,  where  the  same  jurisdiction  was  exercised  by  the  mayor's 
court.  If  the  estate,  however,  exceeded  £100,  all  proceedings 
upon  the  probate  of  wills,  and  all  records  in  cases  of  administra- 
tion, had  to  be  transmitted,  duly  certified,  to  the  ofiice  of  the 
secretary  of  the  province  in  the  city  of  Xew  York,  where  they 
were  required  to  be  recorded,  and  where  letters  testamentary  and 
of  administration  in  such  instances,  and  the  final  discharge  of 
executors  or  administrators,  which  was  called  a  quietus,  were 
granted  by  the  governor  under  the  seal  of  the  province.  The 
proof  and  all  proceedings  took  place  in  the  first  instance  before 
the  court  of  sessions  or  the  mayor's  court,  and  the  court  gave  its 
judgment  or  opinion,  which  w^as  transmitted  to  the  governor  under 
the  certificate  of  one  of  the  justices  and  the  clerk,  and  the  act  of 
the  governor  was  simply  a  fonnal  ratification  by  the  granting  of 
letters  or  of  discharges.  In  some  instances  the  governor  gave  his 
judgment  upon  the  construction  of  a  will,  and  Governor  Andros 
granted  letters  without  any  proceeding  in  court,  but  these  were 
exceptional  instances  and  of  rare  occurrence.  In  all  proceedings 
before  them,  the  court  of  sessions  had  the  power  of  granting  a 
rehearing,  or,  as  it  was  called,  a  "  review,"  and  upon  such  review 


Introductiox.  Ixxix 

might  in  thoir  discrotion  admit  new  evidence  —  a  power,  liowever, 
which  was  nut  coniimud  in  the  courts  which  succecnled,  in  1691, 
to  the  civil  jnristliction  of  tlicso  tribunals.^ 

This  state  of  things  continued  until  lObO.  In  the  letter  of 
instructions  transmitted  in  that  year  to  Governor  Dongan.  he  was, 
among  other  things,  directed  to  see  that  the  ecclesiastical  jurisdic- 
tion of  the  Archl)ishop  of  Canterbury  should  take  place  in  the 
province,  "  as  farr  as  conveniently  may  bee,"  except  the  collating 
of  benefices,  the  granting  of  nuirriage  licenses,  and  the  ])robate  of 
wilh-,  which  were  reserved  to  the  governor;  and  in  a  similar  letter 
of  instructions  to  Sloughter,  in  1G89,  the  ecclesiastical  jurisdic- 
tion of  the  Bishop  of  London,  was  added. ^  The  ecclesiastical 
jurisdiction  of  the  Bishop  of  London,  so  fai-  as  it  related  to  testa- 
mentary matters  or  the  administration  of  the  estates  of  intestates, 
was  limited  to  cases  where  the  effects  of  the  deceased  were  ex- 
clusively within  the  bishop's  diocese,  and  the  jurisdiction  was 
exercised  by  a  court  held  in  the  diocese  by  the  bishops,  coimnis- 
sary,  or.  surrogate ;  but  if  the  deceased  had  left  effects  in  more 
than  one  diocese,  then  the  Archbishop  of  Canterbury  had  exclusive 
jurisdiction,  and  the  matter  w-as  heard  before  his  delegate  in  the 
prerogative  courts,  of  which  there  were  two,  the  prerogative  office 
at  York  and  Canterbury.^ 

After  these  instructions  were  received,  a  change  took  place  in 
the  course  of  procedure.  The  courts  of  sessions  and  the  mayor's 
court  continued  to  exercise  the  same  functions  as  before,  but  the 
governor,  or  the  secretary  of  the  province,  also  took  proof  of  the 
execution  of  wills  and  of  the  inventory  and  appraisement  of  estate; 
and  in  1691,  under  the  administration  of  Lieutenant-Governor 
Ingoldsby,  a  clause  was  inserted  in  all  letters  testamentary  or  of 
administration,  that  the  granting  of  such  letters,  the  hearing  of 
accounts,  the  reckoning  of  administration,  and  the  granting  of  the 
final  discharge,  belonged  to  the  governor,  and  not  to  any  inferior 
judge.  If  a  will  was  proved  before  a  secretary,  he  annexed  a  cer- 
tificate that  "  being  thereunto  delegated,"  the  will  had  been  duly 
proved  before  him ;  and  an  authentication,  in  the  name  of  the 


1  The  Duko's  Lows,  Collection  of  tlie  Jud.  Trib.  23-30;   2   Rev.  L.  of   1S13, 

N.   Y.    Historical   Soeiotv.   vol.    I.    315.  app.  V. 

404.  412.  41.^>:    Reoords  of  Wills  in  X.  2  3  Col.  Doc.  372.  688.  820. 

Y.   Surroi^'iite'.s  Oilico.   lib.   I,   1,   3,   10,  3  AylitT's    Parer<.'on    Juris    Canonici 

19,  21.  28.  31,  38,  41.  07.  00.  91,   10;j.  Angli'cana.     192,    534.    l^ondon.     17211: 

190.  195.  270,  283,  355.  370.  377,  442:  Cibson'.s    Codex.    405,    471,    472.    478; 

lib.  IT,  29:  lib.  III.  191:  lib.  IV.  129:  Godolphin'-s    Orphan's    T>epacv.    100:    4 

Book  of  Inventories,  vol.  I,  1.  5:  Daly's  Inst.    335:    Williani.s   on   Ex.   24S.   4th 

Lond.  ed. 


Ixxx  Introduction. 

governor,  in  the  form  that  continue  J  in  n?e  down  to  the  Revised 
Statutes,  that  the  will  had  been  "•  proved,  approved,  and  allowed," 
nnder  the  prerogative  seal,  was  annexed,  and  the  Avhole  was  re- 
corded in  the  secretary's  office  —  the  validity  of  the  record  being 
attested  by  his  signature.  In  this  way  a  distinct  department  grew 
up  in  the  secretary's  office,  which  took  the  name  of  the  prerogative 
office,  and  the  records,  connected  with  it  the  name  of  the  registry 
of  the  prerogative,  and,  in  1691,  the  whole  became  distinguished 
by  the  judicial  appellation  of  the  prerogative  court. ^ 

The  legislative  assembly  which  was  convened  in  1683,  having 
been  established,  was  again  reinstated  in  1691,  and,  at  its  second 
session,  in  1692,  an  act  was  passed  ^  by  wdiich  it  was  declared  that 
the  probate  of  all  wills  and  letters  of  administration  should  thence- 
forth be  granted  by  the  governor,  or  such  person  as  he  should 
delegate,  under  the  seal  of  the  prerogative  office ;  that  all  wills  in 
the  counties  of  Orange,  Riclimond,  Westchester,  or  Kings,  should 
be  proved  in  New  York  before  the  governor  or  his  delegate,  and 
in  the  remote  counties  in  the  courts  of  common  pleas  —  tribunals 
which  had  been  created  in  each  county  by  an  act  of  the  previous 
session ;  and  where  the  j^roof  was  taken  in  the  courts  of  common 
pleas,  it  was  required  to  be  certified  under  the  hand  of  the  judge 
and  clerk  to  the  secretary's  office  in  Xew  York,  where  probate  was 
granted.  Where  the  estate  was  under  £50,  the  courts  of  common 
pleas  were  authorized  to  admit  the  will  to  probate,  or  to  grant 
letters  of  administration,  and  from  their  decision  an  appeal  was 
allowed  to  the  governor,  or  to  the  person  he  might  delegate  to  act 
for  him.  How  this  jurisdiction  was  then  understood  appears  from 
a  letter  written  the  year  following,  by  Clarkson,  the  secretary  of 
the  province,  to  the  Lords  of  Trade.^  ''  The  governor,"  he  says, 
"  discharges  the  place  of  the  ordinary  (the  bishop)  in  granting 
administration  and  in  proving  wills,  and  the  secretary  of  the 
province  acts  as  registrar."  The  secretary  of  the  province  was  an 
officer  independent  of  the  governor,  holding  his  appointment  from 
the  crown,  the  duties  of  which  he  discharged  chiefly  through  a 
deputy.  Governor  Fletcher,  immediately  after  the  passage  of  this 
act,  in  1692,  appointed  this  deputy  his  delegate,  and  he  took  proof 
of  wills,  which  were  afterward  approved  and  allowed  in  the  name 
of  the  governor.  In  1702,  Lord  Cornbury  appointed  as  his  dele- 
gate a  Dr.  Bridges,  who  was  afterward  chief  justice  of  the  prov- 


1  Records  of  Wills  in  N.  Y.  Surro-        2  Laws  of  N.  Y.  from  1691  to  1751, 
gate's   Office   from    1683   to    1690   and    Smith  and  Livingston's  ed.  I,  15. 
1691,  182,  229.  3  Col.  Doc.  IV,  28. 


Introduction'.  1 


XXXI 


ince.  The  ])roof  of  wills  was  then  taken  before  him,  ami  iipMn 
his  certitioate  letters  were  granted  by  the  deputy  secretary  in  the 
name  of  tlie  governor.  Before  Dr.  Bridges,  also,  executors  ajid 
administrators  w'ere  sworn  faithfully  to  execute  their  trust;  the 
renunciation  of  executors  was  fonnally  made  Ijefore  him,  ajid  he 
to<jk  proof  of  inventories.  This  gentleman  was  a  man  of  legal 
acquirements,  and  had  received  in  England  the  degree  of  doctor 
of  laws,  and  he  was  the  first  in  the  province  to  make  use  of  the 
title  of  surrogate,  adding  it  after  his  signature  to  all  documents.^ 
Dr.  Bridges  having  been  appointed  chief  justice,  Cornbury  ap- 
pointed the  deputy  secretary  his  delegate,  and  this  officer,  with 
the  exception  of  a  few  interruptions  or  changes,  continued  to  act 
as  the  governor's  delegate  down  to  the  time  of  tlie  revolution. 
The  provision  in  the  act  of  1692,  which  required  all  wills  in  the 
counties  named  to  be  proved  in  T^ew  York  before  the  governor  or 
his  delegate,  was  found  to  be  exceedingly  onerous.  Traveling 
then  was  very  different  from  what  it  is  now,  and  to  bring  wit- 
nesses in  all  such  cases  to  Xew  York  was  attended  with  difficulty 
and  expense.  In  view  of  this  inconvenience,  Conibury,  acting 
upon  the  ])revious  precedent  of  Ingoldsby,  and  giving  what  was, 
]ierhaps,  an  allowable  construction  to  the  act  of  1G92,  commis- 
sioned delegates  to  act  for  him  in  all  of  these  counties,  and  at  a 
later  period,  under  future  governors,  delegates  were  appointed  for 
the  more  remote  counties.'  At  the  same  time,  a  local  delegate  was 
appointed  for  the  city  and  county  of  New  York,  distinct  and  apart 
from  the  secretary  of  the  ])rovince  or  deputy  secretary,  who  were 
also  commissioned  to  act  as  delegates.  In  fact,  an  attempt  was 
made  to  carry  out,  in  conformity  with  the  instructions  that  accom- 
panied the  governor's  commission,  the  distinct  jurisdictions  in 
England,  by  the  commissary  of  the  bishop  diocesan,  and  the  ordi- 
nary or  delegate  of  the  Archbishop  of  Canterbuiy ;  or  what  was 
then  known  as  the  court  held  by  the  commissary  of  the  bishop, 
and  the  prerogative  court  held  by  the  delegate  of  the  archbishop 
or  metropolitan.^  If  the  deceased  had,  at  the  time  of  his  death, 
effects  in  more  than  one  county,  or  as  the  official  document  expres- 
sed it,  "goods,  chattels,  and  credits  in  divers  places  within  the 
province,"  then  the  governor  exercises  exclusive  jurisdiction.  The 
will  was  proved  before  his  delegate  in  the  jirerogativc  court.     Let- 


1  Reo.  of   Wills,  VII,    3.   64.   87,   93,  Book  of  Commissions.  III.  473 :  V.  235, 

129,  169.  212.  412.  41S,  420:  VI.  4. 

2Rec.  of  Wills,  VII,  212.  476,  489;         3  Gibson's  Codex,  405,    1035. 
VIII,  18.  19;  XII,  187,  199;  XIII,  891 ; 

vi 


Ixxxii  Introduction. 

ters  were  issued  in  the  name  of  the  governor,  under  the  preroga- 
tive seal,  attested  by  the  signature  of  the  secretary  or  the  dep\ity 
secretary,  and  the  whole  was  recorded  in  the  registry  of  the  pre- 
rogative court.  If  the  deceased,  however,  had  effects  only  in  one 
county,  then  the  will  was  proved  before  the  local  delegate  of  that 
county.  lie  gave  a  certificate  of  the  fact,  and  the  will  was  then 
taken  to  the  registrar's  court,  where  it  w^as  approved  and  allowed, 
letters  testamentary  were  granted  in  the  name  of  the  governor,  the 
seal  of  the  prerogative  was  affixed,  and  the  wliole  was  recorded  in 
the  registry  of  the  court.  Letters  of  administration  could  not  be 
obtained  except  in  the  prerogative  court.  By  the  act  of  22,  23 
Car.  II  (cap.  10),  administrators  were  required  to  exhibit,  under 
oath,  an  inventory  of  the  personal  estate  of  the  deceased  in  the 
registry  of  the  court  that  granted  letters;  to  make  a  true  and  just 
account,  also  under  oath,  to  the  court,  of  their  administration,,  by 
the  day  fixed  in  their  bonds  which  was  not  less  than  a  year ;  their 
accounts  were  to  be  examined  and  allowed  in  that  court,  and  they 
bound  themselves  to  pay  to  such  persons  as  the  judge  of  that  court 
should  limit  or  appoint.  This  jurisdiction  in  the  colony  was 
vested  in  the  prerogative  court;  executors  and  administrators  ac- 
counted before  it,  and  the  decree  upon  final  distributions  was  made 
there.  It  had  the  power  to  issue  citations  to  compel  the  attend- 
ance of  witnesses,  and  it  heard  appeals,  where  probate  or  admin- 
istration was  granted  by  the  court  of  common  pleas ;  in  addition 
to  which  it  exercised  a  jurisdiction  more  especially  ecclesiastical, 
such  as  the  granting  of  marriage  licenses,  licenses  to  schoolmasters, 
and  in  taking  proof  of  the  due  installation  of  clergymen.'^ 

The  delegate  who  represented  the  governor  in  this  court,  or,  as 
he  might  be  called,  the  general  delegate,  was  either  the  secretary 
of  the  province  or  the  deputy  secretary  —  generally  the  latter.  He 
was  empowered  by  his  commission  to  admit  mils  to  probate,  to 
grant  letters  of  administration,  and  for  that  purpose  might  "  affix 
the  prerogative  seal  of  the  province  thereto,  without  any  further 
fiat  or  allowance."  ^ 

No  such  general  powers  were  conferred  on  the  local  delegates. 
They  were  authorized  by  their  commissions  to  take  proof  of  the 
execution  of  any  will  made  by  a  person  residing  in.  their  county. 


lEec.   of  Wills   in  N.  Y.   Suit.  Of-  I,  5;  Rec.  of  Admin.  I,  2 ;   N.  Y.  CoL 

fice,   II,   39,    104,    107:    III,    149;    IV,  Doc.    VII,    830:    VIII,    322,    413;    N, 

129,    182,  213,  221.   230,  250,  328:   V,  Y.  Rec.  of  Marr.  Albany.   1860;  Mun- 

286,   333 ;    VI,   1 ;   VII,  474,  4S4,  491 ;  sell's  Annals  of  Albany,'  III,  327 ;   IV^ 

VIII,    18,    19;    XII,    197,    199;    XIII.  16. 

891 ;    XXVIII,    107 ;    Book   of    Inven.  2  Book  of  Corns.  V,  62. 


I.N'TiioDrcTiox.  Ixxxiii 

to  swear  cxcpiitors  or  iidmiiiistrators  that  tlioy  would  faitlifully 
execute  thcii"  trust,  or  that  the  iuveutorios  <tr  acooiint.s  to  be  ex- 
hibited l)y  them  in  the  i)rer(Ji>;ative  court  were  time,  and  t(j  sujier- 
vise  the  estates  of  intestates.  This  power  of  supervising  the 
estates  of  intestates  was  in  consequence  of  a  chiuse  in  the  act  of 
161)2,  which  provided' tliat,  where  any  ])erson  died  intestate,  two 
freehohh'rs  of  the  town,  to  he  annually  elected,  should  inquire 
into  the  real  and  jx-rsoiial  estate  of  the  deceased,  and  make  an 
inventory  of  it,  and  return  it,  under  oath,  to  the  person  in  the 
county  delegated  by  the  governor  to  supervise  the  estates  of  intes- 
tates ;  that  the  person  delegated  should  cause  the  goods  and  chattels 
to  be  sold,  retaining  the  proceeds  for  those  who  should  appear  and 
have  a  right  to  claim  them ;  and  that  if  the  deceased  left  or])hans, 
and  there  was  no  widow  or  next  of  kin,  the  person  so  delegated 
by  the  governor  should  have  the  administration  and  care  of  the 
intestate's  estate,  and  the  guardianship  of  the  persons  and  estates 
of  the  orphans,  until  they  should  marry  or  reach  the  age  of  twenty- 
one  ;  a  provision  that  w^as  superseded  and  became  inoperative  by 
subsequent  legislative  enactments.'^  AYith  the  exception  of  this 
provision,  the  powers  of  these  legal  delegates  were  not  much 
greater  in  fact  than  that  of  commissioners  of  deeds  in  our  day. 
They  did  little  else  than  to  administer  formal  oaths,  for  if  any 
contest  arose  upon  the  execution  of  a  will,  it  was  settleel  either  in 
the  prerogative  court,  from  which  alone  letters  could  issue,  or  in 
the  courts  of  record  where  it  had  to  be  proved  in  what  was  called 
the  solemn  form  per  testes,  to  make  it  binding  upon  real  estate. 
At  first,  these  local  delegates  bore  only  the  name  of  delegates,  but 
about  174G  they  began  to  assume  the  title  of  surrogates,  and  were 
so  designated  thereafter  in  their  commissions.  There  were  thus, 
as  in  Enghuid,  a  local  and  a  general  tribunal,  with  this  distinc- 
tion, however,  that  the  local  tribunal  here  was  much  more  limited 
in  its  powers ;  and,  further,  that  its  jtidicial  acts,  such  as  taking 
the  ])roof  of  wills,  had  to  be  approved  and  ratitied  \iuiler  the  seal 
of  the  ])rerogative  court. 

In  174'3,  an  act  was  passed  for  the  more  speedy  recovery  of 
legacies.  By  this  act  any  person  entitled  to  a  legacy  or  a  residu- 
ary estate  under  a  will,  or  to  any  share  in  the  estate  of  an  intes- 
tate, might  bring  an  action  against  the  executor  or  administrator, 
after  it  became  due,  or,  if  no  time  was  fixed  by  the  will  after  a 
year  has  expired,  to  eom]K^l  its  payment,  in  the  supreme  court  or 


1  Book  of  Corns.  Ill,  473. 


Ixxxiv  liN'THODUCTION. 

any  court  of  record,  if  it  amounted  to  more  than  £20,  or  if  under 
that  sum,  in  a  court  of  common  })leas ;  and  if  a  ])lea  of  want  of 
assets  was  2)ut  in,  the  court  was  empowered  to  appoint  auditors  to 
examine  the  accounts  of  the  executor  or  administrator,  who  were 
to  report  how  the  accounts  stood,  and  what  sum  would  remain 
after  tlie  payment  of  debts,  and  what  proportion  the  ph^intiif  was 
entitled  to.  The  court  was  empowered  to  correct  any  mistakes  or 
errors  in  the  accounts  reported,  and  for  the  amount  found  to  be 
due  the  plaintiif  had  execution  —  which  act  continued  in  force 
down  to  the  Revised  Statutes.-^  This  act  and  the  general  jurisdic- 
tion exercised  by  the  court  of  chancery  in  such  cases,  furnished  a 
much  more  effectual  remedy  than  the  prerogative  court  could 
afford,  and  the  practice  of  accounting  in  that  court,  therefore,  fell 
into  disuse,  except  when  an  executor  or  administrator  filed  his 
account  with  the  view  of  obtaining  his  discharge ;  and  in  time  the 
common-law  courts  were  but  rarely  resorted  to,  as  the  remedy  in 
equity  was  more  efficient  and  better  adapted  for  adjusting  the 
rights  of  all  parties. 

I  have  thus  given,  as  far  as  it  is  now  possible  to  ascertain  it,  the 
exact  jurisdiction  exercised  by  the  prerogative  court.  iS[o  minutes 
of  the  sittings  of  this  court,  if  any  were  ever  kept,  or  if  it  ever  had 
any  regular  sittings,  which  I  very  much  doubt,  are  to  be  found.^ 
In  fact,  its  whole  business  was  managed  for  seventy  years  before 
the  revolution,  by  the  secretary  of  the  province  and  his  deputy, 
with  little  interference  on  the  part  of  the  governor,  and  with  but 
little  knowledge  on  their  part  respecting  it.  In  connection  with 
the  registry,  which  the  secretary  claimed  as  a  part  of  his  office, 
everything  was  done  to  keep  the  court  exclusively  under  the  con- 
trol of  this  officer.  It  was  entirely  managed  by  his  deputy,  who 
fulfilled  many  functions,  which  were  so  mixed  up  as  the  acts  of 
one  and  the  same  person,  that  it  was  difficult  even  then  to  distin- 


1  Laws  of  N.  Y.  Smith  &  Living-  court  of  probate,  before  the  1st  of 
ston's  ed.  I,  316;  Street's  X.  Y.  Coun-  May,  1807,  in  pursuance  of  which  the 
cil  of  Revision,  281.  late    Sylvanus    Miller,    who   was    then 

2  The  records  belonging  to  it,  and  surrogate,  went  to  Albany  in  1800, 
everything  appertaining  to  wills  and  and  brought  away  everything  that 
the  administration  of  estates  were  could  then  be  found.  I  presume  that 
carried  to  Albany  during  the  revolu-  if  any  minutes  had  ever  been  kept  of 
tion,  before  the  evacuation  of  the  city  the  court,  they  would  have  existed 
by  the  American  troops.  An  act  was  then,  and  would  have  been  discovered 
passed  in  1709  (2  Greenleafs  Law  of  by  Judge  Miller,  as  the  chain  of  rec- 
X.  Y.  420),  directing  the  judge  of  the  ords  now  here,  and  which  he  arranged 
court  of  probate  to  deliver  to  the  sur-  and  classified,  are,  for  the  whole  colo- 
rogate  of  the  city  and  coimty  of  Xew  nial  period,  very  complete  and  per- 
York  all  books,  records,  minutes,  docu-  feet. —  Daly,  J. 

ments    and    papers    belonging    to    the 


I  .\  rKoDic'iio.N.  Ixxxv 

giiisli  the  \'ario(l  capacities  in  which  ho  acted.  'J'lie  j)recis('  char- 
acter of  his  powers  or  those  of  the  secretary,  together  with  tlie 
extent  or  nature  of  the  authority  which,  in  virtue  of  the  g<jvernor's 
prerogative,  was  vested  in  the  prerogative  court,  were  matters  of 
great  perplexity  then,  and  a  constant  subject  of  complaint  and 
remonstrance.^  One  of  the  last  of  the  secretaries,  ("lark,  ludd  no 
less  than  twelve  distinct  offices,  nearly  all  of  them  connected  with 
the  administration  of  justice,  and  his  deputy,  Goldsbrow  Banyan, 
who  held  that  otiice,  with  but  few  interruptions,  from  1740  to  the 
revolution,  in  addition  to  acting  as  the  general  assistant  of  his 
principal,  was  examiner  of  the  prerogative  court,  and  the  local 
delegate  for  the  city  and  county  of  Xew  York,  while  at  the  same 
time  he  fulfilled  the  function  of  general  delegate,  or  as  Gov.  Tryon 
describes  the  office,  acting  as  principal  surrogate.  A  course  of 
management  which  was  designed  to  baffle  all  inquiry  then,  and 
which  succeeded  in  doing  so,"  was  not  very  easy  to  imravel  after- 
Avard,  and,  therefore,  when  the  revolution  broke  out,  very  con- 
fused ideas  prevailed  as  to  the  nature  of  jurisdiction  of  this  court, 
and  even  as  to  its  name,  being  sometimes  called  the  ])rerogative 
court,  and  sometimes  the  court  of  probate;  a  confusion  of  names 
which  led  to  the  impression  that  there  were  two  tribunals  before 
the  revolution,  an  impression  which  I  fonnerl^entertained,"'' 
wdiereas  there  was  in  reality  but  one.  The  legislature,  in  1778, 
meant  to  sweep  away  every  authority  vested  in  this  court,  in  virtue 
of  the  prerogative  of  the  colonial  governors,  supposing  it  to  l)e 
greater  than  it  actually  was,  and  to  constitute  a  court  thereafter  to 
be  held  by  a  single  judge,  having  the  same  jurisdiction  in  testa- 
mentary matters  and  in  cases  of  intestacy,  to  be  knoA^ni  as  the 
court  of  probates ;  and,  accordingly,  in  an  act  passed  in  that  year, 
it  was  declared  tliat  llic  judge  in  a  court  of  probate  should  be 
vested  with  the  ]M)wers  and  authority,  and  have  the  like  jurisdic- 
tion in  testamentary  nuUters,  which  the  governor  of  the  colony  of 
Kew  York,  while  it  was  subject  to  the  crown  of  Great  Britain,  had 
and  exercised  as  judge  of  the  ]irerogative  court,  or  the  court  of  ])ro- 
bates  of  the  colony,  except  the  power  of  appointing  surrogates.'* 

From  this  ))eri()d  to  17'^0,  this  new  tribunal,  the  court  of  ])ro- 
bates,  continued  to  exercise  the  same  jurisdiction  in  such  nui.lters 


1  See  Gov.  Moore's  letter  to  the  3  Daly's  Judicial  Tribunals  of  X.  V. 
Lords  of  Trade,  and  Gov.  Trvon's  upon  .')3:  Roc.  of  Com.  V,  70.  412.  41S:  VI, 
the  same   subject.  Col.    l)nc.*\-Il.    i:?0,  201. 

187.  283.  323.  "*  1  Laws  of  N.  Y.  Jones  &  Varick's 

2  See  Kfport  of  the  Tvords  of  Trade,  ed.  23. 
N.  Y.  Col.  Doc.  VIIL  413. 


Ixxxvi  LXTKODUCTION, 

as  the  prerogative  emu't  liad  done.  Ilie  proof  of  wills,  where  the 
deceased  had  effects  in  more  than  one  county,  was  taken  before 
the  jndgo  of  that  court,  and  before  the  surrogate  where  the  effects 
were  exclusively  in  one  county ;  and  in  both  cases  the  proof  of  the 
will  was  '"approved  and  allowed"  in  the  name  of  the  people^ 
before  the  court  of  probates,  where  it  was  recorded,  and  from 
which  letters  issued  under  the  seal  of  the  court,  attested  by  the 
signature  of  its  clerk.  Letters  of  administration  were  also  granted 
there,  and  all  inventories  were  filed  there.  This  courti  held 
stated  sittings,  at  regular  periods  in  different  parts  of  the  State, 
until  1783,  when  it  was  fixed  in  the  city  of  New  York  until 
1787,  after  which  it  was  permanently  removed  to  Albany,  and 
up  to  1797  the  surrogates  of  the  different  counties  continued  to 
exercise  exactly  the  same  powers  which  they  did  before  the  revo- 
lution.^ 

In  that  year,  1787,  an  important  change  was  made;  an  act  was 
passed^  by  which  the  granting  of  probate  and  of  letters  of  admin- 
istration was  taken  away  altogether  from  the  court  of  probates, 
except  in  certain  specified  cases,  and  conferred  upon  the  surro- 
gates of  the  different  counties,  from  whose  decision  in  contested 
cases  an  appeal  was  allowed  to  the  court  of  probates.  This  act 
provided  that  the  governor,  with  the  consent  of  the  council  of 
appointment,  should  commission  a  surrogate  for  every  county  in 
the  State,  and  empowered  each  surrogate  to  take  proof  of  the  last 
wills  and  testaments  of  persons  dying  in  his  county,  or  who  was  an 
inhabitant  of  it  if  he  died  from  home,  to  issue  probate  and  grant 
letters  testamentary  thereon,  or  letters  of  administration  with  the 
will  annexed ;  or  where  such  person  died  intestate,  to  grant  letters 
of  administration ;  such  letters  to  issue  in  the  name  of  the  people, 
and  to  be  tested  in  the  name  of  the  surrogate,  and  sealed  with  the 
seal  of  his  ofiice.  This  act  further  provided  that  'each  surrogate 
ghould  record  all  wills  proved  before  him,  with  the  proof  thereof, 
and  all  letters  testamentary  or  of  administration  issued  by  him, 
with  all  things  concerning  the  same,  and  directed  that  when  admin- 
istration was  granted  by  him,  the  inventory  should  be  "  exhibited  " 
in  his  office. 

Where  persons  died  out  of  the  State,  or  within  it  not  being 
inhabitants,  the  act  directed  that  their  wills  should  be  proved  be- 


1  Rec.  of  Wills  in  N.  Y.  Surrogate's  Inventories,  1  ;  Rec.  of  Admin.  IV,  V^ 

Office,    XXXII,    .50.    .3()0:    XXXIII.    2.  VI.  VII. 

10.   59.   316,  421.   4.38:    XXXIV.   4.36:  2  2  Laws  of  N.  Y.  Jones  &  Varick's- 

XXXV,    200:    XXXVI,    2:    XXXVII.  ed.  71. 
316,  427;  XXXIX,  280,  436;  1  Rec.  ot 


IxTitODL'CTiox.  Ixxxvii 

fore,  or  administration  of  their  personal  estates  should  be  granted 
by,  the  judge  of  the  court  of  probate,  and  in  such  cases  the  inven- 
tory was  '"  exhibited  ''  in  the  registry  of  tlnit  court.  This  act  also 
gave  tlie  court  of  probates  authority  to  conii)el  administrators  to 
account  in  cases  of  intestacy,  to  decree  and  settle  the  order  of  dis- 
tributions after  the  ])aynient  of  debts  and  exj)enses,  and  to  compel 
the  payment  of  the  amounts  so  decreed.  It  was  cni])owered,  also, 
to  hear  and  determine  all  causes  touching  any  legacy  or  bequest  in 
any  last  will  and  testament,  ])ayable  out  of  the  personal  estate  of 
the  testator,  and  to  compel  })aymcnt  of  it.  This  was  a  ])rovision 
virtually  em})Owering  the  court  to  call  executors  to  account,  which 
was  an  important  change,  as  before  that  time  probate  or  ecclesi- 
astical courts  had  no  power,  either  by  the  canon  law  or  by  statute^ 
to  compel  executors  to  account.^  Authority  was  also  given  to 
the  court  to  enforce  its  decree  for  payment  of  distributive  shares 
or  bequests  or  legacies,  by  execution  against  the  person,  and  by 
ther  twentieth  section  of  the  act  it  was  declared  that  "  the  courts 
of  the  said  surrogate  and  the  said  court  of  probates,  in  the  matters 
submitted  to  their  cognizance,  respectively,  by  this  act,  shall  pro- 
ceed according  to  the  course  of  the  courts  having,  by  the  common 
law,  jurisdiction  of  like  matters." 

In  178G,  the  court  of  probates,  where  the  personal  estate  was 
insutticient  to  pay  debts,  was  empowered  to  order  the  sale  of  the 
real  estate,  and  make  distribution  of  the  proceeds  among  the  cred- 
itors," but  when  the  court  was  removed  permanently  to  Albany, 
in  1797,^  it  was  found  very  inconvenient  to  resort  tliiTlici'  in  all 
cases  for  that  ]mr]>ose,  and,  accordingly,  in  17!>7,'*  an  act  was 
passed  conferring  this  power  on  the  surrogates  when  the  lands  of 
the  deceased  were  exclusively  in  one  county;  and  by  the  same 
act  they  were  authorized  to  admit  wills  to  probate  and  to  grant 
letters  of  administration  where  persons  died  out  of  the  State,  or 
within  it  not  being  inhabitants. 

In  1801,  the  surrogates  were  clothed  with  the  same  power  as 
the  judge  of  probate,  to  cite  the  administrators  to  account,  to 
decree  distribution,  or  the  payment  of  bequests  and  legacies,  and 
comjiel  it  by  execution.^  In  1802,  they  were  authorized  to  a]> 
point  guardians  for  infants  as  fully  as  the  chancellor  might  do;" 


1  Sparrow  v.  Norfolk.  Noy's  R.  28;  ->  \    Webster'^*  Laws.  317.   325;    Sey- 

Oibson'H  Codex.  4()(i.  478.  mour    v.    Seymour.   4   Johns.    Ch.   4(Mt : 

screen  loaf's  Laws.  238.  Foster  v.  w'ilber.  1   Paipe.  .5.37:  Dukiii 

3  3  Greenleafs  Laws,  301.  v.  lln.Noii.  C  Cow.  221. 

4  Laws  of  N.  Y.  1799.  Andrew's  ed.  03  Webst.  158. 
724. 


Ixxxviii  Introduction, 

in  1806,  to  order  the  admeasurement  of  dower  of  lands  witliin 
their  county,  npon  the  application  of  the  widow,  the  heirs  or  the 
guardians  uf  minors;^  in  1807,  to  exercise  powers  as  extensive  as 
the  court  of  probates,  in  ordering  sale  of  lands  for  the  payment 
of  (k'l)ts  ;^  in  1810,  to  order  the  mortgaging  or  leasing  of  the  land 
of  testators  or  intestates  for  the  payment  of  debts,  where  any 
infants  were  interested ;  and  all  these  laws,  whether  relating  to 
the  surrogates  or  to  the  court  of  probates,  were  incor]5orated  in 
one  general  act  in  the  revision  of  1813,  in  which  act  are  also 
embraced  some  other  general  powers,  such  as  compelling  the  pro- 
duction of  wills^  documents,  or  writings,  the  attendance  of  wit- 
nesses, and  the  power  of  punishing  for  contempt ;  and,  by  an  act 
passed  in  the  same  year,  they  were  authorized  to  complete  the 
unfinished  business  that  might  be  left  by  their  predecessor.^ 

In  1819,  they  were  empowered  to  confirm  sales  of  real  estate 
ordered  by  them  for  the  payment  of  debts,  and  to  direct  convey- 
ances to  be  made  by  executors  or  administrators;'*  and  in  1821, 
to  institute  an  inquiry  respecting  the  personal  estate  of  intestates 
not  delivered  to  the  public  administrator,  or  not  accounted  for  in 
a  lawful  and  satisfactoiw  manner  by  the  person  into  whose  hands 
it  was  supposed  to  have  fallen. 

By  the  act  passed  in  1823,  the  court  of  probates  was  abolished. 
Its  appellative  jurisdiction  on  appeal  from  surrogates  was  trans- 
ferred to  the  court  of  chancery,  and  whatever  other  jurisdiction  it 
possessed  was  by  this  act  vested  in  that  court. ^ 

From  1823  to  the  passage  of  the  Revised  Statutes,  the  only  acts 
of  a  general  character  relating  to  surrogates  were  acts  directing 
them  to  record  all  letters  testamentary  and  of  administration,  all 
appointments  of  guardians,  and  all  orders  and  decrees  upon  the 
sales  of  real  estate  made  by  themselves  or  their  predecessors.*' 

It  will  be  seen,  as  the  result  of  this  lengthened  examination, 
that  the  powers  conferred  upon  surrogates  were,  from  the  begin- 
ning, carefully  enumerated  in  the  commission  under  which  they 
were  first  appointed,  and  by  subsequent  legislative  acts ;  that  what 
was  not  granted  to  them  was  vested  before  the  revolution,  either 
in  the  prerogative  court,  the  supreme  court,  the  court  of  common, 
pleas,  and  the  court  of  chancery,  and  afterward  in  the  court  of 
probates.  That  when  the  prerogative  court  was  abolished,  in 
1778,  its  jurisdiction  in  testamentary  matters  and  in  cases  of  intes- 


lld.  316.  4  Laws  of  1819,  214. 

2  5  Id.  138.  5  Laws  of  1823. 

3  Laws  of  181.3,  139.  6  Laws  of  1828.  136. 


I.NTUtJULCTIOX.  Ixxxix 

tacy  was  transferred  to  the  court  of  probates ;  and  that  when  that 
court  was  abolished,  in  1823,  its  jurisdiction  was  vested  in  the 
court  of  chancery.  The  supreme  court  and  tlie  courts  of  common 
pleas  had,  as  had  been  shown,  imder  the  jjrovisinn  in  the  act  of 
1743,  tho  power  of  compelling  executors  or  administrators  to  ac- 
count in  actions  brought  to  recover  legacies  or  distributive  shares, 
and  wills  of  real  estate  were  proved  in  the  supreme  court  or  the 
court  of  common  pleas  until  the  passage  of  the  Revised  Statutes. 

The  commissioners  who  prepared  the  revision  of  the  statutes 
which  was  adopted  in  1830,  while  proposing  some  substantial 
reforms  in  the  then  existing  law  relating  to  wills  and  the  adminis- 
tration of  estates,  declared  in  their  reports  and  notes,^  that  their 
principal  object  was  '^  to  adapt  the  written  law  to  the  actual  exist- 
ing law,  and  where  that  was  settled,  to  express  it  in  intelligible 
language,  and  to  incorporate  provisions  which  should  terminate 
the  uncertainty  that  now  ju-evails  over  a  large  part  nf  the  sub- 
ject." Their  revisidu,  as  adopted,  formed  almost  a  codification  of 
the  then  existing  law  and  practice  of  surrogates'  courts. 

The  distinction  between  the  procedure  in  cases  of  wills  of  real 
property  and  that  in  cases  of  wills  of  personal  property  was, 
unfortunately,  substantially  preserved,  and  numerous  deficiencies 
were  soon  found  in  the  working  of  the  system.  In  the  year  1837 
the  legislature  adopted  the  very  important  statute  entitled  "An 
act  concerning  the  proof  of  wills,  executors  and  administrators, 
guardians  and  wards,  and  surrogates'  courts,"  commonly  known 
by  practitioners  in  these  courts  as  the  act  of  1837 ;  and  the  extent 
of  the  changes  which  it  made  in  the  system  prescribed  by  the 
Revised  Statutes  is  indicated  by  the  fact  that  its  seventy-seven  sec- 
tions amend  or  repeal  thirty-nine  sections  of  the  Revised  Statutes. 
The  next  statute  of  general  importance  which  should  be  noticed 
is  the  judiciary  act  of  1847,  by  which  the  judicial  system  of  the 
State  was  reorganized,  in  consequence  of  constitutional  changes 
made  by  the  Constitution  of  1846 ;  and  we  shouhl  also  mention, 
from  the  great  imjiortance  of  the  act,  although  applicable  only  to 
the  city  and  county  of  New  York,  the  statute  of  1870,  chapter  359, 
which  considerably  extended  the  powers  and  jurisdiction  of  tho 
surrogate's  court  of  that  county. 

In  almost  every  year,  since  the  adoption  of  the  Revised  Statutes, 
other  s])Ocial  changes  of  greater  or  les^  importance  have  been  nuide 
by  the  legislature,  but  these  changes  have  been  nuule  to  remedy 


1  Revisers'  Notes,  a  Edni.  Stat.  G-22. 


xc  Introduction. 

some  supposed  special  defects,  and  without  any  reference  to  the 
system  as  a  whole,  until  the  present  codification  effected  in  1880. 

The  confusion  resulting-  from  this  kind  of  fragmentary  legisla- 
tion, during  a  period  of  over  thirty  years,  was  the  occasion  of 
much  complaint  on  the  part  of  the  profession,  and  a  homogeneous 
code  was  urged  upon  tlie  legislature.  The  first  proposed  revision 
of  the  statutes,  relating  to  the  estates  of  deceased  persons,  was 
prepared  by  the  connnissioners  of  the  code,  and  had  the  especial 
attention  of  the  late  Surrogate  BKiVDFORD.  This  statute  was  in- 
tended to  be  inserted  in  the  proposed  Code  of  Civil  Procedure, 
and  was  submitted  to  the  legislature  for  that  purpose,  in  the  form 
of  an  appendix  (  D)  to  the  draft  of  a  civil  code  for  the  State  of 
iSTew  York,  prepared  by  Messrs.  Field,  I^oyes,  and  Bradford, 
the  commissioners  of  the  codes,  and  published  in  1862.  The  pro- 
posed civil  code,  as  revised,  was  republished  in  1865,  without  the 
aj)pendices. 

In  1870,  the  legislature  authorized  a  new  commission  to  revise 
the  statutes,  whose  report  was  the  basis  of  the  present  Code  of 
Civil  Procedure.  The  second  part  of  the  code,  containing  chapter 
18,  which  relates  to  surrogates'  courts,  etc.,  went  into  effect  on  the 
first  day  of  September,  1880,  and,  as  was  to  be  expected,  has  given 
rise  to  many  questions  of  construction.  But  it  is  matter  for  con- 
gratulation that  simplicity  and  uniformity  have  succeeded  the 
obscurity  and  often  the  contradiction  of  the  former  statutes  relat- 
ing to  proceedings  in  these  courts. 

It  will  be  obsen^ed  that  the  new  legislation  has  left  the  jurisdic- 
tion and  powers  of  surrogates'  courts  substantially  where  it  found 
them.  Only  a  few  and  comparatively  unimportant  additions  to 
the  incidental  powers  of  surrogates  are  added  to  those  previously 
existing,  and  these  powers  the  courts  had  already  held  to  be  im- 
plied from  those  expressly  conferred. 

The  chief  feature  of  the  present  code,  in  respect  to  surrogates' 
courts,  is  that  it  assimilates  the  proceedings  in  those  courts  to 
civil  actions,  so  far  as  practicable,  thus  working  an  entire  change 
in  the  practice  in  several  respects. 


CHAPTER  I. 

CONSTITUTION    AND  ORGANIZATION   OF    SURRO- 
GATES' COURTS. 


TITLE  FIRST. 

THE  COURT,  AND  THE  SURROGATE. 

The  courts  which,  in  the  United  States,  have  jurisdiction  of 
tlie  administration  of  the  estates  of  decedents,  and  of  cognate 
subjects,  are  variously  designated  as  Surrogates'  Courts,  Courts 
of  Probate,  Orphans'  Courts,  or  the  Court  of  the  Ordinary. 
*•  The  ordinary  "  was  the  .technical  term  adopted  by  the  English 
hiw  to  designate  the  bishop  of  a  diocese,  when  sitting  as  an 
ecclesiastical  tribunal  in  the  administration  of  the  ordinary 
tciuiHtral  jurisdiction  of  his  see;  his  subordinate,  or  deputy,  was 
called  a  surrogate,  to  indicate  that  he  exercised  a  delegated 
power.  In  the  State  of  Xew  York,  the  courts  which,  after  some 
intermediate  changes,  have  succeeded  to  the  characteristic  juris- 
diction of  the  ordinary,  respecting  probate  and  administration, 
are  still  termed  Surrogates'  Courts.^ 

§1.  Creation  of  the  court. —  The  Constitution  of  1S4G,  which 
remodeled  the  whole  judicial  organization  of  the  State,  super- 
seded the  County  Courts  of  Common  Pleas  and  the  Surrogates' 
Courts,  which  theretofore  existed,  and  provided  for  the  election 
of  a  county  judge  in  each  county,  except  that  of  Xew  York,  and 
made  it  his  duty  to  hold  the  County  Court,  and  also  to  jierform 
the  duties  of  the  office  of  surrogate.  Power  was  reserved,  how- 
ever, to  each  county^  having  over  40,000  population,  to  determine, 
from  time  to  time,  whether  they  would  have  a  separate  othcer  to 
]ierform  the  duties  of  surrogate;  and  where  such  an  officer  was 
elected,  the  county  judge  was  relieved  from  service  in  the  Sur- 
rogate's Court,  except  when  called  upon  in  an  exigency,  as  here- 

iCo.  Civ.  Proc,   §  2;   Const.,  art.  6    C    (of   18G0).  §   15:   art.  6    (of  1894), 
(of  18(59).  §  27.  «  15;  L.  1847.  c.  276,  §  8;  L.  1871,  c. 

2  Const.,  art.  6  (of  1846),  §  14;  art.    859.  §§  2,  3. 

[IJ 


§  2.  Orgaxizatioi^  of  Sukrogates'  Courts.  2 

after  stated.  The  growth  of  judicial  business  has  been  such,  that 
in  thirty-one  of  the  sixty-one  counties  of  the  State  this  course  has 
been  adoi)ted,  and  a  distinct  office  of  surrogate  created.^ 

The  Constitution  also  provides  that  the  Legislature  may,  on 
application  of  the  board  of  supervisors  of  any  county,  provide 
for  the  election  of  local  officers,  not  exceeding  two  in  any  county, 
to  exercise  the  duties  of  surrogate  or  of  county  judge  respectively.* 
On  the  other  hand,  provision  has  been  made  for  discontinuing 
the  separate  office  of  surrogate,  in  any  county  where  it  has  been 
created,'  and  merging  it  again  in  the  office  of  county  judge,  by  a 
resolution  of  the  board  of  supervisors,  when  the  office  of  county 
judge  is  vacant,  to  the  effect  that  thereafter  there  shall  be  no 
such  separate  officer,  and  thereupon  the  office  is  to  be  deemed 
abolished  from  the  time  the  office  of  county  judge  is  filled.'' 

The  surrogate  is  elected  by  the  people,  holding  offiqe  six  years  f 
except  in  Xew  York  coutity,  where,  since  1890,  the  term  of  office 
is  fourteen  years. ^  He  is  a  local  officer,  and,  except  in  vacation 
month,^  is  confined,  in  the  execution  of  his  duties,  to  the  county 
for  which  he  is  elected,  although  his  process  may  run  throughout 
the  State;  and  he  must  reside  in  the  county  for  which  he  is 
elected.^ 

§  2.  Surrogate's  Court  of  New  York  county. —  The  Surrogate's 
Court  of  the  county  of  Xew  York  is  recognized  by  the  Constitu- 
tion of  1846  as  a  then  existing  court,  and  is  declared  to  remain, 
until  otherwise  directed  by  the  Legislature,  with  its  then  exist- 
ing powers  and  jurisdiction.  Hence  the  office  of  surrogate  of 
i^ew  York  county  is  not  held  under  the  Constitution,  but  is  a  local 
office  established  especially  for  that  county  under  pre-existing 
laws,  but  recognized  and  continued  by  section  12  of  article  14  of 
the  Constitution.^^  By  the  Xew  York  City  Consolidation  Act  of 
1882,^^  so  called,  the  special  and  local  law's  affecting  public  in- 

3  See  as  to  Steuben  county,  L.  1883,  ^  L.  1890,  c.  329;  L.  1892,  e.  642,  §  K 
c.  309.  8  Co.  Civ.  Proc,  §  2505,  as  amended 

4  Const.,  art.  6  (of  1846),  §  15;  art.  1881. 

6  (of  1869),  §  16;  art.  6  (of  1894),  9  1  R.  S.  101,  §  11;  L.  1892,  c.  618, 

§  16.  §  3. 

5  L.  1871,  c.  859,  §  6.  As  to  Niagara  lO  People  v.  Carr,  86  N.  Y.  512, 
county,  see  L.   1894,  c.   109.  affg.  25  Hun,  325. 

6  L.' 1871,  c.  859,  §  5;  L.  1892,  e.  686,  "  L.  1882.  e.  410.  By  this  statute 
§  220.  An  election  to  fill  a  vacancy  certain  of  the  incorporated  acts  are 
before  expiration  of  term,  in  counties  reproduced  in  the  exact  language  of 
other  than  New  York  and  Kings,  is  to  their  originals,  others  are  slightly 
be  for  full  term  of  six  years  (L.  1886,  modified;  but  it  was  not  the  intention 
c.  164)  ;  and  not  merely  for  the  unex-  of  the  Legislature,  as  declared  by  the 
pired  term  (People  t.  Townsend,  102  act  itself,  to  make  anv  new  enact- 
N,  Y.  430.)  ment.  or  to  repeal,  modify,  amend,  or 


3  Ok(;axt/.atiox  ok   SuRUOiiATKs'   CoruTs.  §§3,4. 

tcrcsts  in  Xcw  York  city  were  brought  together  in  a  single  statute; 
among  which  special  and  local  laws  are  those  relating  to  the  surro- 
gate and  the  Surrogate's  Court  of  that  city  t.iid  county.^' 

Since  .laiiuarv  1,  ISJKJ,  the  Surrogates'  Court  of  the  city  and 
county  of  New  ^'ork  consists  of  two  surrogates.  Tjv  L.  1S1)2, 
c.  (14-?,  i)i-ovisioii  was  iikkU'  for  the  election  of  an  additional  sur- 
rogalc  for  Xcw  \'ork  county;  and  such  officer  was  accordingly 
elected  in  November,  1SU2.  His  official  designation  is  that  of 
Surrogate,  the  word  additional  being  no  part  of  his  title.  ''All 
the  powers  conferred  Ijy  law  upon  the  surrogate  of  the  city  and 
county  of  New  York  may  be  exercised  by  either  of  the  surrogates 
of  said  city  and  county."  ^^ 

§  3.  In  new  or  altered  counties. —  In  case  of  the  erection  of  a 
new  county  or  the  transfer  of  territory  from  one  county  to  another, 
provision  is  made  for  the  creation  of  a  Surrogate's  Court  for  the 
new  county.^'*  \Vhere  a  special  proceeding  is  pending  in  a  Surro- 
gate's Court,  whose  jurisdiction  to  entertain  the  same  is  taken 
away,  or  in  consequence  of  the  erection  of  a  new  county,  or  alter- 
ing the  territorial  limits  of  a  county,  it  must  be  transferred  by 
order  of  the  court  in  which  it  is  pending,  to  the  Surrogate's  Court 
having  jnrisdictiou  ;  and  the  latter  court  has  the  same  jurisdiction, 
power,  and  authority  with  res])ect  thereto,  which  the  former  court 
Avould  have  had,  if  the  territorial  limits  of  its  county  had  not  been 
changed.^'* 

§  4.  Official  designations.—  The  separate  officer  elected  to  per- 
form the  duties  of  the  office  of  surrogate,  is,  by  the  ])resent  Consti- 
tution, expressly  denominated  the  surrogate;  and  the  same  desig- 
nation has  been  conferred   upon  him  by   statute.^*'     Where   the 


supersede  the  substance  of  any  pro-  14  ('o.  Civ.  Proc..  §  2470.  This  pro- 
visions of  the  incorporated  acts  vision  of  the  Code  is  substantially  the 
(§  2143).  same  as  L.  1870.  c.  20.  §  1  (aniciidinf,' 
12  Id.,  §  1178.  This  act.  so  far  as  it  L.  184:?,  e.  177,  §  4).  and  section  2  of 
rehites  to  surro<rates  and  their  courts,  the  act  of  1870.  See  Matter  of  Me- 
was  not  repealed  bv  the  (heater  New  Guiness,  13  ^lise.  714;  3.3  X.  V.  .'>upp. 
York    Charter.      See    L.    1807,    c.    378.  820. 

§§  1()08,  UiOO;  L.  1001.  c.  400.  15  Co.  Civ.  Proc.  §  2480.  The  juris- 
ts Co.  Civ.  Proc.,  §  2.")04.  amended  diction  of  the  surrojjate  of  West- 
1893.  Vacancies  occxirrinf,'  otherwise  chester  county  retnains  imafftHted  by 
than  by  expiration  of  the  oHlcial  term,  the  annexation  of  a  part  of  tlie  county 
by  the  effluxion  of  time,  or  Itv  the  dis-  to  the  citj'  of  Xew  York,  by  virtue  of 
ability  of  a^'e,  the  office  is  to  be  filled  L.  ISO.".,  c.  <XU.  (Matter  o"f  :NrcKeon, 
in  the  same  manner  as  vacancies  in  20  Misc.  404:  58  X.  Y.  Supp.  .ISO.) 
the  office  of  a  Supreme  Court  judfre.  ifi  L.  1847.  c.  27<i,  §  14.  The  soine- 
under  section  9  of  article  0  of  the  Con-  what  obscure  provision  of  L.  1871,  c. 
stitution  (I..  1802,  c.  042,  S  2 ) .  See  8ri0.  §  7.  that  the  "separate  officers 
art.  6  (Const.  1894),  §§  4.  15.  elected  to  perform  the  duties  of  the 


§  5.  Organization  of  Surrogates'  Courts.  4 

county  judge  is  also  surrogate,  lie  is  to  be  designated,  when  re- 
ferred to  in  that  capacity,  the  surrogate  of  the  county,  without 
any  addition  referring  to  his  office  as  county  judge.^^  Other  of- 
ficers who  exercise  the  power  of  a  surrogate,  in  certain  contingen- 
cies hereafter  referred  to,  are  designated  "  special  surrogates  "  and 
"  acting  surrogates."  Pursuant  to  the  permission  granted  by  the 
Constitution,  the  Legislature  has  provided  for  the  election,  in  cer^ 
tain  counties,  of  "  local  officers  "  to  discharge  the  duties  of  surro- 
gate, or  of  county  judge  and  surrogate,  in  cases  of  the  inability,  or 
a  vacancy  in  the  office,  of  the  latter.  The  statute  provides  that 
such  an  officer,  so  elected,  may,  when  acting  as  surrogate,  be  desig- 
nated the  "  special  surrogate  "  of  his  county.-^®  Where  an  officer, 
other  than  the  surrogate,  e.  g.,  the  district  attorney,  acts  as  sur- 
rogate in  a  case  prescribed  by  law,  he  must  be  designated  by  his 
official  title,  with  the  addition  of  the  words,  ''  and  acting  surro- 
gate." ^^  Where  the  Supreme  Court,  in  Xew  York  and  Kings 
counties,  exercises  the  jurisdiction  of  surrogate,  the  proceedings 
are  entitled  in  the  court,^*^  and,  of  course,  no  special  designation  is 
added.  There  remains  the  case  of  temporary  appointment,  by  a 
board  of  supervisors,  of  a  person  to  act  as  surrogate  where  that 
officer  is  disabled. ^^  As  such  a  person  is  not  ''  an  officer  "  who 
"  acts  as  surrogate,"  the  statute  appears  to  make  no  provision  for 
an  official  designation  in  his  case ;  so  that,  doubtless,  his  proper 
title,  while  he  continues  to  act,  is  "  surrogate  "  without  additions. 
The  language  of  the  Code,  which  requires  a  petition  in  some  in- 
stances to  be  presented  to  the  "  Surrogate's  Court,"  and  then  con- 
fers power  upon  "  the  surrogate  "  to  act  upon  the  petition,  while 
the  decree  or  order  made  is  spoken  of  as  that  of  the  Surrogate's 
Court,  does  not,  we  think,  indicate  that  a  distinction  was  intended 
to  be  made  between  the  powers  of  a  surrogate,  and  the  powers  of 
a  court,  at  least  none  such  as  could  raise  a  question  of  jurisdiction. 

§  5.  Seal  of  court. —  The  Surrogate's  Court  has  a  seal,  of  which 
the  surrogate  has  charge.^^  A  description  of  the  seal  is  required 
to  be  deposited  with  the  secretary  of  state,  and  provision  is  riade 
by  statute  for  a  new  seal  when  the  old  one  is  unfit  for  use.^^    When- 


office  of  surrogate  under  the  fifteenth  19  Co.  Civ.  Proc,   §  2483. 

and  sixteenth  sections  of  article  6  of  20  Co.  Civ.  Proc.  §  2490,  as  amended 

the  Constitution,  shall  be  denominated  1895. 

the  surrogates  of  the  respective  coun-  21  Co.  Civ.  Proc.  §   2492. 

ties."  was  repealed  bv  L.  1880.  c.  245.  22  Co.  Civ.  Proc,   §  2507. 

17  Co.  Civ.  Proc  ,   §  2483.  2.3  Co.  Civ.  Proc.  §§  27,  30. 

18  Co.  Civ.  Proc,  §  2483;  L.  1851,  c. 
108,  §  1. 


5  ORfiAM/.ATIOX    OF    SuiJKOfiATEs'    CoURTS.  §  C. 

ever  any  other  officer  acts  as  surrogate,  he  uses  the  surrogate's  seal. 
We  have  already  seen  that  whtrc  tlic  proceeding  is  in  the  Supreme 
Court,  the  seal  of  that  court  is  to  be  used. 

§  6.  Time  and  place  of  holding  court. —  The  [Surrogate's  Court 
is  always  open  for  the  transaction  of  any  business  within  its  powers 
and  jurisdiction.^"*  Tliere  are  no  stated  terms  in  these  courts  ;^ 
except  in  Xew  York  county,  the  surrpgates  of  which  are  required, 
from  time  to  time,  to  appoint  times  of  holding  terms  of  the  Surro- 
gate's Court  for  the  trial  of  probate  proceedings  and  for  hearing 
of  motions  and  other  chamber  business,  prescribing  the  duration 
of  such  terms  and  assigning  the  surrogate  to  preside  and  attend. 
Two  or  more  terms  may  be  appointed  to  be  held  at  the  same  time ; 
the  term  held  at  chambers  is  to  dispose  of  all  business  except  con- 
tested probate  proceedings,  which  latter  are  to  be  disposed  of  at 
a  trial  term.  Provision  is  made  for  the  publication  of  the  appoint- 
ments of  terms  and  assignments  of  surrogates  to  hold  them.^^  In 
counties  in  which  the  county  judge  is  also  surrogate,  the  Surro- 
gate's Court  is  held  at  the  times  and  places  of  holding  the  County 
Court.^^  The  statute  further  provides  that,  unless  prevented  by 
sickness  or  other  unavoidable  casualty,  the  surrogate  must  attend 
at  his  office  on  ]\ri)n(lay  of  each  week,  except  during  the  month  of 
August,  or,  where  ^Nfonday  is  a  public  holiday,  on  the  following 
Tuesday,  to  execute  the  duties  imposed  upon  him.  ''  But  the  surro- 
gate of  any  county  may,  by  an  instrument  in  writing,  under  his 
hand,  filed  in  the  office  of  the  clerk  of  the  county,  at  least  twenty 
days  before  the  first  of  January,  in  any  year,  designate  a  day  of 
the  week,  oth(>r  than  ^Monday,  on  which  ho  will  attend  at  his  dfficr, 
or  a  month,  other  than  August,  during  which  he  will  be  absent 
therefrom,  or  both,  during  that  year;  and  where  the  county  judge 
is  also  surrogate,  he  is  not  required  to  attend  at  his  office  on  any 
day  when  the  County  Court  or  Court  of  Sessions  is  sitting.  The 
surrogate  must  also  execute  the  duties  of  liis  office,  at  such  other 
times  and  places,  within  his  county,  as  the  yiublic  convenience  re- 
quires." ^®  Any  surrogate,  during  his  designated  vacation-month, 
"may  sign  decrees,  letters  testamentary,  of  administration  and 
guardianship  and  orders,  wherever  he  shall  bo  i>assing  such  vaca- 
tion witliin  the  State."  ^ 


24  Co.  Civ.  Proc.  §  2504 ;   Oilman  v.  28  Co.  Civ.  Proc.   S  2.m'>;   Peoplo  v. 
Oilman.  1  Redf.  .354:  8S  Bail).  .Sf.4.  Supervisors,  etc..  34  Hun.  599. 

25  Western  v.  Romaine,  1  Bradf.  37.  20  Co.  Civ.  Prop..  §  2505.  as  amended 

26  Co.  Civ.  Proc..  §  2504.  as  amended  1S92.      Before    this    amendment,    only 
1893.  the  surrosrate   of  Xew  York   could  so 

27  Co.  Civ.  Proc.   §  2.506.  sign  outside  his  own  county. 


§  7.  OkGA^IZATIUA'    01"    kSUKUUGATEtj'    CouETa.  6 

TITLE  SECOND. 

DISQUALIFICATIO^'S    OF    SURROGATE. 

§  7.  General  disqualifications. —  The  surrogate  is  a  judge  ^^  of  a 
court  of  record."^  Besides  bis  disability  to  act,  by  reason  of  sick- 
ness, absence,  or  lunacy,  be  is  subject  to  tlie  general  disqualifica- 
tions of  a  judicial  officer.^^  Accordingly  it  bas  been  beld  tbat  a 
surrogate  is  disqualified  to  make  an  order  for  tlie  sale  of  a  testator's 
real  estate  to  satisfy  a  judgment  recovered  against  tbe  executors, 
in  an  action  in  wbieb  be  was  tbe  creditor's  attorney,  altbougb  the 
relation  of  attorney  and  client  bad  ceased  more  tb:in  four  years 
before  tbe  application.^^ 

A  surrogate  cannot,  of  course,  act  as  an  attorney  or  counselor 
in  bis  own  court,  or  in  a  cause  originating  tberein,  or  in  a  special 
proceeding  wbicb  bas  been  before  bim  in  bis  official  character. 
Xor  can  bis  law  partner  or  any  person  connected  in  law  business 
witb  bim,  practice  or  act  as  attorney  or  counselor  in  bis  court 
or  in  a  cause  originating  tberein.  He  is  not  allowed  to  demand  or 
receive  any  compensation  for  giving  advice  in  a  matter  before  bim, 
or  wbicb  be  bas  reason  to  believe  Avill  be  brought  before  bim  for 
decision,  or  for  preparing  a  paper  or  other  proceeding  relating  to 
such  a  matter.^^ 

30  Co.  Civ.  Proc,  §  334.3.  siibd.  3.  himself  for  such  seiriceis  performed  as 
But  he  is  not  a  "  justice  or  judge "  attorney,  and,  after  exercising  such 
within  the  constitutional  provision  jurisdiction,  continued  to  act  as  at- 
that  a  judge  or  justice  cannot  hold  torney  of  record  in  litigations  brought 
office  "  longer  than  until  and  includ-  by  the  executor  in  adjoining  counties, 
ing  the  last  day  of  December  next  was  held  to  be  disqualified,  and  his 
after  he  shall  be  seventy  years  of  decree  passing  the  account  declared 
age."  (People  V.  Carr.  100  x!  Y.23G.)  void.  (Wigand  v.  Dejonge.  8  Abb. 
Query,  whether  this  is  so  with  regard  X.  C.  260.)  A  surrogate  with  whom, 
to  the  surrogates  of  Xew  York  county,  pending  a  probate  contest,  the  funds 
whose  "  disabilitij  of  ar/e"  is  pro-  of  the  estate  are  deposited  bv  stipula- 
vided  for  by  L.  1892.  c.  642.  §  2.  tion  of  the  parties  to  abide  the  result, 

31  Co.  Civ.  Proc,  §  2,  subd.  20.  has  not  a  disqualifving  interest.    (^lat- 

32  Co.  Civ.  Proc,  §  46,  as  amended  ter  of  Hancock.  01  X.  Y.  284.)  He  is 
1883.  not  disqualified  to  pass  upon  the  pro- 

33  Darling  v.  Pierce.  15  Hun.  542.  bate  of  a  Mill  by  the  fact  of  a  gift 
See  ^Matter  of  Ryers.  72  X.  Y.  1 ;  ]\Iat-  to  a  church  of  which  he  is  warden, 
ter  of  Manufacturing  Co.,  77  id.  101.  and,  it  seems,  he  is  competent  to 
A  surrogate  who.  before  his  election,  entertain  probate  proceedings  though 
had  given  general  legal  advice  to  an  his  wife  is  a  legatee,  where  her  legacy 
executor  as  to  his  rights  and  duties  as  fails  by  reason  of  her  being  a  sub- 
such,  and  performed  other  legal  ser-  scribing  witness.  (Hopkins  v.  Lane, 
vices  for  him.  and  appeared  as  his  0  Dem.  12.)  See  Matter  of  Van 
attorney  in  foreclosure  suits  brought  Wagonen,  69  Hun,  365. 

by  him   as   such,   and   who.   after  his  34  Co.  Civ.  Proc,  §§  49.  50,  51.     As 

election,  assumed  jurisdiction  as  sur-  Sun-ogates'  Courts  were  not  courts  of 

rogate  over  the  execiitor,  and  settled  record  until    1877.   it   may  be  a   ques- 

the  accounts,  embracing  payments  to  tion  whether  the  surrogates  of  Xew 


*I  Oroaxtzation"  of   SridjofJATKs'   '  (H  irrs.  §§8,9. 

§  8.  Particular  disqualification.—  'I'lie  statute  particularly  pro- 
vides that  a  surrogate  sliall  iKJt  1)0  counsel,  solicitor,  or  att<jruey  in 
a  civil  action  or  special  proceeding,  for  or  against  any  executor, 
administrator,  temporary  administrator,  testamentary  trustee, 
guardian,  or  infant,  over  whom  or  whose  estate  or  accounts  he  could 
have  any  jurisdiction  by  law.^''  So  he  is  disqualified  from  acting 
ujtnii  ail  application  for  probate  or  for  letters  testamentary,  or  let- 
ters of  administration,  in  any  case  where  he  is,  or  claims  to  be,  an 
heir  or  one  of  the  next  of  kin  to  the  decedent,  or  a  devisee  or 
legatee  of  any  pai't  of  tlie  estate;  or,  where  he  is  a  subscribing  wit- 
ness, or  is  necessarily  examined  or  to  be  examined  as  a  witness,  to 
any  written  or  nuncupative  will;  or,  where  he  is  named  as  exec- 
utor, trustee,  or  guardian,  in  any  will  or  deed  of  a])pointment  in- 
volved in  the  matter."^*"'  Beyond  these  particularly  defined  disquali- 
fications the  surrogate  has  a  discretion  whether  or  not  he  will  act 
in  a  particular  case,  and,  in  general,  the  appellate  court  will  not 
interfere  with  the  exercise  of  that  discretion. ^^ 

§  9.  Waiver  of  disqualification. —  The  last  above-mentioned  dis- 
qualifications cannot  be  waived ;  but  "  an  objection  to  the  power  of 
a  surrogate  to  act,  based  upon  a  disqualification  established  by 
special  provision  of  law,  other  than  one  of  those  enumerated  in  the 
last  section  (2490),  is  waived  by  an  adult  party  to  a  special  pro- 
ceeding before  him,  unless  it  is  taken  at  or  before  the  joinder  of 
issue  by  that  party;  or,  where  an  issue  in  writing  is  not  framed, 
at  or  before  the  submission  of  the  matter  or  question  to  the  surro- 
gate." ^^ 

York,  Kings,  and   Erie  counties   were  amended    L.    1S.30.    c.    .320.    §    19.      See 

subject  to  the  constitutional  provision  Cornwell    v.  Woolev,   1   Abb.   Ct.   App. 

adopted  in  1809   (art.  (i,  §  21),  to  the  Dec.  441. 

effect   that   no   "  judge   of   a   court   of  •'!'  In   Matter   of  Newcombe    (45   St. 

recoril     in    the    cities    of    Xew    York,  Rep.  SOG;  18  X.  Y.  Sunp.  549) ,  a  party 

Brooklyn,  or  liufTalo  shall  practice  as  filinfj   objections   to   the   probate   of   a 

an  attorney  or  counselor  in  any  court  will,   moved   to   have  the   matter  sent 

of    record    in    this    State,    or    act    a.s  to  the  Common  Pleas  for  trial  before 

referee."      But    by    the    present    Con-  a   jury,  upon,  the  alleiration   that   the 

stitution     (art.    0.    §    20.    adopted    in  surrogate    was    a    personal    friend    of 

1894).  no  surrogate  "  hereafter  elected  decedent    and    of    the    principal    bene- 

in  a   county  having  a   population  ex-  ficiary  under  the  will:   that   the  trial 

oeeding   120.000"  may  practice  as  an  would     require     the    examination     of 

attorney  or  counselor  in  any  court  of  many   witnesses:    that    the   testimony 

record  in  the  State,  or  act  as  referee,  would  be  conflicting,  and  conseciuently 

The  surrogate  of  ]\Ionroe  county  is  ex-  a    jury    trial    was     necessary.      Held, 

pressly  disciualified  by  Co.  Civ.  Proc,  that  the  surrogate's  denial  of  the  mo- 

§  2495_,  as  amended  1893.  tion  was  a  matter  of  discretion,  with 

As  to  the  siHTogate  of  Westchester  which  the  general  term  would  not  in- 

countv,  see  Brown  v.  Brown,  04  App.  t  erf  ere. 

Div.  544.  72  N".  Y.  Supp.  .309.  "s  Co.    Civ.    Proc..    §    2407.    suhstan- 

:^"'Co.  Civ.  Proc,  §  249.5.  tiallv  following  2  R.   S.  270:   L.  1844, 

•JeCo.   Civ.   Proc,   §   2490.   followinir  c  .300.   §   0. 
substantially    2    R.    S.    79,    §    48,    as 


§§  10,  11.     Organization  of  Sukkooates'  Courts. 


TITLE  THIRD. 

SUBSTITUTES  FOR  SURROGATE,  IN  CASE  OF  VACANCY  IN  OFFICE,  DIS- 
ABILITY,   OR    DISQUALIFICATION. 

§  10.  Vacancy  or  disability  in  counties  other  than  New  York. — 
Tlie  Code  provides  that  "  where,  in  any  county,  except  Xew  York, 
the  office  of  surrogate  is  vacant ;  or  the  surrogate  is  disabled,  by  rea- 
son of  sickness,  absence,  or  lunacy ;  and  special  provision  is  not 
made  by  law  for  the  discharge  of  the  duties  of  his  office  in  that 
contingency,  the  duties  of  his  office  must  be  discharged,  until  the 
vacancy  is  filled  or  the  disability  ceases,  as  follows :  1.  By  the 
special  surrogate.  2.  If  there  is  no  special  surrogate,  or  he  is  in 
like  manner  disabled,  or  is  precluded  or  disqualified,  by  the  special 
county  judge.^^  3.  If  there  is  no  special  county  judge,  or  he  is  in 
like  manner  disabled,  or  is  precluded  or  disqualified,  by  the  county 
judge.  4.  If  there  is  no  county  judge,  or  he  is  in  like  manner 
disabled,  or  is  precluded  or  disqualified,  bythe  district  attorney."  ^* 

It  is  also  provided,  that  "  in  any  county,  except  !New  York,  if 
the  surrogate  is  disabled,  by  reason  of  sichiess,  and  there  is  no 
special  surrogate,  or  special  county  judge  of  the  same  county,  the 
board  of  supervisors  may,  in  its  discretion,  appoint  a  suitable  per- 
son, to  act  as  surrogate,  until  the  surrogate's  disability  ceases ;  or 
until  a  special  surrogate  or  a  special  county  judge  is  elected  or 
appointed."  ^^ 

§  11.  Disqualification  in  counties  other  than  New  York. —  In 
case  the  surrogate  of  any  county,  except  IS^ew  York,  is  precluded 
or  disqualified  from  acting  with  respect  to  any  particular  matter, 
his  jurisdiction  and  powers  with  respect  to  that  matter  vest  in  the 
several  officers  designated  above,  in  the  order  named.  "  If  there  is 
no  such  officer  qualified  to  act  therein,  the  surrogate  may  file  in  his 
office  a  certificate  stating  that  fact ;  specifying  the  reason  why  he 
is  disqualified  or  precluded,  and  designating  the  surrogate  of  an 
adjoining  county,  other  than  Xew  York,  to  act  in  his  place  in  the 
particular  matter.      Thereupon  the  surrogate  so  designated  has, 

39  See  Matter  of  Frye,   48  St.  Rep.  contempt  may  issue.    (People  v.  Petty, 

.572 :  20  X.  Y.  Sudp.  588.  32  Hun,  443.') 

•10  Co.   Civ.   Proc,    §    2484.      "  Before  41  Co.  Civ.  Proc.,  §  2492,  as  amended 

such  an  officer  is  entitled  to  act,  proof  1893.     "A  person  so   appointed   must, 

of  his  authority  to  act,  as  prescribed  before  enterin<j  upon  the  execution  of 

in  section  2487,  must  be  made."     (Id.)  the  duties  of  his  office,  take  and   file 

For  definition  of  "  disability,"  see  Co.  an  oath  of  office,  and  give  an  official 

Civ.  Proc,  §  3343,  subd.  15.     The  dis-  bond,   as   prescribed  by   law,   with   re- 

trict    attorney    so    acting    may    issue  spect  to  a  person  elected  to  the  office 

citations  upon  which  attachments  for  of  surrogate."     (Id.) 


9  ORfiANIZATIOX    OF    SuKKO(iATEs'    CoURTS.       §§  12,  12- 

with  respect  to  that  matter,  all  the  jurisdiction  and  powers  of  the 
surrogate  making  the  designati(jn,  and  may  exercise  the  same  in 
either  county."  ^^ 

§  12.  Vacancy,  disability,  or  disqualification  in  New  York  county. 
—  Special  provision  is  made  for  cases  of  vacancy  in  the  office  of 
surrogate  in  the  county  of  Xew  York,  and  for  cases  of  the  disability 
or  disqualitication  of  the  surrogates  of  that  county.  The  Supreme 
Court,  at  a  special  term  thereof,  must  exercise  all  the  powers  and 
jurisdiction  of  the  Surrogate's  Court  where  the  surrogate  is  pre- 
cluded or  disqualified  from  acting,  with  respect  to  a  particular 
matter.  Where  the  office  of  surrogate  is  vacant,  or  the  surrogate 
is  disabled  by  reason  of  sickness,  absence,  or  hmacy,  it  must  exer- 
cise all  the  powers  and  jurisdiction  of  that  court  until  the  vacancy 
is  filled,  or  the  disability  ceases,  as  the  case  may  be.'*^ 

§  13.  Vacancy,  etc.,  in  Kings  county — Since  the  amendments 
of  1893,  sections  2485,  2486,  2487,  and  2492  are  no  longer  ap- 
plicable to  the  surrogate  of  Kings  county;  and  vacancies  in  the 
office,  and  the  disability  of  the  surrogate  to  discharge  his  official 
duties,  are  provided  for  under  section  2484,  applicable  to  surro- 
gates of  other  counties  except  Xew  York.  It  is  provided,  how- 
ever, in  the  case  of  Kings  county,  that  in  any  proceeding  in  its 
Surrogate's  Court,  before  cither  of  the  officers  authorized  by  sec- 
tion 2484  to  discharge  the  duties  of  the  office  of  surrogate  of  such 
county  for  the  time  being,  if  an  issue  is  joined  or  a  contest  arises 
either  on  the  facts  or  the  law,  such  officer,  in  his  discretion,  may, 
by  order,  transfer  such  cause  to  the  Supreme  Court,  to  be  heard 
and  decided  at  a  special  term  thereof,  held  in  such  county.^* 

•12  Co.  Civ.  Proc,  §  2485,  as  amended  c  8.59,  §  8).  Holmes  v.  Smith.  :i  Hun, 

1893.  413;  6  T.  &  C.  .57.     Chapter  311  of  L. 

■*3  Co.  Civ.  Proc.,  §  248G,  as  amended  1879  is  to  the  same  effect  as  this  see- 

189.5.     Prior  to  189('.   (L.  189.5,  c.  940)  tion  of  the  Code. 

the  Court  of  Common  Pleas  was  re-  44  Co.  Civ.  Proc.  §  2484.  as  amended 
quired  to  exercise  the  powers  of  the  1893;  which  is  an  adoption  of  the 
surroj^ate,  in  case  of  his  disijualifica-  provision  of  L.  1884,  c.  490.  S§  1.  2,  4. 
tion.  whether  the  proceedinj'  was  com-  "A  certified  copy  of  such  order,  to- 
menced  before  or  after  tlie  adoption  j,'ether  with  tlie  ajjpropriate  certificate 
of  the  Code.  (Matter  of  Cilman,  42  or  certificates  of  tiie  autliority  of  the 
St.  Rep.  474:  17  X.  Y.  Supp.  494. )  He-  ollicer  to  act  as  surrojrate.  "sjiall  he 
fore  the  adoption  of  the  eifjhteenth  sulficient  and  eonclu>ivc  eviilence  of 
chapter  of  tlie  Code  of  Civil  Procedure,  the  jurisdiction  and  authority  of  the 
the  Supreme  Court  mifiht  issue  a  com-  Supreme  Court  in  such  matter  or 
mission  empowering;  a  suitable  person  cause.  After  a  final  order  or  decree 
to  act  as  surrogate  in  case  there  was  is  made  in  the  matter  or  cause  so 
no  ])prson  capable  of  acting.  (L.  1830.  transferred  to  the  Supreme  Court,  the 
p.  320.  §  21.  And  see  Matter  of  Hathi-  court  shall  direct  the  papers  to  be  re- 
way.  9  Hun,  79.)  See.  for  a  construe-  turned  and  filed,  and  transcripts  of 
tion  of  the  former  statute    (L.    1871,  all  orders  and  decrees  made  thereinto 


§§  14,  15.     Orgaxizatioin"  of  Surrogates'  Courts.  10 

§  14.  Proof  of  authority  of  other  officer  or  court  to  act In 

order  to  invest  another  otilcer,  or,  in  New  York  county,  the  Su- 
preme Court,  with  the  jurisdiction  and  powers  of  a  surrogate,  his 
or  its  authority  must  be  proved  in  one  of  the  following  modes : 

^'  1.  Where  the  surrogate  is  disqualified,  or  precluded  from  act- 
ing in  a  particular  matter,  that  fact  may  be  proved  by  the  surro- 
gate's certificate  thereof ;  or,  except  as  otherwise  prescribed  in  sec- 
tion 2485  {above),  by  affidavit  or  oral  testimony. 

"  2,  The  fact  that  the  surrogate  is  so  disqualified  or  precluded, 
or  that  he  is  disabled,  or  that  the  office  is  vacant,  and  also  the  au- 
thority of  the  officer,  or  of  the  court  as  the  case  may  be,  to  act  in 
his  place,  may  be  proved,  and  are  deemed  conclusively  established, 
hy  an  order  of  a  justice  of  the  Supreme  Court  of  the  judicial  dis- 
trict embracing  the  county.  After  such  an  order  is  made,  the 
surrogate  shall  not  make  the  certificate  specified  in  section  2485 
(above),  and  if  such  a'  certificate  has  been  theretofore  made  and 
filed,  the  powers  and  duties  of  the  surrogate  therein  designated, 
as  specified  in  that  section,  thenceforth  cease."  ^^ 

In  the  case  of  a  transfer  of  a  proceeding  to  the  Supreme  Court, 
by  an  officer  acting  as  surrogate  of  Kings  county,  his  order,  as  we 
have  seen  above,  is  conclusive  evidence  of  the  authority  and  juris- 
diction of  the  Supreme  Court. 

§  15.  Supreme  Court  justice's  appointment. —  An  order  under 
the  second  subdivision  (above)  may  be  made  upon  or  without 
notice,  as  the  justice  thinks  proper.  The  order  itself  must  recite 
the  cause  of  the  making  thereof;  it  must  designate  the  officer  or 
court,  empowered  to  discharge  the  duties  of  the  office  of  surrogate ; 
and,  if  it  relates  to  a  particular  matter  only,  it  must  designate  that 
matter.  It  may,  in  the  discretion  of  the  justice,  require  an  officer 
to  give  security  for  the  due  discharge  of  his  duties  therein.  Where 
the  office  of  surrogate  is  vacant,  or  the  surrogate  is  disabled  by  rea- 
son of  lunacy,  the  attorney-general,  if  directed  by  the  governor, 
must,  or  the  district  attorney,  upon  his  own  motion,  may,  apply 
for  the  order ;  and  a  Supreme  Court  justice  of  the  judicial  district 
embracing  the  county  must  grant  it  upon  his  application.  The 
justice  may  also  grant  the  order,  upon  the  application  of  a  party, 


he  recorded  in  the  surrogate's  office  of  ISOo.      The   making   of   the   certificate 

such   county;    and   when    so   filed   and  by    the    surrogate,    or    obtaining    the 

recorded,    they    shall    have    the    same  order,    as    provided    in    sections    2487, 

effect    as    if   they    were    filed    and    re-  248S,   is   a   condition  precedent  to  the 

corded  in  a   case  pending  in  the  Sur-  riafht  of  another  officer  to  act   in  the 

rogate's  Court  of  such  countv."  place  of  the  surrogate,  under   section 

45 Co.  Civ.  Proc,  §  2487,  as'amended  2484.     (Matter  of  Tyler,  60  Hun, 566.) 


11  Oroaxizatiox   ok  Sukrogatks'  Courts.     §§  16-18. 

or  a  person  about  to  become  a  party,  to  any  special  proceeding  in 
the  Surrogate's  Court.  Where  the  surrogate  is  sick  or  absent,  the 
granting  of  the  order  rests  in  the  discretion  of  the  justice,  and  its 
effect  may  be  qualified,  as  the  justice  thinks  proper.^*^ 

§  16.  Proceedings  in  Supreme  Court. —  Where,  in  the  foregoing 
cases,  a  special  proceeding,  which  is  cognizable  before  a  surrogate, 
has  been  brought  in  the  Supreme  Court,  it  must  be  entitled  in 
that  court,  and  the  papci's  therein  must  l)e  filed  or  recorded,  as 
the  case  may  be,  and  the  issues  must  be  tried,  as  in  an  action 
brought  in  that  court.  Where  a  seal  is  necessary,  the  seal  of  the 
court  in  which  the  special  proceeding  is  pending  must  be  used ; 
and  the  clerk  of  that  court  must  sign  each  record  which  is  required 
to  be  signed  by  the  surrogate  or  the  clerk  of  the  Surrogate's  Court. 
The  issuing  of  a  citation  may  be  directed,  and  any  order  inter- 
mediate the  citation  and  the  decree  may  be  made,  by  a  jttdge  of 
the  court.'*^ 

§  17.  Revoking  authority  of  appointee. —  The  order  of  appoint- 
ment made  by  a  Supreme  Court  justice  as  above  or  by  the  board  of 
supervisors  under  section  2492,  may  be  revoked  by  a  Supreme 
Court  justice  for  any  cause  (except  a  vacancy  in  the  office  of  sur- 
rogate), without  prejudice  to  any  proceedings  theretofore  taken  by 
virtue  of  the  order,  or  of  the  appointment,  upon  proof  that  the 
order  or  the  appointmont  was  "  improvidently  made,  or  that  the 
cause  of  making  it  has  become  inoperative.  Such  an  order  of 
appointment,  made  upon  the  ground  that  the  surrogate's  office  is 
vacant,  is  superseded  without  any  formal  revocation,  by  the  filling 
of  the  vacancy.  After  tlie  order  or  appointment  is  revoked,  or 
the  vacancy  is  filled,  as  the  case  may  be.  the  unfiuishod  business, 
in  anv  proceedings  taken  by  virtue  of  the  order  or  apj^ointment. 
must  be  transferred  to.  and  may  be  completed  by,  the  surrogate,  in 
the  same  manner  and  with  like  effect,  as  where  a  new  surrogate 
completes  the  unfinished  business  of  his  predecessor."  ^^ 

v^  18.  Remitting  proceedings  to  Surrogate's  Court. —  The  court 
entertaining  any  special  proceeding  ordinarily  cognizable  by  a  sur- 
rogate, may,  at  any  time,  in  its  discretion,  upon  being  satisfied  that 
the  reason  for  the  exercise  of  its  powers  and  jurisdiction  has  ceased 
to  operate,  make  an  order  to  transfer  to  the  Surrogate's  Court  any 

46  Co.  Civ.  Proc.  §  2488,  as  amended  1880.       See    Co.     Civ.     Proc.    §    -24X1. 
1889.  sulids.  8  and  0:  iMatter  of  Martinlioff. 

47  Co.  Civ.  Proc.  §  2400.  a>i  amended  4  Redf.  280;   People  v.  Shaw,  3  Hun, 
1895.  272  :  affd..  G.'?  X.  Y.  36. 

48  Co.  Civ.  Proc.,  §  2489,  as  amended 


§§  19,  20.    Organization  of  Surrogates'  Courts.  12 

matter  then  ponding  before  it.  Such  an  order  operates  to  transfer 
the  same  accordingly.  Immediately  after  such  a  transfer,  or  after 
the  revocation  of  the  order  of  appointment,  the  surrogate  must 
cause  entries  to  be  made  in  the  proper  book  in  his  office,  referring 
to  all  the  papers  filed,  and  orders  entered,  or  other  proceedings 
taken,  in  the  Supreme  Court ;  and  he  may  cause  copies  of  any  of 
the  orders  or  papers  to  be  made,  and  recorded  or  filed  in  his  office,, 
at  the  expense  of  the  county.'** 

§  19.  Recording  proceedings  taken  hefore  special  officer,  etc — 

All  acts  and  proceedings  taken  by,  before,  or  by  authority  of,  an 
officer  or  a  person  temporarily  acting  as  surrogate  of  any  county, 
must  be  recorded,  or  the  proper  minutes  thereof  must  be  entered, 
in  the  books  of  the  Surrogate's  Court,  the  same  as  if  done  or  taken, 
by,  before,  or  by  authority  of,  the  surrogate  of  the  county ;  and  the 
officer  or  person  so  acting,  or  the  clerk  of  the  Surrogate's  Court, 
must  sign  the  certificate  of  probate  and  any  letters  so  issued,  and 
must  certify  the  record  thereof  in  the  book.^'* 


TITLE  rOUETH. 

surrogates'  clerks  and  other  officers  of  the  court, 
their  powers  and  duties. 

§  20.  Appointment  of  office  clerks —  Each  surrogate  may  ap- 
point, and  at  his  pleasure  remove,  clerks  for  his  office,  and  he  may 
also  appoint  "  the  clerk  of  the  Surrogate's  Court."  As  to  his  office 
clerks,  he  may  appoint  as  many,  to  be  paid  by  the  county,  as  the 
board  of  supervisors  of  his  county  authorizes  him  to  appoint.  The 
board  of  supervisors  must  fix  the  compensation  of  the  clerk  or 
clerks  so  appointed,  and  may  authorize  them,  or  either  of  them, 
to  receive,  for  their  or  his  own  use,  the  legal  fees  for  making  copies 
of  any  record  or  paper  in  the  office  of  the  surrogate.  A  surrogate 
may  appoint,  and  at  pleasure  remove,  as  many  additional  clerks, 
to  be  paid  by  him,  as  he  thinks  proper.^^  In  Xew  York  county, 
the  court  may  appoint,  and  at  pleasure  remove,  all  clerks,  officers, 
attendants,  and  employees  in  his  office,  or  connected  with  his  court, 
subject  to  the  revision  of  the  board  of  estimate  and  apportion- 
ment as  to  the  number  and  duties  of  all  such  clerks,  etc.,  with  their 
respective  salaries  to  be  paid  by  the  county.     The  surrogate  may 

■19  Co.  Civ.  Proc,  §  2491,  as  amended        "oco.  Civ.  Proc.  §  2494. 
1895.  51  Co.  Civ.  Proc,   §  2508. 


13  OkgAXIZATIOX    01'    SUUUOGATE.S'    COUETS.  §  21. 

require  from  his  assistants  security  for  the  faithful  performance 
of  tlieir  duties.^' 

§  21.  The  clerk  of  the  court. —  A  surrogate  may  appoint  a  clerk 
employed  in  his  ottice  to  be  "  the  clerk  of  the  Surrogate's  Court.'' 
The  appointment  must  be  by  a  written  order  filed  and  recorded  in 
his  ofhee,  which  he  ma}  in  like  manner  revoke  at  pleasure.  Such 
clerk  is  authorized  to  exercise,  concurrently  with  the  surrogate, 
the  following  powers  of  the  surrogate:  (1)  He  may  certify  and 
sign  as  clerk  of  the  court,  any  of  the  records  of  the  court,  includ- 
ing a  certificate  of  probate  (see  Code  Civ.  Proc,  §  2629),  and  the 
records  and  papers  left  uncompleted  or  unsigned  by  the  surro- 
gate's predecessor.  (2)  He  may  issue  any  mandate,  to  which  a 
party  is  entitled  as  of  course,  either  unconditionally,  or  upon  the 
filing  of  any  paper,  and  may  sign,  as  clerk  of  the  court,  and  affix 
the  seal  of  the  court  to,  any  letters  or  mandate  issued  from  the 
<'ourt.  (3)  He  may  certify,  in  the  manner  prescribed  by  the  ninth 
chapter  of  the  Code  of  Civil  Procedure,  a  copy  of  any  paper  re- 
quired or  permitted  by  law  to  be  filed  or  recorded  in  the  surro- 
gate's office.  (4)  He  may  adjourn  to  a  definite  time,  not  exceed- 
ing thirty  days,  any  matter,  when  the  surrogate  is  absent  from  his 
office,  or  unable,  by  reason  of  other  engagements,  to  attend  to  the 
same.  (5)  He  may  take  the  acknowledgment  or  proof  of  any  in- 
strument to  be  used  or  filed  in  the  court  of  which  he  is  clerk.^^ 

In  New  York  county,  the  clerk  of  the  Surrogate's  Court  may, 
^vith  the  approval  of  the  surrogates,  authorize  and  deputize,  one 
or  more  of  the  other  clerks,  employed  in  the  Surrogate's  Court  of 
that  county,  to  sign  his  name,  and  exercise  such  of  the  other  powers 
conferred  upon  him  by  section  2509,  as  he  shall  designate.^"* 

The  surrogate,  however,  may  prohibit  the  clerk  from  exercising 
any  of  the  foregoing  powers,  but  the  prohibition  will  not  atfect  the 
validity  of  any  act  of  the  clerk  done  in  disregard  of  the  prohibi- 
tion.'^^    A  surrogate's  clerk  cannot  tile  an  unsiirned  decree  or  other- 


52 L.  1884,  c.  530;  L.  1892,  c.  642,  acting  business;  and  the  surrogate  is 
§  4,  superseding  Co.  Civ.  Proc,  expressly  prohibited  from  allowing 
<t§  2.^102.  2.50S.  so  far  as  they  relate  any  person  not  duly  ap|)ointod  clerk, 
to  the  county  of  New  York.  See  oflieer,  or  employee,  to  have  any  spe- 
also  §§  IISO.  IISO.  1101.  and  1204  of  tial  privileges  in  or  about  the  office, 
the  Consolidation  Act.  In  Xew  York  (L.  1SS4.  c.  ;>30,  §  10.) 
county,  no  person  not  officially  con- 
nected with  the  surrogate's  office  or 
■court  is  allowed  permanently  to  have 
or  occupy  any  desk  or  position  in  the 
office  or  court  as  his  place  of  trans- 


r----?  Co. 

Civ.  Proc. 

§  2.i00.  as  amended 

1000. 

.'•.4  Id. 

55  Co. 

Civ.  Proc, 

§  2509,  as  amended 

1893. 

§§  22,  23.     Oroaxizatiox  of  Surrogates'  Courts.  14 

wise  make  it  valid.""  The  clerk  of  the  court  has  a  general  power 
to  take  and  certify  any  oath  or  athdavit  required  or  authorized  by 
law,  except  an  oath  to  a  juror  or  a  witness  upon  a  trial,  an  oath  of 
office,  and  an  oath  required  to  he  taken  before  a  particular  officer.^^ 
He  may  also  administer  oaths,  take  affidavits  and  the  proof  and 
acknowledgment  of  deeds,  and  all  other  instruments  in  writing,, 
and  certify  the  same,  with,  like  force  and  effect  as  if  taken  and 
certified  by  a  county  judge.^^ 

The  clerk  of  the  Surrogate's  Court,  in  additioii  to  the  powers 
enumerated  above,  may  exercise  concurrently  with  the  surrogate 
of  the  county,  the  following  powers  of  the  surrogate :  "  On  the  re- 
turn of  a  citation  issued  from  such  Surrogate's  Court  on  a  petition 
for  the  probate  of  a  will,  where  no  objection  to  the  same  is  filed ; 
or,  where  all  the  persons  entitled  to  be  cited,  sign  and  verify  the- 
petition,  or  personally,  or  by  attorney,  appear  on  the  probate- 
thereof,  cause  the  witnesses  to  the  will  to  be  examined  before 
him.  Such  examinations  must  be  reduced  to  writing,  and 
for  such  purpose,  he  is  authorized  to  administer  and  certify  oaths 
and  affirmations  in  such  cases  in  the  same  manner  and  with  the 
same  effect  as  if  administered  and  certified  by  the  surrogate."  ^^ 

§  22.  Clerk's  disabilities. —  The  clerk  or  other  person  employed 
in  any  capacity,  in  a  surrogate's  office,  shall  not  act  as  appraiser, 
as  attorney  or  counsel,  or  as  referee  or  special  guardian,  in  any^ 
matter  before  the  surrogate.^*^ 

§  23.  Surrogate  liable  for  clerk's  acts. —  The  surrogate  is  de- 
clared to  1)0  liable,  as  well  as  the  sureties  in  his  official  bond,  for 
any  act  of  the  clerk,  during  the  surrogate's  term  of  office,  as  if  the 
act  was  performed  by  the  surrogate.  To  indemnify  him  against 
the  liability,  he  may  take  security  from  the  clerk.*'^  As  to  the 
surrogate's  bond,  and  the  prosecution  thereof,  see  title  sixth  of 
this  chapter. 

56  :McXaucrhton  v.  Chave.  5  Abb.  N.  189.3.  formerly  section  2.j11.  See  Id., 
C.  22.):  Roderitras  v.  East  River  Sav-  §§  61,  90.  It  has  been  held,  though 
ings  Bank,  70  X.  Y.  316.  erroneously,  we  think,  that  where  all 

57  Co.  Civ.  Proc.  §  842.  the    parties    consent,    a    clerk    of    the 

58  L.  1900,  c.  510,  amending  L.  1884,  conrt  mar  be  appointed  referee, 
c.  309.  (Thome's    Estate,    4    Law    Bull.    48.) 

59  Co.  Civ.  Proc,  §  2.510,  adopted  in  The  official  stenographer  of  the  court 
1893  from  L.  1885,  c.  367.  This  sec-  has  not  such  a  relation  to  the  court 
tion  originally  applied  solely  to  Kings  as  to  disqualify  him  from  acting  as. 
county,  but  by  L.  1894.  c.  211,  the  referee.  (Benedict  v.  Cooper,  3  Dem. 
additional  powers  conferred  upon  the  362.) 

clerk  of  the  Surrogate's  Court  in  that  61  Co.  Civ.  Proc,  §  2511,  as  amended 

county    were    extended    to    the   clerks  1893.   formerly   section   2510.      See   L. 

of  Surrogates'  Courts  in  every  county.  1884,  c  530,  §  5. 

60  Co.  Civ.  Proc,  §  2509,  as"  amended 


15  OiUiAM/Aiio.x   <)!■    Sii;ko<:ai];s"   Courts.     §§  24.  25. 

TITLE  TiTTlL 

RECORDS  TO  BE  KEl'T  BY  THE  SURROGATE. 

§  24.  Books  of  surrogate.—  Each  .surrogate  i.s  rc-qnircd  to  pro- 
vide' (at  tlu'  t'Xi)C'iisc  nl'  tliL'  eoinity)  and  keep  a  record-book  <^)f  wills, 
etc.;  a  record-book  of  letters  testaineiitarv  and  letters  of  adminis- 
tration, issued  out  of  his  cotirt ;  a  record-b(jok  of  every  decree 
whereby  the  account  of  an  executor,  administrator,  trustee,  or 
guardian  is  settled;  a  book,  containing  a  minute  of  every  paper 
tileil,  (ir  (ither  ]in»ce('(ling  taken,  relating  to  the  disposition  of  the 
real  })roj)erty  oi  a  decedent,  and  a  record  of  every  order  or  decree 
made  thereon;  a  book  recording  every  decree  or  order,  the  record 
of  which  is  not  required  to  be  kept  elsewhere,  together  with  a 
memorandum  of  eacli  execution  issued,  and  of  the  satisfaction  of 
(  ach  decree  recorded  therein  ;  a  l)Ook  recording  all  letters  of  guard- 
ianship, and  a  book  of  fees  and  disbursements.^^  To  each  of  the 
books  so  kept  must  be  attached  an  alphabetical  index,  referring- 
to  the  page  of  the  book  ^vhere  each  subject  may  be  found.  Each 
decree  revoking  the  probate  of  a  will,  or  revoking  or  otherwise 
affecting  letters  testamentary,  letters  of  administration,  or  letters 
of  guardianship,  or  suspending  or  removing  a  teotamentary  trus- 
tee, or  modifying  or  otherwise  affecting  any  other  decree,  must  be 
plainly  noted  at  the  end  or  in  the  margin  of  the  record  of  the 
will,  letters,  or  original  decree,  with  reference  to  the  book  and 
]iage  where  the  subsequent  decree  is  recorded.  The  books  so  kept 
])ertain  to  the  surrogate's  office,  and  must  be  open  at  all  reasonable 
times  ti>  the  inspection  of  any  person.'^""' 

The  statute  also  ])rovides  that  there  shall  be  kept  a  book  wherein 
shall  be  recorded  a  statement  of  all  moneys  directed,  by  the  order 
of  the  surrogate,  to  be  deposited  with  the  county  treasurer,  <ir,  in 
the  city  of  Xew  York,   with   the  city  ehaudierlain.''''* 

§  25.  Stenographer's  notes. —  The  Code  provides  for  the  appoint- 
ment of  stenogra]ihers,'''  whose  duties  are  to  take  full  stenographic 
notes  of  proceedings  in  which  oral  proof  is  given,  unless  his  ser- 
vices are  dispensed  with  by  the  surrogate,  to  write  out  sm-h  notes 
legibly  and  at  length,  and  to  file  them  in  the  surrogate's  ofhce.^'^ 
The  notes  so  written  out  are  then  authenticated  bv  the  signature 


02  Co.  Civ.  Proc,  §  2498.  •'•"Co.  Civ.  Proc.  §§  2.')12.  2.'»13.    For 

ra  Co.  Civ.  Prop..  §  2499.  amount  of  stpno<rrai)lu>r's  fees,  see  Co. 

64  L.   1895,  c.  544.  Civ.  Proc.  §  ."^311.  as  amended  1891. 

«6Co.  Civ.  Proc.  §  2341. 


§§  26-28.     Oroaxization  of  Surrogates'  Courts.  16 

of  the  stenographer,  referee,  the  surrogate,  or  the  clerk  of  his 
court,  as  the  case  may  be,  and,  in  New  York  and  Kings  counties, 
and  in  any  other  county  where  the  supervisors  direct,  are  to  be 
bound  at  the  expense  of  the  county.  Upon  the  record  of  a  decree, 
in  a  contested  case,  a  reference  is  required  to  be  made  to  the  bound 
vohime,  and  the  page  of  such  minutes. ^^ 

§  26.  Papers,  etc.,  to  be  preserved. —  The  surrogate  is  required 
to  carefully  file  and  preserve  in  his  office,  every  deposition,  affi- 
davit, petition,  report,  account,  voucher,  or  other  paper,  relating 
to  any  proceeding  in  his  court ;  and  to  deliver  to  his  successor  all 
the  papers  and  books  kept  by  liim.'^^ 

§  27.  Custody  of  records —  Except  in  Xew  York  and  Kings 
counties,  the  general  charge  of  the  books  and  records  of  the  office 
is,  by  the  statute,  given  to  the  board  of  supervisors  of  each  county, 
who  may  authorize  the  surrogate  to  cause  certified  copies  to  be 
made  for  public  use ;  and  they  are  required  to  do  so,  whenever,  by 
reason  of  age  or  exposure,  or  any  casualty,  the  same  shall  be  neces- 
sary for  the  public  service ;  and  provision  is  made  for  determining 
the  necessity  for  such  copying  and  the  payment  for  the  same.^^ 

TITLE  SIXTH. 

surrogate's  bond  and  the  prosecution  thereof. 

§.  28.  Surrogate's  bond. —  Within  twenty  days  after  notice  of  his 
appointment  or  election,  the  surrogate  must  execute  to  the  people 
of  the  State,  a  bond  for  the  application  and  payment  of  all  moneys 
and  effects  that  may  come  into  his  hi.nds  as  surrogate. 

In  the  city  and  county  of  Xew  York,  the  amount  required  is 
$50,000  ;  in  Kings  county,  $25,000,  and  in  other  counties,  $10,000. 
The  bond  must  be  joint  and  several,  with  at  least  two  resident  free- 
holders as  sureties.  It  must  be  acknowledged  by  all  the  persons 
executing  it,  and  the  sureties  must  justify,  in  the  aggregate,  in 
double  the  penalty  of  the  bond.  The  county  clerk  is  made  the 
judge  of  the  sufficiency  of  the  sureties,  and  being  satisfied  of  that 
fact,  he  must  indorse  his  approval  on  the  bond,  and  file  it  in  his 
office,  and  also  record  it  in  the  records  of  deeds.  And  such  record, 
or  a  certified  copy  thereof,  is  made  original  evidence  of  the  con- 

«7  Co.  Civ.  Proc,  §  2543.  to    furnish    certified    copies,    includes 

68  Co.  Civ.  Proc,  §  2500,  as  amended  surrogates. 
1893.      Section   961,   requiring    certain        69  L.  1869,  c.  855,  §  7. 
oflBcers  to  search  files  and  records  and 


17  0K(iAM/.AT10-N     OF    SuKlJCJGATEs'    CoUliTS.       g§  2'J,  'SO. 

tents  of  the  bond  in  any  action  against  the  surrogate  or  his  sure- 
ties."^ In  like  manner,  a  person  appointed,  in  any  county,  except 
New  York,  to  act  as  surrogate,  during  the  disability  of  that  officer 
by  reason  of  sickness,  absence,  or  lunacy,  or  in  certain  cases  of  va- 
cancy, is  required,  before  entering  ujwn  the  execution  of  the  du- 
ties, of  his  office,  to  give  an  official  bond,  as  prescribed  by  law 
with  respect  to  a  person  elected  to  the  office  of  surrogate.'^ 

i^  29.  Bond  of  officer  acting  as  surrogate. —  The  former  statute,'^ 
rcipiiring  every  county  judge,  special  cnunty  judge,  or  other  officer 
authorized  to  act  as  surrogate,  before  entering  upon  or  discharging 
any  of  the  duties  of  surrogate,  to  execute  a  bond,  in  the  same  man- 
ner and  with  the  same  conditions  as  are  required  of  surrogates, 
has  been  repealed,"'  and  replaced  by  a  provision  that  the  justice 
of  the  Supreme  Court,  of  the  department  embracing  tJie  county  of 
the  surrogate,  may,  in  his  discretion,  by  his  order  designating 
the  officer  empowered  to  discharge  the  duties  of  the  office  of  sur- 
rogate, require  the  officer  to  give  security  for  the  due  discharge  of 
his  duties  therein."'*  The  nature  and  form  of  the  security  so  to  be 
given  are  left  to  the  court  to  prescribe. 

J^  30.  Liability  upon  surrogate's  bond. —  The  surrogate's  bond 
is  deemed  to  be  in  force  and  obligatory  upon  the  principal  and 
sureties  therein,  so  long  as  he  continues  to  discharge  the  duties  of 
his  office,  and  until  his  successor  is  elected  and  duly  qualified.'^ 
But  the  sureties  in  the  bond  are  exonerated  from  all  liability  by 
reason  thereof,  for  all  acts  or  omissions  of  their  principal,  after 
he  has  duly  renewed  his  official  bond."^  Where  a  surrogate  re- 
<>eived  from  his  predecessor  a  fund  in  court,  and,  although  in  igno- 
rance of  any  deficiency,  paid  orders  of  his  predecessor,  as  pre- 
sented to  him,  until  the  fund  was  exhausted,  and  in  so  doing  paid 
out  to  one  person  moneys  belonging  to  another,  he  was  held  per- 
sonally liable."  It  was  his  duty,  on  entering  upon  his  office,  before 
l^aying  out  any  portion  of  the  surrogate's  fund  turned  over  to  him 

'<>1  R.  S.  382.  §§  77.  S7.  as  amended  funds   in  tlie  hands   of   the  latter,   as 

by  L.  1871,  c.  2.39,  §  1 ;  L.  1882,  c.  410,  suirojrate.     Inehided  in  this  fund  was 

§   1178.  $2.().')3.in   belonpinjr  to   phiintilV.     The 

71  Co.  Civ.  Proo.,  §  2402.  sunopatc  made  no  attempt   to  ascer- 

72  L.  1858,  c.  213.  tain  to  whom  the  several  sums  be- 
T."?  L.  1880,  c.  24.5.  longed,    but    paid    therefrom    various 

74  Co.  Civ.  Proe.,  §  2488.  claims  other  than   plaintiff   presented, 

75  1  R.  S.  120,  §  29.  until  the  sum  in  his  hands  was  re- 
7<Md.,  §  ,30.  dueed  to  $1,400.  Held  liable  to  the 
77  Disbrow    v.    IMills.    02    X.  Y.    004,    plaintiff  for  the  entire  sum  beloncing 

affii.  4  Sup.  Ct.  (T.  &  C.)  G82.     In  that    to  him.     See  Matter  of  Coffin,  30  Hun, 
ease,  the  surrogate  received   from  his    230. 
predecessor    $7,207.80.    as    balance    of 
9 


§§  31,  32.        OKGANIZATIOIvr    OF    SUKROGATES'    CoUKTS.  IS 

by  his  predecessor,  to  ascertain  from  what  sources  it  was  derived 
and  who  was  entitled  thereto.  Tlie  transfer  of  the  fund  should 
he  aec(>m})anie(l  with  an  account  showing  the  estates  or  persons 
to  whom  it  belongs,  and  this  he  should  properly  examine  and  test ; 
and  if  he  receives  the  fund  without  such  an  account  and  examina- 
tion, he  incurs  the  risk  of  any  errors  resulting  from  such  neglect. 

The  appropriation  to  his  own  use  by  the  surrogate  of  any  county, 
or  other  misappropriation,  or  the  withholding  by  him  of  any 
moneys  directed  by  the  board  of  supervisors  of  the  county  to  be 
paid  for  clerk  hire,  is  a  misdemeanor.'^ 

§  31.  Application  for  leave  to  prosecute  bond. —  Where  a  surro- 
gate, or  an  ofticer  acting  as  surrogate,  is  guilty  of  any  actionable 
default  or  misconduct  in  his  office,  the  person  injured  thereby  may 
apply  for  leave  to  prosecute  the  delinquent's  official  bond.'^^  The 
application  may  be  made  to  the  Supreme  Court  having  jurisdic- 
tion f^  and  may  be  made  without  notice,  but  in  that  case,  the  sur- 
rogate, or  either  of  his  sureties,  may  apply,  upon  notice,  to  vacate 
an  order  permitting  the  applicant  to  maintain  an  action,  upon 
any  ground  showing  that  it  ought  not  to  have  been  granted.^^ 
The  application  must  be  accompanied  with  proof,  by  affidavit,  of 
the  default  or  misconduct  complained  of,  and  that  satisfaction  of 
the  same  has  not  been  received ;  and  with  a  certified  copy  of  the 
official  bond.^^ 

§  32.  Order  for  prosecution. —  Upon  such  an  application,  the 
court  must  grant  an  order  permitting  the  applicant  to  maintain 
an  action  upon  the  bond ;  which  must  be  brought  in  the  coui't  which 
granted  the  order,  by  the  applicant  as  plaintiff,  and  it  may  be 
maintained,  in  general,  as  if  the  applicant  was  the  obligee  named 
in  the  bond.^^  The  same,  or  any  other  applicant,  may,  in  like 
manner,  either  before  or  after  judgment  in  the  first  action,  obtain 
from  the  court  which  made  the  first  order,  but  not  from  any  other 
court,  an  order  permitting  him  to  maintain  another  action  in  the 
same  court,  upon  the  same  bond,  for  another  default  or  miscon- 
duct ;  and  any  number  of  such  orders  may  be  successively  made  — 
neither  of  the  actions  so  authorized  being,  in  general,  affected  by 
the  pendency  of,  or  the  recovery  of  judgment  in,  any  other.^* 

7SL.  1S77.  c.  401,  §  4.     As  to  surro-  82  1(1.,  §  ISSO. 

gate's  liability  for  official  acts  of  the  83  Co.  Civ.  Proc.   §   1881.     Formerly 

clerk  of  his  court,  see  ante,  §  2.3.  the  action  was  required  to  be  brought 

'■>  Co.  Civ.  Proc.  §  1886.  in  the  name  of  the  people. 

s'>T(l..  §§  1880.  1888.  84  Co.  Civ.  Proc,  §  1882. 

81  Id.,   §    1802.      See  Matter  of  Van 
Eps,  56  N.  Y.  599. 


19  OK(iA.\I/A'IIO.\     (tK    SriMJOCATKs'    T'OT-RTS.        §§  33-36. 

§  33.  Proof  in  action  on  bond. —  Where  the  default,  by  reason 
of  which  an  applicatiiju  U)  prct.secute  the  official  bond  is  made,  con- 
sists of  the  nonpayment  of  money,  the  applicant  must  ^  prove 
a  demand  of  the  money  from  the  surrogate,  or  that  a  demand 
cannot  be  made  with  due  diligence;  but  such  proof  is  not  necessary 
where  the  applicant  has  recovered  a  judgment  against  the  surro- 
gate.«« 

§  34.  Defenses  in  action  on  bond —  It  is  a  defense  by  a  surety, 
against  whuui  an  action  is  bruught  upon  a  surrogate's  official  bond, 
that  he,  or  any  other  surety  or  sureties,  have  been  or  will  be  com- 
pelled, for  want  of  sufficient  property  of  the  surrogate,  to  pay, 
upon  one  or  more  judgments  recovered  against  him  or  them,  upon 
the  same  bond,  an  aggregate  amount,  exclusive  of  costs,  officers' 
fees  and  expenses,  equal  to  the  sum  for  which  the  defendant  is 
liable  by  reason  of  the  bond ;  and  it  is  a  partial  defense  that  the 
difference  between  the  aggregate  amount,  so  paid  or  to  be  paid, 
and  tlie  sum  for  which  the  defendant  is  thus  liable,  is  less  than 
the  amount  of  the  plaintiff's  demand.®' 

§  35.  Execution  in  action  on  bond. — ^^^lere  an  execution  is  is- 
sued upon  a  judgment  recovered  against  the  surrogate  and  any  of 
his  sureties,  in  an  action  so  brought,  the  plaintiff's  attorney  must 
indorse  thereon  a  direction  to  collect  the  same,  in  the  first  place, 
out  of  the  property  of  the  surrogate,  and,  if  sufficient  property  of 
the  surrogate  cannot  be  found,  then  to  collect  the  deficiency  out 
of  the  property  of  the  surety  or  sureties.*® 

ij  36.  Apportionment  of  recovery — If  the  aggregate  amount  of 
the  liabilities,  which  might  be  so  recovered  by  actions  upon  the 
surrogate's  official  bond,  exceeds  the  sum  for  which  the  sureties 
are  liable,  the  court  must,  upon  the  application  of  a  person  who 
has  obtained  leave  to  prosecute  the  bond,  made  upon  notice  to  the 
j)lai III  ill's  attdriicy,  in  each  action  then  pending  upon  the  surro- 
gate's official  bond,  and  in  each  uncollected  judgment  recovered 
thereupon,  direct  and  provide  for  the  distribution  of  the  money 
collected  out  of  the  property  of  the  sureties,  among  the  persons 
in  favor  of  whom  the  liabilities  have  accrued,  in  proportion  to 
the  amount  which  each  oue  is  entitled  to  recover,  to  be  ascertained 
by  a  r(>ference,  or  in  such  other  manner  as  the  court  directs.^ 

For  the  purposes  of  the  motion,  an  order  may  be  made  by  a 

•'^•'>  I'nloss   special   provision   is   othor-        st  Co.  Civ.  Proc.  S  1SS4. 

wise    inado   bv   law.  s.s  Co.  Civ.  Proc.  §  1.SS.3. 

w:Co.  Civ.  Proc.  §  1891.  5*9  Co.  Civ.  Proc.  §  1885. 


§§  37,  38.     Orgaxizatioiv  of  Sukrogates'  Courts.  20 

judge,  forbidding  the  payment,  to  the  plaintiff  in  any  action,  of 
the  snni  collected  or  to  be  collected  by  virtue  of  a  judgment 
therein;  but  the  court  is  not  authorized  to  compel  a  plaintiff  to 
refund  any  money  collected  and  received  by  him  in  good  faith, 
before  service  of  notice  of  such  an  order.'"^ 

The  subject  of  the  remedy  upon  a  surrogate's  bond  has  become 
of  less  moment  since  the  adoption  of  the  provision  of  the  present 
Code,  relieving  him  from  the  burden  incident  to  the  functions  of 
depositary,  custodian,  and  distributor  of  moneys  paid  into  his 
court.^^ 

TITLE  SEVEN^TH. 

COMPEIS"SATIO]S"    AIS'D    FEES    OF    SURROGATE. 

§  37.  Compensation  of  surrogate —  By  the  Constitution,  the  sur- 
rogate, being  a  judicial  officer,  i?  not  allowed  to  receive  to  his  own 
use  any  fees  or  perquisites  of  office.  His  compensation  consists 
exclusively  of  a  salary,  the  amount  of  which  was  formerly  fixed 
by  the  board  of  supervisors  of  the  county ;  but  at  present  is  pro- 
vided for  by  special  statutes,  as  required  by  the  Constitution.^" 

§  38.  Compensation  of  temporary  and  acting  surrogates. —  An 
officer,  or  a  person  appointed  by  the  board  of  supervisors,  who  acts 
as  surrogate  of  any  county  during  a  vacancy  in  the  office,  or  in 
consequence  of  disability,  as  prescribed  in  the  Code,  is  entitled  to 
be  paid,  for  the  time  during  which  he  so  acts,  a  compensation 
equal,  p7'o  rata,  to  the  salary  of  the  surrogate;  or,  in  a  county 
where  the  county  judge  is  also  surrogate,  to  the  salary  of  the 
county  judge.  The  amount  of  his  compensation  must  be  audited 
and  paid,  in  like  manner  as  the  salary  of  the  surrogate,  or  of  the 
county  judge,  as  the  case  may  be.  Where  an  officer  of  the  county 
performs  the  duties  of  the  surrogate,  with  respect  to  a  particular 
matter,  wherein  the  surrogate  is  disqualified  or  precluded  from  act- 
ing, the  supervisors  of  the  county  must  allow  him  a  just  compen- 
sation for  his  services  therein,  to  be  audited  and  collected  in  the 


90  Co.  Civ.  Proc,  §  1885.  03  Co.  Civ.  Proc.  §  249.'?.     The.  com- 

21  See    Co.    Civ.    Proc,    §    2537.    as  pensation  to  be  paid   is  only  for  the 

amended   1882.  and  c.  II,  tit.  6.  post,  time    of    actual   service.      (Matter   of 

02  See  L.  1892.  c.  686.  §  222.     As  to  Tyler,  60  Hun.   566:    15   X.  Y.   Supp. 

the  salaries  of  the  surrogates  of  Suf-  366.)     As  to  the  compensation  of  the 

folk.  Chautauqua.  Fulton,  and  Orange  special    surrogate    of    Oneida    countv, 

counties,  see  L.  1897,  c.  232  (amending  see    People    ex   rel.    Sholes    v.    Super- 

L.   1892,  c.   686),  L.    1900.   c.   .306.  L.  visors,   etc..    82   Hun,    105;    31   X.    Y. 

1901.    c.    161,    and    L.    1901,    c.    505,  Supp.  63. 
respectively. 


iJl  Okc;amzatiox  of  Suukogates'  Couut.s.     g,^  30,  40. 

§  39.  Fees  of  surrogate. —  In  counties  other  than  Xcw  York,  the 
surrogate,  or  the  clerk  (jf  the  Surrogate's  Court,  may  charge  for 
searches  of  the  records,  and  for  copies  and  transcripts  thereof,  the 
same  fees  as  by  law  are  allowed  to  a  county  clerk  for  a  similar 
service.^  Xo  surrogate  is  allowed  to  receive  any  fee  for  the  per- 
f<irniance  of  any  official  service,  except  that  where,  in  a  case  pre- 
scribed by  law,  or  in  any  other  case,  upon  the  application  of  a 
party,  he  .u<hs  to  a  place,  other  than  his  office,  or  the  courtroom 
where  he  is  required  to  hold  court,  in  order  to  take  testimony,  he 
may  charge  and  receive  to  his  own  use,  ten  cents  for  each  mile  for 
going,  and  the  same  sum  for  returning.*^ 

In  Xew  York  county,  neither  the  surrogate,  nor  his  associates, 
or  other  clerks,  employees,  or  subordinates  in  or  attached  to  the 
surrogate's  office  or  court,  is  permitted  to  charge  or  receive  to 
his  or  their  own  use,  or  otherwise  than  for  the  benefit  of  the  county, 
any  f?es,  perquisites,  or  emoluments  for  any  services  rendered  by 
him  or  them  by  virtue  of  his  or  their  official  positions,  except  mile- 
age as  above ;  and  ten  cents  a  folio  for  a  copy  of  a  paper,  to  be  re- 
ceived for  the  u?c  of  the  county. ^''' 

§  40.  No  fees  to  be  charged  in  certain  cases. —  Xo  fees  for  anv 
services  done  or  performed  by  a  surrogate  are  to  be  charged  to,  or 
received  from,  an  executor  or  administrator,  in  a  case  where  "  the 
inventory  of  personal  property  of  a  testator  or  intestate,  filed  in. 
the  office  of  the  surrogate,  does  not  exceed  the  sum  of  one  thousand 
dollars."  If  the  petition  for  letters  testamentary  or  of  adminis- 
tration shall  allege  that  in  the  belief  of  the  petitioner  the  inventory 
will  not  exceed  such  amount,  no  fees  shall  be  received  until  it  ap» 
pears  from  the  inventory,  when  filed,  that  the  personal  property 
does  exceed  that  sum.  On  the  appointment  of  a  guardian,  if 
it  appears  that  the  application  is  made  for  the  purpose  of  enabling 
the  minor  to  receive  bounty,  arrears  of  pay,  or  prize  money,  or 
pension  due,  or  other  dues  or  gratuity  from  the  Federal  or  State 
government,  for  the  services  of  the  parent  or  brother  of  such  minor 
in  the  military  or  naval  service  of  the  United  States,  no  fees  shall 
be  charged  or  received. ^^ 

J>4Co.  Civ.  Proc.  §  Ofil.  Ho  must  f- L.  1SS4.  o.  530.  §§  fi.  7.  Ho  must 
charpe,  and  receive  to  the  use  of  the  cause  a  printed  notice  to  be  posted  in 
county,  for  a  copy  of  a  paper,  ten  his  office,  that  no  clerk  or  assistant  is 
cents  for  each  folio,  except  whore  the  authorized  to  charge  any  fee  or  re- 
board  of  supervisors  have  allowed  his  ceive.  any  {rratuity  for  any  official 
clerk  to  receive  fees  for  his  own  use;  service  rendered  by  him,  except  ten 
and  in  that  case,  his  clerk  nia.v  charge  cents  a  folio  for  makinj;  copies  of 
and  receive  the  same  fee.  (Co.  Civ.  papers  on  file.  (Id.,  §  8.) 
Proc,  §  2r>r.7.)  f'"Co.  Civ.  Proc,  §  2501.  as  amended 

05  Id.,  §  2567.  1893. 


§  41.  Organization  of  Surrogates'  Courts.  22 

§  41.  Report  of  fees. —  In  each  county,  except  oSTew  York,  the 
surrogate  is  required,  at  his  own  expense,  to  make  a  report  to  the 
board  of  supervisors  of  the  county,  on  the  first  day  of  each  annual 
meeting  thereof,  containing  a  verified  statement,  of  all  fees  re- 
ceived or  charged  by  him  for  services  or  expenses  since  the  last 
report,  and  of  all  disbursements  chargeable  against  the  same,  or 
to  the  county,  stating  particularly  each  item  thereof.®^  In  New 
York  county,  the  surrogate  is  required  to  keep  a  book  showing  in 
detail  the  fees  received  for  copies  of  papers,  the  nature  of  the 
papers  copied,  and  the  name  of  the  person  paying  the  fees ;  and 
he  must  account  for,  and  pay  monthly  to  the  comptroller,  the 
amount  of  fees  received.^ 


98  Co.  Civ.  Proc,  §  2501,  as  amended        99  L.  1884,  c.  530,  §  9. 
1893. 


CHAPTER  II. 


JURISDICTION  AND  POWERS  OF  SURROGATES' 

COURTS. 


TITLE  FIRST. 

CEXERAI,   STATUTORY    JURISDICTION. 

§  42.  Jurisdiction  under  the  Revised  Statutes. —  The  Revised 
Statutes,  as  originally  adopted,  and  taking  effect  in  1830,  after 
•conferring  specified  powers  upon  the  surrogates,  declared  (2  R.  S. 
.221,  §  1,  last  clause)  that  the  powers  thus  conferred  should  be 
exercised  in  the  cases  and  in  the  manner  prescribed  by  the  stat- 
utes of  this  State, adding,  "and  in  no  other;  and  no  surrogate  shall, 
under  pretext  of  incidental  power  or  constructive  authority,  exer- 
-cise  any  jurisdiction  whatever,  not  expressly  given  by  some  statute 
of  this  State."  This  restriction  gave  rise  to  much  difficulty,  and 
seriously  embarrassed  the  due  exercise  of  the  functions  of  these 
courts,  and  was  consequently  repealed  in  1887.^  In  the  language 
of  Chancellor  Walworth,^  "  it  was  found  that  the  exercise  of  cer- 
tain incidental  powers  by  courts,  was  absolutely  essential  to  the 
due  administration  of  justice,  and  that  the  revisers  and  the  Legis- 
lature luul  not,  by  their  care  and  forethought,  been  able  to  take 
the  case  of  these  Surrogates'  Courts  out  of  the  operation  of  the 
general  rule." 

The  effect  of  this  repeal  of  the  restrictive  clause  was,  of  course, 
to  restore  to  these  courts  sul)stantially  the  same  powers  which  they 
possessed  before  the  enactment  of  the  Revised  Statutes,  except  so 
far  as  they  had  been  meanwhile  specifically  restricted  by  statute, 
and  thus  to  restore  to  them  such  powers  as  were  incidental  and 
necessary  to  a  proper  discharge  of  the  functions  of  the  court. ^ 

1  L.  1S37,  0.  400,  §  71.  ropntos'   Courts    poi^spssod   lioforo   the 

2  Pew  V.  Hastings,   1   Barb.  Ch.  4.52.  enactinont    of    the    Revised    Statutes, 

3  Sipperly  v.  Raucus,  24  N.  Y.  40;  and  which  were  continued  by  the  pro- 
Brick's  Estate,  lii  Abb.  Pr.  12;  Dolike  visions  of  2  R.  S.  220,  §  I,  as  amended 
V.  McClaran.  41  Rarb.  491;  Campbell  bv  L.  1837,  p.  53(5,  c.  400,  §  71,  were 
V.  Thatcher,  .54  id.  3S2;  Pew  v.  Hast-  as  follows:  (1)  To  take  proof  of  the 
iugs,  supra.    The  powers  which  Sur-  execution  of  wills,  and  to  admit  them 


§  42.        Jurisdiction,  Etc.,  op"  Surrogates'  Courts. 


24r 


This  principle  has  been  asserted,  not  only  with  respect  to  inci- 
dental powers,  snch  as  inhere  by  reason  of  necessity  in  the  exer- 
cise of  the  jndicial  function,  bnt  also  with  respect  of  matters  of 
jurisdiction,  to  supply  a  casus  Oinissus  in  those  provisions  of  the 
statute  which  attempt  to  enumerate,  or  define  in  detail,  the  gen- 
eral jurisdiction  over  estates.  Thus,  it  was  held  that  the  provi- 
sions of  the  former  statute  (2  R.  S.  73,  §  23),  declaring  that  the 
surrogate  of  each  county  shall  have  sole  exclusive  power,  within 
his  county,  to  grant  administration  in  specified  cases,  was  not  to 
be  regarded  as  covering  all  the  cases  in  which  he  might  grant  ad- 
ministration ;  and,  in  a  ease  within  the  general  principle  of  juris- 
diction, he  should  not  decline  to  exercise  that  jurisdiction  because 
the  mode  was  not  prescribed  by  the  statute.^ 


to  probate.  (2)  To  grant  letters 
testamentary    and    of   administration. 

(3)  To  swear  executors  or  adminis- 
trators to  the  truth  of  the  inventories 
and     accounts      exhibited     by     them. 

(4)  To  call  administrators  to  account; 
to  decree  the  just  and  equal  order  of 
distribution  after  the  payment  of 
debts  and  expenses;  to  compel  ad- 
ministrators to  observe  and  pay  the 
same;  and  to  enforce  it  by  execution 
against  the  person.  (5)  To  hear  and 
determine  any  cause  touching  a  legacy 
or  bequest  in  any  will;  to  decree  the 
payment  of  it,  and  to  enforce  it  by 
execution  against  the  person.  (6)  To 
order  the  admeasurement  of  dower, 
upon  the  application  of  the  widow,  of 
any  heir,  or  of  the  guardian  of  a 
minor.  (7)  To  order  the  sale  of  real 
estate  for  the  payment  of  debts,  when 
the  personal  estate  was  insufficient, 
and  when  the  real  estate  proved  in- 
sufficient, to  divide  the  proceeds,  after 
the  payment  of  expenses,  proportion- 
ally among  creditors;  to  confirm  all 
such  sales,  and  direct  conveyances  to 
be  made  by  executors  or  administra- 
tors, and  to  order  the  mortgaging  or 
leasing  of  the  real  estate  of  any  tes- 
tator or  intestate  for  the  same  pur- 
pose, where  infants  are  interested. 
(8)  To  appoint  guardians  for  infants, 
as  the  chancellor  might  do.  (9)  To 
record  all  wills  proved  before  them, 
with  the  proofs  thereof,  letters  testa- 
mentary and  of  administration 
granted  by  them  with  all  things  con- 
cernirtg  the  same,  or  orders  or  decrees 
made  by  them  for  the  sale  of  real 
estate,  and  all  instruments,  writings, 
or  documents  of  a  like  nature,  left 
unrecorded  by  their  predecessors,  and 


to  complete  the  unfinished  business 
of  their  predecessors.  (10)  To  insti- 
tute inquiry  respecting  the  personal 
estate  of  intestates,  not  delivered  to 
the  public  administrator,  nor  ac- 
counted for  lawfully  by  persons  into 
whose  hands  it  was  supposed  to  have 
fallen.  (11)  They  had  authority  to 
compel  the  attendance  of  witnesses, 
the  production  of  wills,  documents,  or 
writings,  and,  for  disobedience  in  such 
cases,  to  commit  the  party  offending 
for  contempt;  and,  lastly,  in  all  mat- 
ters submitted  to  their  cognizance, 
they  were  authorized  to  proceed  ac- 
cording to  the  course  of  the  court 
having,  by  the  common  law,  jurisdic- 
tion of  such  matters,  except  so  far  as 
they  were  restricted  by  statute;  and 
they  had  such  incidental  powers  as. 
were  necessary  to  carry  those  which 
were  necessary  into  effect.  (Brick's 
Estate,  15  Abb.  Pr.  12.)  The  fore- 
going enumeration  is  now  substan- 
tially superseded  by  the  express  pro 
visions  of  the  statute  conferring  or 
preserving  most  of  these  and  also 
additional  powers.  See  Co.  Civ.  Proc, 
particularly  §§  2472,  2481,  2538,  and 
3347.  Clause  (11)  is  partly  embodied 
in  Co.  Civ.  Proc,  §  2481,  subd.  11, 
but  with  some  material  modifications. 
4  Kohler  v.  Knapp.  1  Bradf.  241. 
And  see  Campbell  v.  Logan,  2  id.  90. 
The  decision  in  Kohler  v.  Knapp 
seems  to  border  closely  upon  judicial 
legislation;  but  the  necessity  for  so 
liberal  a  ruling,  in  respect  to  the  pro- 
vision construed  in  that  case,  has  been 
removed  by  the  phraseology  of  Co. 
Civ.  Proc,  §  2476,  which  remedies  a 
notable  defect  in  the  original  statute. 


25  JuinsDicTioN,  Etc.,  of  Slkuooatks'   Coukts.         ,^  V-L 

So,  also,  where  the  statute  authorized  the  surrogate  to  direct  and 
control  the  c(jnduct  of  guardians,  and  to  settle  their  accounts,  etc., 
it  was  held  "'  that  the  surrogate  had  the  power,  not  <jnly  to  settk? 
the  account,  and  to  ascertain  and  declare  the  quantity,  quality,  and 
conditi(jn  of  the  ward's  estate,  but  to  decree  and  adjudge  the  time 
when,  and  the  person  to  whom,  and  the  manner  in  which,  the  same- 
was  to  he  paid  or  delivered  over.  The  power  to  direct  and  con~ 
trol  could  not  l)e  a  harren  j)ower,  and  it  was,  therefore,  held  to- 
coni{)rehend  the  })ower  of  compelling  the  guardian  to  do  whatever 
the  law  reipiired  he  should  do.  An  authority,  therefore,  which 
may  be  fairly  and  reasonably  inferred  from  the  general  language 
of  the  statute,  or  which  is  necessary  to  accomplish  its  objects,  and 
to  the  just  and  useful  exercise  of  the  powers  which  are  expressly 
given,  may  be  taken  as  granted. 

§  43.  Courts  of  record,  but  of  limited  jurisdiction. —  Until  the 
adoption  of  the  Code  of  Civil  Procedure,  Surrogates'  Courts  were 
courts  not  of  record. '^  The  commissioners  who  framed  the  Code 
left  them  in  that  category,  and  manifestly  composed  the  entire 
work  in  view  of  such  classification.  The  Code  was  enacted  ex- 
]U'cssly  in  the  form  in  which  it  was  reported  to  the  Legislature,^ 
but  was  shortly  afterward  amended  ^  by  placing  these  courts  in  the 
list  of  courts  of  record,  leaving  unchanged  many  provisions  Avhicli 
were  based  upon  the  former  rule.  Owing  to  these  circumstances, 
that  statute  presents  certain  incongruities  which  did  not  originally 
exist.  They  were  rejx^atedly  declared  by  the  courts  to  be  mere 
creatures  of  the  statute,  posseL^iug  no  jurisdiction  or  powers,  ex- 
cept those  which  by  a  favorable  construction  of  the  statute  might 
be  found  to  be  conferred  upon  them.^ 

This  is  still  true,  notwithstanding  they  have  become  courts  of 
record.  The  courts  are  continually  compelled  to  reiterate  the  doc- 
trine that  these  courts  can  exercise  only  such  jurisdiction,  as  ha? 
been  specially  conferred  by  statute,  together  with  those  incidental 
]iowers  which  may  be  requisite  to  effectually  carry  out  the  juris- 
diction actually  granted. ^^ 


5  Seaman   v.   Durvca.   10   Barb.   .523.  Wilcox  v.  Smith.  20  Barb.  .TIO;  Magee 

See  Dan^jiT  v.   Jcrc'iniah.  .3  Redf.    130,  v.  Vedder,  6  id.   3.V2;   Wilson  v.    Bap- 

and  cases  cited.  tist,   etc..   Society,    10  id.   308;    Dakiii 

« Paff  V.  Kinnev.   1   Bradf.    1  :    Mat-  v.    Hudson.    G    Cow.    221 ;    Corwin    v. 

ter  of  Writner,  1  tuck.  To;  Westervelt  Merritt.   3   Barb.   341;    People   v.   Cor- 

V.  (irc-rt:.  1   Barb.  Ch.  409.  lies.   1    Sandf.   22S;    People   v.   Barnes. 

T  L.  1870,  c.  448.  12    Wend.    402:     Harris    v.    Mover.    3 

8L.  1877,  c.  410.  §  1.  Ke.lf.  4.-)0. 

n  Cleveland  V.  Whiton.  31  Barb.  r)44:         i'>  Matter    of    Underhill.    117    X.    Y. 

Sibley  V.  Waffle,    10  N.   Y.    180.     And  471;   27   St.  Rep.   720:  Matter  of  Bol- 

see    Seaman    v.    Duryea,    11    id.    324;  ton,  159  N.  Y.  129;  53  X.  E.  Rep.  750. 


§  48.        JuEisDicTiox,  Etc.,  of  Surrogates'  Couets.  2G 

The  statute  specifies  a  great  variety  of  cases  in  which  the  surro- 
gate is  to  exercise  his  powers,  and  the  manner  of  their  exercise.  So 
far  as  the  statute  goes,  therefore,  it  regulates  imperatively  the  exer- 
cise of  the  jurisdiction  in  the  particular  classes  of  cases  specified. ^^ 

It  is  not  to  be  forgotten,  however,  that  the  Surrogate's  Court 
is  a  tribunal  proceeding  according  to  the  course  of  the  common 
law,  and  is  recognized  by  the  common  law.  In  all  matters  relative 
to  the  i)robate  of  testaments,  and  the  administration  of  the  estates 
of  deceased  persons,  the  court  proceeds  in  conformity  with  pre- 
scription and  established  usage,  except  as  modified  from  time  to 
time  by  statutory  regulations.^^ 

Recent  legislation,  especially  the  Code  of  Civil  Procedure,  has 
conferred  upon  Surrogates'  Courts  some  of  the  characteristics  of 
courts  of  general  jurisdiction,  as  will  be  hereafter  pointed  out, 
but,  although  the  argument  as  to  their  status,  based  upon  the  fact 
that  they  were  included,  in  the  Revised  Statutes,^^  among  the 
"  courts  of  peculiar  and  special  jurisdiction,"  fails,  since  the 
repeal  ^^  of  the  portions  of  those  statutes  relating  to  these  courts, 
they  are  still  courts  of  a  special  and  limited  jurisdiction ;  and, 
therefore,  it  is  still  true  that  where  the  court,  in  a  matter  regu- 
lated by  the  statute,  has  departed  therefrom,  or  has  assumed  to 
exercise  powers  for  which  it  has  no  authority,  or  to  exercise  them 
in  a  manner  different  from  that  prescribed  by  statute,  its  acts, 
like  similar  acts  of  other  courts  of  special  and  limited  statutory 
jurisdiction,  are  void.^^ 

It  will  be  seen,  however,  hereafter,  that  in  the  class  of  cases  in 
which  this  principle  has  been  found  most  important  and  has  been 
most  frequently  invoked,  viz.,  that  of  sales,  etc.,  of  real  property 
by  the  surrogate's  order,  for  the  payment  of  debts,  the  principle 
is  now  no  longer  applicable,  by  reason  of  the  statute  ^^  which  makes 
the  validity  of  sales,  etc.,  to  depend  upon  the  same  principles  as  if 
the  sales  were  made  pursuant  to  directions  contained  in  a  judg- 
ment rendered  by  the  Supreme  Court  in  an  action. 

11  Co.  Civ.  Proc,  §  2472.  See  Bevan  Kinney,  1  Bradf.  1 ;  Sheldon  v. 
V.  Cooper,  72  N.  Y.  317,  and  cases  Wriorht,  5  N.  Y.  497;  Ri^^s  v.  Cragg, 
ivfra.  89    id.    479,    distinguishing    Bevan    v. 

12  Campbell  v.  Logan,  2  Bradf.  90.  Cooper,  72  id.  .317;  Thompson  v.  Molt, 
It  is  not,  however,  a  court  of  equity.  .'>  Redf.  .574.  The  jurisdiction  of  the 
(Brittin  v.  Phillips,  1  Dem.  .57:  Mat-  Surrogate's  Court  is  limited,  yet 
ter  of  Geis,  Z7  Misc.  490;  59  N.  Y.  within  that  limitation  its  decree  is 
Supp.   17.5.)  conclusive    until    reversed    on    appeal. 

13  2  R.  S.  220.  part  3.  c.  2.  (O'Connor  v.  Huegins,  113  N.  Y.  .511.) 

14  L.  1880,  c.  245,  §  1,  subd.  3   (2).  16  L.  18.50.  c.  82,  §  1 ;  L.  1869.  c.  260. 

15  People    V.    Corlies,    1    Sandf.    228;  now  substantiallv  replaced  bv  Co.  Civ. 
People  V.  B.irnes.  12  Wend.  492;  Cor-  Proc,  §§  2473,  2474,  2784,  and  2785. 
win  V.  Merritt,  3  Barb.   341;   PafT  v. 


'27  Jurisdiction,  Etc.,  of  Suuuogatks'  Courts.         §  44. 

§  44.  Subjects  within  the  jurisdiction. — Having  considered  the 
general  nature  of  the  jurisdiction  of  the  Surrogate's  Court  and  its 
limitations,  it  will  now  he  convenient  to  give  the  statutory  eini- 
incration  of  the  suhjects  within  that  jurisdiction.  The  powers 
and  jurisdiction  of  the  Surrogate's  Court,  which  are  particularly 
defined  hy  the  Tievised  Statutes,  have  ])een  enlarged  and  extended 
from  time  to  time  by  subsequent  legislation,  the  disposition  being 
apparent  to  amplify  rather  than  confine  the  limits.  This  various 
legislation  has  b(>on  reduced  to  order  in  the  present  Code,  which 
provides  as  follows : 

"Each  surrogate  must  hold,  within  his  county,  a  court,  which- 
has,  in  addition  to  the  powers  conferred  upon  it,  or  upon  the  sur- 
rogate, by  special  provision  of  law,  jurisdiction,  as  follows : 

"  1.  To  take  the  proof  of  wills;  to  admit  wills  to  probate;  to 
revoke  the  probate  thereof ;  and  to  take  and  revoke  probate  of  heir- 
ship. 

"  2.  To  grant  and  revoke  letters  testamentary  and  letters  of  ad- 
ministration, and  to  appoint  a  successor  in  place  of  a  person  whose 
letters  have  been  revoked. 

"  3.  To  direct  and  control  the  conduct,  and  settle  the  accounts, 
of  executors,  administrators,  and  testamentary  trustees ;  to  remove 
testamentary  trustees,  and  to  appoint  a  successor  in  place  of  a 
testamentary  trustee  so  removed. 

"  4.  To  enforce  the  payment  of  debts  and  legacies ;  the  distri- 
bution of  the  estates  of  decedents ;  and  the  payment  or  delivery, 
ty  executors,  administrators,  and  testamentary  trustees,  of  money 
or  other  property  in  their  possession,  belonging  to  the  estate. 

"  5.  To  direct  the  disposition  of  real  property,  and  interests 
in  real  property,  of  decedents,  for  the  payment  of  their  debts  and 
funeral  expenses,  and  the  disposition  of  the  proceeds  thereof. 

"  6.  To  administer  justice,  in  all  matters  relating  to  the  affairs 
of  decedents,  according  to  the  provisions  of  the  statutes  relating 
thereto. 

"7.  To  appoint  and  remove  guardians  for  infants;  to  compel 
the  payment  and  delivery  by  them  of  money  or  other  property 
belonging  to  their  wards ;  and,  in  the  cases  specially  prescribed 
by  law,  to  direct  and  control  their  conduct,  and  settle  their  ac- 
counts. This  jurisdiction  must  be  exercised  ia  the  cases,  and  in 
the  manner,  prescribed  by  statute."  " 


17  Co.  Civ.  Proc.  §  2472.  By  L.  ister  oaths,  to  take  affidavits,  and  the 
1900.  c.  .510.  aniondinj;  L.  18S4.  c  309.  proof  and  acknowledgment  of  deeds 
surrogates   are   authorized  to   admin-    and    other    instruments,    and    certify 


§§  45-47.     Jurisdiction,  Etc.,  of  Surrogates'  Courts.        28- 

Each  of  the  foregoing  paragraphs  has  repeatedly  come  before 
the  courts  for  application  to  particular  cases.  After  stating,  as. 
we  have,  the  statutory  enumeration  of  the  subjects  of  the  jurisdic- 
tion of  these  eourts,  we  reserve  all  consideration  of  their  applica- 
tion until  we  come  to  speak  of  the  particular  subjects  themselves^ 
such  as  the  probate  of  wills,  letters  in  cases  of  testacy  and  of  intes- 
tacy, the  accounting  of  executors,  administrators,  and  giiardians. 
etc. 

S  45.  Admeasurement  of  dower — The  jurisdiction  to  admeasure 
(lower  which  Surrogates'  Courts  formerly  enjoyed  has  been  taken 
away;  the  only  existing  remedy  therefor  now  being  a  civil  action 
under  Code  Civ.  Proc,  §§  1596-1625. 

^  46.  Adoption  of  children — By  L.  1896,  c.  272,  §  60,  et  seq.,. 
known  as  the  Domestic  Relations  Law,  revising  and  consoli- 
dating previous  statutes  upon  the  subject,  provision  is  made  for  an 
application  to  a  Surrogate's  Court  by  a  foster-parent  to  confirm 
a  voluntary  adoption  of  a  child.  By  the  same  act  an  application 
may  be  made  by  any  child  which  may  have  been  adopted  in  pur- 
suance of  the  provisions  of  the  act,  or  by  any  corporation  adopting^ 
it,  or  by  any  person  in  behalf  of  such  child,  for  the  termination 
and  cancellation  of  the  adoption,  and  of  the  relation  of  parent 
and  child  between  a  foster-parent  and  such  child,  upon  the  ground 
of  cruelty,  misusage,  refusal  of  necessary  provisions  or  clothing, 
or  inability  to  support,  maintain,  or  educate  such  child,  or  anT 
violation  of  duty  on  the  part  of  such  foster-parent  toward  suck 
child.^^     The  statute  declares  the  form  of  the  proceeding.^^ 

TITLE  SECO^^D. 

limitatioiv  on  general  powers. 

§  47.  In  general —  As  already  stated,  the  general  rule  as  to  the- 
limitation  of  the  jurisdiction  of  the  Surrogate's  Court,  is  that  nO' 
powers  can  be  exercised  by  it  which  are  not  fairly  and  reasonably 
inferred  from  the  general  language  of  the  statute  as  necessary  to 
accomplish  its  objects.     The  application  of  this  principle  is  ex- 


the   same,   Avitli  like  force   and  eflFect,  by    virtue    of    statute.       (Matter    of 

as  if  taken  and  certified  by  a  county  Thorne,  155  N.  Y.  140;  49  N.  E.  661;. 

judge.  fiting  Carroll  v.   Collins,  6  App.  Div. 

18  See   L.    1807.    c.   408:    L.    1899,   c.  106.) 

4f)8.      The    adoption    of    children    was  19  The  County  Court   and  the   Rur- 

unknown  to  the  common  law  of  Eng-  rogate's  Court  having  concurrent  juris- 

land  and  exists  in  this  country  only  diction  over  proceedings  for  the  adop> 


29 


J  LUisDicTio.N,   Etc.,   of  SuitKoc^ATEs'   Coukts.         §4.7. 


hibited  in  a  great  variety  of  eases,  which  will  be  mentioned  more 
appropriately  hereafter,  under  the  titles  of  Probate  of  Wills;  Con- 
struction of  Wills ;  Letters  Testamentary,  and  of  Administration ; 
Accountings,  and  other  special  proceedings  in  Surrogates'  Courts. 
It  is  only  proposed  to  give  here  some  instances  of  general  applica- 
tion, showing  the  extent  to  which  the  statute  conferring  jurisdic- 
ti<iii,  notwithstanding  its  genera]  language,  has  been  limited. 

Surrogates'  Courts  do  not  possess  the  general  powers  of  a  court 
of  ('([uity.-"  Hence,  for  example,  they  have  no  authority  to  set  off 
mutual  judgments;"^  nor  to  pass  on  the  validity  of  a  claim  of 
indebtedness  of  a  legatee  to  the  estate,  such  claim  being  set  up  by 
the  executor  in  reduction  of  ^he  legacy;""  nor  to  adjudge  that  the 
next  of  kin  wlio  have  received  assets  sliall  ])ay  to  the  administrator 
their  share  of  the  debts  incurred  by  him,  and  giving  the  latter 
execution  therefor  ;"'^  nor  to  pass  upon  the  validity  of  a  release 
from  the  beneficiary  to  the  trustee."'* 

A  surrogate  has  no  jurisdiction  to  order  an  administrator  to 
pay  over  to  the  widow  and  children  of  decedent  funds  received 
bv  him  belonging  to  them,  luit  which  are  not  assets  of  the  estate."^ 


tion  of  an  infant  under  the  Domestic 
Kelations  Law.  a  proceeding  to  abro- 
gate an  adoption  can  only  be  enter- 
tained by  tlic  court  that  granted  the 
order  therefor.  (Matter  of  Trimm, 
30  :Misc.  4n.3 :  63  X.  Y.  Supp.  9.")2. ) 

20  15rittin  v.  Pliillipr^.  1  Dem.  57; 
Matter  of  Geis,  27  Misc.  4fl0 :  50  X.  Y. 
Supp.  175. 

21  Stihvell  V.  Carpenter,  59  X.  Y. 
414;  Charlick's  Estate.  11  Abb.  X.  C. 
5G;  flatter  of  Livingston.  27  Hun,  G07; 
Rudd  V.  Rudd.  4  Dem.  335.  A  chiim 
of  a  testamentary  trustee  against  a 
balance  of  income  of  the  trust  in  his 
hands,  arising  from  an  alleged  in- 
debtedness to  liim  of  the  l)eneficiary 
of  such  income,  cannot  be  adjusted  in 
a  Surrogate's  Court.  (Matter  of 
Rutherford,  5  Dem.  490.) 

22  Matter  of  Colwell.  15  St.  Rep. 
742;  Matter  of  Jones,  10  id.  17(5; 
Bauer  v.  Kastner,  1  Dem.  130;  Kintz 
V.  Friday,  4  id.  540.  Xor  has  he  any 
power  to  determine  the  claim  of  an 
administrator  for  advances  in  the 
form  of  merchaTidise  made  to  a  dis- 
tributee, where  the  latter  denies  the 
receipt  of  such  merchandise  and  dis- 
putes its  value.  (Barker  v.  Lanev.  90 
Hun.  lOS;  .35  X.  Y.  Supp.  02(i.)  *  Sec 
s.  c    in  7  App.  Div.  3.52. 

23  Matter  of  Kecf.  43  Hun.  08.  See 


Matter  of  Lang,  144  X.  Y.  275 :  G3  St. 
Rep.  694. 

2^  ^'an  Sinderin  v.  Lawrence,  14  St. 
Rep.  412;  Matter  of  Wagner,  52  Hun, 
23:  affd  110  X.  Y.  28;  Sanders  v. 
Soutter.  126  id.  193:  37  St.  Rep.  1. 
The  surrogate  has  no  jm-isdiction  to 
determine  the  right  of  inheritance  to  a 
fund  received  by  the  administrator 
which  belonged  to  his  intestate,  but 
which  in  law  is  to  be  regarded  as  real 
estate.  I  Matter  of  Woodworth.  5  Dem. 
156.)  To  the  same  effect,  flatter  of 
:MeKay,  37  Misc.  500:  75  X.  Y.  Supp. 
1069.  Xor  has  he  jiu'isdiftion  to  pass 
upon  the  equit:ible  claim  of  a  ln'iu'ticiary 
who  has  assigned  his  interest  to  the  ef- 
fect that  such  assignment,  although  ab- 
solute on  its  face,  was  intended  merely 
as  collateral  security  for  a  loan:  and 
the  surrogate  must  recognize  such  as- 
signment as  valid.  (Young  v.  Purdy, 
4  Dem.  455.)  And  see  ^IcMahon  v. 
;Macv,  51  X.  Y.  1.55;  Hodges  v.  Ten- 
nessee Ins.  Co..  8  id.  416:  Despanl  v. 
Walbridge.  15  il.  374;  Hender-on  v. 
Fullerton.  54  How.  Pr.  422:  Stihvell 
v.  Carpenter.  59  X.  Y.  414:  Bevan  v. 
Cooper.  72  id.  317:  IMcXulty  v.  Hurd, 
id.  518:  Bouuhton  v.  Flint.  74  id.  476: 
Slieridan  v.  The  "Mavor.  68  id.  30. 

25  :\ratter  of  Cooley.  6  Dem.  77.  An 
executor    received    the    amount    of    a 


§  47.        JuKiSDicTiox,  Etc.,  of  Sukrogatls'  Ooukts. 


3a 


He  lias  no  jurisdiction  to  try  and  determine  the  question  of  the 
validity  of  an  assignment,  procured  by  the  administrator  of  an  in- 
testate's estate,  from  one  interested  therein,  of  the  interest  of  the 
latter,  where  the  same  is  attacked  on  the  ground  of  alleged  fraud 
in  its  procurement.^^  Nor  can  he  inquire  into  the  validity  of 
sales  of  real  estate  made  by  the  representative  alleged  to  be  fraudu- 
lent."' So  a  Surrogate's  Court  has  no  power,  on  the  accounting: 
of  an  executor,  to  decide  that  a  transfer  made  during  the  lifetime 
of  the  deceased  to  the  person  who  was  afterward  appointed  his 
executor,  and  valid  as  between  the  parties,  was  void  as  to  creditors ; 
and  cannot  thereupon  require  the  executor  to  account  for  what 
he  has  thus  received. ^^     And  an  executor,  on  his  accounting,  can- 


policy  of  insurance  upon  testator's 
life,  which  by  its  terms  was  payable 
to  his  personal  representative  for  the 
benefit  of  the  widow.  Held,  that  a 
Snrroffate's  Court  had  no  jurisdiction 
to  enforce  such  trust  by  compelling 
the  executor  to  pay  the  amount  re- 
ceived to  the  widow.  (Matter  of  Van 
Dermoor,  42  Hun,  326.)  See  Matter 
of  McFarland.  N.  Y.  Law  Jour.,  De- 
cember 14.  1892.  The  surrogate  can- 
not pass  upon  the  validity  of  a  col- 
lector's claim  of  title  to  property 
alleged  to  belong  to  the  estate,  the 
title  having  been  acquired  prior  to  the 
period  of  his  collectorship.  Xor  can 
he  compel  an  executor  to  account  for 
property  received  by  his  testator,  as 
executor,  unless  it  has  come  into  the 
last  executor's  possession.  (^lontross 
v.  Wheeler,  4  Lans.  99;  Gottsberger 
v.  Smith,  2  Bradf.  86.) 

26  Woodruff  V.  Woodruff,  3  Dem. 
505;  Matter  of  Evans,  58  App.  Div. 
502 ;  Matter  of  Cook.  68  Hun,  280 ;  22 
N.  Y.  Supp.  969.  Xor  can  he  deter- 
mine the  validity  of  an  assignment  of 
a  distributive  share,  attacked  for 
fraud;  but  where  such  validity  is  con- 
ceded, he  may,  on  an  accounting,  de- 
cree distribution  accordingly.  (Mat- 
ter of  Randall,  152  X.  Y.  508 ;  46  X.  E. 
945. )  See  :\Iatter  of  Redfield,  7 1  Hun, 
344;  Matter  of  Arkenburgh,  .^8  App. 
Div.  473:  56  X.  Y.  Supp.  523.  Com- 
pare Matter  of  Browne,  35  Misc.  366 ; 
71  X.  Y.  Sunn.  1037.  A  decedent's  dis- 
charge in  bankruptcy  may  be  attacked 
collaterally,  in  a  special  proceeding  re- 
latinn;  to  his  estate,  and  declared  void, 
as  against  a  creditor  as  to  whom 
the  same  was  fraudulently  procured. 


(Jones  V.  Le  Baron,  3  Dem.  37.)  See 
§  968,  post. 

2T  Matter  of  Valentine,  1  Misc.  491; 
23  X.  Y.  Supp.  289,  and  cases  cited. 

iis  Matter  of  Kellogg,  39  Hun,  275. 
In  this  case  the  court  cited  Geerv  v. 
Geery,  63  X.  Y.  252 ;  Southard  v.  Ben- 
ner,  72  id.  424;  Adsit  v.  Butler,  87  id. 
585;  Lichtenberg  v.  Herdtf elder,  5  Civ. 
Proc.  Rep.  426;  Est-s  v.  Wilcox,  67 
X.  Y.  264 ;  Ocean  Xat.  Bank  v.  Olcott^ 
46  id.  12;  Dewey  v.  Moyer,  72  id.  70; 
Genesee  River  Xat.  Bank  v.  Mead,  18 
Hun,  303:  92  X.  Y.  637:  Richardson 
v.  Root,  19  Hun,  473;  Hvland  v.  Bax- 
ter, 98  X.  Y.  610;  Matter  of  Raymond, 
27  Hun,  508;  Merchant  v.  Merchant,  2 
Bradf.  432;  Martin  v.  Root,  17  Mass. 
222;  Holland  v.  Cruft,  20  Pick.  338. 
Landon,  J.,  dissenting,  cited  Southard 
V.  Benner,  72  X.  Y.  424;  Hvland  v. 
Baxter,  98  id.  610:  Richardson"  v.  Root, 
19  Hun,  473.  He  has  no  power  to  try 
issues  arising  out  of  an  administra- 
tor's interest  -as  mortgagee  of  real 
estate  of  the  intestate,  nor  to  compel 
him  to  account  for  alleged  profits  in 
his  hands  as  belonsring  to  the  estate. 
(Matter  of  Monroer  142  X.  Y.  484;  60 
St.  Rep.  102.)  But  upon  a  repre- 
sentative's accounting,  the  court  has 
power  to  construe  or  determine  the 
validity  of  an  antenuptial  agreement 
made  by  a  testator,  in  contemplation 
of  the  future  distribution  of  his  prop- 
erty, it  appearing  that  the  agreement 
was  obtained  through  deceit  or  false 
representations,  and  the  provision 
made  for  the  wife  under  it  is  less  than 
her  legal  share.  (Matter  of  Jones,  3 
]\Iisc.  586.)  See  Pierce  v.  Pierce.  71 
X.  Y.  154;  Matter  of  Davenport,  37 
Misc.  179;  74  X.  Y.  Supp.  940. 


31       JuiiisDicTiox,  Etc.,  of  Slkkog axes'  Courts.     §§  48,  49. 

not  have  an  affirmative  judgment  against  a  legatee,  a  part}'  to  the 
proceeding,  for  the  excess  overpaid  him  on  his  legacy,  the  surro- 
gate having  no  authority  to  grant  such  relief.^'" 

§  48.  Surrogate's  control  of  attorneys. —  The  surrogate  has  no 
control  over  attorneys,  as  such.'''^  lie.  cannot,  therefore,  compel 
an  attorney  for  a  guardian  to  account  for  moneys  in  his  hands, 
belonging  to  the  infant,  or  punish  him  fcr  an  injury  to  the  estate.^^ 
Xor  can  he  prescribe  the  terms  upon  which  a  change  of  attorneys 
may  be  effected  in  a  proceeding  before  him,  or  determine  the 
amount  ^.f  compensation  to  which  the  retiring  attorney  is  entitled.^^ 
He  has  no  power  to  protect  or  enforce  the  lien  of  an  attorney  upon 
his  client's  interest  in  an  estate  pursuant  to  an  agreement  giving 
him  a  share  therein  for  his  services,  so  far  as  the  same  relates  to 
real  estate  which  the  executors  have  not  converted  and  are  not 
accountable  for.^^  But  as  to  assets  in  the  executor's  hands,  the 
court  nuiy  protect  the  attorney  under  such  agreement,  by  requir- 
ing that  he  be  secured  before  permitting  a  discontinuance  of  the 
proceedings  instituted  in  behalf  of  his  client.^'*  So,  too,  he  may 
vacate  a  legatee's  satisfaction  of  a  decree  of  distribution,  given  in 
violation  of  the  attorney's  lien  for  scrvices.^^ 

§  49.  Determining  creditor's  disputed  claims. —  By  the  Kevised 
Statutes  surrogates  were  empowered  upon  the  linal  accounting  of 
an  executor  or  administrator  to  enforce  the  payment  of  debts,^® 
and  to  ^'  settle  and  determine  all  questions  concerning  any  debt, 
claim,  etc.,  to  whom  the  same  shall  be  payable,  and  the  sinn  to  be 
paid  to  each  person."  ^"  It  was,  nevertheless,  held  that  Surro- 
gates'  Courts  were  not  constituted  or  intended  for  the  trial  of 


29  Matter   of    Uiulerhil!,    117    X.    Y.  34  lb. 

471;  27  St.  Rep.  720;  Matter  of  Lang,  35  Matter     of     Regan.     1G7     X.     Y. 

144  X.  Y.  275:  6.3  St.  Rep.  694;  John-  .3.38;  60  X.  E.  6-58,  revg.  .jS  App.  Div. 

son  V.  Weir,  34  ;Misc.  683:   70  X.  Y.  1,  and  cases  cited.     An  attorney  has 

Supp.   1020;   Matter  of  Hodgnian.  140  a    lien    upon    a    surrogate's   decree   in 

X.  Y.  421.     See  §  774,  post.  favor    of    his    client    rendered    on    an 

30  He  cannot  enforce  the  liability  of  executor's  accounting  even  though 
an  attorney  for  costs  under  Co.  Civ.  such  decree  was  entered  before  the 
Proc,  §  3278,  as  that  section  does  not  amendment  of  section  66  of  the  Code 
apply  to  Surrogates'  Courts,  (flatter  securing  to  an  attorney  a  lien  for 
of  Rasch,  26  ^lisc.  4o0 ;  ,").3  X.  Y.  Supp.  services  in  a  s))ecial  proceeding,  (lb.) 
434.)  But  the  attorney  cannot,  for  his  own 

31  Matter  of  Writner.  1  Tuck.  75.  benefit,  continue  the  proceedinir  after 

32  Matter  of  Halsev.  13  Abb.  X.  C.  settlement  between  the  parties."  CMat- 
3.53;  Chatfield  v.  Hewlett.  2  Dem.  191;  ter  of  Evans.  58  App.  Div.  502:  60 
Pryer  v.  Clapp.   1    id.   387;    Matter  of  X.   Y.   Supp.   482.) 

Krnkauer.  33  Misc.  674;  68  X.  Y.  Supp.  3.w  R.   S.   221.    §    1;    Co.   Civ.   Pmc, 

935.  §  2472.  subd.   4. 

33  Matter  of  Fernbacher,  5  Dem.  37  2  R.  S.  06,  §  71;  Co.  Civ.  Proc, 
219;  18  Abb.  X.  C.  1.  §  2743. 


§  49.        J  uRisDicTiox,  Etc.,  of  Surrogates'  Courts.  32 

disputed  claims.  And  even  if  a  contested  claim  was  submitted 
to  the  surrogate  by  all  the  parties  in  the  interest,  his  decision  in 
regard  to  it,  and  a  decree  made  thereon,  would  not  be  binding  on 
any  of  the  parties,  and  could  not  be  sustained  even  as  an  arbitra- 
tion.^*' Xor  did  the  surrogate  of  Xew  York  county,  under  L.  1870, 
c.  359,  §  6,^^  giving  him  power  in  any  accounting,  etc.,  to  ap- 
point a  referee  '*  to  hear  and  determine  all  disputed  claims  and 
other  matters  relating  to  said  accounts,"  have  power  to  pass  upon 
the  disputed  claim  of  a  creditor  against  the  estate,  so  as  to  bar 
the  creditor's  common-law  remedy.^"  Xor  had  he  the  power,  under 
2  R.  S.  116,  §  18,'*^  allowing  him  six  months  after  the  time  of 
granting  letters  of  administration  to  decree  payment  of  a  debt  of 
the  intestate,  etc.,  to  order  j^ayment  of  a  contested  claim."*^  The 
rule  contained  in  these  decisions,  withholding  from  surrogates 
the  power,  upon  the  final  accounting  (now  termed  the  "  judicial 
settlement  of  the  account")  of  an  executor  or  administrator,  to 
pass  on  a  claim  against  the  estate  of  a  decedent,  which  is  disputed 
by  the  representative,  was,  until  1895,  retained  by  the  Code  of 
Civil  Procedure,  which  provided  that  where,  upon  the  judicial 
settlement  of  the  account  of  an  executor  or  administrator,  "  the 
validity  of  a  debt,  claim,  or  distributive  share  is  not  disputed  or 
has  been  established,  the  decree  must  determine  to  whom  it  is 
payable,  the  sum  to  be  paid  by  reason  thereof,  and  all  other  ques- 
tions concerning  the  same."  '^  In  1895,  however,  power  was  con- 
ferred upon  the  surrogate  to  pass  upon  a  claim  which  "  is  ad- 
mitted, or  has  been  established  upon  the  accounting  or  other  pro- 
ceeding in  the  Surrogate's  Court,  or  other  court  of  competent 
jurisdiction,"  "^^  provided  "  a  written  consent  shall  be  filed  by  the 
respective  parties  with  the  surrogate  that  said  claim  may  be  heard 
and  determined  by  him  upon  the  judicial  settlement  of  the  ac- 
counts of  said  executor  or  administrator."  ^'^ 


38  Tucker  v.  Tucker,  4  Abb.  Ct.  Estate,  11  Abb.  N.  C.  50;  Cxiles'  Es- 
App.  Dec.  428:  Bevan  v.  Cooper,  72  N.  tate.  id.  .57;  Van  Valkenburgh  v. 
Y.  317.  Lasher,     53     Hun,     594;      Matter     of 

39  CV).  Civ.  Proc.,  §  254G.  Schmidt,  58  X.  Y.  Supp.  595.     Where 
■*'*  Cooper  V.  Felter,  6  Lans.  485.  See  a  claim  is  compromised  and  an  agree- 

Leviness    v.    Cassebeer,    3    Redf.    491;  ment  to  that  effect  made  between  the 

Matter  of  Leslie,  id.  280:  Garvey  v.Mc-  creditor    and    representative,    the    sur- 

Cue,  id.  313.  rotate  may  not  order  payment,  as   it 

41  Co.  Civ.  Proc.   §  2717.  is  in  effect  the  specific  performance  of 

■iSFvuthven  v.   Patten.   1   Robt.   416;  a    contract.      (Matter   of    Bronson,   69 

2  Abb.  Pr.  (X.  S.)   121.  App.  Div.  487:  74  X.  Y.  Supp.  1052.) 

43  Co.  Civ.  Proc,  §  2743,  in  part.  See  44  L.  1895,  c.  595,  amending  Co.  Civ. 

^Matter   of   Callahan.    152   X.   Y.   320;  Proc,  §  2743. 

Greene  v.  Day,  1  Dem.  45;  Kammerrer  -I'tCo.  Civ.  Proc.  §  1822,  as  amended 

v.   Zieeler,   id.   177:    Dubois  v.   P.mxuT,  1805;   [Matter  of  Kirbv,  36  Misc.  312; 

id.  317:  3  Civ.  Proc.  Rep.  39:  Martine's  73  X.  Y.  Supp.  509. 


33  JuiusuicTioN,  Etc,  of  Sukkogates'  Courts.        §  50. 

For  reasons  which  may  be  deemed  not  fully  apparent,  the  sur- 
rogate had,  under  the  former  statute,  and  still  possesses  such 
power,  in  proceedings  to  sell  the  real  property  of  a  decedent  for 
payment  of  debts  or  funeral  expenses,"*^  as  well  as  upon  the  ju- 
dicial settlement  of  the  account  of  a  testamentary  trustee.'*^  A 
contest  between  an  accounting  executor  or  achninistmtor  and  any 
of  the  other  parties,  respecting  a  debt  alleged  to  be  due  by  the  ac- 
counting party  to  the  decedent,  or  by  the  decedent  to  the  account- 
ing party,  the  court  has  jurisdiction  to  try  and  determine."*^  It 
should  be  noticed  that  the  statute  does  not  extend  to  the  case  of 
the  claim  of  a  third  person  against  a  general  guardian  as  such. 
Xo  provision  is  made  for  the  compulsory  payment  by  a  general 
guardian  of  a  debt  already  incurred,  e,  g.,  for  the  board  of  the 
ward.^^ 

§  50.  Incidental  nonstatutory  powers —  Where,  in  a  subject 
within  his  jurisdiction,  the  surrogate  deems  justice  to  require  the 
exercise  of  an  incidental  power  which  has  not  been  expressly  given 
him  by  the  statute,  he  should  not  for  that  reason  decline  to  exer- 
cise it.  For  instance,  where  the  statute  made  no  express  provision 
for  revoking  a  probate,  in  case  another  and  later  will  was  dis- 
covered, the  power  to  do  so  was  implied  from  the  section  declaring 
the  force  of  the  probate  as  evidence,  until  reversed  on  appeal,  re- 
voked on  allegations,  or  declared  void  by  a  competent  tribunal.^*' 
So  a  decree  admitting  a  will  may  be  opened  at  the  instance  of  a 
former  contestant  to  enable  him  to  apply  for  a  judicial  construc- 
tion of  its  provisions.^^  As  an  incident  to  his  power  to  determine 
questions  concerning  distributive  shares,  etc.,^^  the  surrogate  has 
power  to  determine  the  validity  of  alleged  gifts  causa  mortis  by  a 
decedent. ^^  Within  the  domain  of  his  statutory  jurisdiction  of 
the  subject-matter,  he  may  exercise  any  powers  not  inconsistent 
with  existing  law,  which  were  enjoyed  by  the  colonial  courts  of 
probate,  or  the  successors  of  such  courts,  previous  to  the  adoption 
of  the  Revised  Statutes.^^ 


40  Co.  Civ.  Proo.,  §  27.5.5.  as  amendpd  Hampton  v.  Stoehr,  51  St.  Rep.  500; 

1887;   §  2758;  Matter  of  Haxtun,  102  2.3  K  Y.  Supp.  280.     See  chapter  XX, 

N.  Y.  157.     See  §   858,  post.  post. 

47  Co.  Civ.  Proc,   §  2812.  M  Campbell  v.  Losran.  2  Bradf.  00. 

48  Co.  Civ.  Proc,  §  2731,  as  amended        51  Matter  of  Keolcr.  5  Dem.  218. 
1893.     Matter  of  Mareelhis,  105  N.  Y.        52  2  R.   S.  95,   §   71;   Co.  Civ.  Proc, 
70:    58    N.    E.    790.    and    cases    cited.  §  2743. 

The  statute  is  as  applicable  to  tempo-        RS  Fowler  v.  Lockwood.  3  Redf.  405; 

rary     as    to    greneral    administrators.  Matter  of  Pearson.  21  St.  Rep.  128. 
(Matter  of  Eisner.  5  Dem.  383.)  54  skidmore    v.    Davies.     10    Paipe, 

49  Welch   v.   Gallagher,   2   Dem.   40;  310;    Proctor   v.    Wanmaker,    1    Barb. 

3 


§§  51,  52.     Jurisdiction,  Etc.,  of  Surrogates'  Courts.        34 

^  51.  Power  to  grant  naturalization. —  Since  they  are  courts  of 
record,  having  a  clerk  and  seal.  Surrogates'  Courts  possess  com- 
mon-law jurisdiction,  within  the  meaning  of  the  Federal  statute^ 
to  grant  naturalization.^^ 


TITLE  THIED. 

INCIDENTAL  jurisdiction  AND  POWERS. 

§  52.  Incidental  statutory  powers.— In  order  to  render  effective 
the  general  jjowers  conferred  upon  surrogates,  and  provide  them 
with  proper  and  adequate  means  of  exercising  their  jurisdiction, 
the  Legislature  has  given  them  certain  special  or  incidental  powers 
relating  to  their  mode  of  procedure,  etc.     These  jDowers  are  :^^ 

''  1.  To  issue  citations  to  parties,  in  any  matter  within  the  juris- 
diction of  this  court;  and^  in  a  case  prescribed  by  law,  to  compel 
the  attendance  of  a  party. 

"  2.  To  adjourn,  from  time  to  time,  a  hearing  or  other  proceed- 
ing in  his  court;  and  where  all  persons  who  are  necessary  parties 
have  not  been  cited  or  notified,  and  citation  or  notice  has  not  been 
waived  by  appearance  or  otherwise,  it  is  his  duty,  before  proceed- 
ing further,  so  to  adjourn  the  same,  and  to  issue  a  supplemental 
citation,  or  require  the  petitioner  to  give  an  additional  notice,  as 
may  be  necessary. 

"  3.  To  issue,  under  the  seal  of  the  court,  a  subpoena,  requiring 
the  attendance  of  a  witness  residing  or  being  in  any  part  of  the 
State,  or  a  subpoena  duces  tecum,,  requiring  such  attendance,  and 
the  production  of  a  book  or  paper  material  to  an  inquiry  pending 
in  the  court. 

"■  4.  To  enjoin,  by  order,  an  executor,  administrator,  testamen- 
tary trustee,  or  guardian,  to  whom  a  citation  or  other  process  has 
been  duly  issued  from  his  court,  from  acting  as  such,  until  the 
further  order  of  the  court. 

"  5.  To  require,  by  order,  an  executor,  administrator,  testamen- 
tary trustee,  or  guardian,  subject  to  the  jurisdiction  of  his  court, 
to  perform  any  duty  imposed  upon,  him  by  statute,  or  by  the  Sur- 
rogate's Court,  under  authority  of  a  statute. 

"  6.  To  open,  vacate,  modify,  or  set  aside,  or  to  enter,  as  of  a 
former  time,  a  decree  or  order  of  his  court;  or  to  grant  a  new 


Ch.   302;    Isham   v.   Gibbons,    1    Bradf.  phant,  10  id.   .30;   Halsey  v.  Van  Am- 

69;    Vreedenburch    v.    Calf,    9    Paifje,  ringfe.  fi  Paige.  12. 

128;    Matter   of   Parker.   1    Barb.    Ch.  55  Matter'of  Harstrom.  7  Abb.  X.  C. 

1.54;    Campbell   v.   Thatcher.   54   Barb.  391. 

382.      Compare     Farnsworth    v.    Oil-  56  Co.  Civ.  Proc,  §  2481. 


35  Jurisdiction,  Etc.,  of  Surrogates'  Courts.        §  53. 

trial  or  a  new  hearing  for  fraud,  newly-discovered  evidence,  cleri- 
cal error,  or  other  sutticient  cause.  The  powers  conferred  by  this 
subdivision  must  be  exercised  only  in  a  like  case  and  in  the  same 
manner  as  a  court  of  record  and  of  general  jurisdiction  exercises 
the  same  powers.  Upon  an  appeal  from  a  determination  of  the 
surrogate,  made  upon  an  application  pursuant  to  this  subdivision, 
the  general  term  (Appellate  Division)  of  the  Supreme  Court  has 
the  same  power  as  the  surrogate;  and  his  determination  must  be 
reviewed,  as  if  an  original  ap])lication  was  made  at  that  term. 

"  7.  To  punish  any  person  for  contempt  of  his  court,  civil  or 
criminal,  in  any  case,  where  it  is  expressly  prescribed  by  law  that 
a  court  of  record  may  ])rinish  a  i^erson  for  a  similar  contempt,  and 
in  like  manner. 

"  8.  Subject  to  the  provisions  of  law  relating  to  the  disqualifi- 
cation of  a  judge  in  certain  cases,  to  couiplete  any  unfinished  busi- 
ness pending  before  his  predecessor  in  the  office,  including  proofs, 
accountings,  and  examinations. 

"  0.  To  complete,  and  certify  and  sign  in  his  own  name,  adding 
to  his  sigiiature  the  date  of  so  doing,  all  records  or  papers  left 
uncompleted  or  unsigned  by  any  of  his  predecessors.^^ 

"  10.  To  exemplify  and  certify  transcripts  of  all  records  of  his 
court,  or  other  papers  remaining  therein. 

"11.  With  respect  to  any  matter  not  expressly  provided  for  in 
the  foregoing  subdivisions  of  this  section,  to  proceed,  in  all  mat- 
ters subject  to  the  cognizance  of  his  court,  according  to  the  course 
and  practice  of  a  court  having,  by  the  common  law,  jurisdiction 
of  such  matters,  except  as  otherwise  prescribed  by  statute ;  and  to 
exercise  such  incidental  powers,  as  are  necessary  to  carry  into 
effect  the  powers  expressly  conferred." 

It  is  only  necessary  in  this  place  to  remark  upon  two  or  three  of 
these  incidental  powers,  as  not  naturally  falling  under  any  of  the 
general  subjects  of  jurisdiction  hereafter  separately  treated. 

§  53.  Power  to  grant  injunction.- —  The  authority  of  a  Surro- 
gate's Court  to  issue  injunctions  is  extended  by  the  fourth  sub- 
division above,  the  former  statute  having  confined  it  to  executors, 


57  "All  acts  hitherto  of  surrogates  of  probate  thereof,  before  their  pre- 
and  officers  actinji  as  such  in  complet-  decessors  in  office,  are  hereby  con- 
ing by  certifying  in  their  own  names  lirined  and  declared  to  be  valid  and  in 
any  uncertified  wills,  and  by  signing  full  compliance  with  the  pre-existing 
and  certifying  in  their  own  names  the  statutory  requirements."  (Co.  Civ. 
unsigned  and  uncertified  records  of  Proc,  §  2482.  as  amended  1803.)  For 
■wills  and  of  other  proofs  and  ex-  similar  previous  statutes,  see  L.  1870, 
aminations   taken   in   the   proceedings  c  74 :  L.  1890,  c.  155. 


§  54.       Jurisdiction,  Etc.,  of  Surrogates'  C.^ourts.  36 

administrators,  and  guardians,  and  to  cases  "■•vhere  a  citation  for 
their  removal  had  been  issued.^^  The  same  observation  may  be 
made  as  to  the  effect  of  the  fifth  subdivision,  in  respect  to  the 
court's  power  to  order  representatives,  trustees,  and  guardians  to 
perform  any  duty  imposed  on  them.  The  power  given  to  surro- 
gates by  the  Revised  Statutes  ^^  to  direct  and  control  the  conduct 
of  executors  and  administrators,  is  now  extended  to  the  case  of 
testamentary  trustees  and  guardians ;  but  this  power  was  never 
understood  to  give  a  surrogate  authority  to  direct  them  in  regard 
to  the  prosecution  of  suits  in  other  courts  affecting  the  estate,'"' 
nor  in  respect  to  such  a  matter  as  the  charging  of  a  legacy  on 
the  residuary  real  estate  by  an  executor.*'^  Previously  to  L. 
1865,  c.  733,^^  a  surrogate  had  no  authority  to  compel  a  rep- 
resentative, who  had  been  removed  from  office,  to  deliver  over  to 
his  successor  the  assets  in  his  hands  f^  though  he  now  has  such 
power.^  He  Cannot,  however,  on  a  summary  application,  compel 
an  administrator  to  deliver  to  a  claimant  property  taken  posses- 
sion of  as  part  of  the  estate.^^  The  court  may  compel  executors 
to  perform  their  duty  by  expending  for  the  benefit  of  infant 
legatees  the  interest  of  a  sum  of  money  intrusted  to  them  for  that 
purpose  by  the  testator,  notwithstanding  that  the  executors  might 
be  made  liable  in  an  equitable  action  in  the  Supreme  Court.^^  A 
Surrogate's  Court  has  no  jurisdiction  to  order  the  satisfaction  of 
record,  of  a  mortgage  upon  the  real  estate  of  an  infant,  although 
his  estate  is  subject  to  its  jurisdiction.^" 

§  54.  New  trial  or  rehearing  for  fraud,  etc. —  The  interpretation 
of  the  sixth  subdivision,  giving  a  Surrogate's  Court  power  to  open, 
vacate,  modify,  or  set  aside  its  decrees  or  orders,  and  to  grant  a 
new  trial  or  a  new  hearing  for  fraud,  newly-discovered  evidence, 
clerical  error,  or  other  sufficient  cause,  has  been  a  subject  of  fre- 
quent controversy.  Even  before  the  adoption  of  the  present  Code, 
the  power  of  a  surrogate  to  open  and  vacate  a  decree  obtained 
through  mistake,  accident,  or  fraud,  was  held  to  be  equal  to  that 


58  L.  1837,  c.  469,  §  61.  62  Co.  Civ.  Proc,  §  2605- 

59  2  R.  S.  220,  §  1,  subd.  3;  Co.  Civ.  fi.3  Annett    v.    Kerr.     2     Robt.     .5,56; 
Proc,    §    2472.   subd.   3.      See,   on   the  Marston  v.  Paulding,  10  Paige,  40. 
general  subject  of  the  surrogate's  con-  64  But  see  Breslin  v.  Smyth,  3  Dem. 
trol  and  supervision  of  executors,  etc.,  2.51. 

chapter    XVIT,    tit.     1,    art.    2,  post.  65  Marston    v.    Paulding,    10    Paige, 

60  Matter  of  Parker,  1  Barb.  Ch.  40;  Thompson  v.  Mott,  5  Redf.  574. 
154.  He  mav  authorize  a  compromise.  6*3  Dubois  v.  Sands.  43  Barb.  412. 
(L.   1888,  c.".571.)  67  Cromwell  v.  Kirk,  1  Dem.  599. 

eiBevan   v.   Cooper,   72   N.   Y.   317; 
Matter  of  Woodworth.  5  Dem.   156. 


37 


Jurisdiction,  Etc.,  of  Surrogates'  Courts. 


§54. 


exercised  by  a  court  of  equity  on  a  bill  filed  for  relief  against  a 
judgment  or  decree  for  fraud  or  uiistake.^**  But  the  powers  of 
the  surrogate  in  this  regard  are  confirmed  and  largely  extended  by 
the  Code.  He  has  the  power  of  a  court  of  general  jurisdiction 
to  vacate  his  decrees,  or  those  of  his  predecessor,'"'  and  grant  relief 
as  in  the  Supreme  Court,  for  sufficient  reason,  in  furtherance  of 
justice  \^^  and  the  exercise  of  this  power  is  not  subject  to  the  limita- 
tions of  time,  prescribed  with  reference  to  motions  to  set  aside 
judgments  for  irregularity  or  for  error  of  fact  not  arising  on  the 
trial. "^  The  statute  is  not  to  be  construed,  however,  as  granting 
power  to  set  aside  a  decree  without  any  assigned  cause,  and  to 
grant  a  new  trial  only  for  the  specified  cause;  but  the  causes 
specially  indicated,  or  other  "  sufficient  cause,"  should  be  shown 
to  induce  the  setting  aside  of  a  decree  duly  entered  after  full  litiga- 
tion.^^ The  opening  of  a  surrogate's  decree,  formally  and  lawfully 
made,  requires  the  exercise  of  the  soundest  discretion.  "  It  should 
only  be  done  in  extraordinary  cases,  and  where  errors  are  plain, 
palpable,  and  beyond  any  question.  The  greatest  caution  should, 
at  all  times,  be  observed,  in  thus  furnishing  the  opportunity  to 
correct  errors  in  the  judgment  of  a  competent  tribunal,  and  it 
should  never  be  done  to  the  extent  of  allowing  the  whole  subject- 
matter  to  be  investigated  and  tried  over  again.  Such  a  practice 
would  be  virtually  permitting  the  tribunal  to  review  its  own  pro- 


68  Vreeclenburgh  v.  Calf.  9  Paige, 
128:  Skidmore  v.  Davies,  10  id.  31G; 
Bailey  v.  Hilton,  14  Hun,  3,  affg. 
Bailed  v.  Stewart.  2  Redf.  212;  Sip- 
perly  v.  Baucus,  24  N.  Y.  40;  Pew  v. 
Hastings;  1  Barb.  Ch.  4.)2;  Harrison 
V.  iMcMalion.  1  Bradf.  28:?;  Campbell 
V.  Logan,  2  id.  92;  Brick's  Estate.  1.') 
Al)b.  Pr.  12;  Yale  v.  Baker.  2  Hun, 
4G8;  Janssen  v.  Wemple.  3  Redf.  229; 
Dobke  V.  ]\IcClaran.  41  Barb.  491; 
Farmers'  Loan  &  T.  Co.  v.  Hill,  4  Deni. 
41. 

60  Matter  of  Smith,  89  Hun.  T.OO;  34 
N.  Y.  Supp.  10.57.  See  :\Iatter  of 
Hancock,  27  Hun,  78.  revd.  on  another 
point   in   91    X.   Y'.   284. 

7o:\Iatter  of  Flvnn.  1.30  N.  Y.  287; 
Ladd  V.  Stevenson,  112  id.  325;  Mat- 
ter of  Tilden,  .5  Dem.  230;  98  X.  Y. 
434:  Singer  v.  Hawlev.  3  Dem.  571, 
affd.,  lOON.  Y.  200;  Matter  of  Robert- 
son. 51  .\pp.  Div.  117;  04  X.  Y.  Supn. 
385;  affd.,  105  N.  Y.  675;  ]\ratter  of 
Henderson,  157  X.  Y.  423:  28  Civ. 
Proc.  Rep.  389:  ^Matter  of  Fulton,  30 
Misc.  70;  02  N.  Y.  Supp.  995. 


71  See  Co.  Civ.  Proc.,  §§  1282,  1290; 
Matter  of  Flynn,  supra;  Matter  of 
Henderson,  supra. 

72  Matter  of  Douglas,  52  App.  Div. 
303;  05  X.  Y'.  Supp.  103;  Matter  of 
\Yhite,  52  App.  Div.  225:  05  X.  Y. 
Supp.  108;  Matter  of  Olmsted.  17 
Abb.  X.  C.  .320;  s.  c.  as  Olmstead  v. 
Long.  4  Dem.  44.  The  discovery  of 
further  evidence  in  a  book,  which  was 
in  the  possession  of  a  party  pending 
the  litigation  previous  to  a  decree, 
cannot  be  deemed  newly-discovered 
evidence  upon  which  the  decree  should 
be  opened.  (lb.)  The  surrogate  may, 
however,  open  a  decree  on  the  motion 
of  the  personal  representatives  of  a 
deceased  administrator  for  newly-dis- 
covered evidence  exonerating  him  for 
amounts  with  which  his  account  lias 
been  surcharge<l ;  though  the  power 
will  be  exercised  only  in  like  case  and 
in  the  same  manner  as  by  a  court  of 
general  jurisdiction.  (Matter  of  Mc- 
:Manus,  35  Misc.  078;  72  N.  Y.  Supp. 
409.) 


§  54.        Jurisdiction,  Etc.,  of  Sikrogates'  Courts.  38 

ceedings,  the  same  as  upon  an  appeal,  Avliich  was  never  intended, 
and  should  not  be  tolerated."  '^  There  is,  therefore,  no  warrant 
for  opening  a  decree  on  the  ground  that  it  was  based  on  an  er- 
roneous theory  of  the  law;  the  remedy  for  that  is  by  appeal.'^ 
Ignorance  of  the  law  at  the  time  of  the  entry  of  the  decree,  and 
the  nondiscovei'y  of  the  mistake  until  after  the  expiration  of  the 
time  to  appeal  therefrom,  furnish  no  ground  for  the  opening  of 
the  decree.'^^  The  fact  that  the  surrogate  to  whom  the  application 
is  made  entertains  diiferent  views  of  the  merits  from  those  of  his 
predecessor  who  decided  the  case,  is  no  "  sufficient  cause  "  why 
there  should  be  a  rehearing."^  A  reargaiment  should  only  be  or- 
dered when  it  appears  clearly  that  some  question  decisive  of  the 
case,  and  duly  submitted  by  counsel,  has  been  overlooked  by  the 
court ;  or  that  the  decision  is  in  conflict  with  an  express  statute 
or  with  a  controlling  decision,  to  which  the  attention  of  the  court 
was  not  drawn,  through  the  neglect  or  inadvertence  of  counsel." 
But  the  mere  fact  that  the  attorney  in  drawing  a  decree  made  a 
mistake  on  a  matter  of  law  is  not  sufficient  to  authorize  the  open- 
ing of  the  decree,^^  though  in  a  proper  case  the  decree  will  be 
opened  for  the  purpose  of  correcting  clerical  errors  in  the  form 
of  the  decree ;  and  a  rehearing  will  be  granted,  so  far,  for  example, 


73  Decker  v.  Ehvood,  3  Sup.  Ct.  [T.  ma.v  grant  a  new  trial  of  a  probate 
&  C]  48.  See  Matter  of  Filley,  47  proceeding  determined  by  his  prede- 
St.  Rep.  428;  Story  v.  Dayton,  22  cessor,  on  the  ground  that  such  pre- 
Hun,  450.  decessor  had  a  disqualifying  interest. 

74  Matter  of  Humfrevillc,  8  App.  (Matter  of  Hancock,  27  Hun,  78.) 
Div.  .312:  40  X.  Y.  Supp.  939:  Matter  This  judgment  was  reversed  (91  X.  Y. 
of  Mount,  27  Misc.  411;  59  X.  Y.  Supp.  284)  on  the  ground  that  the  interest 
176;  Matter  of  Wallace,  28  Misc.  603;  was  not  disqualifying,  but  the  power 
59  X.  Y.  Supp.  1084  (distinguishing  of  the  surrogate  to  grant  a  new  trial 
the  case  where  the  surrogate  had  no  for  such  cause  was  not  called  in  ques- 
jurisdietion  to  make  the  decree  sought  tion. 

to    be    corrected,    as    in     Matter    of  77  Mount  v.  Mitchell.   32  X'.   Y.  702, 

Coogan,    27    Misc.    563);     Matter    of  and  cases   supra.     In  Matter  of  Wood 

Douglas,  52  App.  Div.   303:   65  X.  Y.  (X.    Y.    Law    Jour.,    June    2,     18C1), 

Supp.    103;    Matter    of    Monteith,    27  Ransom,    S..   said:      "The  motion  for 

Misc.  163:  58  X.  Y'.  Supp.  375:  Matter  a    reargument    is    founded    upon    the 

of  Walrath,   37   Misc.   696.      The   pro-  opinion  of  new  counsel  that  he  might 

visions    of    Code    Civ.    Proc,    §    2481,  present  the  questions  formerly  argued 

subd.   6,   conferring   on   the   surrogate  and  fully  considered  by  the  court  so 

power  to  vacate,  modify,  or  set  aside  as  to  induce  the  court  to  reverse  its 

a  decree,  extends  no  further  than   to  former  decision.     Such  practice  would 

give     the     power     inherent     in     every  lie  contrary  to  the  orderly  administra- 

court   of   general    jurisdiction   to   con-  tion    of    justice,    and.    if    its    sanction 

trol  its  orders  and  judgments.     (Mat-  rested  in  the  sound  discretion  of  the 

ter  of  Hayward.  44  App.  Div.  265 ;  60  court,  ought  not  to  be  approved ;  but  I 

N.  Y.  Supp.  636.)  do   not   find  that   the  court  is   vested 

75  Matter    of   Ermand,    24   Hun,    1;  with  anv  discretion." 

Reed  v.  Reed,  52  X.  Y^  651.  78  Carr    v.    Tompkins..  46    St.    Rep. 

7fiMelcher  v.   Stevens,   1   Dem.    123.  585:   19  X.  Y.  Supp.  047. 
and   many   cases   cited.     A  surrogate 


39 


JuRisDicTioiS",  Etc.,  of  Surrogates'  Courts.         §  54. 


as  to  determine  tlie  executor's  liability  on  a  note  credited  to  tim 
for  the  full  amount,  but  which  he,  in  fact,  settled  for  less  than  its 
face,  without  giving  the  estate  the  benefit  thereof.""  The  court's 
power  to  open  and  vacate  a  decree  is  limited  to  cases  where 
*'  fraud,  newly-discovered  evidence,  clerical  or  other  sufficient 
cause"  of  a  like  nature  are  shown.**"  The  "other  sufficient 
cause  "  must  bo  one  which  the  Supreme  Court  has  been  accus- 
tomed to  recofi^nize  as  legally  sufficient.**^  That  certain  testimony 
was  not  given  on  the  trial,  through  "  the  inattention  of  counsel," 
is  not  a  ground  for  setting  aside  a  referee's  report  and  granting 
a  rehearing.®" 

That  an  order  or  decree  is  void  for  want  of  jurisdiction  is,  of 
course,  a  sufficient  cause  for  vacating  it,  and  the  objection  may  be 
raised  by  a  motion.®^  Thus  it  is  sufficient  cause  to  open  a  decree 
that  the  service  of  a  citation  was  made  upon  a  person,  non  compos 
"mentis,  for  whom  no  next  friend  had  been  appointed. ^^ 


7'Jjratter  of  Beach,  3  Misc.  393;  24 
N.  Y.  Supp.  717. 

80  Matter  of  Hawley,  100  N.  ¥.200; 
Wright's  Accounting,'  10  Abb.  Pr.  (N. 
S. )  42!) ;  7  Hun,  008  ;  Matter  of  Hodg- 
nian.  82  id.  410:  .31  N.  Y.  Supp.  203. 

81  Matter  of  Kranz,  41  Hun,  463; 
where  it  was  held  improper  to  send 
back  to  a  referee  for  rehearing  the 
matter  of  a  contested  account  upon 
which  he  has  rejiorted,  on  tlie  ground 
that  the  accounting  administrator  has 
discovered  vouchers  which  had  been 
mislaid,  and  asks  to  call  witnesses 
who  had  been  omitted  by  oversight, 
wliere  no  fraud  or  clerical  error  is 
alleged,  no  sufficient  statement  of  the 
newly-disfovered  evidence  being  made, 
and  it  being  apparent  that  no  in- 
justice has  been  done  to  the  admin- 
istrator. See  Matter  of  Ramsdell,  20 
St.  Rep.  446  [newly-discovered  evi- 
dence]. So  also  it  is  not  a  sufficient 
ground  for  opening  a  decree  settling 
an  executor's  account  that  an  item  of 
credit,  c.  <].,  his  commissions,  was  not 
allowed  h'un.  \Vhen  a  ])arty  has  had 
his  day  in  court  he  must  show  that  it 
was  not  his  fault  that  he  did  not  im- 
prove it,  before  he  can  get  another 
<lav  on  the  same  matter.  (Matter  of 
O'Xeil,  46  Hun,  500.)  The  fact  that 
an  executor  erroneously  cliarged  liim- 
self.  on  the  settlement  of  his  ac- 
counts, with  a  sum  which  he  knew 
did  not  belong  to  the  estate  as  assets, 
but  was  a  gratuity,  to  which  the 
widow   and  cliildren  were   entitled  on 


testator's  death  by  virtue  of  his  mem- 
bership in  a  produce  exchange,  is  not 
sufficient  cause  for  afterward  opening 
and  modifying  the  decree  by  deducting 
such  sum.  (Matter  of  Watts,  2  Con- 
noly,  41.5;  20  N.  Y.  Su])p.  03.)  But  a 
surrogate,  whose  decree  has  omitted  a 
provision  for  the  payment  of  certain 
legacies,  contained  in  his  decision,  may 
amend  the  decree,  by  inserting  it. 
(Matter  of  Robertson,  51  App.  Div. 
117;  04  N.  Y.  Supp.  385;  affd  105 
X.  Y.  675.)  See  Matter  of  IMcGorrav, 
48  St.  Rep.  141:  20  N.  Y.  Supp.  300; 
Matter  of  Baity,  2  Connoly,  485:  20 
X.  Y.  Supp.  70;  Matter  of  Stringer,  22 
id.  44. 

82  Matter  of  Quin,  22  St.  Rep.  338. 
The  court  will  not  grant  a  rehearing 
on  allegations  of  the  incompetency  of 
the  counsel  who  conducted  the  trial, 
nor  to  enable  witnesses  to  contradict 
their  former  testimonv.  (Munro's 
Estate,  15  Abb.  Pr.  303.) 

s-J  Matter  of  Coogan.  27  Misc.  563; 
Seaman  v.  Whitehead.  78  X.  Y.  306. 
An  ortler  denving  the  motion  is  ap- 
})ealablo.  (lb.)  :Matter  of  Odell.  1 
:\Iisc.  3!)0,  23  X.  Y.  Supp.  143. 

«-i  Matter  of  Donlon,  00  Hun.  100: 
21  X".  Y.  Supp.  114.  A  decree  on  an 
accounting  Avill  be  opened  on  the  pe- 
tition of  one  who,  though  entitled  to 
notice  of  the  proceedina.  was  not 
notified  of  it.  (Wells  v."  Wallace.  2 
Redf.  58;  Matter  of  Fuller,  86  Hun, 
47:  33  X'.  Y.  Supp.  194:  Matter  of 
Hodgman,  82  Hun,'419:  31  X.  Y.  Supp. 


§§  55,  56.     Jurisdiction,  Etc.,  of  Surrogates"  Courts.       40 

g  55.  Application,  how  made. —  A  question  has  arisen  whether 
an  application  to  set  aside  a  decree  probating  a  will  of  "  personal 
and  real  property  "  (on  the  ground  of  a  later  will)  must  be  made 
under  subdivision  6  of  this  section,  or  under  section  2647,  which 
provides  for  setting  aside  a  decree  probating  a  will  of  "  personal 
property."  Such  application  must  be  made  under  the  former 
section.^^  A  proceeding  to  vacate  a  decree  under  subdivision  6 
may  perhaps  be  initiated  by  a  notice  of  motion  or  an  order  to 
show  cause  f^  but  the  better  practice  is  to  petition  for  a  citation.*^ 
•  While  laches  may  defeat  a  motion  to  open  and  modify  a  decree, 
as  where  a  motion  to  modify  a  decree  as  to  commissions  was  made 
eighteen  months  after  its  entry,^^  yet  the  surrogate's  exercise  of 
the  power  to  open  decrees  is  not  subject  to  the  limitations  of  time 
prescribed  by  section  1282  for  motions  to  set  aside  judgments  for 
irregularity,  or  for  error  in  fact  not  arising  upon  the  trial,  pre- 
scribed by  section  1290.^^ 

§    56.    To    complete    unfinished    business    of    predecessor. —  The 

eighth  subdivision,  authorizing  a  surrogate  to  complete  the  un- 
finished business  of  his  predecessor  in  office,  is  supplemented  by 
another  provision  giving  such  authority  to  a  surrogate  on  the  re- 
vocation of  the  order  appointing  his  substitute  in  certain  cases.^^ 
A  similar  provision  of  the  Revised  Statutes,^^  to  the  effect  that 
"  upon  the  office  of  any  surrogate  becoming  vacant,  his  successor 
shall  have  power  and  authority  to  complete  any  business  that  may 
have  been  begun  or  that  was  pending  before  such  surrogate,"  was 
held  to  apply  to  all  cases  where  the  actual  incumbent  vacates  the 
office  for  any  cause,  and  that  the  surrogate  had  the  power  to  take 
up  the  probate  of  a  will  at  the  point  where  it  was  left  by  his  pre- 
decessor in  office,  complete  the  proofs,  and  then  decide  the  ques- 

263.)      But   see   Matter   of   Tilden,   56  payment.      (Matter   of   Oilman,   7    St. 

App.   Div.    277;    67   X.  Y.    Supp.   879,  Hep.  321.) 

Avhere     it     Avas     suggested    that     the  85  Matter   of   Hamilton,   2   Connoly^ 
power  to  vacate  a  decree  is  to  be  ex-  26.S ;  20  X.  Y.  Supp.  73. 
ercised    only    on    behalf    of    a    party  8i!  Chiff  v.  Tower,  3  Dem.  2.53. 
to  the  proceeding,  as  one  not  a  party  87  See  Matter  of  Hamilton.  2  Con- 
is  not  bound  by   its   provisions.      See  noly,  268 :   20   X.  Y.   Supp.   73,   as  to 
also  Matter  of  White,  52  App.  Div.  22.5.  parties  to  be  cited. 
One  to  whom  an  executor  has  assigned  88  Ricard    v.    Laytin,    2    Dem.    587; 
his  commissions  before  they  were  as-  Story  v.  Dayton,  22  Hun,  450;  Matter 
certained    and    liquidated   has    no   in-  of  Cook,  22  X.  Y.  Supp.  969. 
terest  which  will  entitle  him  to  move  89  Matter  of  Flynn,  136  X.  Y.  287; 
to  vacate   a   decree  refusing  commis-  flatter  of  Henderson,   157  id.  423;   28 
sions   to   such   executor.      (Matter   of  Civ.   Proc.   Rep.    389.      See   Matter  of 
Worthington,  141  X.  Y.  9:  56  St.  Rep.  ^Voods,  70  App.  Div.  321. 
561.)      A   surrogate   who   has   allowed  90  Co.  Civ.  Proc,  §  2489,  as  amended 
funds  deposited  in  a  land  company  to  1889.     See  §  17.  antr. 
be  paid  out  has  power  to  direct  a' re-  91  3  R.  S.  223,  §  11. 


41       JuKi.sDicTioN,  Etc.,  of  Surrogates'  Courts.     §§  57,  5ft. 

tion  at  issue  upon  the  whole  evidence,  including  that  taken  before 
his  predecessor.^" 

§  57.  Other  statutory  powers. —  By  section  2538,  it  is  provided 
that  "  except  -where  a  contrary  intent  is  expressed  in,  or  plainly 
implied  from,  a  provision  of"  chapter  18  of  the  Code,  relat- 
ing to  Surrogates'  Courts, —  the  provisions  of  certain  other  chajr 
ters,  to  wit,  "  title  first  and  articles  third  and  fourth  of  title  sixth, 
of  chapter  eighth,  and  articles  first  and  second  of  title  third  of 
chapter  ninth,"  apply  to  Surrogates'  Courts,  and  to  the  proceed- 
ings therein,  so  far  as  they  can  be  applied  to  the  substance  and 
subject-matter  of  a  proceeding,  without  regard  to  its  form.^^  Sur- 
rogates' Courts  have,  therefore,  all  the  powers  possessed  by  other 
courts  of  record  enumerated  in  tho  title  of  the  Code  concerning 
"^  mistakes,  omissions,  defects,  and  irregularities."  Thus  the  ir- 
regularity of  a  failure  to  subscribe  a  petition  for  probate  may  be 
cured  by  amendment,  and  the  petitioner  permitted  to  subscribe 
nunc  pro  tiinc.^*  So  a  variance  between  the  relief  ])rayod  for  in  a 
petition  and  that  specified  in  the  citation  issued  thereon,  is  curable 
by  amendment  f^  and  so  is  a  variance  between  a  citation  and  the 
copy  served.'^'' 

§  58.  Power  to  make  rules. —  The  surrogate  may  of  course  make 
rules  for  the  conduct  of  the  business  of  his  court;  but  it  is  clear 
that  he  cannot  limit  a  power  conferred  upon  him  by  statute,  and 

f'2  Matter  of  ^lartinlioff,  4  Redf.  citation  issued  to  persons  Avho  are 
28G;  Heeve  v.  Crosby,  3  id.  74;  Mat-  executors,  but  not  as  such,  may  be 
ter  of  Espie,  2  id.  445;  Johnston  v.  amended  by  the  surrogate  so  as  to 
Smith,  25  Hun,  171;  Matter  of  John-  add  to  the  names  of  the  executors 
son,  27  !Misc.  1(»7 ;  58  X.  Y.  Supp.  GOl ;  their  representative  character.  (Mat- 
Matter  of  Lawrence,  id.  597 :  Matter  of  ter  of  Soule,  40  Hun,  GOl;  aff'd  100 
Winslow,  12  :Misc.  254:  34  X.  Y.  Supp.  X.  Y.  6G2.)  A  petition  of  an  infant 
637:  flatter  of  Carey,  24  App.  Div.  next  of  kin  by  her  gonoral  truardian  for 
531 ;  40  X.  Y.  Supp.  32.  In  ^leXau'-xh-  a  compulsory  accountinur  by  an  adniin- 
ton.v.  Chave  (5  Abb.  X.  C.  225).  Avliore  istrator  Avas  simply  signed  by  tlie 
a  final  accounting  Mas  had  during  the  guardian  and  verified  by  him.  A  cita- 
term  of  a  surrogate,  and  the  auditor's  tion  was  issued  to  tlie  administrators, 
report  was  filed  before  he  went  oiit  of  and  on  the  return  day  they  appeared 
office,  but  the  decree  was  signed  by  the  generally  and  objected  to  the  sufficiency 
succeeding  surrogate,  and  not  by  the  of  tlie  petition.  Held,  that  the  signa- 
immediate  successor  of  the  one  before  ture  of  the  guardian  at  the  end  of  the 
whom  the  accounting  was  had,  held  petition  by  reference  to  the  body  of  the 
that  the  decree  was  invalid.              •  instrument  would   be   deemed   to   have 

9T  See  title  second  of  chapter  V.  post,  been  written  in  Hint  capacity,  and  that 

as  to  power  of  the  surrogate  to  make  such    signing   was   at  most    an   irregu- 

diseovery,  issue  a  commission  to  take  larity  which  was  cured  by  the  nppear- 

testimony.  etc.  ance  of  the  administrators  who  should 

9-*  Matter   of    Swift,    20   Dailv    Reg.  have    appeared    speciallv    if    thev    de- 

100   (X.  Y.  Surr.  Ct.   1881).         "  sired  to  take  the  objection.      (Matter 

95  Spencer  v.   Popham.   5  Redf.  425.  of    Hurlburt.     43     Hun,     311,     citing 

oepryer   v.   Clapp,    1   Dem.   387.     A  Hvatt  v.  Seelev.  11  X.  Y.  52,  58.) 


§§  59,  60.     Jurisdiction,  Etc.,  of.  Surrogates'   Courts.        42 

a  rule  so  made  has  no  bearing  whatever  upon  the  validity  of  an 
order  made  by  him.^' 

TITLE  FOUKTH. 

Concurrent  and  exclusive  jurisdiction. 

§  59.  Jurisdiction  as  to  probate  of  wills. —  It  may  be  stated 
generally,  with  certain  excejDtious  hereafter  mentioned,  that  the 
Surrogate's  Court  possesses  jurisdiction,  exclusive  of  every  other 
court  within  the  State,  to  grant  probate  of  wills  and  issue  letters 
thereupon.  The  surrogate  must,  upon  an  application  for  probate, 
determine  all  questions  of  fraud,  imjijosition,  undue  influence,  mis- 
take, and  other  circumstances  relating  to  the  factum  of  the  instru- 
ment proj30unded ;  and,  in  general,  mistakes  and  variances  be- 
tween the  will,  as  prepared,  and  instructions  for  preparing  it, 
can  be  reformed  only  by  him.^®  Before  the  Revised  Statutes  of 
1830,  probate  of  wills  of  real  property  could  be  had  only  in  the 
Supreme  Court  or  County  Common  Pleas.^^  But  those  statutes 
conferred  jurisdiction  to  take  probate  of  such  wills  (not  lost  or 
destroyed)  upon  Surrogates'  Courts.-^  Until  1870,  lost  or  de- 
stroyed wills,  whether  of  real  or  personal  estate,  could  not  be 
proved  in  these  courts.^  The  remedy  was  by  a  proceeding  in  the 
Supreme  Court,  under  the  statute.^  In  that  year,  the  surrogate 
of  ]Srew  York  county  was  authorized  to  admit  to  probate  a  lost  or 
destroyed  will  of  real  or  personal  estate,*  and  the  Code  of  Civil 
Procedure  extends  this  power  to  all  surrogates.*^ 

^  60.  Jurisdiction  of  other  courts  to  determine  validity,  etc.,  of 
wills. —  The  statute  permits  the  validity,  construction,  or  effect,, 
under  the  laws  of  this  State,  of  a  testamentary  disposition  of  real 
property  situated  within  the  State,  or  of  an  interest  in  such  prop- 
erty, which  would  descend  to  the  heir  of  an  intestate,  to  be  de- 
termined in  an  action,  brought  for  that  purjDose,  in  like  manner  as 
the  validity  of  a  deed  purporting  to  convey  land  may  be  deter- 
mined.® The  provision  is  accompanied  with  a  saving  clause  to 
prevent  a  conflict  with  the  jurisdiction  of  the  surrogate  under  an- 
other section  of  the  Code,''^  already  referred  to,  in  case  of  testa- 

97  Matter    of   Monell,   22    Civ.   Proc.         2  Bulklev  v.  Redmond.  2  Bradf.  281; 
Eep.  377.  Hook  v.  Pratt.  8  Hun,  102. 

98  Biii-frer  V.  Hill.  1  Bradf.  3fiO.     See         3  2  R.  S.  67,  §  63. 
Vreeland  v.  McClelland,  id.  303.  ^L.  1S70,  c.  359,  §  8. 

99  For  the  statute  regulating  proof         5  Co.  Civ.  Proc.,  §  2621. 

of   wills   of   real   property   before   the        6  Co.    Civ.    Proc,    §    1866;    L.    1879, 

R.   S.,  see   1   R.   L.   of   1813.  .365.   §   7,  c.  316. 
and  introduction  to  this  volume.  ^  §  2624. 

1  2  R.  S.  58,  59. 


43  JriiisDicTiox,   Etc.,  oi-    Slhuooates'   Courts.         §01. 

mcntary  disposition  of  chattel  interests  in  real  property.  The 
phraseology  of  tlic  ]ircscnt  statute  removes  any  doubt,  which  may 
have  existed  iiiiilcr  the  original,^  whether  the  court  could  go  fur- 
ther tlian  to  determine  the  proper  construction  of  the  will,"  and 
apj)arently  creates  an  exce])tion  to  the  former  rule,  that  the  juri>- 
dicticjn  conf(U'red  was  restrictcil  to  wills  of  real  estate,  and  tliat 
legatees  could  iint  iiiaiiitaiii  an  action  for  the  construction  of  a 
will.^"  It  is  permitted,  by  another  provision  of  the  Code,  to  im- 
peach a  devise,  as  an  incident  to  an  action  for  ])artition,  to  which 
the  devise,  if  valid,  would  be  a  bar.  The  section  ])rovides,  sul)- 
atantially,  that  a  jierson  claiming  a  share  in  real  property,  as  heir 
of  one  who  died  holding  and  in  possession  of  the  same,  may  nuiin- 
tain  an  action  for  partition,  notwithstanding  an  ap])arent  devise 
thereof  to  another,  provided  he  alleges  and  proves  that  the  apparent 
<levise  is  void.^^  The  allegation,  in  the  complaint,  of  the  invalidity 
of  the  devise,  is  essential  to  jurisdiction;^^  and  the  invalidity  must 
■extend  to  the  entire  will  or  devise.^^  The  validity  of  a  devise  may 
also  be  questioned  incidentally  in  an  action,  under  the  statute,  to 
determine  conflicting  claims  to  real  ])roperty,  and  in  an  action  of 
ejectment,  and,  also,  in  a  proper  case,  in  a  suit  quia  timet.  But  the 
remedy  of  a  direct  action  to  determine  the  validity  of  the  devise, 
which  is  now  given  by  statute,  as  above,  has  always  been  fur- 
nished by  courts  of  equity.^'*  So,  too,  a  court  of  equity,  where  the 
remedy  at  law  is  not  clear  and  adequate,  will  entertain  an  action 
to  set  aside  a  will  and  its  probate,  alleged  to  have  been  procured 
by  fraudulent  connivance  and  collusion. •^^ 

§  61.  Establishment  of  wills  by  action. —  The  onlv  courts  in  this 
State  having  authority  to  issue  letters  testamentary  oi-  of  admin- 
istration, are  Surrogates'  Courts.  Generally,  such  letters  are  is- 
sued pursuant  to  the  decree  of  the  Surrogate's  Court,  but  there 
are  cases  where  they  are  issued  by  it,  pursuant  to  a  direction  con- 
tained in  the  judginent  of  another  court,  rendered  in  an  action  to 
establish  the  will.  The  eases  in  wdiich  such  an  action  lies,  are  pre- 
scribed by  the  Code  of  Civil  Procedure,^*'  which  makes  imjiortant 


SL.  1S5.3.  p.  238.  §   1.  H  story's   Eq.   Jur..    §    144.1   rt  .so/.  ; 

9  See  IVIiirvin  V.  Marvin,    11   Abb.   (X.  (hapman    v.    Koilgers,     12    Hun.    ."{42. 

S.)    102:   Knox  v.  Jones.  47  N.  Y.  ;}89.  And  see  ]?ailey  v.  Bri<,'gs,  ;">(>  N.  Y.  414. 

1"  See   Woodruff   v.    Cook.    47   Barb.  Sec  chapter  \1,  tit.  2.  i)ost. 

304.      See    chapter   VIII.    post.  l.")  De  Bussierre  v.  Ilolladav.  4  Abb. 

nCo.  Civ.  Proc,  §  1,">37.  X.  C.   11.3.     See  chapter  VIl'.   />o.</. 

i2Voessing  V.  Voessinji.  12  Hun,  078.  i«  Co.  Civ.  Proc.  §  1861.      See  chap- 

1'^  ]McKeon  v.  Kearney,  57  How.  Pr.  ter  VI,  tit.  2,  post. 
349. 


§  G2.        JuKisDicTioN,  Etc.,  of  Surrogates'  Courts.  44 

and  beneficial  changes  in  the  pre-existing  statutes,  and  provides 
for  cases  wliich  may,  for  the  purpose  of  comparison  with  the  regu- 
lations as  to  surrogates'  jurisdiction,  be  conveniently  arranged 
in  three  classes:  (1)  Wills  of  realty  or  personalty,  so  executed  as 
to  be  admissible  to  probate  by  a  surrogate,  and  the  originals  of 
which  exist,  but  are  without  the  State  and  inaccessible.^"  In  this 
class  of  cases  the  Surrogates'  Courts  have  no  jurisdiction.  (2) 
Wills  of  like  description,  which  have  been  lost  or  destroyed.  Here 
the  jurisdiction  of  the  Surrogate's  Court  is  concurrent.  (3)  Cer- 
tain foreign  wills  of  personalty,  executed  with  prescribed  for- 
malities, but  which  could  not  be  admitted  to  probate  by  a  surro- 
gate.^^ The  statute  revised  in  the  section  last  quoted  ^^  mad& 
special  provision  for  a  commission  to  be  issued  out  of  the  Court 
of  Chancery ;  but  this  is  now  omitted,  as  chapter  9  of  the  present 
Code  contains  ample  regulations  with  respect  to  a  commission 
which  may  be  issued  in  a  proper  case  in  any  action. 

§  62.  Jurisdiction  to  compel  accounting,  etc. —  Anv  court  of 
equity  has  jurisdiction  to  compel  executors  or  administrators,  who 
are  at  law  trustees,  to  render  an  account  of  their  proceedings,  dis- 
closing assets  and  the  manner  of  the  application  thereof,  and  will 
require  the  due  performance  of  their  duty,^^  and,  in  general,  will 
entertain  a  suit  to  direct  and  control  the  action  of  executors,  ad- 
ministrators, and  other  trustees. ^^  But  it  does  not  follow  that  such 
a  court  is  bound  to  exercise  the  jurisdiction.  It  may  decline  to  dO' 
so,  where  the  powers  of  the  Surrogates'  Courts  are  adequate  to  the 
settlement  of  the  estate,  and  a  clear  case  of  necessity  for  the  inter- 
position of  a  court  of  equity  is  not  presented.^^ 

1' It  is  not  requisite,  as  it  was  un-  161.     See  §    908,  post.    If  no  proceed- 

der  the  former  statute,  that  the  will  ing    is    pending    in    the     Surrogate's 

should   be  "  in   possession  of   a   court  Court,  though  it  has  concurrent  juris- 

or     tribunal     of     justice     in     another  diction  of  the  subject-matter,  in  which 

country    or    State."      See    Matter    of  relief  may  be  had,  ttie  Supreme  Court 

Diez,  .50  Barb.  .591;  50  X.  Y.  88.  will   entertain    jurisdiction.      (Ludwig 

18  Compare  Co.   Civ.   Prnc,  §   2G11.  v.  Bungart,  48  App.  Div.  G13;  63  X.  Y. 

10  2  R.  S.  67,  §§  63a,  68a.  Supp.   91.)      But   the   Supreme   Court 

20  Christy  v.  Libby,  2  Daly,  418;  5  has  no  authority  to  stay  proceedings 
Abb.  Pr.  (X.  S.)  192;  Landers  v.  Staten  on  an  accounting  in  the  Surrogate's. 
Island  R.  Co..  53  X.  Y.  450.  Court,  upon  the  commencement  of  pro- 

21  See  Wood  y.  Brown,  34  X.  Y.  337.  coedings  therefor  in  the  Supreme 
In  like  manner,  such  a  court  has  juris-  Court  in  which  no  injunction  was  de- 
diction  of  proceedings  to  compel  a  manded,  no  fraud  is  shown,  and  it  is 
special  guardian  appointed  to  sell  the  not  apparent  that  the  exercise  of  equi- 
real  estate  of  an  infant,  to  account  table  powers  will  be  neces.sary;  and  in 
for  and  pay  over  moneys  received  by  .^ny  event  the  application  for  a  stay 
him  as  such  guardian.  (Spelman  v.  should  be  made  to  the  Surrogate's 
Terry,  74  X.  Y.  448.)  Court.     (Rutherfurd  v.  Mvers,  ,50  App. 

22  Seymour    y.    Seymour,    4    Johns.  Div.  298;  63  X.  Y.  Supp.  i939.) 
Ch.   409;    Wager  v.   Wager,   89   X.   Y. 


45     Jurisdiction,  Etc.,  of  Sukkogates'  Courts.     §§  63-64a.. 

§63.  Jurisdiction  of  Federal  courts. —  yedcral  courts,  as  courts 
of  equity,  will  exorcise  concurrent  jurisdiction  with  the  State 
courts  of  equity,  in  nuitters  relating  to  probate,  the  validity  and 
construction  of  walls,  etc.,  in  a  case  between  the  proper  persons. 
But  these  courts  cannot  be  said  to  possess  the  special  jurisdiction 
of  probate  courts.  A, proceeding  in  a  probate  court  is  not  within 
the  designation  of  cases  at  law  or  in  equity  between  parties  of 
■different  States,  of  which  Federal  courts  have  concurrent  jurisdic- 
tion with  the  State  courts,  and  consequently  will  not  be  removed 
to  the  Federal  court,  under  the  Judiciary  Act  of  Congress.  But 
whenever  a  controversy  in  a  suit  between  such  parties,  arises  re- 
specting the  validity  or  construction  of  a  will,  or  the  enforcement 
of  a  decree  admitting  it  to  probate,  there  is  no  more  reason  why 
the  Federal  courts  should  not  take  jurisdiction  of  the  case  than 
there  is  that  they  should  not  take  jurisdiction  of  any  other  con- 
troversy between  the  parties."^ 

§  64.  Concurrent  and  exclusive  jurisdiction  of  surrogates  as  among 
themselves.^Except  in  the  cases  before  mentioned,  the  Surrogate's 
Court  of  the  proper  county  has  exclusive  jurisdiction  to  take  proof 
of  wills  which  can  be  ])roved  in  this  State.^'*  It  may  occasionally 
happen,  however,  that  more  than  one  surrogate  may  be  asked  to 
exercise  power  to  take  proof  of  a  will  and  grant  letters,  as,  e.  g., 
where  the  deceased  is  not  an  inhabitant  of  the  State,  and  dies  out 
of  it,  leaving  assets  in  several  counties.  In  such  a  case  the  surro- 
gate of  a  county  in  which  he  left  assets,  as  wj.ll  be  seen  in  the  chap- 
ter on  Probate,  may  take  proof  of  his  will. 

TITLE  FIFTH. 

deposit  Axn  custody  of  wills. 

§  64a.  Deposit  of  will  by  testator —  It  is  not  necessary  that  a  will 
which  it  is  desired  to  prove  should  be  produced  from  any  special 
custody  or  have  been  deposited  by  the  testator  in  any  particular 


23  Por  Field,  J.,  in  Gaines  v.  Fuon-  decedent,   -was  removable   to  tlie  Fed- 

tes,  2   Otto,   10.     Accordinfjly   it    was  eral  court,  under  the  Judiciary  Act  of 

■held,   in   that   case,   that   a   suit    in   a  1867.     And  so  an  action  to   establish 

State  court,  to  revoke  a  will  and  re-  a  lost   will,  brought  in  a   State  court, 

eall    the    probate    on    the    fjround    of  is  removable.     (Southworth  v.  Adams, 

allejjed  falsity  and  insufficiency  of  the  'l'.\   Alb.   L.  J.   3(i.) 

evidence    on    which    it    was    granted.         24  Rurfrer  v.  Hill,  1  Bradf.  360.    See 

and   the    incapacity    of   the   defendant  chapter  VI,  post. 
to  inherit  or  take  by  devise  from  the 


§65.        Jurisdiction,  Etc.,  of  Sukeogates'   Coukts.  46 

place.  Provision  has  been  made  by  tbe  statntc,  bowever,  for  tbe 
deposit,  by  a  testator,  of  a  will  made  bv  bim  and  for  its  cnstodj,  in 
the  possession  of  certain  pnblic  officers.  By  tbe  statute,  every 
county  clerk  and  surrogate,  and  tbe  register  of  deeds  in  tbe  cit^ 
and  county  of  Xew  York  (upon  payment  of  fees),  is  required  to 
receive  and  deposit  in  bis  office  any  last  will  or  testament  wbich 
any  person  may  deliver  to  bim  for  tbat  jDurpose,  and  to  give  a 
written  receipt  tberefor  to  tbe  person  depositing  tbe  same.^^  Tbe 
fee  of  a  county  clerk  or  register,  upon  such  a  deposit,  is  six  cents.^*^ 
A  surrogate  is  not  entitled  to  any  fee.^^  Sucb  will  must  be 
inclosed  in  a  sealed  vrrapper,  so  tbat  tbe  contents  tbereof  cannot 
be  read,  and  bave  indorsed  tbereon  tbe  name  of  tbe  testator,  bis 
jilace  of  residence,  and  tbe  day,  month,  and  year  when  delivered ; 
and  must  not,  on  any  pretext  whatever,  be  opened,  read,  or  ex- 
amined, until  delivered  to  a  person  entitled  to  the  same,  as  di- 
rected by  tbe  statute.^^  It  is  usual  to  indorse  upon  the  wrapper 
tbe  name  of  tbe  executor  designated  in  the  will.  The  statute 
directs  tbat  a  will  so  deposited  shall  be  delivered  only  —  "  1.  To 
the  testator  in  person ;  or,  2.  Upon  bis  written  order,  duly  proved 
by  tbe  oath  of  a  subscribing  witness ;  or,  3.  After  bis  death,  tO' 
tbe  persons  named  in  the  indorsement  on  tbe  wrapper  of  such  will, 
if  any  sucb  indorsement  be  made  tbereon ;  or,  4.  If  there  be  no- 
such  indorsement,  and  if  tbe  same  shall  have  been  deposited  witk 
any  other  officer  than  a  surrogate,  then  to  tbe  surrogate  of  tbe 
county.'^ 

§  65.  Opening  will  on  death  of  testator. —  If  such  a  will  has  beeu. 
deposited  with  a  surrogate,  or  been  delivered  to  him,  then  upon  the 
death  of  the  testator  the  surrogate  is  required'  to  publicly  open  and 
examine  it,  and  make  known  its  contents'  and  file  it  in  his  office,, 
there  to  remain  until  it  has  been  duly  proved,  if  capable  of  proof, 
and  then  to  be  delivered  to  the  persons  entitled  to  the  custody 
thereof ;  or  until  required  by  the  authority  of  some  competent  court 
to  produce  it  in  such  court. ^'^  In  the  surrogate's  office  of  New  York 
county,  the  administration  clerk  is  furnished  with  tbe  names  of 
persons  whose  wills  are  on  deposit,  in  order  to  prevent  the  grant- 
ing of  letters  of  administration  upon  their  estates.  In  practice,, 
it  is  found  that  testators  seldom  avail  themselves  of  the  provisions 


25  2  Pv.  S.  404,  §  G7.     For  provision  27  id..   5  2r)67. 

relating    to    Xew    York    city,    see    L.  28  2  R.  S.  405,   S  68. 

1882,  e.  410,   §§   1758-1761.  29  2  R.  S.  405.   §  69. 

20  Co.  Civ.  Proe.,   §  3304,  paragraph  30  2  R.  S.  405,   §  70. 
nineteenth;    id.,   §  3306. 


47  JuKisnicTiox,  Etc.,  of  Surkooates'  Courts.         §  6G. 

of  tlio  statute,  and  wills  arc  generally  found  in  the  possession  of 
the  executors  or  attorneys  of  the  deceased,  or  among  his  own  pri- 
vate papers. 

TITLE  STXTIL 

deposit' OK    MONEYS    AND    SECURITIES. 

§  66.  Payment  of  money  into  court. —  In  certain  proceedings,  the 
statute  retpiires  the  payment  uf  money  into  the  Surrogate's  Court^ 
or  the  deposit  of  a  security,  for  the  payment  of  money,  with  him. 
The  Code  j)rovides,^^  that  in  such  case  the  same  must  be  paid  to 
or  deposited  with  the  county  treasurer  of  the  county,  to  the  credit 
of  the  fund,  or  of  the  estate,  or  of  the  special  proceeding;  unless 
the  statute  contains  special  directions  for  another  disposition 
thereof.  Each  security,  so  deposited  with  the  county  treasurer, 
must  he  held  and  disposed  of  by  him,  subject  to  the  direction  of 
the  Surrogate's  Court ;  except  that  he  must,  unless  otherwise  so 
directed,  collect  the  principal  and  interest  secured  thereby.  All 
money  collected  by,  or  paid  to,  the  county  treasurer,  as  prescribed 
in  this  section,  must  be  held,  managed,  invested,  and  disposed  of 
by  him,  in  like  manner  as  money  paid  into  the  Supreme  Court 
in  an  action  pending  therein. 

The  regulations  contained  in  the  general  rules  of  practice,  as 
specified  in  section  744  of  the  Code,  and  the  provisions  of  title 
3  of  chapter  8  of  the  Code,  apply  to  money  paid  to  and  securi- 
ties deposited  with  the  county  treasurer,  except  that  the  Sur- 
rogate's Court  exercises,  with  respect  thereto,  or  with  respect  to  a 
security,  in  which  any  of  the  money  has  been  invested,  or  u]ion 
wliicli  it  has  been  loancil,  the  ])o\vor  and  authority  conferred  ujidu 
the  Sniu-eme  Court  by  section  747  of  the  Code. 

Wluu-e  real  property,  or  an  interest  in  real  ]U'operty  liable  to 
be  disposed  of,  is  sold,  in  an  action  or  special  ])i'oceeding,  speci- 
fied in  the  Code,  to  satisfy  a  mortgage  or  other  lien  there- 
upon, Avhich  accrued  during  the  decedent's  lifetime;  and  letters 
testamentary  or  letters  of  adiuinistration,  ui)on  the  decedent's 
estate,  were,  within  four  years  before  the  sale,^^"  issued  from 
a  Surrogate's  Court  of  the  State,  having  jurisdiction  to  grant 


SI  Co.  Civ.  Proc,  §  2."):^7,  ns  amondi'd  interest    received.       (;M:itler    of    CofUn. 

1882.     As  to  lialiility  of  surro<j;ate  on  ;?(i  Ilun,  23(5.) 

his  bond  for  deposit  moneys,  see  (Dite,  •■?- 'I'hese  words  refer  to  the  date  of 

§  30.     The  snrro^ate  is  liable  not  only  the  sale  and  not  to  the  eonuneneenient 

for  the  amount  of  the  principal  of  the  of   the  action  or  proceedin<r   result in<r 

deposit,  hut  where  he  places  the  fund  in    the    sale.       (White    v.    Poillon,    25 

at  interest,  he  is  accountable  for  the  Hun,  69.) 


§  6G.        Jurisdiction,  Etc.,  of  Surrogates'  Courts.  48 

them;  the  surplus  money  must  be  paid  into  the  Surrogate's 
Court  from  which  the  letters  issued,  pursuant  to  section  2537,  and 
the  receipt  of  the  county  treasurer  is  a  sufficient  discharge  to  the 
person  paying  the  money. 

If  the  sale  was  made  pursuant  to  the  directions  contained  in  a 
judgment  or  order,  the  surplus  remaining  after  payment  of  all 
liens  upon  the  property,  chargeable  upon  the  proceeds,  which  ex- 
isted at  the  time  of  the  decedent's  death,  must  be  so  paid.  If  the 
«ale  was  made  in  any  other  manner,  the  surplus,  exceeding  the  lien 
to  satisfy  which  the  property  was  sold,  and  the  costs  and  expenses 
must,  within  thirty  days  after  the  receipt  of  the  money  from  which 
it  accrues,  be  so  paid  over  by  the  person  receiving  that  money.^^ 

33  Co.  Civ.  Proc,  §  2798,  as  amended  ings  for  its  distribution  among  those 
1893.  This  section  refers  to  payment  having  claims  on  it.  (Comey  v.  Clark, 
prior,  and  noi;  subsequent,  to  proceed-   23  St.  Rep.  402.) 


CHAPTER  III. 

COMMENCEMENT     OF      PROCEEDINGS;      APPEAR. 
ANCES,  PLEADINGS,  ETC. 


TITLE  FIEST. 

COMMENCEMENT  OF  PROCEEDINGS,  INCLUDING  SERVICE  OF  PROCESS. 

§  67.  Nature  of  proceedings.— All  proceedings  in  a  Surrogate's 
Court  are  special  proceedings,  as  distinguished  from  actions.  It 
is  true  that  the  essential  difference  between  an  action  and  a 
special  proceeding  is  nowhere  clearly  defined;^  but,  under  the 
present  Code,  there  are  separate  and  uniform  rules  with  respect 
to  the  initial  process,  which,  in  the  case  of  an  action,  is  always,^ 
and,  in  the  case  of  a  special  proceeding,  is  never,  a  summons. 

§  68.  Commencement  of  special  proceeding It  has   been    seen 

that  the  surrogate  has  power  to  issue  citations  to  parties,  and,  in 
a  case  prescribed  by  law,  to  compel  the  attendance  of  a  party.^ 
According  to  the  former  practice,  the  original  process  issuing 
from  a  Surrogate's  Court,  whereby  a  special  proceeding  was  com- 
menced, varied  in  different  cases,  being  either  (1)  a  citation,  or 
(2)  an  order  to  show  cause,  or  (3)  a  summons;*  while,  under  the 
present  statute,  it  is  uniformly  a  citation.  The  Code  provides, 
that  "  except  in  a  case  where  it  is  otherwise  specially  prescribed 
by  law,  a  special  proceeding  in  a  Surrogate's  Court  must  be  com- 
menced by  the  service  of  a  citation."  ^     The  foregoing  exception 


1  Co.  Civ.  Proc.  §§  333.3,  3334.    And  2 Co.  Civ.  Proc,  §§  41G,  2870. 

see  People  v.  County  Judi^e  of  Rensse-  3  Co.  Civ.  Proc,  §  2481,  subd.  1. 

laer,  13  How.  Pr.  398;   People  v.  Col-  4  The  process   of  sitmmons  was,  be- 

borne,  20  id.  378;  People  v.  Lewis,  28  fore  the  Code,  designated  in  the  statute 

id.  159;   Belknap  v.  Waters,  11  N.  Y.  as  the  proper  process  in  two  ])roceod- 

477.     Apparently,  the  only  line  of  de-  in^rs  only,  to  wit:   the  conippllin<»  the 

marcation  established  by  the  sections  return  of  an   inventory   (2  R.   S.  85), 

cited    is    that    an    action    is    ordinary,  and  the  conipollinij  of  an  executor  to 

while  a  special  proceeding  is  not.     But  appear  and  ouaiify    (2  R.   S.  70).     A 

the    distinction    between    "ordinary"  citation  is  now  the  proper  process, 

and    "extraordinary"    remains    unde-  •''•  Co.  Civ.  Proc,  §  2516.   And  see  Id., 

termined.  §  416. 

4  [-19] 


§§69,70,  CoMMExcEMEXT  OF  Pkoceedixgs  ;  50 

docs  not,  apparently,  imply  that  there  are  cases  in  which  process 
other  than  a  citation  may  now  be  employed  for  the  commence- 
ment of  an  original  proceeding  in  a  Surrogate's  Court,  but  seems 
rather  to  refer  to  other  clauses  of  the  Code,  to  the  effect  that 
the  presentation  of  a  petition  for  the  citation  is  a  commencement 
of  the  proceeding  for  the  purpose  of  giving  to  the  court  juris- 
diction to  do  any  act  which  may  be  done  before  actual  service 
of  the  citation,  e.  g.,  to  direct  service  thereof  in  a  particular 
manner,*'  or  for  the  purpose  of  applying  the  Statute  of  Limita- 
tions;" and  that  an  appearance  may  be  a  waiver  of  service.^ 

§  69.  Proceeding  by  motion,  or  order  to  show  cause. —  It  is  not 
always  easy  to  distinguish  an  original  proceeding,  which  can 
only  be  commenced  by  a  citation,  from  other  proceedings  which 
may  be  initiated  by  an  order  to  show  cause,  or  a  simple  motion. 
It  is  held,  for  instance,  that  a  proceeding  to  vacate  a  decree 
entered  upon  an  accounting  may  be  institnted  by  a  motion  or 
order  to  show  cause,^  even  where  a  part  of  the  relief  sought  is 
more  extended  than  can  be  granted  in  the  proceeding.^^  Al- 
though Co.  Civ.  Proc,  §  780,  for  shortening  the  time  for  notice 
of  motion,  is  not  directly  applicable  to  Surrogated  Courts,  an 
order  to  show  cause  is  available  there  to  shorten  time  of  notice. ^^ 

§  70.  What  is  deemed  commencement  of  proceeding. —  The  pre- 
sentation of  a  petition  to  a  Surrogate's  Court,  instead  of  the 
issuing  of  a  citation  pursuant  to  its  prayer,  is  deemed  the  com- 
mencement of  the  special  proceeding,  w^ithin  the  meaning  of  the 
provisions  of  the  Code,  which  limit  the  time  for  the  commence- 
ment thereof;  but  only  in  case  the  citation  is,  within  sixty  days 
after  the  presentation,  served  personally  within  the  State,  upon 
the  adverse  party,  or  upon  one  of  two  or  more  adverse  parties, 
who  are  jointly  liable  or  otherwise  united  in  interest;  or,  Avithin 
the  same  time,  the  first  publication  thereof  is  made,  pursuant 
to  an  order  granted  by  the  surrogate  for  that  purpose. ■^^ 


«  Co.  Civ.  Proc.  §  2.Tlfi.  jiare   Id.,    §   .399,  which  prescribe.s  an 

7  Co.  Civ.  Proc,  §  2517.  And  see  Id.,  analogous  rule  in  respect  to  a  civil  ac- 
§   399.  tion.     As  to  effect  of  a  general  appear- 

8  Co.  Civ.  Proc,  §§  424,  2.528.  See  ance  as  a  waiver,  see  post,  §  84.  An 
Commissioner  Throop's  note  to  §  2516,  executor  is  not  so  "  united  in  interest  " 
and  post.  §  84.  (under  this  section)    with  the  residu- 

9  Cluff  V.  Tower.  3  Dem.  253.  ary  legatee  that  ser\'ice  of  a  citation. 

10  Matter  of  Halley,  N.  Y.  Law  J.,  in  a  proceeding  to  revoke  the  probate 
Mar.  1,  1893.  See  Matter  of  Hamil-  of  a  will,  upon  him  alone  is  sufficient, 
ton,  2  Connoly,  268.  and  this  is  so  notwithstanding  the  ex- 

11  Matter  of  Filley,  47  St.  Eep.  428.  tension   of  time  of  the  return  of   the 

12  Co.  Civ.  Proc,  §  2517.     And  com-  citation,   the    time   of  service   thereof 


51  Appearances,  Pleadings,  Etc.  §§  71-73. 

i<  71.  Jurisdiction  once  acquired  continues. — Upon  the  presenta- 
tion of  the  petition,  the  eourt  ae([uire.s  jurisdiction  to  do  any  act 
which  may  be  done  before  actual  service  of  the  citation.^*  Hav- 
ing once  acqnired  it,  jurisdiction  is  retained  until  the  proceeding 
is  finally  disposed  of  by  a  decree,  or  regularly  discontinued.  A 
proceediug  is  not  thrown  out  of  court  by  the  failure  to  adjourn 
a  hearing  to  a  day  certain.'^  Tlie  proper  practice  in  such  a  case 
is  nil  applicatiou  or  notice  for  another  hearing,  or  a  further 
<'.\aniiiiatioii  oi  witnesses,  as  the  case  may  be,  and  not  the  insti- 
tution of  a  second  proceeding  for  the  same  relief.  For  where 
there  are  two  proceedings  pending  between  the  same  parties  for 
the  same  ol)ject,  the  proceeding  first  commenced  is  a  bar  to  the 
second.^"'' 

§  72.  Petition,  a  preliminary  to  citation. —  The  citation  is  "  is- 
sued upon  the  presentation  of  a  petition."  ^^  But  it  is  not  neces- 
sary, in  every  case,  that  the  petition  should  be  in  writing.  To 
obtain  a  citation  for  some  purposes,  e.  g.,  to  prove  a  will,  a  writ- 
ten ])etition  must  be  ])resented  to  the  surrogate,  setting  forth 
the  facts,  and  praying  for  the  issuing  of  a  citation,  etc.^^  The 
fonner  statutes  were,  in  many  instances,  entirely  silent  upon 
the  ([ucstiou  of  writing,  and,  where  such  was  the  case,  a  written 
petition  was  not  necessary  to  give  the  surrogate  jurisdiction.^^ 
The  surrogate,  however,  always  had  a  right  to  require  the  ap- 
])lication  to  be  presented  to  him  in  writing,  and  verified  ;^^  and 
this  right  is  now  exnressly  confirmed  by  statute,  as  mentioned, 
in  the  next  title. 

^  73.  Issuing  of  the  citation. —  It  was  formerly  the  rule,  the- 
oretically at  least,  to  issue  the  citation  only  upon  an  order  of 
the  surrogate  regularly  entered  in  the  proceeding,  upon  an  ap- 
])li('ati(iu  made.  In  ])racti('e,  however,  this  order  was  not  a  neces- 
sary ])rerequisite  to  the  issuing  of  process;  and  if  the  applica- 
tiuii  of  a  party  for  a  citation  was  favorably  entertained,  the  sur- 
rogate issued  the  citation  at  once,  the  order  therefor  being  en- 


nnt    boinfr    thus    extoiulod     (Matter    of  3S  Barb.  .304:  :\Iatt<?r  of  Spreen,  1  Civ. 

Dustan.   2    Dem.    313;    citing   McKen-  Proe.  Rep.  375. 

zic     V.     LAnumreux.     11     Barb,     old;  ir>  Tx-wis  v.  :Malonoy,  12  Ilun,  207. 

.Tones  V.  Feleli,  .3  Bosw.  Gd ;    Bucknam  m  Co.  Civ.  Proc,  §  2510. 

V.    Brett.  :]-)   Barb.   finS).     See  Matter  17  Co.  Civ.  Proc,  §  2(il4. 

of  IU)nnett,  !)  X.  Y.  Supp.  459;  Foun-  18  See  Smith  v.  Remington,  42  Barb. 

tain  V.  Carter.  2  Dem.  313.  75. 

l"?  Co.  Civ.  Proc,  §  251(;.  lO  Foster    v.    Wilber.    1    Paige.    .■>37. 

14  Co.    Civ.   Proc,   §   24S1,   subd.   8;  See  Bolton  v.  Jacks,  G  Robt.  106. 
Gilman  v.  Oilman.   1   Redf.   354.  atTd., 


§  74.  Commencement  of  Pkoceedings  ;  52 

tered  afterward  in  a  book  kept  for  that  purpose.  As  the  cita- 
tion is  itself  a  mandate  of  the  Surrogate's  Court,  a  rule  requiring 
another  mandate"*^  to  be  granted,  as  a  condition  of  the  issuing 
of  the  former,  is  of  doubtful  utility,  although  some  surrogates 
insist  upon  an  order  being  entered  before  issuing  a  citation. 

§  74.  Form  and  contents  of  citation. —  Except  as  hereinafter 
mentioned,  the  statute  does  not  require  that  a  citation  should 
be  in  any  particular  form.  It  is  subject  to  the  general  pro- 
visions of  the  Code,  requiring  writs  and  process  to  run  in  the 
name  of  the  People  of  the  State,  to  be  in  the  English  language, 
etc.,  and  regulating  the  testing,  sealing,  and  subscription  or  in- 
dorsement thereof."^  It  must  be  made  returnable  before  the 
surrogate  from  whose  court  it  was  issued,  ''  upon  a  day  certain, 
designated  therein,  not  more  than  four  months  after  the  date 
thereof;^  and  must  specify  whose  estate  or  what  subject-matter 
is  in  question.  The  names  of  all  the  persons  to  be  cited,  as  far 
as  they  can  be  ascertained,  must  be  contained  in  the  citation."  ^^ 
The  unauthorized  insertion  of  the  name  of  an  additional  party 
to  be  served,  voids  the  citation  as  to  such  person,  and  service 
of  the  citation  does  not  give  the  court  jurisdiction  over  such 
party.^'*  Where  the  name,  or  part  of  the  name,  of  either  of 
them  cannot  be  ascertained,  that  fact  must  be  stated  in  the  cita- 
tion.^^  It  is  issued  under  the  seal  of  the  court,  and  subscribed 
or  witnessed  by  the  surrogate  or  his  clerk.  The  contents  of  the 
citation  vary  in  accordance  with  the  nature  of  the  proceeding 
in  which  it  is  employed.  In  some  cases,  as  in  the  case  of  a  cita- 
tion to  attend  the  probate  of  a  will,  the  statute  requires  certain 
particular  facts  to  be  stated  in  the  citation,  and  in  other  cases 
it  is  silent  on  the  subject.^*'  Eor  information  on  this  head,  the 
various  proceedings  must  be  consulted,  and  the  forms  in  the 
appendix.  But,  in  general,  in  addition  to  the  mandatory  clause, 
the  citation  need  contain  nothing  more  than  the  names  of  the 
parties  cited,  a  statement  of  the  time  and  place  of  appearance, 
and  a  general  reference  to  the  nature  of  the  proceedings.^^ 


20  See     definition,     Co.     Civ.  Proc,        27  Where,    for    instance,    a    petition 
§  3343,  subd.  2.  asks   for   the   removal   of   a    guardian 

21  Co.  Civ.  Proc,  §§  22-24.  and  appointment  of  a  successor,  on  the 

22  Co.  Civ.  Proc,  §  2519.  ground  that  the  infant's  welfare  will 

23  Matter    of    Washburn,    12  Misc.    be  promoted  thereby,  a  second  citation 
242 ;  34  N.  Y.  Supp.  44.  to  accomplish  the  latter  purpose  is  un- 

24  Boerum  v.  Betts,  1  Dem.  471.  necessary.    Matter  of  Moore  (18  Week. 

25  Co.  Civ.  Proc,  §  2519.  Dig.  42). 

26  Co.  Civ.  Proc,  §  2616. 


53  Al'l'EAKAXrKS,     Pl.KADIXGS,     EtC.  §§   75,  7<J. 

§  75.  Citation  to  class,  where  names  are  unknown. — It  may  often 
luippen,  however,  that  the  name  of  a  person  entitled  to  be  eited 
is  unknown  to  the  prosecuting  party.  To  meet  the  requirements 
of  such  a  case,  the  statute  provides  that  "  where  persons  to  be 
cited  constitute  a  chiss,  the  petitioner  must  set  forth,  in  an  affi- 
davit, the  name  of  each  of  them,  unless  the  name,  or  part  of  the 
name,  of  one  or  more  of  them  cannot,  after  diligent  inquiry, 
be  ascertained  by  him;  in  which  case,  that  fact  must  be  set  forth, 
and  the  surrogate  must,  thereupon,  inquire  into  the  matter.  For 
the  purpose  of  the  iiKiuirv,  he  may,  in  his  discretion,  issue  a  sub- 
ptt'ua,  requiring  any  person  to  attend  before  him  to  testify  re- 
specting the  matter.  If  he  is  satisfied  upon  the  allegations  of 
the  petitioner,  or  after  making  the  inquiry,  that  the  name  of 
one  or  more  of  the  persons  to  be  cited  cannot  be  ascertained 
with  reasonable  diligence,  the  citation  may  be  directed  to  that 
person  or  those  persons,  by  a  general  designation,  showing  his, 
her,  ov  their  connection  with  the  decedent,  or  interest  in  the 
property  or  matter  in  question;  or  otherwise  sufficiently  identify- 
ing the  person  or  persons  intended.  A  citation,  thus  directed, 
has  the  same  force  and  effect  as  if  it  was  directed  to  the  person 
or  persons  intended,  by  their  names;  and  where  the  person  or 
persons  so  intended  are  duly  cited,  in  any  manner  prescribed  by 
law,  the  decree  binds  them,  as  if  they  were  named  therein.  A 
petition,  duly  verified,  is  deemed  an  affidavit  A^'ithin  the  mean- 
ing of  this  section."  ^ 

g  76.  Service  of  citation  within  the  State. —  A  surrogate's  cita- 
tion or  other  mandate  may  be  served  and  executed  in  any  county 
of  the  State.  The  Code  (§  2520)  prescribes  the  manner  of  ser- 
vice upon   a  party  within  the   State.^^     The  same  proof  is  re- 

2SCo.  Civ.  Proc,  §  2518.     See  c.  IV,  .5.   Citation   to   attend   judicial   settle- 

po.tf.  ment  of  account.     6.  Citation  to  tem- 

2!>  Roe  Wetmore  v.  Parker,  52  X.  Y.  porary  administrator  to  account.  7. 
4.50 :  Kellett  v.  Rathbun.  4  Paipe,  102:  Citation  to  principal  in  a  bond  to  give 
Board  v.  Board,  4  Abb.  Pr.  2!).5 ;  Mead  new  sureties  in  place  of  sureties  who 
V.  Miller,  3  Deni.  ,577 ;  Matter  of  Car-  apply  to  be  released.  8.  Order  to  tem- 
bart,  2  id.  027 ;  Boorum  v.  Betts,  1  id.  porary  administrator  to  make  deposit. 
471;  Harrison  v.  Clark,  87  N.  Y.  .572.  0.  Order  to  executor  to  appear  and 
By  the  rules  of  the  Surrogate's  Court  qualify.  10.  Order  requiring  the  ex- 
of  New  York  county  no  mandate  is  ecutor  or  administrator  to  file  inven- 
dcBmed  duly  served,  unless  copies  of  tory.  11.  Why  an  account  should  not 
the  petition  or  other  paper  or  t)apers  be  made  on  surrogate's  motion  (Rule 
upon  wliich  it  shall  be  issued,  and  III,  Mar.  16.  1888). 
upon  which  relief  is  sought,  shall  be  In  proceedings  instituted  by  the  pub- 
served  with  it,  except  the  following:  lie  administrator  of  Xew  York  county 
1.  Citation  to  attend  probate.  2.  Ci-  a  citation  directed  to  a  nonresident 
iation  to  revoke  probate.  3.  Citation  alien  may  be  served  upon  the  consul  of 
on  application  for  administration,  his  country  (L.  1898,  c.  230,  §  19). 
4.  Citation  for  intermediate   account. 


§§77,78.  Commencement  of  Pkoceedings;  54 

quired  of  service  of  a  citation,  or  a  subpoena,  issued  from  a  Sur- 
rogate's Court,  as  of  service  of  a  summons  issued  out  of  the 
Supreme  Court.  In  every  other  case,  proof  of  service  must  be 
made  bj  affidavit;  or,  where  the  person  served  is  of  full  age 
and  not  incompetent,  by  a  written  admission  signed  by  him,  ac- 
companied with  proof,  by  affidavit  or  otherwise,  of  the  genuine- 
ness of  his  signature. ^*^ 

§  77.  Service  upon  corporations,  infants,  and  incompetents. —  Ser- 
vice upon  an  infant  under  the  age  of  fourteen  years,  or  on  a 
person  judicially  declared  to  be  incompetent  to  manage  his  af- 
fairs by  reason  of  lunacy,  idiocy,  or  habitual  drunkenness,  or 
on  a  corporation,  is  to  be  made  in  the  manner  prescribed  for  per- 
sonal service  of  a  summons  in  an  action  upon  such  a  person, 
or  upon  a  corporation.^^  But  in  the  case  of  such  incompetents, 
the  surrogate  is  given  discretion  to  make  an  order,  Avith  or  with- 
out an  application  therefor,  requiring  a  copy  of  the  citation,  to 
be  delivered,  in  behalf  of  that  person,  to  a  person  designated  in. 
the  order,  and  that  service  of  the  citation  shall  not  be  deemed 
complete  until  such  delivery.^"  It  is  not  to  be  understood,  how- 
ever, that  such  an  order,  and  an  additional  service  under  it,  dis- 
pense with  the  necessity  of  a  service  upon  the  parent,  guardian, 
etc.  (in  the  case  of  an  infant),  as  required  by  sections  426,  2526, 
of  the  Code.^3 

§  78.  Substituted  service. —  Where  it  appears,  by  affidavit,  that 
proper  and  diligent  effort  has  been  made  to  serve   the  citation. 

30  Co.  Civ.  Proc,  §  25.32.  The  juris-  mere  recital  in  a  decree  upon  an  ae- 
diction  of  the  surrogate  is  complete  counting,  that  certain  infant  legatees 
wlien  service  is  made  within  the  State  had  been  duly  served  with  the  citation, 
eight  or  fifteen  days  before  the  return  is  not  conclusive  of  such  service, 
dav,  as  the  case  may  be.  (Matter  of  (Hood  v.  Hood,  85  N.  Y.  561.) 
Washburn,  12  Misc.  242;  34  K  Y.  32  Co.  Civ.  Proc,  §  2527.  By  L. 
Supp.  44.)  Personal  service  made  1882,  c.  340,  whenever  in  any  proceed- 
within  this  State,  upon  a  nonresident,  ing  or  trial  it  becomes  necessary  to 
upon  whom  service  has  been  ordered  determine  the  age  of  a  child,  the  child 
to  be  made  by  publication,  is  void.  It  may  be  produced  and  exhibited  to  the 
should  be  served  by  publication.  The  court  or  jury  to  determine  its  age,  and 
defect,  however,  is  cured  by  appear-  the  court  may  direct  an  examination 
ance  and  no  objection.  (Matter  of  by  one  or  more  physicians,  whose  opin- 
Porter,  1  Misc.  489 ;  22  N.  Y.  Supp.  ion  shall  also  be  competent  evidence 
1063.)        See    Matter    of     Merritt,     5  upon  the  question  of  age. 

Dem.  544.  33  Matter   of  Haug,   N.   Y.    Law   J., 

31  Co.  Civ.  Proc,  §  2526.  Service  on  July  3,  1891.  See  Matter  of  Cort- 
an  infant  under  fourteen,  to  attend  wright,  3  Dem.  13,  to  the  effect  that 
probate  proceeding,  by  serving  a  copy  notwithstanding  the  order  for  an  addi- 
on  the  infanfs  mother  alone,  is  de-  tional  service,  the  citation  must  p1«o 
fective,  and  is  not  cured  by  subsequent  be  served  upon  a  nonresident  by  pub- 
appointment     of    guardian     ad    litem,  lication,  etc, 

(Hogle   v.    Hogle,     49    Hun,    313.)      A 


55  Appearances^  Pleadings,  Etc.  §§  70,  80. 

personally,  witliin  the  State,  iijioii  a  i-osident  of  the  State,  and 
that  the  person  to  be  served  cannijt  be  found,  or,  if  found,  that 
he  evades  service  so  that  it  cannot  be  made,  tiie  surrogate  may 
make  an  ordei'  dii'cct ini;-  service  to  be  made  as  in  the  case  of  sub- 
stituted service  of  a  summons,  in  an  action  in  a  court  of  record. ■'"' 
g  79.  Service  by  publication,  or  without  the  State. —  'jlic  (  (jde 
provides  that  "  the  surrogate  from  whose  court  a  citation  is 
issued  may  make  an  order,  directing  the  service  thereof  without 
the  State,  or  by  publication,  in  either  of  the  following  cases : 
(1.)  Where  it  is  to  be  served  upon  a  foreign  corporation,  or  upon 
a  person  who  is  not  a  resident  of  the  State;  or  (2.)  Where  the 
person  to  be  served,  being  a  resident  of  the  State,  has  departe(l 
therefrom,  with  the  intent  to  defraud  his  creditors,  or  to  avoid 
the  service  of  process;  or  (3.)  AVhere  the  person  to  be  served, 
whether  an  adult  or  an  infant,  is  a  resident  of  the  State,  but  is 
temporarily  absent  therefrom;  or  (4.)  Where  the  person  to  be 
served  is  a  resident  of  the  State,  or  a  domestic  corporation,  and 
an  attempt  was  made  to  serve  a  citation,  issued  from  the  same 
Surrogate's  Court,  upon  the  presentation  of  the  same  petition, 
before  the  expiration  of  the  limitation  applicable  to  the  enforce- 
ment of  the  claim  set  forth  in  the  petition,  as  fixed  in  cha])ter 
fourth  of  this  act;  and  the  limitation  would  have  expired,  within 
sixty  days  next  preceding  the  application  for  the  order,  if 
the  time  had  not  been  extended  l)v  the  attempt  to  serve  the 
citation,"  ^^ 

§  80.  Service,  where  residence  or  person  unknown. —  The  surro- 
gate may  also  make  an  order,  directing  the  service  of  a  citation 
without  the  State,  or  by  publication,  in  either  of  the  following- 
cases:  (1.)  Upon  a  party  to  whom  a  citation  is  directed,  either 
In*  his  full  name  or  part  of  his  name,  w'here  the  surrogate  is 
satisfied,  by  affidavit,  that  the  residence  of  that  party  cannot,  after 
diligent  inquiry,  be  ascertained  by  the  petitioner.  (2.)  Upon  one 
or  more  unknown  creditors,  next  of  kin,  legatees,  heirs,  devisees, 
or  other  persons,  included  in  a  class  to  whom  a  citation  has  been 
directed,  designating  them  by  a  general  description,  as  ]irescribed 
in  section  2518  of  the  Code.^® 


34  Co.  Civ.  Proc,  §  2521.  For  the  court  of  record.  See  Stevens  v.  Stevens 
provisions  as  to  suhstitutod  service  of  (.3  Ivodf.  'tO").  as  to  the  power  of  tli.> 
summons  in  an  action,  see  Co.  Civ.  court  before  the  present  Code  to  order 
Proc,  S§  4.3(i.  4:57.  pu])lic:iti(iii  indcpcndt-ntly  of  statute. 

35  Co.  Civ.  Proc.  §  2522,  as  amended  3fi  Co.  Civ.  Proc,  §  2.52.3.  See  §  75, 
1881.  Compare  Id.,  §  438,  relating  to  fintr.  for  the  provision  of  §  251S,  re- 
service  of  a  summons  issuing  out  of  a  ferrcd  to.    It  will  be  observed  that  the 


§81.  Commencement  of  Peoceedings;  50- 

§  81.  Contents  of  order  for  publication,  etc. —  Where  an  order 
directing  the  service  of  a  citation  withuut  the  State,  or  by  publica- 
tion, is  made,  the  party  applying  therefor  must  produce  proof, 
by  aflfidavit  or  otherwise,  to  the  satisfaction  of  the  surrogate,  that 
the  case  is  one  of  those  specified  in  either  section  2522  or  sec- 
tion 2523  of  the  Code.  The  order  must  direct  that  service  of  the 
citation,  upon  the  person  named  or  described  in  the  order,  be 
made  by  publication  of  the  citation  in  two  newspapers  for  a 
specified  time,  which  the  surrogate  deems  reasonable,  not  less  than 
once  in  each  of  six  successive  weeks,  unless,  from  the  petition,  it 
appears  that  the  estate  amounts  to  less  than  $2,000,  in  which  case 
only  one  newspaper  shall  be  designated  ;^^  or,  at  the  option  of  the 
petitioner,  by  delivering  a  copy  of  the  citation,  without  the  State, 
to  each  person  so  named  or  described,  in  person;  and,  if  the  per- 
son to  be  served  is  an  infant,  under  the  age  of  fourteen  years,  also 
to  the  person  with  whom  he  is  sojourning;  or,  if  the  service  is 
made  upon  a  corporation,  to  an  officer  thereof,  specified  in  section 
431  or  432  of  the  Code.  It  must  also  contain  either  a  direction 
that,  on  or  before  the  day  of  the  first  publication,  the  petitioner 
deposit,  in  a  specified  post-office,  a  copy  of  the  citation  and  of  the 
order,  contained  in  a  securely  closed  post-paid  wrapper,  directed 
to  the  person  to  be  served,  at  a  place  specified  in  the  order;  and, 
if  the  person  to  be  served  is  an  infant  under  the  age  of  fourteen 
years,  a  further  copy,  likewise  contained  in  a  securely  closed  post- 
paid wrapper,  directed  to  the  person  with  whom  such  infant  i& 
sojourning ;  or  a  statement  that  the  surrogate,  being  satisfied,  by 
the  affidavits  upon  which  the  order  was  granted,  that  the  peti- 
tioner cannot,  with  reasonable  diligence,  ascertain  a  place  or  places 
where  the  person  to  be  served  would  probably  receive  matter 
transmitted  through  the  post-office,  dispenses  with  the  deposit  of 
any  papers  therein. ^^ 


latter  provision  relates  exclusively  to  the  Code,  relatinfj  to  a   like  order  in 

unknown  names ;  but  this  subdivision  respect  to  pul)lication,  etc.,  of  a  sum- 

(2)   treats  of  unknown  persons.     The  mons.     The  surrogate  is  not  required 

cases  are  entirely  distinct.     See  Sand-  to   make   an   order    of   publication    in 

ford  v.  White,  .56  X.  Y.  359;  and  Co.  every   case   where    there    are    nonresi- 

Civ.  Proc,  §  451.  dent  parties:    the   statute  merely  per- 

3"  The  service  is  not  complete  imtil  mits  him  to  do  so.      (Matter  of  Wash- 

the  expi'-ation  of  six  full  weeks  from  burn,    12   Misc.    242;    34   N.   Y.    Supp. 

the  day  of  the  first  publication.    (Mat-  44.)      But  jurisdiction  over  a  nonresi- 

ter  of  Koch,  12  N.  Y.  Supp.  94 :  19  Civ.  dent  respondent  can  be  obtained  only 

Proc.  Rep.  1(55,  following  Market  Nat.  by  voluntary  appearance,  or  by  service 

Bank  v.  Pacific  Nat.  Bank,  89  N.  Y.  of  a  citation  in  the  manner  specified 

397.)  in  Co.  Civ.  Proc,  §  2.524.      (Saw  Mill 

38  Co.  Civ.  Proc,  §  2524,  as  amended  Co.  v.  Dock,  3  Dem.  55.) 
1899.     Corresponds  to   section  440  of 


57  Ai'i'EAitANCKs,  ri.KAiJi.No«,  Exc.  §§  82-84- 

g  82.  Service  of  citation  without  the  State. —  Where  service  is 
made  by  delivering  a  copy  of  the  citation  without  the  State,  pur- 
suant to  an  order  permitting  service  without  the  State,  or  by 
publication,  it  must  be  made,  if  within  the  United  States,  at  least 
thirty  days,  if  without  the  United  States,  at  least  forty  days, 
before  the  return  day  of  the  citation.'^'* 

§  83.  Publication,  how  made. —  Where  the  statute,  or  an  order 
of  the  surrogate,  directs  the  publication  of  a  citation,  notice,  or 
other  paper,  or  the  service  thereof  by  publication,  the  publica- 
tion must  be  made  in  a  newspaper  published  in  the  county.  "  The 
surrogate  may,  also,  in  his  discretion,  direct  the  publication, 
thereof  in  any  other  newspaper  published  in  the  same  or  another 
county,  as  he  deems  proper,  for  the  purpose  of  giving  notice  to 
the  persons  intended  to  be  served  or  notified."  ^^ 

§  84.  Waiver  of  issuance  and  service  of  citation. —  Prior  to  1896 
there  was  no  provision  by  which  the  issuance  and  service  of  a 
citation  could  be  waived,  although  the  service  of  "a  citation  would 
be  rendered  unnecessary  by  the  voluntary  appearance  of  a  party. ^^ 
But  in  that  year  ^^  an  entirely  new  provision  was  added  to  section 
2528,  whereby  "  the  issue  and  service  of  a  citation  may  be  waived 
by  a  party,  in  any  proceeding,  by  an  instrument  in  writing,  ac- 
knowledged or  proved  as  a  deed  entitled  to  be  recorded,  or  by 
personal  appearance  or  by  his  attorney,  mth  written  authoriza- 
tion, executed  and  acknowledged  as  a  deed,  and  filed  in  the  office 
of  the  surrogate." 


"9  Co.  Civ.  Proc.  §  2.52.1.  as  .mnondcd  sing   through    the    surrogate's    county. 

1882.   And  see  Id.,  §  444.   Servnce  thirty  (lb.)      See  Matter  of  Porter.   1   Misc. 

days  before  the  return  day  is  sufficient,  489. 

although  the  order  for  piiblication  was  40  Co.  Civ.  Proc.  §  2.i.3.').  in  part, 
issued  less  than  six  weeks  before  the  The  last  clause  of  this  section,  to  wit: 
return  day,  rendering  service  by  publi-  that  "  if  no  newspaper  is  published  in 
cation  within  tliat  time  impossible,  the  county,  the  citation,  notice,  or 
Publication  in  the  Slate  paper  is  un-  other  paper  nnist  be  published  in  the 
necessarv  when  service  is  made  with-  newspaper  printed  at  Albany,  in  whicli 
out  the 'state.  (Matter  of  :yiacaulav.  legal  notices  are  required  by  law  to  be 
94  N.  Y.  .574.)  The  return  day  should  published:"  may  be  considered  as  su- 
be  fixed  so  as  to  allow  at  least  thirty  perseded,  or  impliedly  repealed,  by  L. 
days'  service  before  the  return  day,  oV  1SS4,  c.  I.3.S.  which  repealed  all  acts 
.service  by  publication,  notwithstand-  providing  for  "  a  State  paper."  See- 
ing a  suggestion  that  the  infant  mav  lion  2.1.3(;  was  expressly  repealed  by  I,, 
be  brought  within  the  surrogate's  1000,  c.  572.  See  L.  1803.  c.  248,  §§  73, 
county  for  the  purpose  of  having  the  74. 

citation  served  upon  him.      (Matter  of  41  Matter  of  Post.   30  ^^isc.   .5.51,   64 

:Merritt,  .5  Dem.  .544.)      It  seems  that  N.  Y.  Supp.  369.      See  Matter  of  Greg- 

a  nonresident  is  entitled  to  a   service  ory,  13  Misc.  363;  35  N.  Y.  Supp.  105. 

of   thirty   days   although    the   citation  42  L.  1896,  c.  570. 
is  served  upon  him  while  he  is  pas- 


§  85.  CoMME^-^CEMEXT  OF  Pkoceedixgs  J  58 


TITLE  SECOM). 

APPEARANCES,    PLEADINGS,    ETC. 

§  85.  Return  of  citation,  appearances,  etc. —  On  or  before  the 
I'eturn  day  named  in  the  citation,  the  original,  with  proof  of 
service,  should  be  filed  with  the  surrogate.  It  is  in  only  a  limited 
number  of  cases  that  the  petitioner  will  be  granted  the  relief 
sought  on  the  mere  failure  of  the  party  cited  to  appear.  Not- 
withstanding the  nonappearance  of  the  party  cited,  the  surrogate 
may,  and  in  some  cases  must,  require  proof,  other  than  the  peti- 
tion, before  granting  relief.  The  party  may  appear  by  attorney. 
Eollowing  the  practice  of  the  English  Ecclesiastical  Court,  at- 
torneys for  parties  in  Surrogates'  Courts  were  formerly  called 
jJi'oclors,  but  this  is  a  term  unknown  to  our  law,  and  the  name  of 
"  attorneys  "  is  now,  or  should  be,  invariably  used. 

It  has  always  been  the  rule  that  sane  adult  persons  might  ap- 
pear in  any  court,  in  a  civil  case,  and  prosecute  an  action  or  plea 
in  person."*'^  In  respect  to  appearances  by  proxy,  a  distinction 
■exists  between  courts  of  record  and  not  of  record;  only  profes- 
sional attorneys  being  permitted  to  appear  in  the  former,  wdiile 
in  the  latter  there  was  no  such  restriction.  The  liberal  tendencies 
which  gave  birth  to  the  Constitution  of  1846,  manifested  them- 
selves, in  1847,  by  a  legislative  provision  that  any  person  of  good 
moral  character,  although  not  admitted  as  an  attorney,  might 
manage,  prosecute,  or  defend  a  suit  for  any  other  person,  provided 
he  was  specially  authorized  for  that  purpose,  by  the  party  for 
whom  he  appeared,  in  writing,  or  by  personal  nomination  in  open 
court.'*^  But  that  provision  was  declared  unconstitutional,  be- 
came obsolete,  and  has  been  expressly  repealed.'*^ 

In  1870,  a  party  was  prohibited  from  appearing  in  the  Surro- 
gate's Court  of  Xew  York  county  except  in  person,  or  by  an  at- 
torney of  the  Supreme  Court. ■**^  AVith  this  exception,  previously 
to  the  adoption  of  chapter  18th  of  the  Code  of  Civil  Procedure, 
it  was  the  general  practice  to  allow  any  person  to  appear  and  act 
as  an  attorney  in  Surrogates'  Courts,^^  those  courts  being  then 
courts  not  of  record.    It  is  provided  by  section  2529  of  the  Code 


43  See  1  R.  L.  of  1813,  p.  416,  §  1;        46  L.   1870.  c.  .3.59,  §   2.     See  Matter 
€o.  Civ.  Proc,  §  55.  of  Spicer,  1  Tuck.  80. 

44  L.  1847,  c.  470,  §  46.  47  Revisers     note    to    draft    Revise.! 
45McKoan  v.  Devries,  3  Barb.  196:    Statutes. 

L.  1880,  c.  245,  §  1,  subd.  24. 


50  Ari'KAUA.NCK.s,   ri-KADixcs,  Etc.  §§  86,  87. 

that  a  surrogate's  father  or  son  shall  not  practice  or  be  employed 
as  attorney  or  counsel,  in  any  case  in  which  his  partner  or  clerk 
is  prohibited  by  law  from  so  practicing,  or  being  employed.^* 

The  mode  and  effect  of  the  appearance  in  Surrogates'  Courts, 
and,  apparently,  the  status  of  attorneys  appearing  therein,  liave 
been  placed  on  the  same  basis  as  in  other  courts  of  record  by  the 
present  Code,  which  j^rovides  that  "  in  a  Surrogate's  Court,  a 
party  of  full  age  may,  unless  he  has  been  judicially  declared  to  be 
incompetent  to  manage  his  affairs,  prosecute  or  defend  a  special 
proceeding,  in  person  or  by  an  attorney  regularly  admitted  to 
practice  in  the  courts  of  record,  at  his  election;  except  in  a  pro- 
ceeding to  punish  him  for  a  contempt,  or  where  he  is  required  to 
appear  in  })erson,  by  a  special  provision  of  law,  or  by  a  special 
■order  of  the  surrogate.  The  appearance  of  a  party,  against  whom 
a  citation  has  been  issued,  has  the  same  effect  as  the  appearance 
■of  a  defendant,  in  an  action  brought  in  the  Supreme  Court."  '^^ 

§  86.  Service  of  papers  on  attorneys. —  By  another  provision,*^'^ 
service  of  papers  upon  attorneys  appearing  in  these  courts,  is  per- 
mitted in  the  same  cases  and  manner,  and  has  the  same  effect  as  in 
■other  courts  of  record.^^  This  removes  the  grounds  of  a  decision, 
made  under  the  former  staiutes,^^  that  the  person  appearing  as 
attorney  in  a  Surrogate's  Court  is  not  considered  as  an  attorney 
■of  record  upon  whom  notices  may  be  served  in  the  progTess  of  a 
suit  prosecuted  or  defended  by  attorney. 

§  87.  Number  and  form  of  pleadings. — The  pleadings  in  Surro- 
gates' C^ourts  are  two  in  number,  the  petition  and  answer.  In 
general  they  may  be  oral.  The  Code  provides  that  the  surrogate 
may,  at  any  time,  require  a  party  to  file  a  written  petition  or 
answer,  containing  a  plain  and  concise  statement  of  tlie  facts  con- 
stituting his  claim,  objection,  or  defense,  and  a  demand  of  the 


48  See  Co.  Civ.  Proc,  §  .'lO.  v.  Board.  4  Al)l>.  Pr.  295:  Boerum  v. 

49  Co.  Civ.  Proc,  §  2528.  A  general  Bctts.  1  Doni.  471:  Peters  v.  Carr.  2 
appearance  is  not  a  waiver  of  an  oh-  id.  22:  Crossman  v.  Crossman,  id. 
jeetion  that  the  citation  was  not  served  09;  Matter  of  Porter.  1  Misc.  489.  In 
•within  the  time  required  by  tlie  stat-  New  York  county  a  consul  may  a])pear 
-ate.  (Pryer  v.  Clapp,  1  Dem.  .387:  personally  or  by  attorney  for  any  non- 
Matter  of  Hurlhurt.  4.3  Hun.  311.)  resident  citizen  of  his  country,  in  pro- 
Answerinc:  the  petition  on  its  merits  ceedijiLijs  instituted  l>y  the  puolie  ad- 
is  equivalent  to  a  jireneral  appearance,  niinistrator.  ( L.  1898,  e.  230,  §  19.) 
and   a   waiver   of   all    irrej,nilarities    in  ■'"''^  Co.  Civ.  Proc.  §  2538. 

the   service   of   the   citation.       (Matter  f'l  Co.  Civ.  Proc.  §§  79G.  802. 

of   Maeaiilav.   27    Hun.   577.   afTd.,    94  •'■>2Coates    v.    Cheever,    1    Cow.    403, 

ISr.   Y.   574.)      To   the    same   eilect    see  476. 

Everts  v.  Everts,  62  Barb.  577;  Board 


§  88.  Commencement  of  Peoceedings  ;  6i?- 

decree,  order,  or  ether  relief,  to  wliidi  lie  supposes  himself  to  be 
entitled.  The  surrogate  may  require  the  petition  or  answer  to 
be  verified,  and  a  copy  thereof  to  be  served  upon  any  other  per- 
son interested.  A  party  who  fails  to  comply  with  such  a  require- 
ment mav  be  treated  as  a  partv  in  default. 

Except  where  such  a  requirement  is  made,  or  in  a  case  where 
a  written  petition  is  expressly  required  by  the  Code,  a  petition, 
or  the  answer  thereto,  may  be  presented  orally;  in  w^hich  case, 
the  substance  thereof  must  be  entered  in  the  records  of  the 
court.'*^  Where  the  statute  or  the  surrogate  requires  the  petition 
to  be  verified,  the  provisions  of  the  Code,  relating  to  the  form  o£ 
the  allegations,  and  the  form  and  effect  of  the  verification  of  a 
pleading  in  a  civil  action,^'*  apply,  so  far  as  they  can  be  applied  in 
substance,  without  regard  to  the  form  of  the  proceeding. °^  It 
will  be  observed  that  the  rules  established  by  the  present  Code, 
in  respect  to  verifications  of  pleadings,  affect  also  the  form  of  the 
allegations  in  the  body  of  the  pleading  verified.^*^ 

Demurvrrs,  as  distinct  forms  of  pleading,  are  unknown  to  the 
procedure  of  Surrogates'  Courts;  but  the  end  contemplated  by  a 
demurrer,  in  a  civil  action,  may  be  reached  by  a  formal  motion, 
to  strike  out  a  pleading  for  insufiiciency  appearing  on  its  face. 
Indeed  an  objection  of  that  sort  may  be  taken  infonnally  at  any 
stage  of  the  hearing,  and  the  question  of  the  sufficiency  of  the 
pleading  will  then  be  determined;  the  theory  in  these  courts  being- 
that  pleadings  are  addressed  to  the  surrogate,  for  him  to  pass- 
upon  before  they  are  pleaded.  Thus  where,  to  a  petition  for 
probate,  a  counter  petition  is  filed  asking  for  relief  which  the 
court  has  no  power  to  grant,  the  court,  on  motion,  will  disregard 
it,  and  proceed  with  the  probate." 

§  88.  Remedies  to  be  pursued  separately. —  Several  remedies  regu- 
lated by  distinct  provisions  of  the  statute  should  be  separately 


53  Co.   Civ.   Proc,    §   25.33.     In   New  answer  are   required   to    be   verified." 

York   countv,   the  rule   of  the    Surro-  Rule  XIV.  Mar.  16,  1888. 
gate's  Court,  in  effect,  abrogates  oral.      54  Co.  Civ.  Proc,  §§  523,  526.     The 

and  unverified  pleadings,  by  providing  petition  of  a  foreign  corporation  may 

that  '■  all  petitions  and  answers  in  this  be  verified  by  its  attorney.      (Lamar's 

court,    except    as   otherwise    expressly  Estate,  20  Daily  Reg.,  Xo.    113.)      It 

prescribed  bv  statute,  shall  be  in  writ-  seems   that,    under     section    2533,   the 

ing,   and   contain   a    plain   and  concise  court  may  require  objections  to  an  ac- 

statement  of  the  fa,cts  constituting  the  count  to  be  verified.     (^Matter  of  Mott, 

claim,  objection,  or  defense,  and  a  de-  4  Law  Bull.  23  [X.  Y.  Surr.  1882]). 
mand  of  the  decree,  order,  or  other  re-        55  Co.  Civ.  Proc,  §  2534. 
lief  to  which  the  party  supposes  him-        5e  Co.  Civ.  Proc.  §  524. 
self  to  be  entitled,  which  petition  and        57  MeClure  v.  Woolley,  1  Dem.  574. 


<>1  AppEARAifCES,  Pleadings,  Etc.  §  82. 

pursued.  Thus  it  is  improper  to  proceed  by  one  and  the  same 
petition  to  vacate  a  decree  settling  an  executor's  account, —  to 
revoke  the  executor's  letters, —  to  compel  a  discovery,  and  for  an 
accounting;'^**  and  so  of  a  petition  for  the  revocation  of  letters 
testamentary  and  for  the  appointment  of  a  temporary  adminis- 
trator.^" But  it  is  proper  for  one  to  pray  for  the  payment  of  a 
legacy  or  distributive  share  and  at  the  same  time  for  an  account- 
ing by  the  representative.^*^ 

58  Hood  V.  Hood,  1  Dem.  392.    Pend-  tained.       (Matter     of     Bruen,    :}    Law 

ing  a   proceodinjj  for  a  settlement   of  Bull.  88.) 

accounts.  anotiuM-  independent  proceed-  59  Matter  of  Sohn,  1  Civ.  Proc.  Rep. 

ing  for  a  partial  distribution  and  set-  373. 

tlement   will   not   generally   be   enter-  GO  Matter  of  Macaulay,  27  Hun,  577. 


}   1  c 


CHAPTER  IV. 

PARTIES  TO  PROCEEDINGS  IN  SURROGATES' 
COURTS. 


TITLE  FIRST. 

WHO  ARE   ^^ECESSARY   PARTIES. 

§  89.  In  general.  —  In  regard  to  parties  to  special  proceedings- 
in  Surrogates'  Courts,  it  cannot  be  said  that  the  general  rule  of 
courts  of  equity  prevails  —  that  every  person  whose  interest  is 
involved  in  the  issue,  or  who  may  be  affected  by  the  decree,  is 
a  necessary  party,  plaintiff,  or  defendant.  It  is  not  every  person 
having  an  interest  in  an  estate  who  may  institute  or  oppose  a 
proceeding  in  these  courts.  It  is  only  those  persons,  or  that  class 
of  persons  expressly  designated  in  the  statute,  who  may  either 
prosecute  or  contest  a  particular  proceeding.  There  is  a  further 
difference  between  the  rule  of  courts  of  equity  and  of  Surrogates' 
Courts,  as  to  parties.  The  familiar  rule  that  where  there  is  a 
large  number  of  persons  having  the  same  interests,  one  may  sue 
on  behalf  of  himself  and  others  similarly  situated,  does  not  prevail 
in  the  latter  courts.  It  is  expressly  provided  by  statute,  that 
where  a  person  is,  or  ''  creditor,  next  of  kin,  legatees,  heirs,  de- 
visees, or  other  persons  constituting  a  class  "  are,  required  to  be 
cited  for  any  purpose,  all  those  persons  are  necessary  parties  to 
the  special  proceeding.^ 

§  90.  Necessary  original  parties. —  Parties  to  an  original  pro- 
ceeding in  a  Surrogate's  Court  are  (1)  the  petitioner,  (2)  the 
parties  to  be  cited,  or,  as  they  may  be  called,  respondents.  Parties 
appearing  in  opposition  to  the  probate  of  a  will  are,  however, 
commonly  called  contestants,  and  parties  objecting  to  the  accounts- 
of  an  executor,  guardian,  etc.,  are  usually  called  objectors  or  ex- 
ceptors.   As  suggested  above,  the  statute  must  be  coiisulted  in  each. 

iCo.  Civ.  Proc,   §  2518. 
[62] 


63  Parties  to  Proceedings,  Etc.  §§  91,  92. 

case,  to  a&ccrtain  wlio  may  institute  a  proceeding  by  petition,  and 
who  must  be  made  parties  respondent.  The  only  ditticulty  which 
is  likely  to  be  met  with  in  ascertaining  the  proper  parties  to  a 
])articular  proceeding,  is  the  determining  whether  the  party,  pe- 
titioner or  respondent,  belongs  to  the  class  of  persons  named  in 
the  statute.  Thus  the  st^atiite  designates,  besides  individuals,  such 
as  husl)and,  wife,  executor,  administrator,  sureties,  legatees,  guard- 
ian, ward,  etc.,  classes  of  persons  such  as  (1)  heirs-at-law ,  (2) 
next  of  kin,  (3)  creditors,  (4)  "persons  interested  in  the  estate  or 
fund." 

§91.  Classes  of  persons. —  Of  course  any  individual  belonging 
to  either  of  these  classes  may  petition,  without  joining  the  others^ 
but,  as  already  pointed  out,  each  individual  of  the  class  must  be 
made  a  party  respondent,  in  a  case  where  the  statute  requires  the 
class  to  be  cited.  The  question  will  then  sometimes  arise,  whether 
the  petitioner  belongs  to  the  class  entitling  him  to  prosecute  the 
proceedings,  or,  on  the  other  hand,  whether  some  person  not  named 
in  the  citation  does  belong  to  the  class,  and  is,  therefore,  a  neces- 
sary party.  It  will  be  desirable  in  this  place  to  briefly  notice  these 
several  classes  of  parties,  reserving  further  consideration  until  we 
come  to  the  subject  of  each  proceeding.  The  classes  of  parties 
mentioned  in  the  statute  are  heirs-at-law,  next  of  kin,  creditors, 
legatees,  devisees,  and  ''  persons  interested  in  the  estate  or  fund." 

§  92.  Heirs-at-law.—  The  '*  heirs-at-law  "  and  the  "  next  of  kin  " 
of  a  decedent  are  i\\<\h  frequently  the  same  persons,  although  of 
course  they  constitute  separate  and  distinct  classes.  In  legal 
])hraseol()gy,  the  word  ''  heirs  "  is  used  to  designate  those  relatives 
M'ho  succeed  to  the  real  property  of  an  intestate ;  while  the  words 
"  next  of  kin  "  are  used  to  designate  those,  often  the  same,  relatives 
who  succeed  to  the  personal  property.  Who  those  persons  are,  in 
any  particular  case,  must  be  determined  by  an  examination  of  the 
Statutes  of  Descents  and  Distributions.  As  a  matter  of  fact,  heirs- 
at-law,  as  such,  are  rarely  parties  to  proceedings  in  a  Surrogate's 
Court,  that  court  having  jurisdiction  of  matters  relating  to  real 
estate  in  an  incidental  way  only. 

The  class  of  persons  so  designated  includes  all  those  who  would 
be  entitled  to  succeed  to  an  intestate  decedent's  real  property  under 
the  Statute  of  Descent.  It  may  be  w^ell  to  note  here,  however,  that 
by  L.  1896,  c.  272,  a  right  of  inheritance  is  given  in  certain  cases 
to  adopted  children,  so  that  such  children  are  necessary  parties  to 


^  93.  Parties  to  Proceedings,  Etc.  64 

be  cited  on  a  petition  for  probate,  or  for  letters  of  administration.^ 
"  Illegitimate  children,  in  default  of  lawful  issue,  may  inherit 
real  ^  and  personal  ■*  property  from  their  mother,  as  if  legitimate ; 
but  they  cannot  inherit  from  the  ancestor  of  a  deceased  mother.^ 
The  term  "  illegitimate,"  as  here  used,  is  to  receive  its  common- 
law  significance,  and  means  begotten  and  born  out  of  lawful  wed- 
lock.*' The  statute  ^  provides  that  no  person  capable  of  inheriting 
under  its  provisions,  shall  be  precluded  from  inheritance  by  reason 
of  the  alieyiism  of  his  ancestor. 

This  provision,  however,  is  prospective,  and  has  no  application 
to  cases  which  occurred  previous  to  its  adoption,  i.  e.,  January  1, 
1830.^  Post-testamentary  children,  unprovided  for  by  the  parent's 
will,  are  entitled  to  share  in  the  estate,  and  may  maintain  an 
action  against  the  legatees  or  devisees  to  recover  their  shares,  or 
may  compel  a  distribution  or  partition.^ 

§  93.  Next  of  kin. —  Xaturally,  the  class  denominated  ''  the  next 
of  kin  "  embraces  the  persons  who  are  most  frequently  required 
to  be  made  parties  to  proceedings  in  Surrogates'  Courts.  To 
ascertain  whether  a  person  belongs  to  that  class,  reference  must 
be  had  to  the  Statute  of  Distributions,  and  not  to  the  technical 
definition  of  the  term  "  next  of  kin." 

It  is  enough  to  say,  in  this  connection,  that  the  Statute  of  Dis- 
tributions designates,  as  entitled  to  a  distributive  share  of  un- 
bequeathed  assets,  persons  who  are  not,  strictly  speaking,  "  next  of 
kin,"  e.  g.,  children  of  a  deceased  brother  or  sister  of  a  decedent 
who  left  other  brothers  and  sisters,  but  no  nearer  relatives.  But 
the  Code  declares  that  the  term,  as  used  in  chapter  IS,  in  reference 
to  proceedings  in  Surrogates'  Courts,  shall  include  ''  all  those  en- 
titled under  the  provisions  of  law  relating  to  the  distribution  of 

2  The  petition  should,  therefore,  state  v.  Walker,  3  Barb.  Ch.  4.38 ;  ]\IcCarthy 

whether   or  not   there   is   any  adopted  v.  ;Marsh,  5  X.  Y.  263;  People  v.  Irvin, 

ehild,  or  issue  of  any  deceased  adopted  21  Wend.  128:  McLean  v.  Swanton,  13 

child  or  children  of' the  decedent.     See  N.  Y.  535;   MeCreery  v.  Somerville,  9 

discussion  of  efTect  of  this  act  in  N.  Y.  Wheat.  354;  Emanuel  v.  Ennis,  48  X. 

Dailv  Res.,  Oct.  21.  1887.  Y.  Supr.  432.    Where  a  will  relates  to 

3L.    1896,   c.    547,    §   289.   repealing  real     property,     a     nonresident     alien 

L.  1855,  c.  547.     See  L.  1895,  c.  531.  brother  and  sister  of  a  deceased  citizen 

4  Co.  Civ.  Proc,  §  2732,  subd.  15.  of  the  United  States,  if  among  his  next 

5  Matter  of  Mericlo,  63  How.  Pr.  62.  of  kin,  are  entitled  to  citation ;  the  lat- 
See  Matter  of  Barringer,  29  Misc.  lor  inheriting,  in  case  of  intestacy,  as 
457:  61  N.  Y.  Supp.  1090.  if    a  citizen,    and  the  former  in    like 

6  Miller  v.  Miller,  18  Hun,  507;Bol-  manner,  subject  to  a  conditional  de- 
lerman  v.  Blake,  11  Wklv.  Dig.  555.  feasance,  enforceable  at  the  instance  of 

7  1  R.  S.  754,  §  22;  L.'  1896,  c.  547,  the  State.  (Kilfoy  v.  Powers,  3  Dem. 
§  294.  198.) 

8  Jackson  v.  Green,  7  Wend.  336:  9  2  R.  S.  65,  §  49,  as  amended  L. 
Redpath  v.  Rich,  3  Sandf.  81.  As  to  1869.  c.  22;  L.  1896.  c.  547,  §§  46.  292; 
meaning  of  term  "  ancestor,"  see  Banks  Co.  Civ.  Proc,  §§  1868,  2732,  subd.  14. 


•65  Pakties  to  Prockedings,  Etc.  §  94. 

personal  property,  to  share  in  the  unbequeathed  residue  of  the 
assets  of  a  decedent  after  payment  of  debts  and  expenses,  other 
than  a  surviring  liushand  or  icife."  ^^ 

The  Statute  of  Distributions  and  the  persons  entitled  thereunder 
to  distributive  shares  will  be  more  appropriately  considered  under 
the  general  head  of  Administration,  chapter  XVII,  post.  But  it 
may  be  stated,  in  general,  that  the  meaning  of  the  term  ''  next  of 
kin  "  is  not  to  be  so  far  extended,  by  construction,  as  to  include 
persons  claiming,  for  example,  to  be  legatees,  \\\\o  are  not,  at  the 
same  time,  next  of  kin.  Thus,  the  statute  allowing  next  of  kin  to 
contest  the  validity  of  a  wall  of  personal  property  wdthin  one  year 
after  probate,  was  held,  before  the  Code,^^  not  to  extend  to  per- 
sons claiming  to  be  legatees,  who  were  not,  at  the  same  time,  next 
of  kin. 

§  94.  Widow  and  husband  not  next  of  kin. —  It  will  be  observed 
tliat  the  definition  given  by  the  Code  excludes  a  surviving  husband 
or  wife.  It  has  been  long  established  that  the  words  '*  next  of 
kin,"  in  their  strict  and  primary  sense,  do  not  include  the  widow. 
Accordingly,  it  has  been  held  that  wdiere  a  residue  of  ])crsonal 
property  is  directed  to  be  divided  among  the  testator's  "  next  of 
kin,"  or  among  his  "  next  of  kin  according  to  the  statute,"  or 
where  a  trust  was  created  for  the  benefit  of  those  who,  at  the 
decease  of  a  party,  should  be  entitled  to  his  personal  estate  as  his 
next  of  kin,  according  to  the  Statute  of  Distributions,  the  widow 
takes  no  part. 

In  other  words,  ''  next  of  kin  "  does  not  include  the  widow  ;^- 
although  wdiere  there  are  circumstances  which  induce  a  belief 
that  such  was  testator's  intention,  the  term  will  be  so  considered.  " 
It  may  be  said  generally,  tliat  the  term  will  receive  construction 
according  to  the  connection  in  which  it  is  used ;  and,  in  tlie  con- 
struction of  a  will,  according  to  the  intention  of  tlie  testator,  or, 
in  a  statute,  according  to  the  intent  of  the  Legislature. 

10  Co.  Civ.  Proc.  §  2.514,  subd.  12.  Devop,  171  id.  281;  Hannin  v.  Osjiood. 

11  Booth  V.  Kitchen,  7  Hun.  200.  1  Ecdf.  400,  417 :  Snidor  v.  Snider.  11 
Otherwise  now  as  to  this  particular  App.  Div.  171:  42  N.  Y.  Supp.  fil3. 
proceedinfT    (Co.    Civ.   Proc.,   §   2047).  See  §  269,  n.  24,  post. 

See   c.   VITT.    fost ;    Henry    v.    Henry.  i'?  Murdock  v.  Ward,  07  N.  Y.   .387. 

4  Dem.  25.3 ;   9  Civ.  Proc."  Rep.   100.  The   Avords    "  next    of   kin  ''    in    a    will 

i2Murdock  v.  Ward.  07  N.  Y.  387,  do  not  include   a   wife,   althou-zli     fol- 

distinjjuishinfr  Merchants'   Ins.   Co.   v.  lowed  hy  a   roferonco  to  the   iiitostato 

Hinnian,  \^^  How.  Pr.  182;  4  Abb.  Pr.  succession  laws.     (Piatt  v.  Mickh\  137 

313:     Knickerbacker    v.    Seymour,    40  N.  Y.   100:   50  St.  Rep.  91;   Matter  of 

Barb.    198;    Dewev  v.   Goodenouffh,   50  Devoe,  supra.) 

id    .54-  Luce  v.  Dunham,  09  N.  Y.  30;  u  The   words   "next   of   kin  "•    in    :'. 

Keteltas     v.     Keteltas.     72     id.     312;  R.   S.    114.   §   9,  authorizing  "next   of 

Tillman  v.  Davis,  95  id.  17 ;  Matter  of  kin  entitled  to  share   in  the  distribu- 

5 


§§  95,  96.  Parties  to  Proceedings,  Etc.  66 

§  95.  Divorced  husband  and  wife. —  As  a  husband,  on  the  disso- 
lution of  the  marriage,  at  the  suit  of  his  wife,  has  no  interest  in 
her  property,  he  is  not  a  necessary  party  to  a  surrogate's  proceed- 
ing touching  the  administration  of  her  separate  estate ;  but  where 
the  dissolution  was  at  the  suit  of  the  husband,  his  rights  and  in- 
terests in  her  property  are  not  impaired,  and,  therefore,  he  may 
be  a  necessary  party  in  such  a  proceeding.  Moreover,  in  the  latter 
case,  the  wife,  however  innocent,  is  not  entitled  to  a  distributive 
share  in  the  husband's  personalty,  and  consequently  need  not  be 
cited  in  a  proceeding  touching  his  will  or  estate. ■^^ 

§  96.  Creditors. —  Creditors  constitute  another  class  of  parties 
mentioned  in  the  statute,  Avho  are  entitled  to  institute  a  proceed- 
ing or  to  be  cited  on  an  adverse  proceeding. -^^  Whether,  as  a 
matter  of  fact,  a  party  is  or  is  not  a  creditor  of  the  decedent,  may 
be  raised,  it  is  aj)prehended,  in  answer  to  a  citation  issued  on  his 
petition ;  but  to  entitle  one  claiming  to  be  a  creditor  to  a  citation, 
it  requires  only  that  he  should  state,  in  his  verified  petition,  that 
he  is  such  creditor  or  has  a  claim  against  the  decedent.  The  court 
generally  requires  a  petitioning  creditor  to  state  the  general  nature 
of  his  claim,  and  the  facts  upon  which  it  is  founded,  especially 
where  his  claim  is  disputed.^'  Affirmative  jiroceedings  by  a  cred- 
itor for  the  jDayment  of  debts  are  expressly  provided  for.-^^ 


tion  of  the  estate,"  to  sue  executors  and  15  Co.     Civ.     Proe.,    §§    1759,     1760; 

administrators  to    recover  a   distribu-  Matter  of  Ensitrn,  103  X.  Y.  284. 

tive  share,   include  the   widow   of  the  16  Matter  of  De  Forest,  86  Hun,  300 ; 

testator   or    intestate.       (Betsinger   v.  33  X.  Y.   Supp.  216.     As  to  who  are 

Chapman,    88    X.    Y.    487.)       Compare  creditors,    see   Co.   Civ.    Proc,    §    2514, 

Slosson  V.  Lynch,  43  Barb.  101;  Hal-  subd.  3,  as  amended  1900.    Although  a 

lett  V.  Hare,  5  Paige,  316;   Tillman  v.  creditor  ol  a  testator  may  petition  for 

Sullivan,   63   How.    Pr.    355,   aflFd.,    as  the  probate   of  his  debtor's   will    (Co. 

Tillman  v.  Davis,  95  X.  Y.  17.     It  has  Civ.  Proc,  §  2614;   Gove  v.  Harris,  4 

been  held   (Dickins  v.  X.  Y.   Cent.  R.  Dem.  293),  he  is  not  a  proper  party 

E.  Co.,  23  N.  Y.  158;  Lucas  v.  N.  Y.  respondent    in    a    probate    proceeding. 

Cent.    R.   R.    Co.,    21    Barb.    245),    in  and.  therefore,   cannot  come   in,   after 

an  action  brought  by  the  husband  as  probate,  and  moA'e  to  open  the  decree 

administrator,  to  recover  for  the  death  admitting  the  will.     ( Heilman  v.  Jones, 

of  his  wife,  that  the  husband  was  not  5  Redf.  398.)     But  a  judgment  creditor 

next  of  kin  to  his  wife  within  the  act  of    a  devisee    may    contest    a    codicil 

requiring    compensation    for     causing  which  supersedes  the  will.     (Matter  of 

death,  etc.   (L.  1847,  c.  450) ,  and  could  Coryell,    4   App.    Div.    429;    39   X.     Y. 

not   maintain   an   action   for   his   owti  Supp.  508.) 

damages;  and  in  another  case,  where  i"  Gove  v.  Harris,  4  Dem.  293; 
the  party  causing  the  death  had  paid  Creamer  v.  Waller,  2  id.  351.  Compare 
to  the  administrator  a  sum  certain  in  Greene  v.  Day,  1  id.  45 ;  Wever  v.  Mar- 
settlement  of  the  action,   it  was  held  vin.  14  Barb!  376. 

that,  on  a  distribution  of  the  estate,  18  Co.  Civ.  Proc.  §  2722,  as  amended 

the  husband  was  not  entitled  to  a  dis-  1895     (former    §    2717).      See  post,  c. 

tributive  share  of  that  sum  as  one  of  XVII. 
the  next  of  kin.      (Drake  v.  Gilmore, 
52  X.  Y.  389.) 


€7  Parties  to  Pkoceedings,  Etc.  §§  liT,  08. 

§  97.  Assignees  of  creditors,  legatees,  etc. —  lUit  whore  it  is 
shown  that  a  ])C'titioner  has  assigned  his  claim  or  interest  to  a 
third  person  not  a  itarty  to  the  j)roceeding,  the  surrogate  should 
revoke  the  citation,  as  he  has  no  jurisdiction  to  determine  the 
validity  of  the  assignment.^"  Before  the  present  Code,  the  sur- 
rogate had  no  ])ower  to. direct  the  payment  of  a  distributive  share 
or  legacy  to  an  assignee  thereof;^"  but  now,  distribution  of  the 
surplus,  upon  a  judicial  settlement  of  an  account,  may  be  made  to 
the  creditors,  legatees,  next  of  kin,  etc.,  or  their  assigns.^^  It  does 
not  follow  from  this,  however,  that  the  assignee  of  a  legacy,  for 
instance,  may  petition  to  compel  payment  thereof  in  a  direct  pro- 
ceeding for  that  purpose  f^  his  remedy  being  by  a  proceeding  to 
compel  an  accounting,  and  distribution.^^  A  receiver  of  the  prop- 
erty of  a  person  entitled  to  a  distrilnitive  share  of  a  decedent's 
(•state,  has,  therefore,  a  standing  to  petition  for  an  accounting. ^^ 

g  98.  Persons  interested  in  the  estate. —  Among  the  parties  who 
may  petition  for  a  citation  in  particular  proceedings,  the  statute 
includes  "  jiersons  interested  in  the  estate  or  fund."  Whether  a 
petition  discloses  such  an  interest  of  the  petitioner  in  the  estate, 
as  will  entitle  him  to  a  citation,  must  depend  upon  the  circum- 
stances of  each  case.  As  a  general  rule,  it  may  be  stated,  that  a 
claim  of  interest  positively  swo:;n  to  will  entitle  the  party  to  a 
citation,  or  to  leave  to  come  in  as  a  contestant  in  a  pending  pro- 
ceeding,^^ though,  without  doubt,  the  surrogate  may  require  the 
claim  of  interest  to  be  stated  with  certainty ;  and  the  claim  of 
interest  may  be  disputed  by  answer,  and  then  determined  as  a 
preliminary  to  the  main  issue.^^ 

lOBonfanti    v.    Dop:iierre,    3    Bradf.  24  Matter  of  Gilligan,  1  Connoly,  137, 

429:    Woodnifr    v.    Woodruff.    3    Dem.  IS  St.  Rep.  812;   iMatter  of  Bevea.   10 

50;-):    Matter   of    Stephens,    64    N.    Y.  Misc.  198:  31  X.  Y.  Supp.  200:'Mona- 

Supp.  990.  han  v.   Fitzpatrick.    16   Misc.    508:    39 

20  Hitchcock  v.  Marsliall,  2  Redf.  N.  Y.  Supp.  857.  See  ]\Iattor  of  Rai- 
174   [a  case  of  two  rival  claimants  of  ney,  26  N.  Y.  Supp.  892. 

the     same     share].     See     Worrall     v.  25  Xorton  v.  Lawrence,   1   Redf.  473. 

Drijigs,  1  id.  449.  Where  a  decree  in  a  probate  proceeding 

21  Co.  Civ.  Proc,  §  2743.  It  .srrms  directs  a  tem])orary  administrator  to 
tliat  even  thouph  a  heneficiarv  has  as-  jiay  certain  sums  as  costs,  it  lias  the  ef- 
.sifined  his  interest,  lie  should,  never-  feet  of  makinj;  liim  a  party  to  the  pro- 
theless,  be  cited,  (flatter  of  Foster,  30  ccedinv',  and  he  may  tliereafter  be  per- 
Misc.  573:  63  N.  Y.  Supp.  1102.)  initted  to  move   for  a   modification  of 

22  The  provision  of  section  1909,  (;iv-  such  decree  without  first  obtainiiij; 
infi;  a  ri{i;ht  of  action  by  the  transferee  leave  of  the  court  so  to  do.  (Matter  of 
of  a  claim,  refers  only  to  civil  actions  Aaron,  5  Dem.  362). 

or  special  proceedings  in  law  courts.  2G  Matter    of    Comins.    0    App.    Div. 

2.!  Peyser    v.    Wendt,    2    Dem.    221,  492;    41   N.  Y.   Supp.  323;    Matter   of 

followed  in  :Matter  of  Brewster,  19  St.  Hamilton,    76    Hun.    200:     27    X.    Y. 

Rep.    698.    See    Matter  of   .Solomon,    4  Supp.  813 :  Matter  of  Peaslee.  73  Hun, 

J^edf.  509.  113:   25  N.  Y.  Supp.  940. 


§  99.  Parties  to  Proceedings,  Etc.  68 

Where  the  expression  "  person  interested  "  is  used  in  the  Code 
in  connection  with  an  estate  or  a  fnnd,  it  includes  "  every  person 
entitled,  either  absolutely  or  contingently,  to  share  in  the  estate 
or  the  proceeds  thereof,  or  in  the  fund,  as  husband,  wife,  legatee, 
next  of  kin,  heir,  devisee,  assignee,  grantee,  or  otherivise,  except 
as  a  creditor."  ^^^lere  a  provision  of  the  Code  prescribes  that  a 
person  interested  may  object  to  an  appointment,  or  may  apply  for 
an  inventory,  an  account,  or  increased  security,  "  an  allegation 
of  his  interest,  duly  verified,  suffices,  although  his  interest  is  dis- 
puted; unless  he  has  been  excluded  by  a  judgment,  decree,  or 
other  final  determination,  and  no  appeal  therefrom  is  pending."  ^' 

This  only  applies  to  the  particular  proceedings  designated ;  it 
does  not  aj^ply,  for  instance,  to  a  proceeding  to  revoke  letters  of 
administration."^  This  subject  will  be  again  mentioned  in  the 
third  title  of  this  chapter. 

§  99.  Executors  and  administrators. —  When  the  statute  men- 
tions any  executor  or  administrator  as  competent  to  petition  the 
court,  it  means  a  domestic,  and  not  a  foreign,  executor  or  admin- 
istrator. An  executor  or  administrator  appointed  in  another  State 
has  no  right,  as  such,  to  sue  in  this  State,  without  taking  out 
letters  here.^^  Hence  an  administrator  appointed  in  California, 
who  has  not  taken  out  letters  here,  has  no  standing  in  a  court  of 
this  State  to  invoke  its  aid  in  acquiring  possession  of  his  intestate's 
property  here.^^    An  executor  is,  as  such,  "■  a  person  interested  in 


2TCo.  Civ,  Proc,  §  2514,  subd.  11.  made,  will  be  recognized  here.     (Peter- 

28 Where     in     such     a     proceeding,  sen  v.  Chemical  Bank,  supra;  Guy  v. 

brought   by   the   intestate's   widow,    it  Craighead,  6  App.  Div.  463;   39  N.  Y. 

appeared  that  she  had  assigned  her  in-  Supp.  088.)     A  toreign  executor  cannot 

terest  in  the  estate,  as  she  alleged,  by  be  sued  in  our  courts,  though  it  is  al- 

the  fraudulent  procurement  of  the  ad-  leged  he  has  assets   in  his  possession 

ministrator,  the  petition  was  dismissed,  here.     (Ferguson  v.  Harrison,  27  Misc. 

—  the  Surrogate's  Court  being  unable  380;    58   N".  Y.   Supp.   850.)      But   see 

to  set  aside  the  instrument  for  fraud;  Smith    v.    Central    Trust   Co.,    7    App. 

until  which  is  done,  the  petitioner  was  Div.  278;   40  N.  Y.  Supp.   152;   Stone 

excluded  from  the  class  of  persons  in-  v.  Demarest,  67  App.  Div.  549;   73  N. 

terested  in  the   estate.      (Woodruff  v.  Y.  Supp.   903.)      Where  a   substituted 

Woodruff,  3  Dem.  505.)  trustee    was    appointed    by    a    foreign 

29  Matter  of  Butler,   38  N.  Y.   397;  court,  having  jurisdiction,  which  gave 

Petersen  v.  Chemical  Bank,  32  id.  21;  him    powers    established    by    the    Su- 

Stewart  v.  O'Donnell,  2  Dem.  17;  Tay-  preme  Court  of  the  foreign  State  in- 

lor  v.   Syme,   162  N.  Y.   513:    3i   Civ.  terpreting  its  own  statutes,  the  trus- 

Proc.  Rep.   1 ;  Flandrow  v.  Hammond,  tee  may  by  virtue  of  that  appointment 

13  App.  Div.  325;  43  N.  Y.  Supp.  143.  sue  in  the  courts  of  this  State.      (Eng- 

The  guardian  of  a  lunatic,  appointed  lish   v.    ]McIntyre.    29   App.    Div.    439; 

by  a  foreign  court,  cannot  intervene  in  51  X.  Y.  Supp.  697.) 
an  accounting  in  which  the  ward  is  in-         "■*>  Matter  of  .Jones.  3  Redf.  257,  and 

terested.     (Weller  v.  Suggett.  3  Redf.  cases   cited.      See   Duffy   v.    Smith,    1 

249.)      But  assignments   of   claims  by  Dem.  202. 
foreign    representatives,   valid    where 


09  Parties   to    Pkoceedings,   Etc.  §  90. 

the  estate  "  of  a  decedent,  under  whose  will  his  testator  was  a 
heneficiary,  so  as  to  entitle  hini  to  jxitition  for  an  accounting  by 
the  first  decedent's  executor.'"^ 

And  SI)  whci'c  a  (h'ci'cc  dii'ects  executors  to  convert  into  money 
certain  securities  and  assets  in  their  hands,  and  to  invest  the  same 
as  directed  hy  the  will,  they  are  all  interested  in  the  performance 
of  that  duty,  and  where  none  of  them  have  resigned  or  been  re- 
moved, tiny  slioidd  all  be  made  parties  in  the  proceeding  instituted 
by  a  legatee  to  enforce  his  rights  under  such  decree  and  the  will.^^ 
An  allegation  in  the  ])etition,  that  some  of  the  executors  are  in- 
solvent and  have  no  assets  of  the  estate  in  their  hands,  does  not 
dispense  with  the  necessity  of  making  them  parties.^" 

Formerly,  in  i)robate  proceedings,  executors  were  deemed  to 
represent  all  the  devisees  and  legatees  named  in  the  w'ill,  and, 
therefore,  the  latter  were  not  necessary  parties  to  such  a  proceed- 
ing. In  1892,  section  2615  w-as  amended  so  that  all  persons 
who  would  take  any  interest  in  the  estate,  under  the  will,  were 
required  to  be  cited  in  a  proceeding  for  its  probate,**'  but  by 
L.  1894,  c.  118,  tlie  old  rule,  in  this  respect,  was  re-established, 
dispensing  Avith  a  citation  to  devisees  and  legatees. 

Tn   regard  to  coexecutors  or   administrators,  it  has  been  uni- 

•"51  Edwards  v.  Edwards,  1  Dem.  132.  tholoss,  be  bound  by  the  decree  on  the 

:;-in  a  proceeding:  vo  remove  a  trus-  theory  of  representation,  should  not  be 

tee,  all  the  trustees  who  have  acted  as  applied     to    such     a    case.       iHiggs   v. 

such,  and  have  not  been  discharged,  are  Cragg,   89   N.   Y.   479;    11   Abb.   N.   C. 

necessary  parties.      (Hamilton  v.  Faber,  401.) 

33  Mise!  64;  68  N.  Y.  Supp.  144.)  In   an   action  brought  by   a  substi- 

•"i"*  Cocks  V.  Haviland,  .5  Dem.  11.  tuted  testamentary  trustee  to  recover 

•i*  See  post,  c.  VI.     Where  the  ques-  tlie  trust  fund  from  the  executors  of  a 

tion  of  the  construction  of  the  will  was  deceased  trustee,  it  is  not  necessary  to 

raised   in   the  probate   proceeding,   the  make  the  ccstuis  que  irustent  parties, 

legatees  were,  even  before  tlie  amend-  unless  the  action  rciiuires  the  determi- 

meiit  of   1S!)2,  brought    into    the    case,  nation  of  their  rights  as  between  Ihem- 

See  Danser  v.   .lereniiah.   3  Kedf.    130,  selves  or  as  between  them -and  the  trus- 

146.     It  was  also  held  that  the  execu-  tees,      i^fount  v.  Mount,  25  Misc.  62; 

tor  not  only  represented  all  the  inter-  71    N.    Y.    Supp.    199.)      A    residuary 

ests  of  the  legatees  on  probate  proceed-  legatee  cannot  maintain  a    proceeding 

inj^s,  but  they  were  boiuid  by  his  acts,  to   establish   a   claim   in   favor   of   the 

where   they   did   not   intervene   in   the  estate  where  it  is  not  shown  that  the 

jirocccdings  until  after  the  rendition  of  (U'l)ts   and   general    legacies   have   lM>en 

tlie  jud'iiiu'nt.     i^Iarvin  v.  Marvin,   11  jiaid.       (Matter   of   Marcellus.    lO.i    N. 

Ab!)!  Pr.  [X.  S.l  97.)      AVhere  the  con-  Y.    70:    fiS    X.    E.    796.)       Rut    where 

stniction  of  a    will  involves  the  ques-  executors,    charged    with    the    duty    of 

tion    whether   income    or   accretions —  retaining  and   applying  a   part  of  the 

such  as   stock  dividends  on   shares  in  income   of   a   bond   and   mortgage,   re- 

a  corporation  belonging  to  the  estate  fuse  to  foreclose,  alleging  it  was  with- 

—  go  ti  the  life  tenant  or  remainder-  out    consideration,    the    sole    residuary 

man,    the    life    tenants    are    necessary  legatee,  the  anniiitant  consenting,  may 

jiarties     to     a     proceeding     awarding  maintain  an  action  for  the  foreclosure, 

payment    thereof    to    the    life    tenant.  ( :\Iulvey  v.  Reilly,  31  Misc.  10;  04  N. 

The  principle  that  persons  not  actually  Y.  Supp.  582.) 
j)arties  to  a  suit  in  equity  may,  never- 


§§  100,  101.        Parties  to  Proceedings,  Etc.  70 

formly  held  that  an  executor,  etc.,  may  cite  his  coexecutors  in  the 
Surrogate's  Court,  or  sue  them,  for  an  accounting,'^^  and  where  one 
of  two  or  more  coexecutors  or  administrators  presents  his  accounts 
for  settlement,  his  coexecutors  Tnust  be  cited.^^ 

§  100.  Married  women.—  It  was  formerly  held  that  as  a  married 
woman  could  not  act  without  her  husband's  concurrence,  and  as 
he  was  responsible  for  her  acts,  both  husband  and  wife  should  be 
made  parties  in  a  matter  in  which  the  wife  was  interested.'"  Where 
a  married  woman  is  entitled  to  be  cited  it  is  no  longer  necessary 
to  include  her  husband  in  the  citation. ^^ 

^larried  women  are  now  declared  capable  of  acting  as  executors, 
administrators,  and  guardians  of  minors,  as  though  they  were 
single  women,"^  and  the  law  pennits  a  married  woman  to  institute 
proceedings  and  defend  her  separate  interests  in  her  own  name. 

TITLE  SECOND. 

death  of  a  party  axd  revivor  of  a  proceeding. 

§  101.  In  probate  proceedings.—  Where  in  a  proceeding  for  pro- 
bate, one  of  the  parties  dies,  the  surrogate,  having  acquired  juris- 
diction of  all  the  parties  in  interest,  is  not  thereby  divested  of 
jurisdiction.  If  the  survivors  appear  and  litigate,  without  objec- 
tion because  of  an  omission  to  bring  in  the  heirs  and  representa- 
tives of  the  deceased  party,  such  omission  cannot  impair  the 
validity  of  the  proceedings  as  to  the  survivors.'*"  But  even  where 
objection  is  made,  the  court  may  (and  it  is  the  better  practice  that 
it  should,  in  all  cases,  whether  objection  is  made  or  not),  order  the 
proceeding  to  be  revived  and  continued. 

35  Wood   V.   Bro\\Ti,    34   N.    Y.   337  ;  38  See  Co.  Civ.  Proc,  §  450 ;  Bleecker 

Smith    V.   Lawrence,     11    Paige,    206;  v.   Lynch,    1   Bradf.     458;     Keeney   v. 

Woodruff    V.    Woodruff,    17    Abb.    Pr.  Whitmarsh,  16  Barb.  141. 

165;   Buchan  v.  Rintoul,  70  K  Y.  1 ;  39  L.  1867,  c.  782,  §  2. 

Burt    V.    Burt,    41    id.    40.      In    Wood  40  Brick    v.    Brick,    06    X.    Y.     144. 

V.   Brown    (supra),  which  was  an  ac-  Where   the   proponent  of  a  will,   who 

tion    by   an   executor    against   his   co-  was  a  beneficiary  thereunder,  died  dur- 

executor  to  revoke  the  latter's  appoint-  ing   the   pendency   of   the    proceeding, 

ment    for    his    misconduct,    the    court  leaving  a  will,  purporting  to  dispose  of 

held  that  creditors,  legatees,  and  next  all  his  property,  which  was  thereafter 

of  kin  were  not  necessary  parties,  but  proved,  the  orderly  method  of  continu- 

delivered  a  dictum  that  they  might  be  ing  the  probate  proceeding  would  be  an 

necessary    in   an   action   for    final    ac-  ex  parte  application  by  the  executor  of 

counting.  the    latter   will    to   be   made   a    party 

3«  Co.  Civ.  Proc,  §  2778.  thereto,  and,  upon  the  granting  of  such 

3"  See  Westervelt  v.  Gregg,  1  Barb,  application,  a  motion,  on  notice,  for  a 

Ch.  469;  Guild  v.  Peck,  11  Paige,  475;  revivor    in    his    name    as    proponent. 

Woodruff  v.  Cox,  2  Bradf.  153;  Marre  (Matter  of  Govers,  5  Dem.  40.) 
V.  Ginochio,  id.  165. 


71  Parties  to  Proceedings,  Etc.  ^  102. 

The  proceeding  for  the  prol)ate  of  a  will  is  a  quasi  proceediiiu,- 
in  rem,'^^  and  such  a  proceeding  cannot,  in  the  nature  of  things, 
abate  by  the  death  either  of  a  proponent  or  a  ccjiitestant.  His  per- 
sonal re2)resentatives  succeed  him  in  the  proceeding,  and  the  right 
survives  to,  and  may  be  prosecuted  by,  them.  A  proceeding  Xo 
revoke  i)robate  stands  upon  a  different  footing,  and  where  the  in- 
terest of  the  i)etitioner  ceases  at  his  death,  the  proceeding  cannot 
be  revived.'*^ 

§  102.  In  accounting  proceedings.—  it  was  formerly  the  rule 
that  in  proceedings  for  an  accounting,  where  a  sole  party  petitioner 
or  respondent  died  before  final  decision  the  proceeding  abated,  and 
a  final  decree  could  not  be  entered.'*'*  The  personal  representa- 
tives of  the  deceased  executor  could  be  called  upon  to  account  for 
the  estate  of  the  first  decedent,  but  only  in  a  new  proceeding,  and 
not  by  a  revivor  of  the  proceeding  against  the  deceased  executor.*"* 

It  is  now  provided,  however,  that  "  on  the  death  heretofore  or 
hereafter  of  any  executor,  administrator,  guardian,  or  testamentary 
trustee  while  an  accounting  by  or  against  him,  as  such,  was  or  is 
jDending  before  a  Surrogate's  Court,  such  court  may  revive  said 
proceeding  against  his  executor,  administrator,  or  successor  and 
proceed  with  such  accounting  and  determine  all  questions  and 
grant  any  relief  that  the  surrogate  would  have  power  to  determine 
or  grant  in  case  such  decedent  had  not  died  or  in  a  case  where  the 
■executor  or  administrator  of  said  last-mentioned  decedent,  acting 
at  the  time  of  such  revival,  had  voluntarily  petitioned  for  an  ac- 
counting as  provided  for  in  this  section."  *^ 

The  death  of  the  party  who  instituted  the  proceeding  will  not 
abate  it.  Thus  where  a  legatee  dies,  his  assignee  is  entitled  to 
intervene  and  continue  the  proceedings.*^  The  right  to  revive  a 
proceeding  is  a  valuable  right,  and  the  surrogate  has  no  power  to 
fnter  an  order,  of  his  own  motion,  adjudging  that  it  has  abated. 
Such  an  order  being  void,  may  be  collaterally  attacked  whenever 
brought  in  question.*^ 


41  Van  Men  v.  Hewins,  5  Hun,  44;  Law  Bull.  48  (N.  Y.  Surr..  18S2);  Mat- 
Bofjardus  v.  Clark.  4  Paipe,  623 ;  Laf-  ter  of  May,  24  Misc.  450,  53  N.  Y. 
fertv  V.  Laffertv,  5  Rodf.  320.  Supp.  710. 

42  Matter  of  lyfillikon.  32  Misc.  317.  45  Co.  Civ.  Proc..  §  200(5,  as  amended 

43  Pease  v.  Gillette,  10  Misc.  467:  32  1902. 

N.  Y.  Supn.  102:  INTatler  of  Steonekrn.  4i!  Matter  of  Fortune.  14  Alih.  X.  C. 

-51  App.  Div.  417:  04  N.  Y.  Rupp.  000.  415.     See    Tlitoheock    v.    Marshall.    2 

See  :Nratter  of  Koch,  33  ^IUq.  072;  08  Re^f.    174;    Worrall   v.   Drifif^s,    1    id. 

N.  Y.  Supp.  038.  440. 

44  Boprum  V.  Belts,  1  Dem.  471,  and  47  Matter  of  Armstronj;.  72  App. 
cases  cited.     See  Matter  of  Scribner,  3  Div.  286. 


§§  103,  104.         Parties  to  Proceedings,  Etc.  72 

Of  course,  the  death  referred  to  must  have  occurred  after  the 
surrogate  has  acquired  jurisdiction  bv  service  of  the  citation  ui3on 
the  party,  else  the  proceeding  cannot  be  revived."*' 

§  103.  In  other  proceedings.—  Proceedings  other  than  those  for 
or  against  probate  and  upon  accountings  stand  upon  a  different 
footing.  It  is  to  be  observed,  moreover,  that  not  only  an  action, 
but  a  special  proceeding,  does  not  abate  by  any  event,  if  the  cause 
of  action  survives ;  except  that  a  special  proceeding,  authorized  to 
be  brought  by  or  in  the  name  of  a  public  officer,  or  by  a  receiver 
or  other  trustee  appointed  by  virtue  of  a  statute,  does  not  abate 
by  the  death  or  removal  of  such  officer,  etc.,  but  may  be  continued 
by  his  successor.^''  And  an  executor,  administrator,  or  a  pfson 
appointed  by  a  surrogate  to  sell  a  decedent's  real  estate  to  pay 
debts,  is  to  be  deemed  such  a  trustee.^^  Section  765  of  the  Code, 
forbidding  the  entry  of  a  judgment  against  a  party  (to  an  action) 
who  dies  before  a  verdict,  report,  or  decision  is  actually  rendered 
against  him,  is  made  applicable  to  Surrogates'  Courts  by  section 
3347,  subdivision  6.^^ 

TITLE  THIRD. 

interventiox  of  third  parties. 

§  104.  In  probate  proceedings. —  It  has  always  been  the  rule 
(now  confirmed  by  statute),  that  any  person  interested  in  the 
estate,  who,  though  not  entitled  to  be  cited,  yet  desired  to  inter- 
vene for  the  protection  of  his  own  interests,  might  apply  to  the 
surrogate,  by  petition,  for  leave  to  do  so.^^  The  language  of 
the  statute  authorizing  intervention  in  probate  proceedings  (Co. 


■18  Matter   of   Georgi,   35   Misc.   685;  mav  contest  a  codicil  which  supersedes 

72  X.  Y.  Supp.  431.  the"  will.      CMatter   of   Corvell,  4  App. 

•19  Co.  Civ.  Proc.   §§   755,   766.     See  Div.  429;  39  X.  Y.  Supp.  508.)    See  Co. 

L.  1801,  c.  284.     Those  sections  do  not  Civ.  Proc,  §  2617;  Lafferty  v.  Lafferty, 

apply  to  Surrogates"  Courts.     (^Matter  5    Redf.    326.      A    receiver   in   supple- 

of    Schlesinger.    36    App.    Div.    77 ;    55  mentary   proceedings   of    the   property 

X.  Y.  Supp.  514;  Matter  of  Camp,  81  of  a  husband,  for  whom  no  provision 

Hun.  387:   30  X.  Y.  Supix  884.)  is  made  in  his  wife's  will,  is  not  en- 

50  Co.  Civ.  Proc,  §  1828.  titled    to    intervene    as    a   contestant 

51  Herbert  v.  Stevenson,  3  Dem.  236.  in    probate    proceedings.       (Matter    of 
52Bogardus  v.   Clark,   4  Paige.  623.  Bro\\-n,  47  Hun.  360.)      Under  L.  1893, 

626,  which  was  approved  and  sustained  c     701.    providing    that    a     gift    for 

in  Vanderpoel  v.  Van  Valkenburgh,  6  charitable  uses  is  not  to  fail  by  reason 

X.  Y.  190.  199.     In  Booth  v.  Kitchen,  of  the  indefiniteness  or  imcertainty  of 

7  Hun,  200,  it  was  held  that  a  person  the    beneficiaries     in    the    instrument 

claiming  to  be  legatee  under  a  codicil  making  it.  the  attorney-general  is  en- 

afterward    revoked    was   entitled   to    a  titled    to    intervene.       (Rothschild    v. 

hearing  on  the  probate  of  the  will.     So,  Goldenberg.   58   App.   Div.  499;    69  X. 

too,  a  judgment  creditor  of  a  devisee  Y.  Supp.  523.) 


73  Paktiks  to  Pkoceedi.ng.s,   Etc.         §§  105,  100. 

Civ.  Proc,  §  2G17)  is  broad  enough  to  include  every  interest. 
It  has  been  hekl  that  any  interest,  and  even,  it  seems,  the  barti 
])os.sibilitj  of  an  interest,  is  sufficient  to  entitle  a  jnirty  to  oppose 
a  testamentary  paper.  Thus  executors  under  a  will  may  oppose 
the  probate  of  a  later  will,  although  the  parties  beneficially  inter- 
ested under  the  earlier,  have  released  their  interest.^'*  The  ques- 
tion of  the  intervening  party's  interest  in  the  estate  will  not  be 
independently  determined,  even  where  it  is  disputed,  before  de- 
termining the  main  issue,  but  the  court  will  try  both  issues  to- 
gether.'^ 

§  105.  In  other  proceedings. —  Other  sections  of  the  Code  pro- 
vide for  the  bringing  in  of  third  persons,  who  are  necessary  par- 
ties in  other  than  probate  proceedings,  as  on  an  accounting- 
(§  2743),  and  on  an  a]ipeal  (§  2573).  So  a  creditor,  or  any 
])erson  interested  in  the  estate,  although  not  cited  (and  certainly 
not  a  necessary  party),  is  entitled  to  appear  upon  an  accounting, 
and  thus  make  himself  a  party  to  the  proceeding. ^^  There  will 
be  occasion,  when  we  come  to  speak  of  particular  proceedings,  to 
give  exam]:)les  of  the  application  of  this  rule.  The  general  re- 
mark may,  however,  be  made  here,  that  no  one  who  has  not  been 
formally  made  a  party  to  a  proceeding  can  make  a  motion 
therein. '"^^ 

§  106.  Application  for  leave  to  intervene. —  A  party  desiring  to 
be  made  a  party  to  a  pending  proceeding  should  present  a  veri- 
fied petition,  setting  forth  his  interest  in  the  controversy  with 
certaintv."     It  is  not  necessarv,  we  think,  that  he  should  state 


53  Matter  of  Greeley,  15  Abb.  (X.  S.)  54  Xorton  v.  Lawrence,  1  Redf.  473: 
.39,3.  Compare  Matter  of  Rollwapcn,  Henry  v.  Henry,  4  Dem.  253:  s.  c,  in 
48  How.  Pr.  103;  Turbune  v.  Brook-  part."  as  Estate  of  Henrv,  3  How.  Pr. 
field.  1  Redf.  2-20:  Chittenden's  Estate,  (X.  S.)  386:  9  Civ.  Proc.  Rep.  100.  See 
1  Tuck.  13."):  Walsh  v.  Ryan.  1  Rradf.  Jones  v.  Hamersley,  4  Dem.  427:  7  St. 
433:  ^larvin  v.  Marvin.  11  Abl).  Pr.  (X.  Rep.  292.  as  to  what  questions  an  in- 
S. )  97:  Matter  of  Jones,  1  Redf.  203:  tervcning  party  in  probate  may  raise. 
Foster  V.  Foster,  7  Paipe,  4S :  Public  •55  Co.  Civ.  Proc.,  S  2728,  as  amended 
Administrator  v.  Watts,  1  id.  347:  1893  (formerly  §  2731):  Scblepel  v. 
Thomson  v.  Thomson,  1  Bradf.  24:  Winckel,  2  Dem.  232 :  Reillev  v.  Duffy, 
Bonfanti  v.  Deguerre,  3  id.  429:  Robi-  4  id.  300:  Tildcn  v.  Dows.  2'id.  489.' 
son  V.  Robison,  5  Lans.  105:  Worrall  5ti  Lafferty  v.  Lafferty.  5  Redf.  320; 
V.  Drifrc's,  1  Redf.  449;  C.ratacap  v.  Smith  v.  Baylis,  3  Dem.  507. 
Phvfe,  1  Barb.  Ch.  485;  Clark  v.  Ford,  57  A  decree  directing  a  temporary 
1  Abb.  Ct.  App.  Dec.  359;  Carpenter  v.  administrator  in  jirobate  proceeding* 
Historical  Soc.  1  Dem.  000:  Stapler  v.  to  pay  certain  costs  has  the  effect  of 
Hoffman,  id.  03;  Matter  of  Ellis,  22  making  him  a  party  to  the  proceeding. 
St.  Rep.  77;  ^lerritt  v.  Jackson,  2  and  he  need  not  olitain  leave  to  move 
Dem.  214.  See  pos^  c.  VI,  as  to  Pro-  for  a  modification  of  the  same.  (Mat- 
bate  Proceedings;  c.  XTX,  as  to  Ac-  ter  of  Aaron,  5  Dem.  362.) 
counting  Proceedings,  and  c.  XXIV,  as 
to  Appeals. 


§  107.  Parties  to  Proceedings,  Etc.  74 

in  his  petition  whether  he  desires  to  help  the  prosecution  or  the 
defense.  He  has  a  right  to  he  present  as  a  party  to  watch  the 
proceedings  with  a  view  of  protecting  his  own  interests,  however 
they  may  appear.  The  right  to  intervene  must  be  availed  of 
before  final  decree.^®  If,  for  example,  a  legatee  fails  to  inter- 
vene in  the  proceeding  in  the  Surrogate's  Court,  or  on  appeal 
froin  his  decree,  he  will  not  be  permitted,  after  final  judgment 
on  the  probate,  to  appeal  from  a  surrogate's  order  directing  the 
annulment  of  the  record,  and  awarding  costs  against  an  executor, 
and  directing  him  to  file  an  inventory  of  the  estate.  He  has 
ceased  to  be  an  interested  party,  and  is  represented  by  the  ex- 
ecutor, and  is  bound  by  his  acts.^^  A  creditor  does  not  lose  his 
right  to  intervene,  on  an  accounting,  by  omitting  to  present 
his  claim  in  pursuance  of  a  notice  requiring  presentation  of 
demands.^'' 

§  107.  Ordering  third  parties  to  be  brought  in. —  If  a  party  to 
the  pending  proceeding  desires  to  bring  in  a  new  party,  he  should 
apply  on  petition  or  affidavit  for  a  citation  to  be  issued  to  the 
proposed  new  party.  The  service  of  the  citation,  with  proof 
thereof,  is  thought  to  be  sufficient,  without  the  entry  of  a  formal 
order  making  him  a  party.  So,  whenever  it  appears,  in  the 
progress  of  a  proceeding,  that  a  person  not  cited  to  appear  is  a 
necessary  party,  the  surrogate  will,  on  his  own  motion,  issue  a 
citation  to  him  for  his  appearance.*^^  This  rule  has  been  fol- 
lowed where,  pending  a  reference,  under  the  statute  to  determine 
a  disputed  claim  against  executors  or  administrators,  it  appeared 
that  the  presence  of  a  third  person  was  necessary  to  a  complete 
determination  of  the  controversy.*'-  So  when,  on  the  probate  of 
a  will,  an  alleged  codicil  is  brought  in  by  parties  who  are  inter- 
ested, but  who  were  not  cited,  the  proper  course  is  to  direct  them 
to  file  an  allegation  propounding  the  codicil  for  proof,  as  a  part 
of  the  pending  proceeding. ^^      So  where  it  appeared,  for  the  first 

5S  Matter  of  Dunn,  1  Dem.  294.     The  59  Marvin   v.    Marvin,    11    Abb.    Pr. 

right  to  intervene  vipon  an  accounting  (N.  S.)   97. 

of    an    executor  or    trustee  does    not  GO  Greene  v.  Day,  1  Dem.  4.5 ;  O'Con- 

arise  until  the  "  hearing,"'  and  where  a  nor  v.  Gifford.  fi  id.  71.     See  Matter  of 

proceeding  for  a  compulsory  account-  O'Brien,  33  Misc.  17;   67  N.  Y.  Supp. 

ing  has  been  discontinued  bv  a  formal  lllfi. 

consent  of  all  the  parties  to"  it.  a  third  f-l  Matter  of  Odell,  1  Misc.  390.     See 

person  cannot  thereafter  intervene  and  Paissell  v.  Ilartt,  87  N.  Y.  19. 

bring  on  the  matter  for  hearing.    (Mat-  '"S  See  Mowrv  v.  Peet,  7  Abb.  N.  C. 

ter  of  Wood.  5  Dem.  345.)     The  appli-  196;    Munson  v.  Howell,  20  How.  Pr. 

cation,  after  appeal,  must  be  made  to  00. 

the  appellate  court.     (lb.,  and  Co.  Civ.  «•"?  Carle  v.  Underbill,   3  Bradf.   101. 

Proc,  §§  452,  2573.)  See  Van  Wert  v.  Benedict,  1  id.  114. 


75  Parties  TO  Pi;()(i-:p:r)ixos,  Etc.  ^  lOS. 

time,  upon  a  probate  trial,  that  one  of  the  next  of  kin  \va~  an 
infant,  the  fact  not  havino-  been  alleged  in  the  ])etition  f(jr  pro- 
bate, the  surrogate  will  ai)point  a  special  guardian,  to  represent 
the  infant's  interests,  before  a  decision  is  rendered.** 

•    TITLE  FOURTH. 

Sl'KCIAL    (il'ARDIAXS. 

§  108.  Special  guardian  for  infant  or  incompetent — In  Surro- 
;gates'  Courts,  as  in  others,  an  infant  ])arty  must  be  represented 
bv  a  guardian  —  his  general  guardian,  if  he  has  any;'"  or  if  he 
has  none,  or  his  general  guardian  does  not  a])]iear  in  the  pro- 
ceeding, the  court  nuist  a])point  a  special  guardian  for  the  par- 
licuhir  ])roe(HMling  to  which  the  infant  is  a  party.  The  a])point- 
ment  of  a  special  guardian  is  not  nullified  by  the  subsequent 
aj^pointment  of  a  general  guardian.'"'  The  omission  to  appoint 
a  special  guardian  of  an  infant  ])arty  who  was  serve<l  does  not 
render  void  the  surrogate's  decree  in  the  proceeding,  but  only 
voidable  at  the  election  of  the  infant  on  reaching  majority.'" 
Special  provision  is  made  for  the  protection  of  the  interests  of 
lunatics,  idiots,  and  ha])itual  drunkards,  whether  they  appear  by 
committee  or  in  person.*'^  The  fact  of  there  being  a  general 
guardian  of  an  infant,  or  a  committee  of  an  incompetent,  does 
not  prevent  the  appointment  of  a  special  guardian  in  a  proper 
case,  as  where  there  is  any  groimd  to  suppose  that  the  interest 
of  the  guardian  or  committee  is  adverse  to  that  of  the  infant  or 
incompetent,  or  where,  for  any  other  reason,  the  interests  of  the 
latter  require  the  appointment  of  a  special  guardian.*'''  But  a 
general  guardian  who  is  qualified  to  adequately  protect  the  inter- 
ests of  his  ward,  and  who  is  exercising  the  function  of  his  office 


C4  Matter  of  Foolev.  X.  Y.  Law  J..  siifTKient  cause  to  vacate  a   decree   of 

Mav  13.  1800  (X.  Y. 'Siirr.  CD.  prol)ate. 

e^  Gunning    v.     Lockman,     .3     Redf.  ra  Co.  Civ.  Proc.  §§  2.r27.  2.-1.30.     In 

273:   4  Abb.  X.  C.  173.  :Matter  of  Van  Beuren,  a  special  <ruard- 

""i  Matter   of   IMonell,    22    Civ.    Proe.  ian  was  appointed  at  the  request,  and 

Rep.  377;   19  X.  Y.  Supp.  361.  upon    tlie    representation    of    counsel, 

<i- Matter  of    Becker,   2S    Hun,    207:  that  he  had  no  interest  adverse  to  mo 

Matter  of  Bowne.  10  St.  Rep.  S!).i.  person    for   whom    such    truardian   was 

08Co.  Civ.  Proc.  §  2530.    See  Bloom  needed.      It    afterward   appeared    that 

v.   Burdictc,    1   Hill.   130:    Schneider  v.  he  had  an   adverse  interest,   inasmuch 

McFarland.   2   X.   Y.   450;     Acl<ley   v.  as  he  represented  the  life  tenant,  and 

Dygert.  33  Barb.  170;  Havens  v.  Sher-  liis  law  firm  appeared  for  a  rc-iduary 

man.  42  id.  036.     In  ^Matter  of  Donlon.  legatee   and    remainderman.     Ransom. 

'66  Hun,  100;  21  X.  Y.  Supp.  114.  the  S..  vacated  the    appointment.       (X.  Y. 

service  of  a  citation  upon  an  incompe-  Law  J.,  Jan.  10.  1801.)     In  Matter  of 

tent  for  whom  no  next  friend  or  repre-  Graham,    it    appearing    from    an    ex- 

sentative  has  been  appointed,  was  held  amination  of  the  will  that  the  mother 


§  109.  Paktiks  to  Proceedings,  Etc.  76 

when  an  occasion  arises  for  having  the  ward  represented  in  a 
special  proceeding,  is,  undonbtedly,  entitled  to  appear  therein  in 
behalf  of  the  infant,  and  it  wonld  be  improper  to  deny  him  this 
right,  and  to  appoint  a  special  gnardian  in  his  stead,  if  he  is  will- 
ing to  act.'*^ 

§  109.  Application  for  appointment. —  On  the  return  of  a  cita- 
tion directed  to  an  infant,  if  no  one  applies  for  the  appointment 
of  a  special  guardian,  it  is  the  duty  of  the  court  to  appoint  one 
on  its  own  motion.  iSTo  application  need  be  made  by  the  infant, ^^ 
or  if  made  by  him,  no  notice  of  such  application  is  necessary, 
unless  he  has  a  general  guardian ;  in  which  case  notice  must  be 
given  to  the  latter.'^  Notice  of  the  application  need  not  be  given 
to  the  infant  where  the  appointment  is  made  on  the  surrogate's 
own  motion.^^  It  is  only  where  a  person,  other  than  the  infant,, 
or  the  committee  of  the  incompetent  person,  applies  for  the  ap- 
pointment of  a  special  guardian,  that  notice  of  the  application, 
must  be  personally  served  upon  the  infant  or  incompetent  person^^ 
if  he  is  within  the  State,  and  also  upon  the  committee,  if  any, 
in  like  manner  as  a  citation  is  required  to  be  served.''*  The  ap- 
plication may  be  made  at  the  time  of  presenting  the  petition, 
and,  in  that  case,  the  order  to  show  cause  may,  in  the  surrogate's 
discretion,  accompany  the  citation;'^  or,  the  citation  itself,  with- 

of  the  infants,  for  Avhom  a  special  void  in  proceedings  for  the  sale  of  real 
guardian  was  appointed,  upon  the  property,  or  affect  the  title  of  a  pur- 
petition  of  their  father,  had  an  in-  chaser.  (Price  v.  Fenn,  3  Dem.  341 ;  8 
terest  adverse  to  the  infants,  the  order  Civ.  Proc.  Rep.  206. ) 
appointing  the  special  guardian  npon  "2  Farmers"  Loan  &  Trust  Co.  v.  Mc- 
that  petition   was  vacated.      (Ransom,  Kenna,  3  Dem.  219. 

8.,     X.    Y.    Law   J.,     May    29.     1891.)         '3  And    the    papers    need    not    state 

In  Matter  of  Van  Wagonen   (69  Hun,  whether   the    infant   resides   with    his 

365),    it    was    held   not   error    for    the  parents  and  approves  the  application, 

surrogate     to     appoint     his     brother  (Matter  of  Monell,  46  St.  Rep.  693  ;  19 

special  guardian  for  an  infant  litigant.  X.  Y.  Supp.  361.) 

"0  Farmers'  Loan  &  Trust  Co.  v.  Mc-        "■*  The  appointment  of  a  guardian  ad 

Kenna,    3    Dem.    219.     In    Matter     of  litem,   for   an   infant   party   in   a    con- 

Monell   ( 46  St.  Rep.  693 ;  22  Civ.  Proc.  tested  probate  proceeding,  who  is  pres- 

Rep.  377  ),  pending  an  accounting  pro-  ent    when    the   appointment    is    made, 

ceeding,    a    general    guardian's    letters  was,  however,  lield  to  be  regular,  with- 

Avere   revoked,    and   the    surrogate   ap-  out  service  of  a  notice  or  citation  upon 

pointed  a  special  guardian  for  the  in-  the  infant  when  he  did  not,  by  himself 

fant   party.     Held,   that  this  appoint-  or   his  guardian,   object.       (Matter   of 

ment  was' not  nullified  or  rendered  of  Seabra,   38   Hun,  218.) 
no   effect  by   the   subsequent   appoint-        "5  Co.  Civ.  Proc,  §  2531.      The  fol- 

ment     of     a     new     general     guardian,  lowing  rules  have  been  established  in 

While  the  latter  had  the  right  to  ap-  the    Surrogate's   Court   of    Xew  York 

pear  in  the  proceedings,  this  right  did  county,  in  respect  to  special  guardians, 

not  conflict  with  the  rights  and  duty  appointed  in  proceedings  in  that  court: 

of  the  special  guardian.  Xo   special   guardian  to  represent   the- 

"1  ^Matter   of    Ludlow,    5    Redf.    391.  interests  of  an  infant  in  any  proceed- 

Failure  to  give  the  infant  notice  of  the  ing  in  said  Surrogate's  Court,  will  be 

application  does  not  make  the  decree  appointed  on  the  nomination  of  a  pro- 


77  Partip:s  to  Puoceedinos,  Etc.        §§  110,  111. 

out  any  order  to  show  cause,  may  contain  a  clause  advising  the 
infants  that,  in  the  event  of  their  not  appearing  by  general  guard- 
ian, and  failing  to  ask  for  the  ap})ointnient  of  a  special  guardian, 
a  sjjecial  guardian  will,  upon  the  return  of  the  citation,  be  ap- 
pointed.^^ 

§  110.  Appointment,  when  made.—  The  appointment  cannot  be 
made  until  the  citation  has  been  served  on  the  infant,"'  nur  until 
the  return  day  named  in  the  citation.'^  The  order  cannot  be 
made  nunc  pro  tunc,  after  the  decree  has  been  made,  so  as  to  cut 
off  the  right  of  the  infant  to  object  to  the  irregularity  on  coming 
of  age  ;'*'*  but  it  may  be  made,  pending  the  hearing,  before  the 
<iecision  is  rendered.**' 

ij  111.  Duties  and  responsibilities.— It  is  for  a  special  guardian, 
"who  is  usually  a  lawyer,**^  and  aware  of  his  duties  and  responsi- 
bilities as  such,  to  take  such  course  of  action  in  the  interest  of 
liis  ward  as  he  may  deem  fittest,  without  recourse  to  the  court  for 


ponciit  or  the  accounting  party  or  his  fant  is  residing,  whether  or  not  he  has 

attorney,  or  upon  the  application  of  a  a  parent  living,  and,  if  a  parent  is  liv- 

])erson  liaving  an   interest   adverse   to  ing,   whether   or   not    such   parent   has 

that  of  the   infant.     To  authorize  the  knowledge  of,  and  approves,   such  ap- 

appointment  of  a  person  as  a  special  plication    or    appearance;     and    such 

guardian  on  the  application  of  an  in-  knowledge  and  approval  must  be  shown 

fant   or  otherwise   in   a    ])roce('ding  in  by  the  affidavit  of  such  parent.     If  the 

this    court,    or    to    entitle    a    general  infant  has  no  parent  living,  like  knowl- 

guardian  of  such  infant  to  apjjcar  for  edge  and  approval  of  sucli  ai)plication 

him    in    such   proceeding,    it   nuist  ap-  or  appearance  by  the  person  with  whom 

pear  that  such  person,  or  such  general  the    infant   resides   must   be   shown   in 

guardian,  is  competent  to  protect  the  like  manner.     Where  such  application 

rights  of  the  infant,  and  that  he  has  no  is  made  by  an  infant  over  the  age  of 

interest  adverse  to  that  of  the  infant  fourteen  years,  his  petition  nuist  show 

jxnd  is  not  connected  in  l)usiness  with  and  be  accompanied  bv  the  affidavit  of 

the  attorney  or  counsel  of  any  party  to  the  parent  (in  case  the  latter  has  an 

the  proceeding.     Where  the  application  interest  adverse  to  that  of  the  infant), 

for  tile  appointment  of  a  special  guard-  sliowing.    in    addition    to    such    knowl- 

ian   is   made  by  another  tlian    the   in-  edge   aforesaid,   that    such    parent    has 

fant,    or   wliere    the   general    guardian  not  influenced  the  infant  in  the  choice 

appears  in  behalf  of  the  infant,  it  nnist  of    the  guardian.      (Rule    X.   Mar.    l(i, 

appear  tliat  sucli  ap])licant  or  general  1888.)      See  Matter  of  Henry,  2  How. 

guardian    has    no    interest   adverse    to  Pr.  (N.  S. )   250. 

that  of  the  infant.     If  such  applicant  'i'*' Price   v.    Fenn,   ;?   Dem.   .'?41.     See 

or  general  guardian  is  entitled  to  share  Matter  of  Cutting.  38  App.  Div.  247; 

in    the    distribution    of    the    estate    or  5(5  N.  Y.  Supp.  945. 

fund  in  which  the  infant  is  interested,  "Potter   v.   Ogden.    136  X.  Y.  384: 

the  nature  of  the  int(>rest  of  such  ap-  Pinckncy  v.  Sinitli,  2(i  Hun.  524.     P.ut 

jilicant   or  general   g^iardian    nnist    be  scm'  Prii-e  v.  Fenn,  siijini. 

<liscl()sed.     The  application  for  tlic  ap-  "^  Matter  i>f  Leinkauf.  4  Dem.   1. 

pointnient    of    a    special    guardian,    as  '•*  Matter  of  Powne.  10  St.  Rep.  805. 

well  as  the  appearance  filed  by  a  gen-  ■'^"  Matter  of   Feeley.   N.  Y.   Law  .1., 

«ral    guardian   of    a    minor,   must    in  May  13,  ISOO. 

-every   instance  disclose  the  name  and  si  In  Matter  of  Spieer.    1    Tuck.   SO, 

residence   and   relationship    to   the    in-  it  was  held  that  he  must  be  a  lawyer, 
fant  of  the  person  with  whom  the  in- 


112.  Parties  to  Peoceedings,  Etc.  7S 


instructions.  In  general,  it  is  not  proper  for  a  surrogate  to  ad- 
vise either  the  prosecution  or  the  withdrawal  of  a  contest  in  his 
court,  but  it  would  seem  that  the  Supreme  Court,  possessing,  as 
it  does,  general  jurisdiction  and  supervisory  power  over  the  es- 
tates and  persons  of  infants,  may  be  asked  for  counsel  and  direc- 
tion b}'  a  guardian  ad  litem  as  to  the  propriety  of  his  further 
continuing  to  contest  a  probate  in  the  Surrogate's  Court. ®^ 

§  112.  Compensation  of  guardian — There  was,  formerly,  no  ex- 
press provision  in  the  statute,  i-especting  the  compensation  of 
special  guardians  in  Surrogates'  Courts;  but,  as  authority  to  ap- 
point implied  an  authority  to  compensate  such  a  guardian,  the 
practice  was  to  make  him  an  allowance  payable  out  of  the  general 
estate,  proportioned  to  the  character  and  importance  of  the  in- 
terest involved  and  the  services  rendered.  But  if  statutory  au- 
thority were  required,  it  would  seem  to  be  given  by  that  section 
of  the  Code  which  provides,  in  respect  to  a  Surrogate's  Court, 
that  "  each  other  officer,  including  a  referee,  and  each  witness, 
is  entitled  to  the  same  fees,  for  his  services  *  *  *  as  he  is 
allowed  for  like  services  in  the  Supreme  Court."  ^^  Since  its 
adoption,  the  Code  is  the  sole  source  of  the  authority  of  a  Sur- 
rogate's Court  to  allow  compensation  to  special  guardians.*^ 
Hence  a  special  guardian  unsuccessfully  opposing  probate  in 
behalf  of  an  infant,  was  held  to  be  an  "  unsuccessful  contestant 
of  the  will,"  within  the  meaning  of  section  2558  before  its  amend- 
ment in  1881.  As  that  section  now  stands,  special  guardians, 
appointed  in  a  contested  application  for  probate,  or  revocation 
of  probate,  are  excepted  from  the  operation  of  the  prohibition  of 
costs  to  unsuccessful  contestants.  Section  2561  prescribes  the 
narrow  limits  within  which  the  court  may  exercise  its  discretion 
as  to  the  amount  to  be  awarded  —  viz. :  not  exceeding  seventy 
dollars,  and  ten  dollars  per  day,  in  addition,  for  all  the  days  less 
two,  necessarily  occupied  in  the  trial.  A  special  guardian  who 
represents  infants  in  a  probate  contest  has  no  duty  to  discharge 
in  reference  to  the  estate,  and  his  compensation  should  come  from 
the  infants  or  their  estate.  The  costs  which  may  be  allowed  by 
the  surrogate  out  of  the  general  estate  are  limited  to  those  speci- 
fied in  Co.  Civ.  Proc,  §§  2558,  2561.^ 


82  See  Matter  of  Chittenden,  1  Tuck.  85  Matter  of  Budlong,  100  N.  Y.  203. 
251.  This    overrules    McCue    v.    OHara,    5 

83  Schell  V.  Hewitt.  1  Dem.  245  See  Eedi.  336.  A  special  ^ardian.  a* 
General  Rule  50 ;  Matter  of  Matthews,  counsel,  is  not  entitled  to  an  allow- 
27  Hun.  254.  ance.       (Matter  of  Johnston,    6   Dem^ 

84  Forster  v.  Kane,  1  Dem.  67.  355. ) 


79 


Pakties  to  Pkoceedixgs,  Etc. 


§  112. 


In  proceedings  other  than  for,  or  against,  probate,  the  special 
guardian  of  an  infant  party,  for  example,  in  u  ]»roceeding  for  an 
accounting,  will  bo  allowed  compensation,  in  a  ])roper  case,  even 
M'liere  unsuccessful.*^^  The  rule  is  well  settled  that  the  surrogate 
has  no  power  to  compensate  a  special  guardian  for  services  in  a 
proceeding  which  has  left  his  court,  e.  g.,  on  an  appeal  from  his 
decree  therein. 


86  In  Matter  of  Trust,  Ransom,  S., 
said : 

"  The  compensation  of  the  special 
j^'uardian  is  not  to  be  ascertained  by  a 
comparison  of  his  services  with  those 
of  the  attorneys  for  the  accounting 
party,  nor  with  the  commissions  al- 
lowed by  law  for  the  services  of  the 
latter.  In  this  case  objections  were 
filed  by  the  special  guardian  as  the 
only  means  of  procuring  information 
which  it  was  his  plain  duty  to  obtain. 
It  is  a  mistake  not  uncommonly  made 
by  accounting  parties  and  their  coun- 
sel, to  regard  special  guardians  as  in- 
truders in  ])roceedings  involving  the 
rights  and  interests  of  infants.  I  have 
liorotoforo  expressed  my  views  upon  the 
rights  and  duties  of  special  guardians 
generally,  and  counsel  are  referred  to 
Estates 'of  Powers  (Surr.  Dec.  1888, 
p.  1.34):  Wadsworth  (6  X.  Y.  Supp. 
032).  In  this  case  the  special  guard- 
ian, in  accordance  with  the  rule  of  this 
court,  has  furnished  for  mv  informa- 


tion, and  filed  the  same,  his  sworn 
statement,  giving  in  detail  the  charac- 
ter of  his  services  and  the  time  neces- 
sarily occupied  by  him  in  their  per- 
formance. I  find  nothing  in  the  writ- 
ten argument  of  counsel  for  the  ac- 
counting party  which  can  possibly  jus- 
tify me  in  disregarding  tlie  aflidavit  of 
the  special  guardian  as  false,  and  if 
taken  as  true,  it  fully  sustains  him  in 
every  particular.  Although  he  was  un- 
successful, he  had  reasonable  grounds 
for  his  action.  He  discharged  his  du- 
ties faithfully  and  honestly,  and  should 
be  allowed  a  suitable  sum  for  his  pro- 
fessional labor.  His  own  estimate 
seems  fair,  and  I  allow  him  the  amount 
he  claims.  The  referee  cannot  be  al- 
lowed the  fee  paid  unless  stipulation 
by  adult  parties  is  filed.  The  infants' 
interests,  in  any  event,  can  only  be 
charged  M'ith  their  proportionate  share 
of  the  referee's  fees,  at  the  statutory 
rate."     CS.  Y.  Law  J.,  Jan.  26,  1892.") 


CHAPTER  V. 

TRIAL  PRACTICE,  DEPOSITIONS,  ETC. 


TITLE  TIEST. 

HEARINGS  BEFORE  THE  SURROGATE  OR  REFEREE. 

§  113.  In  general. —  Surrogates'  Courts,  having  once  acquired 
jurisdiction  of  the  parties  and  of  the  subject-matter  of  a  pro- 
ceeding, possess,  in  the  matter  of  conducting  trials  or  hearings, 
the  ordinary  common-law  powers  necessary  to  the  discharge  of 
their  judicial  functions.  The  section  of  the  Code  (§  3347) 
which  declares  to  what  courts,  etc.,  various  divisions  of  that  act 
apply,  makes  no  specification  in  respect  to  the  ninth  chapter, 
entitled  "  Evidence."  Accordingly  all  the  provisions  of  that 
chapter,  except  those  which  expressly  state  otherwise  or  which 
are  obviously  inapplicable,  govern  Surrogates'  Courts  in  common 
Avith  the  other  courts  of  the  State.  Those  provisions  include  the 
rules  concerning  the  competency,  disqualifications,  and  privilege 
of  witnesses,^  the  administration  of  oaths  and  affirmations,^  the 
issuing  and  enforcement  of  subpoenas,  including  subpoenas  duces 
tecum,^  and  the  jjroduction,  competency,  and  effect  of  documen- 
tary evidence.'* 

§  114.  Decision  to  be  filed. —  Upon  a  trial,  the  surrogate  must 
file  in  his  office  his  decision  in  writing,  which  must  state,  sepa- 
rately, the  facts  found  and  the  conclusions  of  law.  Either  party 
Tnay  request  a  finding  upon  any  question  of  fact,  or  a  ruling 
upon  any  question  of  law ;  and  an  exception  may  be  taken  to  such 
a  finding  or  ruling,  or  to  a  refusal  to  find  or  rule  accordingly.^ 


1  Co.  Civ.  Proc,  §§  828-841.  4  Co.    Civ.    Proc,    §§    921-962.      See 

2  Co.  Civ.  Proc,  §S  842-8.51.  post,  c.  VI,  as  to  competency  of  wit- 

3  Co.  Civ.  Proc,  §§  8.52-869.  As  to  nesses  in  proceedings  to  prove  a  will, 
surrogate's  power  to  compel  attend-  5  Co.  Civ.  Proc,  §  2545,  in  part, 
ance  of  witnesses,  and  to  punish  them  This  section  does  not  apnlv  to  proceed- 
for  contempt  for  nonattendance,  see  ings  pending  Sept.  1,  1880.  (Mills  v. 
Co.  Civ.  Proc,  §  2481,  subds.  3,  7  Hoffman,  92  X.  Y.  181. )  On  a  motion 
(ante,  §  52).  to  vacate  an  order  denying  application 

[80] 


SI  Trial  Pkacticp:,  Depositions,  Etc.  §  115. 

The  purpose  of  this  requirement  was  to  assiiuihito  tho  ])rac'tice 
on  apj)eals  from  a  surrogate's  decree,  in  the  prescribed  cases,  to 
that  which  regulates  appeals  from  a  judgment  rendered  ])y  a  court 
or  a  referee  in  an  action,  and  to  substitute  a  system  which  would 
point  out  specific  errors,  and  evolve  the  exact  questions  intended 
to  be  reviewed.  It  is^  therefore,  the  duty  of  a  party  appealing 
from  a  surrogate's  decree  to  procure  to  be  made  such  findings  or 
refusals  as  will  present,  through  appropriate  exceptions,  the  ques- 
tions which  he  desires  to  argue ;  and  if  he  omits  to  do  so,  no 
<piestion  will  be  presented  for  review  except  that  arising  upon 
<?xceptions  taken  during  the  trial.*'  It  will  be  seen,  therefore, 
that  a  separate  statement,  in  a  decision,  of  facts  and  conclusions 
of  law  found,  is  only  necessary  when  an  appeal  is  contemplated 
by  either  party,  and  then  only  with  the  view  of  informing  the 
a])pcllate  court,  by  exceptions  filed,  of  the  errors  relied  on.  Hence 
the  surrogate's  failure  to  file  findings  is  at  most  an  irregularity 
and  does  not  affect  the  validity  of  the  decree  f  and  is  not  a  ground 
of  objection  to  his  decision  on  appeal,^  nor  cause  for  setting  aside 
the  decree  for  irregularity.''*  The  absence  of  findings,  separately 
stated,  and  appropriate  exceptions  thereto,  amounts  to  this  only, 
that  no  question  is  presented  for  review. ^°  If  no  appeal  is 
taken,  the  irregularity  is  waived. ^^ 

§  115.  Requests  to  find. —  The  requirement  that,  when  requested 
thereto,  the  surrogate  in  his  decision  shall  state  separately  the 
facts  found  and  conclusions  of  law  is  mandatory.^"  The  "  re- 
<]uest  "  for  a  finding  of  fact  or  a  ruling  upon  a  question  of  law, 
which  can  be  made  to  the  surrogate,  can  only  be  made  "  upon 

for  an  administrator's  account  on  the  '•'  flatter  of  Hesdra,  4  Z^Iisc.   37  :   23 

^Tound  that  the  order  had  been  entered  N.  Y.  Supp.  846;   s,  c,  as  Matter  of 

bv  default,  the  surrofjate  vacated  the  Underdonk,  54  St.  Rep.  875. 

cider  and  directed  an  account.     Held,  lo^Matter  of  Hood,  suprn  :  Matter  of 

error    to    thus    dispose   of    the   merits  Kellogg,  104  N.  Y.  648 :  5  St.  Kep.  litiS; 

raised  by  administrator's  answer  on  a  IMatter    of     Otis   v.    Hall,   6    id.     51)2; 

mere  motion:    lie  should  have  made  a  ]\latter  of  Falls,  29  id.  75!);     10  X.  Y. 

decision  with  fiudinos  of  fact  and  con-  Supp.   41  ;   :Matter  of   Marsh,  45  Hun, 

elusions  of   law.      (Matter  of  O'Brien,  107:    Matter    of    Totler.    :V2    id.    590; 

45  Hun,  284:   10  St.  Rep.  414.)  :\Iatter    of    Widmayer,    52    App.    Div. 

'■"Matter  of  Hood,  104  X.  Y.  103:   5  301;  65  X.  V.  Supp.  83. 

St.  Rep.  501 ;  Angevine  v.  Jackson.  103  H  :Matter  of  Ilesdra,  supra. 

X'.  Y.  470:   3  St.  Rep.  043;    Burger  v.  12  :\ratter  of  Kaufman,   39   St.    Rep. 

Burger,   111  N.  Y.  525.  230;  14  X^  Y.  Supp.  901.    In  that  case, 

7  Hood  V.  Hood.  5  Dem.  50;  Lewis  the  surrogate  had  been  expressly  re- 
V.  Jones,  13  Abb.  Pr.  427.  quested  to  make  findings  of  fact,  which 

8  Matter  of  Hood.  104  N.  Y.  103.  he  refused  to  do.  making  a  record  of 
The  appellate  court  may,  if  it  sees  fit,  his  refusal,  to  which  a  formal  excep- 
send  the  case  back  in  order  to  have  the  tion  was  taken.  The  General  Term  re- 
irregularity  cured.  (\Valdo  v.  Waldo,  versed  the  decree  for  such  erroneous 
32  Hun,  251.)  refusal. 

6 


§§  116,  117.      Tkial   Practice,   DErosiTioxs,   Etc.  82- 

the  settlement  of  a  case/'  on  an  appeal  ^'''  from  a  decree  already 
entered. ^^  The  surrogate  should  make  a  marginal  note  opposiie 
each  request  to  find,  indicating  his  refusal  or  assent,  in  order  to 
relieve  the  labor  of  the  appellate  court.^^ 

§  116,  Exceptions  to  surrogate's  rulings. —  The  present  Code  en- 
tirely remodels  the  machinery  of  appeals  from  surrogates'  decrees 
and  orders,  assimilating  it  to  that  of  appeals  from  judgments  and 
orders  in  civil  actions.  To  correspond  to  these  changes,  new 
rules  are  established  with  respect  to  the  taking  and  filing  of  ex- 
ceptions, the  filing  of  a  decision  upon  a  hearing  before  the  sur- 
rogate, and  the  settlement  of  a  case  on  appeal.  An  exception 
may  be  taken  to  a  ruling  by  a  surrogate,  upon  the  trial  bv  him 
of  an  issue  of  fact,  including  a  finding,  or  a  refusal  to  find,  upon 
a  question  of  fact,  in  a  case  where  such  an  exception  may  be 
taken  to  a  ruling  of  any  other  court  upon  a  trial,  without  a  jury, 
of  an  issue  of  fact,  as  prescribed  in  article  third  of  title  first  of 
chapter  tenth  of  the  Code  (§  992  et  seq.).  The  provisions  of 
that  article,  relating  to  the  manner  and  effect  of  taking  such  an 
exception,  and  the  settlement  of  a  case  containing  the  exceptions, 
apply  to  a  trial  before  a  surrogate ;  for  which  purpose  the  decree 
is  regarded  as  a  judgment,  and  notice  of  an  exception  may  be 
filed  in  the  surrogate's  ofiiee.-^^ 

§  117.  Trial  before  referee. —  Under  the  Revised  Statutes,  before 
.  the  adoption  of  the  present  Code,  all  issues  and  questions  raised 
in  a  special  proceeding  before  a  surrogate  were  required  to  be 
determined  by  him,  except  in  the  single  instance  of  an  account- 
ing by  executors  or  administrators.     But  under  the   Code,  the 

13  Co.  Civ.  Proc.  §  2.545 ;  Hartwell  v.  case  back,  with  instructions  to  him  to 
McMaster,  4  Redf.  389;  Dickel  v.  note  upon  the  requests  his  detennina- 
Yates,  2  Dem.  229;  Tilby  v.  Tilbv,  3  tion  of  each  proposed  finding.  In 
id.  358:  Matter  of  Hovt,  5  id.  284:  Matter  of  Zerega  (N.  Y.  Law  J., 
Matter  of  Dodge,  40  Hun,  443,  451;  May  15,  1893),  the  New  York  surro- 
revd.  on  another  point,  105  N.  Y.  585.   gate  said:    "  The  findings  proposed  by 

i-i  ^Matter  of  Prout,  18  Civ.  Proc.  the  attorneys  for  the  respective  parties 
Pep.  270.  This  rule  is  applicable  to  in  this  proceeding  by  the  settled  prac- 
aetions  tried  in  the  Svipreme  Court,  tice  of  this  court  must  be  served,  and 
\inder  section  2486,  in  eases  where  the  the  allowance  or  disallowance  of  each 
surrocrate  is  disabled  from  acting,  finding,  and  of  each  conclusion  of  law 
(Matter  of  Chauneey,  32  Hun,  429.)"      proposed,  must  be  noted  by  the  attor- 

15  Matter  of  Wheeler,  28  St.  Rep.  neys,  and  then  submitted  to  the  surro- 
638 ;  8  X.  Y.  Supp.  385.  In  that  case,  gate  for  settleinent."' 
the  surrogate  did  not  pass  upon  the  1*5  Co.  Civ.  Proc.  §  2545 :  Hewlett  v. 
requests  to  find  facts  and  conclusions  Elmer,  103  X.  Y.  156.  As  to  when  ex- 
of  law,  in  a  proceeding  to  revoke  let-  ceptions  are  necessary,  and  when  and 
ters  of  administration.  Tlie  General  how  made  with  reference  to  a  review 
Term  said  that  the  omission  of  the  sur-  of  the  decision  on  appeal,  see  c.  XXIV, 
rogate  would  justify  it  in  sending  the    post. 


83  Tjhal  Pkactice,  Dei'o.sitioxs,  Etc.  §  118. 

surrogate  may  in  any  proceeding  {other  than  one  instituted  for 
probate  or  revocation  of  probate  of  a  will),  in  his  discretion, 
"  a])])oint  a  referee  to  take  and  rcj)ort  to  the  surrogate  the  evi- 
dence ujKin  the  facts,  or  upon  a  si)ecific  question  of  fact ;  to  ex- 
amine an  account  rendered ;  to  hear  and  determine  all  questions, 
arising  ui)on  the  settlement  of  such  an  account,  which  the  sur- 
rogate has  power  to  determine;  and  to  make  a  report  thereon, 
suhject,  however,  to  confirmation  or  modification  by  the  surro- 
gate." ^''  In  probate  cases,  the  surrogate  of  Xew  York  county 
"  may,  on  the  written  consent  of  all  the  parties  appearing,"  ap- 
point a  referee,  "  or  may,  in  his  discretion,  direct  an  assistant 
to  take  and  report  the  testimony,  but  without  authority  to  pass 
u]K)n  the  issues  involved  therein."  ^^  We  take  it  that  the  quali- 
fication of  aiuliority  a])i)lie.s  to  a  referee,  as  well  as  to  an  assistant. 
The  power  of  the  court  to  so  direct  an  assistant  is  absolute,  and 
does  not  depend  ui)on  tlie  consent  of  the  parties  ;^^  it  is  only  the 
ai)])ointnient  of  some  other  person,  as  referee,  that  requires  such 
a  consent.  An  assistant  so  appointed  has  authority,  on  the  hear- 
ing l)efore  him,  to  pass  upon  the  admissibility  of  evidence,  to 
wliifli  ol)jection  is  interposed.^^ 

§  118.  Referee's  duties  and  powers. —  A  referee  appointed  by  the 
surrogate  "  has  the  same  power,  and  is  entitled  to  the  same  com- 
pensation, as  a  referee  ap])ointed  by  the  Supreme  Court,  for  the 
trial  of  an  issue  of  fact  in  an  action ;"  and  the  provisions  of  the 
Code,  a])])lieable  to  a  reference  by  the  Supreme  Court,  ap])ly  to 
such  a  reference,  ''  so  far  as  they  can  be  applied  in  substance, 
without  regard  to  tlio  form  of  the  proceeding."'^  Just  what  this 
last  clause  means  is  not  clear.  "  How  much  or  how  little  is 
accom]ilished  by  this  very  general  language,  it  may  trouble  us 
some  day  to  determine.     It  seems  to  open  everything  and  settle 


17  Co.    Civ.   Troc,   §   2540,    in  part,  of  Hoes    (54  App.  Div.  281:  GG  X.  Y. 

Tlio  surrogate  may  amend  an  order  of  Supp.    6G4),    it    was    held    proper    to 

reference,  nunc  pro  tunc,  so  as  to  refer  order   a   reference   to  liear   and   deter- 

tlie  issues,  and  not  simply  to  direct  a  mine  a  disputed  claim  which  the  par- 

vooort    of    the    evidence.      (Matter    of  ties    had    consented    should    be    deter- 

May.    53   Hun,    127.)      He   has   power  mined     by     the     surrofrate     upon    the 

under  that  section  to  direct  the  referee  accounting. 

to   report   his   opinion   upon    the    evi-  18  Co.  Civ.  Proc.  §  2546.     In  Kings 

dence.      (Matter  of  Ferripan.  42  App.  county  the  clerk  of  the  court  may  ex- 

Div.  1:  58  X.  Y.  Supp.  020:  add..  IGO  amine   witnesses    to   a  will    (L.    1885, 

X.  Y.  080.)     I'^pon  a  petition  to  remove  c.  3G7). 

an   executor   for  misconduct,   the   sur-  19  Matter   of   Allcmann.    1    Connoly, 

rofjate  may.  of  his  own  motion,  make  441. 

an    order    of   reference    to    take    testi-  2o  jh. 

monv.     (Matter  of  Hale.  45  App.  Div.  21  Co.  Civ.  Proc.  §  254G.  in  part. 
578:  CI  X.  Y\  Supp.  59G.)     In  Matter 


§  119.  Tkial   Practice,  Depositioxs,   Etc.  84 

nothing."  ^^  It  may,  however,  be  said,  in  a  general  way,  that  a 
surrogate's  referee,  like  a  Supreme  Court  referee,  is  to  be  gov- 
erned, in  the  course  of  procedure  before  him,  by  the  General 
Rules  of  Practice."'  He  has,  for  example,  the  same  power  as  a 
referee  in  an  action,  to  permit  amendments,  in  a  pToper  case."* 
Prior  to  the  repeaP^  of  sections  993  and  1023  of  the  Code,  re- 
lating to  exceptions  to  a  referee's  "  refusal  to  make  any  finding 
"whatever,"  and  to  the  submission  to  the  referee  of  requests  to 
find,  those  sections  were  applicable  to  a  surrogate's  referee,  and 
the  fact  that  the  referee's  determination  was  subject  to  the  sur- 
rogate's approval  did  not  dispense  with  the  requirement.^'"  So, 
too,  the  referee  was  required  to  find  facts  and  conclusions  of  law 
separately,  and  entirely  dissociated  from  his  opinion ;  failing  to 
do  so,  his  report  would  be  sent  back,  to  correct  the  irregularity,^^ 
or  for  further  findings ^^  since  the  prohibition  of  referees  from 
making  additional  findings,  after  decision  rendered,  did  not  apply 
to  special  proceedings.^^  As  a  matter  of  practice  it  is  still  cus- 
tomary for  a  referee  to  state  his  findings  and  conclusions  sepa- 
rately, but  he  is  not  required  to  do  so.^^ 

§  119.  Action  on  referee's  report. —  The  referee's  report,  accom- 
panied by  the  testimony  taken  before  him,  including  all  exhibits, 
must  be  filed  within  sixty  days  after  the  matter  is  submitted  to 
him ;  otherwise,  the  reference  may  be  terminated  by  either  party.^^ 
Unless  the  report  is  passed  upon  and  confirmed,  approved,  modi- 
fied, or  rejected  by  the  surrogate  within  ninety  days  after  it  has 
been  submitted  to  him,  it  shall  be  deemed  to  have  been  confirmed 
as  of  course  and  a  decree  to  that  effect  may  be  entered  bv  anv 


22  Per  Fitch,  J.,  ]Matter  of  Clark,  119  N.  Y.  Surr.,  MS.  Dec,  433;  Matter  of 
K.  Y.  427 ;  29  St.  Rep.  682.  Havemeyer,  25  Civ.  Proc.  Rep.  59. 

23  Matter  of  Russell,  3  Dem.  377  28  Matter  of  Bayer,  54  Hun,  189;  26 
[Gen.  Rule  30]  ;  Matter  of  Lefiingwell,  St.  Rep.  803. 

30  Hun,  528  [Gen.  Rule  17].  29  Matter  of  Bayer,  supra. 

24  Matter  of  Fithian,  15  St.  Rep.  30  Matter  o'  Woodward,  69  App. 
734;  Matter  of  Frank,  1  App.  Div.  39;  Div.  286;  74  N.  Y.  Supp.  755.  In  that 
s.  c,  as  Matter  of  Schneider.  36  N'.  Y.  case  the  is.sues  on  a  contested  settle- 
Supp.  972.  But  compare  Eldred  v.  ment  of  an  executor's  account  were  re- 
Eames,  115  X.  Y.  405,  which  was  the  ferred,  and  the  referee  reported  his  de- 
oase  oi  a  reference  of  a  disputed  claim  cision  without  making  separate  find- 
under  the  Revised  Statutes.  ins^-   'ind   liis   decision   was   confirmed 

25  L.  1895,  e.  946;  L.  1894,  c.  688.  by  the   surrogate.     Held,  that  the  re- 

26  Matter  of  Mellen,   56   Hun,   553;  port  of  the  referee  was  authorized,  and 

31  St.  Rep.  770;   Matter  of  Niles,  47  1  he  surrogate  was  only  required  to  cnn- 
Hun,  348.     And  see  Matter  of  Hicks,  firm  it,  and  not  to  make  separate  find- 
14  St.  Rep.   320;    Broughton  v.   Flint,  ings  of  fact  and  conclusions  of  law. 
74  X.  Y.  476.  31  Co.     Civ.    Proc,    §§     1019,    2546; 

27  Matter  of  Sears,  X.  Y.  Law  J..  Matter  of  Santos,  31  Misc.  76;  64  X.  Y. 
Mar.  4,  1890;   Matter  of  Lawrance,  8  Supp.  572. 


85  Trial  Pkactick,  ]^ki'()sitio.\s,  Etc.  §  119. 

party  interested  in  the  proceedings  iijxni  two  days'  notice.'*"  The 
omission  of  the  surrogate  to  continn,  reject,  (jr  modify  a  referee's 
report  until  more  than  ninety  days  have  ehipsed  after  its  sul> 
mission  (h)es  not  oust  the  surrogate  of  jurisdiction  of  the  |)ro- 
ceeding  or  deprive  him  of  the  power  to  make  and  enter  a  decree 
contrary  to  the  recommendations  of  the  report,  and  where  such 
decree  is  made  before  any  steps  are  actually  taken  to  confirm  the 
rei)ort  on  the  ground  of  lapse  of  time,  it  is  valid  and  effectiud.^'^ 
The  surrogate  is  not  required  to  make  new  findings,  in  rendering 
his  decision  on  a  referee's  report.  The  confirmation  of  the  ref- 
eree's report  is  an  approval  of  the  rulings  of  the  referee,  and  an 
appeal,  upon  exceptions  to  the  report,  will  present  the  conclusion 
of  the  surrogate  for  review.''*  But  it  would  seem  that  upon  the 
coming  in  of  the  report  of  a  referee,  to  whom  it  was  referred 
merely  to  take  evidence  and  report  it  with  his  opinion,  the  sur- 
rogate should  make  a  decision  with  separate  findings  of  fact  and 
of  law,  notwithstanding  that  the  referee  has  already  done  so.^^ 
It  has  been  suggested  as  the  better  course,  that  the  surrogate 
should  in  all  cases  make  ''  a  full  and  complete  decision  emlwdy- 
ing  all  the  findings  of  fact  and  conclusions  of  law,  as  ultimately 
determined  by  him,  after  he  has  passed  upon  the  referee's  re- 
port." "''  The  power  of  the  court  is  not  limited  to  confirming 
or  refusing  to  confirm  a  referee's  report.  The  surrogate  may 
modify  the  report  by  drawing  a  different  legal  conclusion  from 
facts  found  by  the  referee,  and  the  remainder  of  the  rejDort  can 
stand,'*'  or  he  may,  for  cause  shown,  reopen  the  reference,  with 


32  Co.  Civ.  Proc.  §  2r)40,  as  amended  Matter  of  Flapp,  X.  Y.  Law  J..  April 
1899.  See  L.  1895,  c.  796.  The  8,  189.3;  Matter  of  Mellon,  ')(>  Hun, 
rule  of  the  Surrogate's  Court  of  553;  Matter  of  Yetter,  44  App.  Div. 
New  York  county  is  that  "when  a  404;  01  N.  Y.  Supp.  175;  affd.,  with- 
referee's  report  shall  be  filed,  tofjether  out  opinion,  102  N.  Y.  015;  Matter  of 
with  the  testimony  taken  before  liim.  Woodward,  09  App.  Div.  280:  74  X.  Y. 
said  report  shall  be  confirmed  as  of  Supp.  755;  Matter  of  Bettman,  05  App. 
course,  unless  exceptions  tliereto  shall  Div.  229. 

be  filed  by  any  party  interested  in  the  35  Matter   r)f    Moulton,    32    St.    Rep. 

accountini,'  or  proceedinjj  witliin  eight  031;    10   N.   Y.    Supp.   717;   ^Matter  of 

days    after    a    written    notice    of    such  O'Brien,  5  ]Misc.  130. 

fHinn;  and  a  copy  of  such  report  shall  3t!  ]\ratter    of    Prout.    IS    Civ.    Vrcc. 

have   beon    served    upon    the    opposin}];  Rep.  270   [Kincs  Co.  Surr.  Ct.    1890]. 

party;  and  in  case  exceptions  shall  be  Substantially  the  same  was  said  by  the 

so  filed,  either  party  may  bring  on  the  Supreme  Court    (Fourth  Dep.,  Cen.  T., 

hearing    of    said    exceptions    on    eight  1SS7),  in  'Nfaffer  of  Keef.  43  Hun,  98. 

days'  notice,  on  any  rtated  motion  day  37  Matter  of   ^fay,   31    St.   Rep.    50; 

of    said    Surrogate's    Court."       (Rule  s.  c,  19  N.  Y.  Supp.  785.     The  proper 

Till.  l\Tar.    10,   1888.)  practice,    on    amending   report    of    ref- 

33  Matter  of  Clark,  108  X.  Y.  427;  eree,  is  to  obtain  an  order  sending  it 
61  X.  E.  769.  back    to    make    specific    amendments. 

34Matter   of     Niles,    47    Hun,    348;  (Matter  of  Smith,  17  St.  Rep.  783.) 


§§  120,  121.     Trial  Practice,  Depositions,  Etc.  86 

or  without  conditions,  and  direct  another  or  further  hearing.'^^ 
A  referee's  findings  of  fact  will  not  be  disturbed  where  there  is 
a  conflict  of  evidence,  unless  the  findings  are  clearly  against  the 
weight  of  evidence,  or  are  not  supported  by  any  evidence. ^^ 

§  120.  Referee's  fees. —  A  surrogate  has  no  power  to  direct  a 
referee,  to  whom  a  proceeding  pending  in  the  court  has  been 
referred,  to  file  his  report  in  advance  of  receiving  his  fees,  or 
to  direct  that  any  one  of  the  parties  in  the  proceeding  shall  pay 
the  referee  before  the  report  is  filed.^^  The  usual  practice  is,  in 
l^Tew  York  county  at  least,  for  referees  to  file  their  reports,  to- 
gether with  a  verified  memorandum  of  the  time  spent,  so  that 
their  fees  may  be  taxed  by  the  surrogate,  and  provision  made  in 
the  final  decree  or  order,  entered  in  the  proceeding  for  payment 
of  such  fees  by  such  parties  as  may  be  found  justly  chargeable 
with  such  pa\anent ;  or  if  any  party  has  paid  the  referee,  and  it 
appears,  on  the  termination  of  the  proceeding,  that  he  ought  not, 
under  the  circumstances,  to  be  charged  with  the  expense  of  the 
reference,  a  direction  may  be  made  for  his  reimbursement,  either 
out  of  the  assets  of  the  estate,  or  by  one  of  the  parties  against 
whom  they  are  chargeable.^^ 

§  121.  Issues  triable  by  jury — The  Surrogate's  Court  is  not  a 
tribunal  adapted  to  the  determination  of  disputed  claims.  In 
the  only  case  in  which,  under  the  Revised  Statutes,  a  surrogate 
had  jurisdiction  to  try  such  a  question,  he  was  allowed,  if  in  his 


38 -An  executrix  not  notified  of  a  ref-  the  accountinji  party  neglects  and  re- 

erence  of  her  accounts, —  Held  entitled  fuses  to  proceed  is  the  proper  method 

to  have  the  reference  opened,  to  enable  of  informinfj  the  surrogate  of  the  cause 

her   to    sustain    her   account   as   filed,  of   delay:   but   such   report   is   not  ef- 

( Matter  of  Gorman.  49  App.  Div.  G37 ;  feetual  as  the  basis  of  the  referee's  mo- 

G3    N.    Y.    Supp.    123.)       The    Surro-  tion  to  tax  his  fees.     Proper  practice 

gate's  Court  has  power,  as  a  condition  by  the  referee  in  such  cases  is  to  issue 

of  opening  the  report  of  a  referee,  to  his  subpoena  and  cause  the  same  to  be 

limit  the  party  objecting  as  to  time  in  served  on  the  accounting  party,  and,  if 

the  matter  of  examining  and  cross-ex-  necessary,  a  subpoena  duces  tecum,  and 

amining  the  witnesses  to  appear  before  to  enforce  obedience     by  commitment 

the  referee.     (Matter  of  Davenport,  37  for     contempt.       Thus     the     vouchers 

Misc.  179;  74  N.  Y.  Supp.  940.)  would   be    produced    for    examination, 

39  Matter  of  Odell,  1  C'onnoly,  94 ;  and  the  accounting  party  for  personal 
18  St.  Rep.  997:  Matter  of  Bradley,  17  examination:  whereupon  the  referee 
St.  Rep.  836 :  Matter  of  Plumb,  24  should  report  the  facts  and  the  pro- 
Misc.  249 ;  53  N.  Y.  Supp.  5.58.  ceedings  with  dates  required  bv  settled 

40  Matter  of  Kraus,  4  Dem.  217.  practice,  for  the  taxation  of  his  fees. 

41  ]\Iatter  of  Hurd.  6  ilisc.  171:  2(!  On  such  report,  a  decree  would  l>e 
N.  Y.  Supp.  893 ;  s.  c.  as  Matter  of  proper  settling  the  accounts  and  fixing- 
Ellis,  56  St.  Rep.  694.  In  Matter  all  costs,  navment  of  which  could  b'» 
of  Kenny  (X.  Y.  Law  ,T.,  Oct.  24,  enforced.  This  proceeding  is  referred 
1890),  Ranspm,  S.,  decided  that  "the  back  to  the  same  referee,  who  will  pro- 
report  of  the  referee  to  the  effect  that  ceed  accordingly." 


87  Trial   Pkactice,   Depositions,   Etc.     §§  122,  12^;. 

opinion  it  could  not  be  satisfactorily  determined  without  a  trial 
by  jury,  to  award  a  feigned  issue  t<j  be  tried  at  the  next  circuit 
in  his  county."*"  A  like  regulation  is  contained  in  the  Code,  which 
provides  that  the  surrogate  may,  in  liis  discretion,  direct  the  trial 
by  a  jury,  at  a  trial  term  of  the  Supreme  Court,'*^  or  in  the 
County  Court,  of  any  controverted  question  of  fact,  arising  in 
one  proceeding  onlji,  that  is,  a  proceeding  for  the  disposition  of 
real  property  for  the  payment  of  debts,  etc.  The  order  must 
state,  distinctly  and  })lainly,  each  cpiestion  of  fact  to  be  tried ; 
and  it  is  the  only  authority  necessary  for  the  trial.^"^  With  the 
jury  trial,  which  the  appellate  court  is  directed  to  order,'*'*  on 
reversing  a  surrogate's  decree  admitting  a  will  to  probate  upon 
a  question  of  fact,  where  there  is  a  conflict  of  evidence,  the 
Surrogate's  Court  has  nothing  to  do  except  to  admit  the  will,  if 
so  directed  by  the  Supreme  Court. ■*"'^  The  trial  of  issues  of  fact 
in  a  contested  probate,  before  a  jury,  will  be  mentioned  hereafter 
in  connection  with  the  probate  of  wills.^'^ 

TITLE  SECOND. 

PROCURING    DEPOSITIONS     OF    WITNESSES,     DISCOVERY    OF     PAPERS, 

ETC. 

§  122.  Code  sections  applicable. —  The  statutory  regulations  upon 
the  topics  mentioned  in  this  title  are  primarily  framed  with 
reference  to  civil  actions,  aiul  are  declared  to  be  applicable  to 
special  proceedings  in  Surrogates'  Courts,  so  far  as  ])racticable.'**^ 
Those  provisions  of  the  Code,  which  are  so  made  applicable  to 
Surrogates'  Courts,  relate,  res])ectively,  to  depositions  taken  and 
to  be  used  within  the  State,'*'^  depositions  taken  without  the  State 
for  use  within  the  State,'**  discovery  of  books  and  pa])ers,^^  ser- 
vice of  papers,^"  and  mistakes,  omissions,  defects,  and  irregu- 
larities.''^ 

^  123.  Taking  depositions  in  the  State. —  The  ])ower  granto<l,  by 
the  present  Code,  to  Surrogates'  Courts,  to  cause  depositions  to 

12  2  R.  S.  102,  §  11.    And  see  L.  1847,  niitted   to  another  jury.      (Matter  of 

c.  280,  §  4.5.  Booth,  1.3  St.  Kep.  344.) 

43  Co.  Civ.  Proc.,  §  2.")47,  as  amended  ■»•'''  Cliapter  VI,  post. 

1895.  ■'CCo.  Civ.  Troe.,  §  25.38. 

•J-iCo.  Civ.  Proc..  §  2588.     See  Mat-  -it  Co.  Civ.  Proe..   §§  870-8a(». 

ter  of  Hunt,  110  N.  Y.  278;  Matter  of  4S  Co.  Civ.   Proe..   SS   887-913. 

Campbell,  48  Hun.  417;  and  c.  XXIV,  49  Co.  Civ.   Proe..   §S   803-809. 

post.     On  settinji  aside  tlie  verdict  of  a  W  Co.  Civ.   Proe.,   SS   79(;-802. 

jury  on  the  issue  as  to  tlie  proper  exe-  51  Co.  Civ.  Proc,  §§  721-730. 
cution  of  a  will  the  case  must  be  sub- 


§  124.  Trial  Practice,  DErosiTio:Ns,   Etc.  88^ 

be  taken  within  the  State,  for  nse  in  those  courts,  is  new.  It 
embraces  the  subjects  more  familiarly  known  under  the  titles  of 
examinations  before  trial,  taking  testimony  de  bene  esse,  and 
perpetuating  testimony,  as  well  as  taking  depositions  by  consent. 
A  number  of  questions,  arising  under  the  provisions  of  the  Code, 
upon  these  topics,  have  already  been  adjudicated  by  the  courts. 
Their  consideration  is  more  appropriate  to  a  work  upon  general 
practice.  It  will  be  borne  in  mind,  in  general,  in  applying  to 
Surrogates'  Courts  these  and  the  other  above-mentioned  provi- 
sions, that  the  application  is  subject  to  the  exception  and  quali- 
fication contained  in  the  section  above  quoted,  viz.,  ''  except  where 
a  contrary  intent  is  expressed  in,  or  plainly  implied  from  the 
context  of,  a  provision  "  of  chapter  eighteenth  of  the  Code,  and 
"  so  far  as  they  can  be  applied  to  the  substance  and  subject-matter 
of  a  proceeding,  without  regard  to  its  form."  ^^ 

§  124.  Taking  depositions  without  the  State. —  Surrogates  have 
had  authority,  since  1837,  on  any  proceeding  or  matter  in  con- 
troversy before  them,  to  issue  a  commission  to  take  the  testimony 
of  a  witness  in  any  other  State  or  Territory  of  the  United  States, 
or  any  foreign  place,  when  required  by  a  party,  in  the  same  man- 
ner as  by  law  the  same  might  be  done  in  any  court  of  record. ^^ 
This  power  is  substantially  preserved  by  section  2538  of  the  Code; 
but  the  provisions  thereby  made  applicable  to  surrogates'  pro- 
ceedings contain  important  amendments  and  additions  to  the  com- 
paratively meagre  provisions  of  the  Revised  Statutes.  They  ab- 
rogate numerous  arbitrary  and  technical  rules  prevailing  under 
those  statutes,  allow  the  issuing  of  a  commission  without  inter- 
rogatories, and,  in  specifi.ed  new  cases,  provide  for  an  open  com- 
mission, and  for  an  order  to  take  depositions  instead  of  a  com- 
mission, permit  the  interrogatories,  in  a  proper  case,  to  be  in  a 
foreign  language,  and  authorize  the  issuing  of  letters  rogatory.^^ 


52  Co.  Civ.  Proc.  §  2.5.38.  Surrogate's   Court    has   power,    in    its 

53  L.  1837.  c.  460,  §  77  (2  R.  S.  303.  discretion,  to  direct  the  issuing  of  a 
5§  11-24).  Section  77  was  repealed  by  commission  to  examine,  before  trial,  a 
chapter  245  of  the  Laws  of  1880,  and  party  to  a  proceeding  pending  before 
section  2.538  was  adopted  to  vest  in  the  it.  (flatter  of  Plumb.  135  N.  Y.  661 ; 
court  the  same  power.  (Cadmus  v.  22  Civ.  Proc.  Rep.  209.)  See  Matter 
Oaklev,  2  Dem.  298:  Henrv  v.  Henrv,  of  Hodsman,  11  Apn.  Div.  344:  42 
4  id.  253;  Bull  v.  Kendrick.  id.  3.30,  N.  Y.  Supp.  1004:  affd.,  161  N".  Y.  627. 
all  probate  cases. )  The  right,  how-  t>4  As  to  commissions  out  ot  chan- 
ever,  of  the  court  to  issue  a  commis-  eery  in  the  case  of  nonresident  wit- 
sion  was  based  in  all  these  cases  upon  nesses.  see  ^Matter  of  Hornby,  2  Paige,, 
the  general  authority  conferred  by  sec-  429;  Stephens  v.  Brooks,  Clarke,  86. 
tion  2538.     It  is  now  settled  that  a 


89  Trial    Pkactk  k,    Dkpositio.ns,    Etc.      §<^  120-1:^7. 

§  125.  Examination  of  disabled  witnesses. — Former  statutes^ 
made  it  the  duty  of  tlie  surrogate,  nyxm  an  ai)i)licati<>ri  to  j)rove 
a  will,  where  a  material  witness  was  disabled  fnun  attending  by 
age,  sickness,  or  inliruiity,  to  proceed  to  the  latter's  residence,  if 
in  the  surrogate's  county,  and  take  his  testimony;  and  permitted 
the  surrogate,  if  the  witness  resided  in  another  county,  to  direct 
a  like  hearing  before  the  surrogate  of  that  county.  These  pro- 
\;sIons  have  been  preserved,  in  a  modified  form,  in  the  present 
Code.  The  section  which  relates  to  a  witness  in  the  surrogate's 
county  provides  that  "  upon  the  application  of  a  party  to  a  special 
])roceeding,  and  upon  proof,  by  affidavit,  to  the  satisfaction  of 
the  surrogate,  that  the  testimony  of  a  witness  in  his  county,  who 
is  so  aged,  sick,  or  infirm,  as  to  be  unable  to  attend  before  him. 
to  be  examined,  is  material  and  necessary  to  the  applicant,  the 
surrogate  must,  where  the  special  proceeding  was  instituted  to 
procure  the  probate  or  revocation  of  probate  of  a  will,  and,  in  any 
other  case,  may,  in  his  discretion,  proceed  to  the  place  where  the 
witness  is,  and  there,  as  in  open  court,  take  his  examination. 
Such  notice  of  the  time  and  place  of  taking  the  examination,  as 
the  surrogate  prescribes,  mnst  be  given,  by  the  party  applying 
therefor,  to  each  other  party,  except  a  party  who  has  failed  to 
appear  as  required  by  the  citation.  The  surrogate  may  also,  in 
his  discretion,  reqnire  notice  to  be  given  to  any  other  person  in- 
terested." ^'^  This  enactment  extends  the  scope  of  the  original, 
by  including  a  proceeding  for  the  revocation  of  probate  of  a  will, 
and  by  ])C'ruiitting  the  surrogate  to  take  testimony  in  like  man- 
ner, in  GUI/  special  proceeding  before  him.  The  surrogate  may 
appoint  a  referee  to  take  and  report  the  testimony  of  the  witness, 
instead  of  personally  attending.^^ 

§  126.  Subscribing  witness  to  will. —  The  statutory  provisions 
for  the  examination  of  an  aged,  sick,  or  infirm  subscribing  wit- 
ness to  a  will,  who  resides  in  another  county  of  this  State  and 
of  such  as  are  disabled  by  absence  from  the  State  and  otherwise 
will  be  mentioned  in  a  subsequent  chapter.*^® 

§  127.  Discovery  of  books  and  papers. —  Beyond  the  power,  con- 
ferred by  the  Revised  Statutes,  to  issue  a  subpoena  "  to  compel 

55  L    1837,  c.  400,  §§  12-15;  L.  1841,  tenee  but  one.     (Mattor  of  Gee.  24  Civ. 

c.  129.  Proe.  Rep.  211 :  3.3  X.  Y.  Supp.  425.) 

se'co.  Civ.  Proc,  §  2539 ;  "Ntatter  of        5S  Co.  Civ.  Proc.  $  2540. 
MoCoskrv.  5  Dem.  256;    10  Civ.  Proc.        59  Co.  Civ.  Proc.  5  2019.    See  article 

f«pp.  178.  second  of  title  fourth  of  chapter  VI, 

57  Co.  Civ.   Proc,   §   2540,  last  sen-  post. 


§  127.  Trial   Practice,  Depositions,   Etc.  90 

the  production  of  any  paper  material  to  any  inquiry  pending  in 
liis  court,"  the  surrogate  could  not,  before  the  adoption  of  the 
eighteenth  chapter  of  the  present  Code,  compel  the  discovery  of 
•documentary  evidence  in  aid  of  a  special  proceeding  pending 
before  him.  He  now  has  the  same  power  as  a  court  of  record, 
in  an  action,  to  order  a  party  to  such  a  proceeding  to  produce 
and  discover,  or  to  give  to  the  other  party  an  inspection  and  copy, 
or  permission  to  take  a  copy,  of  a  book,  document,  or  other  paper 
in  his  possession,  or  under  his  control,  relating  to  the  merits  of 
the  special  proceeding,  or  of  the  defense  therein.*^*^  But  the 
surrogate  has  no  authority  to  require  an  administrator  to  deposit 
the  books  and  papers  of  the  estate  for  the  ins2:)ection  of  a  party 
interested  in  a  litigation  for  the  probate  of  a  deceased  owner's 
will,  upon  the  simple  statement  that  the  administrator  is  hostile 
to  the  petitioner,  and  refuses  him  the  same  opportunity  to  search 
for  letters,  books,  etc.,  which  he  gives  to  his  adversary,  it  not 
appearing  that  any  such  documents  favorable  to  his  interests 
exist.^^  He  has  power  to  order  the  examination  of  parties  and 
others  before  trial,^^  and  of  persons  not  parties,  for  the  purpose 
of  a  motion  f^  also  to  order  the  taking  of  depositions,  or  to  issue 
a  commission  or  letters  rogatory,  where  testimony  is  to  be  pro- 
cured without  the  State.^^ 


60  Co.  Civ.  Proc.j   §  803  et  seq.     See  examine  the  private  papers  of  deceassd, 

flatter    of    Smith,    1.5    St.    Rep.    733.  in   the  administi-ator's   hands,  bearing 

Upon  a  contested  probate,  an   inspec-  on   the   personal  relations   involved  in 

tion  of  the  will  and  examination  of  the  the    issues :    family   letters   beinof   first 

signatures  to    see    if   they  were    made  submitted    to   the   court    to   determine 

with    the    same    ink   and    at   the    same  tlieir  relevancy,  before  disclosing  their 

time    is    proper.       (Matter    of    Board-  contents  bv  putting  them  in  evidence, 

man.  40  St.  Rep.  444.)      See  Matter  of  62  Co.  Civ.  Proc'  §§  S70.  871.  2538; 

Woodward,    28    Misc.    602;    59    X.    Y.  Matter  of  Plumb.   135    N.  Y.   €61;    48 

Supp.  1080.  St.  Rep.  569. 

'■i:\Iatter   of    Stokes.   28   Hun,   564:  <»  Co.  Civ.  Proc.  §§  SS5,  2538.     See 

aflFff.  Dale  v.   Stokes.  5  Redf.  586.     In  Revnolds  v.  Parkes,  2  Dem.  399;  Camp 

Tavlor's  Will  (10  Abb.  Pr.  [X-  S.]  300).  v.  Fv-ser.  4  id.  212. 

it  was  held,  that  the  contestants  might  64  Co.  Civ.  Proc,  §§  887-913,  2538. 


CHAPTER  VI. 

THE    PROBATE    OF    WILLS. 


TITLE  FIRST. 

PROCEEDINGS  BEFORE  APPLICATION  FOR  PROBATE. 

§  128.  Preliminary  observations. —  L'pon  the  death  of  a  person 
owning  property,  the  ownership  is  immediately  transferred  to 
another;  the  property  is  not  for  a  single  instant  withont  an  owner; 
but  the  right  to  the  possession  of  such  property,  and  the  power 
to  dispose  of  it,  do  not  pass  in  the  same  way.  The  right  of  owner- 
ship in  the  property  frequently,  if  not  usually,  depends  on  an 
obscure  and  complicated  state  of  facts,  and,  therefore,  for  a  time, 
the  power  of  disposal  is  held  in  suspense  or  incumbered  with 
restrictions  and  conditions  until  those  rights  can  be  judicially 
ascertained.  Ilie  proceedings  had  for  this  ])ur])oso,  the  identifi- 
cation and  collection  of  the  property,  and  its  allotment  and  distri- 
bution according  to  the  rights  of  the  successors,  as  they  are  made 
to  a])pear,  constitute  the  administration  of  the  estate.  The  first 
step  in  the  proceedings  taken  in  a  Surrogate's  Court,  to  obtain  such 
a  judicial  determination,  is  to  ap])ly  for  the  probate  of  the  will, 
if  any,  or  for  letters  of  administration  if  there  be  no  will. 

§  129.  Production  of  will  and  application  for  probate. —  The  law 
prescribes  no  formalities  with  respect  to  the  opening  and  reading 
of  the  will  of  a  decedent,  but  this  is  left  as  a  question  of  fair 
dealing  among  persons  having  diverse  interests  in  the  property 
disposed  of  by  it.  And  the  fact  that  the  will  was  first  ojiened 
and  read  by  one  claiming  an  interest  in  the  estate  casts  no  sus- 
picion on  his  claim.  But  where  there  are  other  reasons  to  sus]x?et 
fraud,  a  clandestine  use  of  knowledge  acquired  fri>m  the  will,  and 
concealed  from  otliers  equally  interested,  might  be  an  important 
circumstance,  if  a  controversy  should  arise  hetwecMi  tlio  i)arties. 
The  pro]ier  course  for  those  into  whose  hands  the  will  falls,  is  to 
give  immediate  notice  of  its  existence  to  the  parties  most  nearly 
interested,  and  to  the  executor  named  therein.      Where  the  will 

[91] 


i;  130.  The  FRonvxE  ot  Wills.  92 

has  been  deposited  in  a  public  office,  as  permitted  by  statute,  the 
duty  of  the  custodian,  upon  the  testator's  death,  is  expressly  pre- 
scribed.-^ A  surrogate  has  no  authority  to  order  a  safe  deposit 
company  to  deliver  up  a  will,  left  with  it  by  a  testator,  to  a 
petitioner  for  probate;^  though  from  the  necessities  of  the  case, 
a  surrogate  frequently  orders  the  examination  of  the  testator's 
papers  to  be  made,  for  the  purpose  of  discovering  a  will,  and  the 
deposit  companies  are  known  to  invariably  recognize  the  order. 

§  130.  Interference  with  the  assets  before  probate. —  In  early 
times,  in  England,  it  was  customary  for  those  standing  nearest  an 
intestate,  and  for  the  executors  or  beneficiaries  named  in  the  will 
of.  a  testator,  to  take  immediate  charge  of  his  estate,  upon  his 
death,  without,  in  the  first  instance,  resorting  to  the  courts  for 
sanction.  The  residt  was  that  a  creditor  could  maintain  an  action 
against  one  who  thus  assumed  to  administer;  and  no  one  who 
should  interfere  with  the  effects  could  be  held  responsible  as  an 
executor  or  administrator.  The  law  is  changed  in  this  regard. 
The  Revised  Statutes  take  away  the  remedy  which  creditors  had 
against  those  who,  without  such  authority,  interfere  with  the 
assets,  and  require  that  the  executor  or  administrator  duly  ap- 
pointed shall  pursue  a  remedy  for  the  benefit  of  the  creditors  or 
others  concerned.  It  is  provided  that  "  no  person  shall  be  liable 
to  an  action  as  executor  of  his  own  wrong  for  having  received, 
taken  or  interfered  with  the  property  or  effects  of  a  deceased  per- 
son." ^  This  does  not  mean  that  a  person  wrong'fully  interfering- 
is  not  liable  to  an  action;  but  only  that  he  is  not  so  liable  in  the 
character  of  an  executor  or  administrator.  The  statute  further 
declares,  that  he  "  shall  be  responsible  as  a  wrongdoer  in  the 
proper  action,  to  the  executors  or  general  or  special  administra- 
tors of  such  deceased  person,  for  the  value  of  any  property  or 
effects  so  taken  or  received,  and  for  all  damages  caused  by  his  acts 
to  the  estate  of  the  deceased."  Hence,  if  persons  pretending  to 
be  executors  take  possession,  the  next  of  kin,  or  others  interested, 
should  procure  an  administrator  to  be  appointed,  or  letters  testa- 
mentary to  be  issued;  and  the  executor  or  administrator  so  ap- 
pointed may  recover  the  property."* 

Another  provision  of  the  statute  declares,  that  "  every  person, 
becoming  possessed  of  property  of  a  testator  or  intestate,  without 

1  See  §  64,  ante.  4  Muir  v.  Trustees,  etc.,  3  Barb.  Ch. 

2  Matter  of  Foos,  2  Dem.  600.  477;   Babeock  v.  Booth,  2  Hill,   181. 

3  2   R.  S.  449,  §   17;   Mills  v.  Mills, 
23  St.  Rep.  604. 


S3  TiiK  Pkoijaik  oi    Wii.i.s.  ^  1:51. 

being  thereto  duly  authorized  as  executor  or  administrator,  or 
without  authority  from  the  executor  or  administrator,  Ls  liable  to 
account  for  the  full  value  of  such  property  to  every  ])ers«)n  enti- 
tled thereto,  and  shall  not  be  allowed  to  retain  or  deduct  there - 
from  any  dclit  due  to  him.""''  lint,  in  connection  with  this  pro- 
vision, it  should  be  observed  that,  if  such  a  person  subsecpiently 
takes  out  letters,  the  acts  which  were  before  tortitnis  may  be 
thereby  legalized;^  only  however  in  case  they  would  have  been 
lawful  if  he  had  been  acting  under  the  authority  of  letters  at  the 
time.'  His  responsibility  relates  back  to  the  date  of  his  testator's 
■  death  or  to  his  own  first  act  of  unauthorized  interference.* 

§  131.  Executor's  possession  cf  assets  before  probate. —  The  right 
of  one  who  is  named  an  executor  to  take  possession  of  the  effects 
of  his  testator,  without  w-aiting  for  the  probate  of  the  will,  is 
limited.  It  is  a  general  principle  that  an  executor  derives  his 
title  from  the  will  itself,  and  not  from  the  letters  testamentary 
subse(iuently  issued  to  him.  The  latter  are  not  the  foundation, 
but  only  the  authenticated  evidence,  of  his  title.'"*  Xevertheless, 
although  a  technical  title  to  the  effects  vests  in  him  at  the  mo- 
ment of  the  testator's  death,  he  cannot  fully  exercise  his  right  of 
possession  until  he  has  been  didy  recognized  as  executor  by  the 
proper  tribunal.  The  statute  expressly  provides,  that  no  ex- 
ecutor, although  named  in  the  will  as  such,  shall  have,  before 
letters  testamentary  are  granted,  power  to  dispose  of  any  j^art  of 
the  estate,  except  to  pay  funeral  charges,  nor  to  interfere  with  the 
estate,  farther  than  is  necessary  for  its  preservation.^^  Where 
any  important  interference  with  the  assets  is  necessary  for  other 
purposes  than  the  preservation  of  the  estate,  before  probate  can 
be  had,  application  should  be  made  for  the  appointment  of  a  tem- 
porary administrator. 


5  Co.  Civ.  Proc,  §  2706,  as  amended  515;    Matter  of  Greelev.    15   Al)l>.   Pr. 
1893,    taken   from    2   R.    S.    81,    §    GO.  (X.  S.)    393. 

See   Wever  v.   :Marvin.    14   Barb.    370;         10  2    R.    S.    71,    §    1(5,    now    inoorpo- 

Browni    v.    Brown,    1     Barb.    Cb.    1S9;  rated   in    Co.   Civ.   Proc.,   §    2(513    (new 

Matter    of    Flandrow,    28    Hun,    279;  to     the     Code).       The     aoceptanee     of 

Hiuiibcrt     V.     Wurstcr,     22     id.     405:  security     from     a     >urvivinjr     partner 

<Juackonbush    v.    Quackenbush,    42    id.  upon  his  purcliase  of  the  assets  of  the 

329,    332;    ilatter   of    Fithian,    44    id.  firm   pursuant    to   a    provision   of   the 

457.  partnersliip   agreement,   is  an   act    for 

6  Priest    V.    Watkins,    2    Hill,    225;  the  preservation  of  the  estate  within 
Matter  of  Faulkner,  7  id.   181.  the  power  of  the  executors  of  the  de- 

7  Bellinger  v.   Ford,  21   Barb.  311.  ceased    partner   before    letters.      (Hull 

8  Matter  of  Farrell.    1    Tuck.    110.  v.   Cartledsre.   18  App.  Div.  54;   45  N. 
SHartnett  v.  Wandell.  (;0  X.  Y.  349:  Y.  Supp.  450.) 

Van    Schaaek    v.    Saunders,    32    Hun, 


^  i;52.  Till-:  ]*uoBATE  OF  Wills.  9-1 

§  132.  Necessity  for  probate.—  [n  respect  to  wills  of  real  prop- 
erty, although  the  devisee  takes  directly  under  the  will,  and  not 
through  the  executor,  except  where  the  devise  is  to  the  latter  in 
trust,  it  is  desirable  for  many  reasons  that  wills  of  realty,  as  well 
as  wills  of  personalty,  should  be  regularly  proved  and  recorded 
in  the  office  of  the  proper  surrogate.^^  The  law  never  presumes 
a  will  in  the  absence  of  proof,  nor,  where  the  proof  tends  to  show 
a  will  of  personal  property  only,  can  it  be  presumed  to  have  em- 
braced the  real  property  of  the  testator.-^^  And  although  an 
ancient  will  may  be  admitted,  as  evidence  of  title,  without  direct 
proof  of  execution  or  probate,  it  is  only  so  when  it  appears  to  be 
of  the  age  of  at  least  thirty  years/^  and  is  shown  to  have  come 
from  the  proper  custody,  or  where  such  an  account  of  it  is  given 
as  may  be  reasonably  expected  under  the  circumstances  and  as. 
affords  a  presumption  of  its  genuineness;  but,  in  every  case,  a 
corresponding  possession  under  the  will  for  at  least  thirty  years 
must  be  shown.-^"* 

A  more  important  reason  for  the  probate  of  wills  of  realty,  is 
that  unless  the  will  is  proved  and  recorded  in  the  surrogate's 
office,  or  established  by  action,  within  four  years  after  the  tes- 
tator's death,  the  title  of  a  purchaser  in  good  faith,  and  for  a 
valuable  consideration,  from  the  heirs  of  the  testator,  is  not  de- 
feated or  impaired  by  virtue  of  a  devise  in  the  will.  This  limi- 
tation of  four  years,  however,  is  subject  to  the  condition  that  "  if, 
at  the  time  of  the  testator's  death,  the  devisee  is  either  within  the 
age  of  twenty-one  years,  or  insane,  or  imprisoned  on  a  criminal 
charge,  or  in  execution  upon  conviction  of  a  criminal  offense,  for 
a  term  less  than  for  life;  or  without  the  State;  or  if  the  will  Avas 
concealed  by  one  or  more  of  the  heirs  of  the  testator,"  the  four 
years  do  not  begin  until  after  the  expiration  of  one  year  from  the 
removal  of  such  a  disability,  or  the  delivery  of  the  will  to  the 
devisee  or  his  representative,  or  to  the  proper  surrogate. ^^ 

n  See  Harrison  v.  Caswell,  32  App.  computed    from    the    testator's    death. 

Div.   13-t;  52  N.  Y.  Siipp.  G64.  (Id.)     A  possession  of  less  than  thirtj- 

12  Duke  of  Cumberland  v.  Graves,  9  years  is  not  enough,  though  more  than 
Barb.  .595  ;  Brant  v.  Livermore,  10  thirty  years  have  elapsed  since  the  exe- 
Johns.  358.  eution  of  the  will.     (.Jackson  V.  Blan- 

13  Co.  Civ.  Proc,  §2632,  as  amended  shan,  3  Johns.  292.)  And  see  Jackson 
1901.     See  also  Id.,  §  2G31.  v.  Thompson,  G  Cow.   178;   Jackson  v. 

1-1  But  mere  efflux  of  time  will   not  Christman,   4  Wend.   277 ;    Jackson  v. 

authorize  a  will  of  thirty  years"  stand-  Laroway,    3    Johns.    Cas.    283;    Brad- 

ing  to  be   given   in   evidence   without  street  v.  Clarke,   12   Wend.   602,   677 ; 

proof.     And  a  possession  under  it  for  Jackson  v.  Luquere,  5  Cow.  221. 

less  than   thirty  years  is  not  enough.  15  Co.    Civ.   Proc,    §   2628,   adopting: 

(Staring  v.   Bowen,  6  Barb.   109.)      It  substantially  1  R.  S.  749,  §  3.    The  ex- 

seems  that  the  thirty  years  are  to  be  ception  of  the  case  of  a  concealment  of, 


05  The  PnoRATK  oi-  Wills.  §§133,134. 

§  133.  Caveat  against  probate.— Before  the  KevL-ed  Statutes  it 
was  the  practice,  -when  any  one  intended  to  make  objection  to 
the  probate  of  a  will  or  grant  of  administration,  to  file  a  caveat 
with  the  surrogate;  and  such  a  caveat  might  be  filed  1)V  a  mere 
stranger  who  had  no  interest  under  the  will;  and  in  suchf  a  case 
the  surrogate  was  reqinr.ed  to  cause  the  parties  and  witnesses  to 
appear  before  him,  and  hear  and  determine  the  matter  in  contro- 
versy, and  grant  such  probate,  letters  testamentary,  or  of  admin- 
istration, as  should  be  agreeable  to  law.^^  The  Revised  Statutes^ 
however,  omitted  the  provisions  in  regard  to  the  caveat,  and  pro- 
vided that,  as  to  wills  of  personal  property,  probate  might  be  con- 
tested by  any  one  of  the  next  of  kin  to  the  testator,  on  allegations 
tiled  within  the  year.^"  Subsequently,  provision  was  made  for  a 
contest  by  any  person  having  a  right,  upon  the  original  a])plica- 
tion  for  probate  of  any  will,  on  filing  with  the  surrogate,  before 
l)robate  made,  a  request  in  writing  that  all  the  witnesses  be  exam- 
ined.^'* And  these  two  methods  of  objecting  to  probate  are  sub- 
stantially preserved  by  the  Code  of  Civil  Procedure. ^^  Objection 
will  not  be  heard  as  to  the  right  of  the  party  to  contest  on  the 
ground  of  want  of  interest;  but  the  question  of  interest  will  be 
determined  with  the  main  question."*^ 

TITLE  SECOXD. 

JUKISDICTIOX    OF    PROBATE. 

ARTICLE  FIRST. 

ESTABLISH:\rKXT    OF    WILLS    BY    CIVIL    ACTIOX. 

§  134.  Where  original  will  cannot  be  obtained. —  Surrogates^ 
Courts,  and  they  only,  have  authority  to  issue  letters-  testament- 
ary and  of  administration.  Letters  testamentary  or  of  adminis- 
tration, witli  the  will  annexed,  are  granted  upon  the  Surrogate's 


tlio  will  does  not  apply  where  the  de-  devisees  who  are  under  ape.  does  not 

visees  or  some  of  them  have  knowled{j;e  apply  to  those  who  were  not  born  until 

and   possession  of  the  will,   and   it  is  after  the  testator  died.     (Id.) 

taken    from    such    possession    clandes-  i<!  1  R.  L.  181.3.  440 ;  Rrtd  v.  \'ander- 

tiiioly  by  an  heir,  and  secreted  or  de-  heyden,  5  Cow.  710. 

stroyed."    It  only  applies  to  a  conceal-  "no  R.  S.  61.  §§  .30.  31.    See  Co.  Civ. 

iiicnt  which  leaves  the  devisees  in   i<r-  Prnc,  S§  2i\-i~,  2048. 

iidiance  of  their  rights  nnder  the  will,  is  L.  1837.  e.  400.  §  11. 

and  deprives  them  of  knowledge  of  its  m  See   §§   2017.   2018,  2047.  2048.  c. 

existence.     (Cole  v.  Gonrlay,  70  N.  V.  VIII,  pout. 

527  :  Fox  v.  Fee,  107  X.  Y.  44 :  00  X.  K.  20  Xorton  v.  Lawrence,  1  Redf.  473. 

Rep.  281.)     The  exception  in  favor  of  See  ante,  §§  OS,  104. 


§§135,136.  The  Probate  oe  Wills.  96 

Court's  own  decree  admitting  the  will  to  probate,  or  upon  the 
judgment  and  decree  of  the  Supreme  or  other  superior  courts  of 
record  of  our  own  State,  or  of  the  courts  of  some  other  State  or 
foreign  countrv^  Letters  issued  upon  a  probate  decree  granted 
by  a  foreign  tribunal  are  called  ancillary  letters.  The  cases  in 
which  a  will  may  be  proved  —  i.  e.,  established,  by  an  action,  in 
the  courts  of  this  State, —  are  of  three  classes.  The  first  class  is 
of  wills  of  real  or  personal  property,  or  both,  executed  in  such 
a  manner,  and  under  such  circumstances,  that  they  might,  under 
the  laws  of  this  State,  be  admitted  to  probate  in  a  Surrogate's 
Court,  "  but  the  original  will  is  in  another  State  or  country,  under 
such  circumstances  that  it  cannot  be  obtained  for  that  purpose."  ^^ 
A  will  which  "has  been  lost  or  destroyed  by  accident  or  design, 
b>efore  it  was  duly  proved  and  recorded  within  the  State,"  may 
also  be  established  by  an  action. ^^ 

§  135.  Certain  forei^  wills  of  personalty. —  The  third  class  of 
wills  which  may  be  established  by  action  is  that  of  wills  of  per- 
sonal property  made  by  a  person  residing  out  of  the  State  at  the 
time  of  its  execution  or  at  the  time  of  his  death,  and  executed 
according  to  the  laws  of  the  State  or  country  in  which  it  was  exe- 
cuted or  in  which  the  testator  resided  at  thef  time  of  his  death, 
f.nd  the  case  is  not  one  where  the  will  can  be  admitted  to  probate 
in  a  Surrogate's  Court  under  our  laws.^^ 

§  136.  Judgment  establishing  will. —  If,  in  such  an  action,  the 
validity  of  the  will  is  satisfactorily  shown,  the  court  must  render 
■final  judgment  establishing  it.  But  if  the  will  was  that  of  a 
resident  of  the  State  at  the  time  of  his  death,  the  judgment  estab- 
lishing it  does  not  affect  the  construction  or  validity  of  any  pro- 
Adsion  contained  therein;  and  such  a  question,  arising  with  respect 
to  any  provision,  must  be  determined  in  the  same  or  another 
action,  or  in  a  special  proceeding,  as  if  the  will  was  executed 
within  the  State. "^  The  provision  prevents  residents  from  evad- 
ing the  laws  of  the  State,  governing  the  substance  of  testament- 
ary dispositions,  by  resorting  to  execution  in  a  foreign  State  or 

21  Co.    Civ.    Proc.    §    1861,    subd.    1.  143;    25   N.  Y.    Supp.   908.)      But   see 

This  section  applies  to  wills  made  be-  Plant   v.    Harrison.   36   Misc.    649;    74 

fore,   as  well   as  to  those  made  after,  N.  Y.  Supp.  411. 

September    1,    1880.     (Co.  Civ.    Proc,  22  Co.    Civ.    Proc,    §    1861,    subd.    1. 

§    1867.)      In  his  edition  of  the  Code.  See  title  6  of  this  chapter  for  proceed- 

llr.  Throop  traces  the  history  of  this  ings  to  prove  a  lost  or  destroyed  will, 

jurisdiction.      An    action    under    that  23  Co.    Civ.    Proc,    §    1861,    subd.    2. 

section  to  prove  and  establish  the  will  Co.  Civ.  Proc,  §  2611,  enumerates  the 

of  a  resident  of  another   State  which  wills  which  are  provable  in  Surrogates' 

has  been  proved   in  such   State  is  not  Courts, 

authorized.      (Clark  v.  Poor,  73  Hun,  24  Co.  Civ.  Proc,  §  1862. 


DT  TiiK   rK(ji;ATi:   oi-  Wills.  §  137. 

-conntrv.  Where  the  parties  appearing  or  duly  served  in  the 
action  include  all  those  who  would  have  been  necessary  parties 
to  a  proceeding  for  the  probate  in  a  Surrogate's  Court,  the  final 
judgment  establishing  the  will  must  direct  that  an  exemplified 
coj)y  be  transmitted  to  the  surrogate  having  jurisdiction,  and  be 
recorded  in  his  ofiice;  and  that  letters  testamentary,  or  of  admin- 
istration with  the  will  annexed,  be  issued  from  his  court  as  upon  a 
will  duly  proved  before  him.^^  A  copy  of  the  will  so  established 
must  be  incorporated  into  the  final  judgment,  and  the  surrogate 
must  record  the  same,  and  issue  letters  as  directed  in  the  judg- 
ments*^ 

§  137.  Action  to  determine  validity,  etc.,  of  a  devise. —  Besides 
the  various  actions  in  which  the  validity  of  a  devise  may  l)e  inci- 
dentally determined, —  as  in  ejectment,  partition,  or  in  actions 
to  determine  contiicting  claims  to  real  property,  and  also  in  a 
proper  case,  in  a  suit  quia  timet/' —  the  statute^^  provides  for  the 
determination  of  the  validity,  construction,  and  effect,  under  the 
laws  of  this  State,  of  a  devise  of  real  property  situated  u'ithin 
this  State,  or  of  an  interest  in  such  property  which  would  descend 
to  an  intestate's  heirs.  For  that  purpose  the  action  may  be 
brought,  or  rather  such  relief  may  be  had,  "  in  like  manner  as  the 
validity  of  a  deed  jDurporting  to  convey  lands  may  be  determined." 
It  will  be  noticed,  that  it  is  not  the  validity  of  the  ivill,  but  of  a 
disposition  made  in  a  ^^^ll,  that  may  be  determined.  The  courts 
of  equity  of  this  State  have  no  inherent  jurisdiction  to  establish  a 
will."^  It  is  specially  provided,  however,  that  this  remedy  by 
action  cannot  be  availed  of  by  one  who  was,  before  the  commence- 
ment of  the  action,  duly  cited  in  a  special  proceeding  in  a  Surro- 
gate's Court,  under  section  2624,  in  which  the  question  in  contro- 
versy was  determined  by  the  Surrogate's  Court.  The  judgment  in. 
such  an  action  may  perpetually  enjoin  any  party  from  setting  up, 
or  from  impeaching,  the  devise,  or  otherwise  making  any  claim 
in  contravention  of  the  determination  of  the  court,  as  justice 
xequires.^*^ 


25  Co.  Civ.  Proc,  §  ISO;).  orty,  and  to  obtain  possession  as  heir- 

20  Co.  Civ.  Proc.  §   lS(i4.  at-iaw    of    tho    property    now    held    by 

27  See  ante,  §  GO.  another  nnder  the  will,  since  a  perfect 

28  Co.  Civ.  Proc,   §    ISfiC).     An  heir-  remedy  at  law  exists.     (Jones  v.  Rich- 
at-law     cannot     maintain     an     action  ards,  24  llisc  625.) 

under    this    section    to    obtain    a    con-  29  Anderson  v.  Anderson.   112  X.  Y. 

struction    of    the    will,    for    the    pur-  104;    20   St.   Rep.   .344.     Sw   Smith   v. 

pose  of  having  certain  dispositions  of  Hilton,    50    Hun,    236;     19    St.    Rep. 

real   estate  declared  invalid,  there  be-  340. 

inir  no  trust  of  the  property  in  ques-  "OThis  section  and  the  following  one 

tion,   though   there   is   of  other   prop-  (§  1867)   were  intended  to  furnish  the 

7 


§  138.  The  Probatp:  of  Wills.  9S 

§  138.  Action  to  determine  validity  of  probate. — An  entirely  new 
remedy  was  created  by  L.  I.s92,  c.  501,^^  by  which  "  the  valid- 
ity of  the  probate  "  of  a  wnll  or  codicil  proved  and  admitted 
in  a  Surrogate's  Court  of  this  State  may  be  determined,  at  the 
instance  of  "  any  person  interested  in  the  will  or  codicil,"  in  an 
action  in  the  Supreme  Court.  Probably  to  obviate  the  construc- 
tion placed  by  the  courts  upon  the  phraseology  of  this  section,  to 
the  effect  that  the  remedy  furnished  was  not  available  to  one 
claiming  in  hostility  to  the  will,^"  the  act  was  amended  in  1897^* 
so  as  to  provide  that  "  any  person  interested  as  heir-at-law,  next 
of  kin  or  otherwise,  in  any  estate,  any  portion  of  wdiich  is  dis- 
posed of,  or  aifected,  or  any  portion  of  which  is  attempted  to  be 
disposed  of,  or  affected,  by  a  will  or  codicil  admitted  to  probate 
in  this  State,  as  provided  by  the  Code  of  Civil  Procedure,  within 
two  years  prior  to  the  passage  of  this  act,  or  any  heir-at-law  or 
next  of  kin  of  the  testator  making  such  will,  may  cause  the  valid- 
ity, or  invalidity,  of  the  probate  thereof  to  be  determined."  ^^ 

The  issue  of  the  pleadings  in  such  action  is  confined  to  the 
question  whether  the  writing  produced  is  or  is  not  the  last  wnll 
and  codicil  of  the  testator,  or  either.^^  It  must  be  tried  by  a  jury,^*^ 
and  the  verdict  thereon  is  conclusive,  as  to  real  or  personal  prop- 


only  statutory  rule  governinjj  Jie  ^en-  both   of  which  were   decided  prior   to 

eral  subject-matter  treated  of  in  them.  Lewis  v.  Cook,  sx(pm. 

(Horton  v.   Cantwell,    108   X.   Y.   255;  33  L.     1897,   c.    701,     supersedinc;    L. 

13  St.  Rep.  615.)      The  section  changes  1897,  e.  104.     (Reid  v.  Curtin,  51  App. 

the  prior  rule  laid  do\ra  in  Wager  v.  Div.  545;  G4  N.  Y.  Supp.  833.) 

Wager,   89   X.   Y.    161.     See  Adams  v.  s-l  The   remedy   provided   by   the   act 

Becker,  47  Hun,  65;  8  X.  Y.  Supp.  260.  applies  to  all  wills  whether  of  real  or 

It  was  held  in  an  action  under  L.  1853,  personal    property     (Snow    v.    Hamil- 

c. 238,  of  which  section  1866  is  a  substi-  ton,  supra)  ;  even  though  the  testator 

tute,  that  at  least  two  of  the  witnesses  died  prior  thereto.     (Lewis  v.  Cook,  89 

(that  being  the  number  required  to  be  Hun.   183,   reversed,  on  another  pointy 

examined  by  the  surrogate  on  the  proof  150  X.  Y.  163.) 

of  wills)  must  be  called  and  examined,  -S  Upon   the   trial,   the   party    inter- 

except  in  the  event  of  death,  insanity,  ested   in    sustaining  the   will   has   the 

or    absence,    or    unless    the    heir    has  affirmative.     He  must  offer  in  evidence 

waived  his  right  (Chapman  v.  Rodgers,  the  will,  with  proof  of  its  probate,  and 

12  Hun,  342)  ;  although,  in  the  trial  of  rest.     Thereupon   the  burden   is   upon 

other   issues,   wdiere   it  becomes   neces-  the  contestant  to  establish  its  want  of 

sary  to  give  a  will  in  evidence,  it  is  not  validity.     See  Hogan  v.  Stone,  68  App. 

necessarv  to  call  both  witnesses.     (Id.,  Div.  60:  74  X.  Y.  Supp.  109:  Dobie  v. 

per  Learned,  P.  J.)  Armstrong,   160  X".  Y.   584;    55   X.   E. 

31  Co.  Civ.  Proc,  §  2653a.  302. 

32  Lewis  V.  Cook,  150  X.  Y.  163;  44  3<)  A  verdict  ma v  be  directed.  (Hawke 
N.  E.  778;  Whitnev  v.  Britton,  16  v  Hawke,  82  Hun.  439 ;  31  X.  Y.  Supp. 
App.  Div.  457;  45  X.  Y.  Supp.  1150;  968:  Katz  v.  Schnaier,  87  Hun,  343; 
Wallace  v.  Payne,  14  App.  Div.  597;  34  X'^.  Y.  Supp.  315.  A  general  ver- 
43  X.  Y.  Supp.  1119  (reargument  of  diet  against  the  will  cannot  stand  if 
9  App.  Div.  34).  But  see,  contra,  any  of  the  grounds  alleged  were  in- 
Snow  v.  Hamilton,  90  Hun,  157,  and  sufficient  to  nullify  the  instrument.. 
Thomas  v.  Thomas,  9  App.  Div.  487,  (Buchanan  v.  Belsey,  65  App.  Div.  58.) 


00  T\\\:  PuonATK  of  Wills.  §§139,140. 

erty,  iinloss  a  new  liial  ho  orantcd,  or  the  judgment  thereon  l)o 
reversed  or  vacated."*^  The  action  must  be  commenced  within  two 
years  after  the  will  or  codicil,  if  one  of  real  property,  has  been 
admitted  to  probate,  or,  in  case  of  a  person's  nonage,  unsound 
mind,  imprisonment,  or  absence  from  the  State,  within  two  years 
after  such  disability  has  been  removed.  If,  however,  the  will  is 
one  of  personalty,  the  action  cannot  be  maintained  after  the  expi- 
ration of  one  year.^^ 

ARTICLE  SECOND. 

PROOF  OF  WILLS  IN   SURROGATES'   COURTS. 

§  139.  What  wills  provable  by  surrogate. — Xot  every  instrument 
executed  by  a  decedent,  as  and  for  his  last  will  and  testament,  i.s 
proval)le  in  a  Surrogate's  Court  in  this  State.  Independently 
of  a  restriction  as  to  a  testator's  age,  the  statute  imposes  certain 
limitations,  with  respect  both  to  the  formalities  of  execution  and 
attestation,  and  to  the  testator's  residence  and  the  location  of  hi^i 
])ro])erty.  Thus,  the  will  of  a  resident  of  Xew  York,  executed 
in  France  according  to  the  French  law,  and  not  according  to  the 
law  of  this  State,  and  the  will  of  a  resident  of  France  who  dies 
leaving  no  property  situated,  or  which  afterwards  comes,  here, 
are  within  the  excluded  classes.  These  limitations  will  be  con- 
sidered separateh'. 

^  140.  Jurisdiction  as  aifected  by  mode  of  execution. —  The  statute 
])rcscribes  certain  formalities  for  the  execution  of  a  will,  which 
are  considered  in  detail  in  a  subsequent  article  of  this  chapter. 
But  it  is  not  in  all  cases  essential  that  a  will  should  be  executed 
with  those  formalities, in  order  to  be  proved  in  a  Surrogate's  Court 
of  this  State.  Certain  wills  of  personalty,  which  may  be  termed 
foreign  wills,  may  be  proved  in  like  manner,  although  not  exe- 
cuted with  the  solemnities  prescribed  in  the  local  statutes. 

The  Code  provides  that  a  will  of  real  or  personal  property,  exe- 
cuted as  prescribed  by  the  laws  of  the  State,  or  a  will  of  personal 
property,  executed  without  the  State,  and  within  the  United 
States,  the  dominion  of  Canada,  or  the  kingdom  of  Great  Britain 
and  Ireland,  as  prescribed  by  the  laws  of  the  State  or  country 
where  it  is  or  was  executed,  or  a  will  of  personal  property,  exe- 
cuted by  a  person  not  a  resident  of  the  State,  according  to  the 

:'T  (^nc  11ms  bound  cannot  object  to        38  Lonp  v.  Rodpors,  70  Hun,  441;  29 
the    jiirisdiction   because   anotlier   per-    N.  Y.  Supp.  981;  Katz  v.  Schnaier,  87 
soil  who  was  a   pr()t)er  party  had  not    Hun,  343;  34  N.  Y.  Supp.  315, 
l)een  made  such.    (^Matter  of  Kujipaner, 
9  App.  Div.  422;  41  N.  Y.  Supp.  212.) 


§  141.  The  Probate  of  Wills.  100 

laws  of  tlie  testator's  residence,  may  be  proved  in  a  Surrogate's 
Court.=^^ 

It  will  be  noted  that  this  provision  of  the  statute  makes  a  dis- 
tinction between  (1)  wills  of  real  property,  and  (2)  wills  of  per- 
sonal property.  Wills  of  the  former  class,  to  be  entitled  to  origi- 
nal probate  here,  must  be  executed  and  attested  with  the  formali- 
ties prescribed  by  our  statute.  It  may  be  presumed  that  "  real 
property  "  refers  to  lands  situated  within  this  State.  Wills  of 
the  latter  class  must  be  executed  and  attested  wnth  the  formali- 
ties prescribed  either  (1)  l)y  the  statutes  of  this  State;  or  (2)  by 
the  laws  of  the  place  of  execution,  provided  that  place  is  a  sister 
State,  or  Canada,  or  the  kingdom  of  Great  Britain  and  Ireland; 
or  (3)  by  the  laws  of  the  testator's  residence,  in  case  he  was  a  non- 
resident of  the  State.  The  time  w^hich  determines  the  residence 
of  a  testator,  for  the  purposes  of  the  above-mentioned  rules,  is 
the  time  of  the  execution  of  the  will,  and  not  the  death  of  the 
testator.  Hence  it  is  provided  that  "  the  right  to  have  a  ^^^I1  ad- 
mitted to  probate,  the  validity  of  the  execution  thereof,  or  the 
validity  or  construction  of  any  provision  contained  therein,  is  not 
affected  by  a  change  of  the  testator's  residence  made  since  the 
execution  of  the  will."  '^^ 

§  141.  Jurisdiction  as  affected  by  residence,  and  locus  of  property. 

—  The  other  class  of  limitations  upon  the  jurisdiction  of  Surro- 
gates' Courts,  to  admit  wills  to  probate,  is  specified  by  a  section 
of  the  Code/^  which  gives  to  the  Surrogate's  Court  of  each  county 
jurisdiction,  exclusive  of  every  other  Surrogate's  Court,  to  take 
the  proof  of  a  will,  and  to  grant  letters  thereupon,  in  the  cases 
specified  in  the  statute.      These  cases  will  be  discussed  when  we 

39  Co.  Civ.  Proc,  §  2611,  as  amended  capable  of  being  proved"  in  a  Surro- 

1893.     As    to   what    law  governs    the  gate's  Court,  as  prescribed.     The  ques- 

probate   of  wills,   see   article   third   of  tion,  therefore,  Avhether  a  will  of  per- 

title    fourth    of    this    chapter,    §    177,  sonalty  made  by  a  person  dying  before 

post.  the  date  specified,  is  so  executed  as  to 

*>  Co.  Civ.  Proc,  §  2611,  as  amended  be   capable   of  proof   in  a   Surrogate's 

1893:    former   §§   2G12,   2613   are  now  Court,  must  be  determined  in  view  of 

consolidated  with  §  2611,  the  whole  of  the   former  rule  of   law,   according  to 

which    is   declared   by   the    last   clause  which  such  a  will  was  deemed  duly  exe- 

thereof  (former  §  2613)   to  apply  only  cuted,  if  executed  with  the  formalities 

"  to  a  will  executed  by  a  person  dying  prescribed    by    the    law    of    the    place 

after  the  eleventh  day  of  April,  in  the  where   the    testator   was    domiciled    at 

year  1876;   and  it  does  not  invalidate  the    time  of    his    death.     (Moultrie  v. 

a  will  executed  before  that  date,  which  Hunt,  23  X.  Y.  394. )      In  such  a  case, 

would  have  been  valid  but  for  the  en-  if  a  Surrogates  Court  has  no  jurisdic- 

actment  of  sections  1  and  2  of  chapter  tion,  the  will  may  be  established  in  an 

118   of  L.   1876,   except  where   such  a  action  (see  Co.  Civ.  Proc,  §  1861,  subd. 

will   is  revoked   or  altered   by   a   will  2,  and  §  1867). 

which  those  sections  render  valid,  or  ^i  Co.  Civ.  Proc,  §  2476. 


101  Till-:   PijoiiATE  OF  Wills.  §142. 

come  to  examine  the  question  of  the  jnrisdiction  of  the  surrogates 
of  the  several  counties  of  the  State  —  how  far  it  is  exclusive  or 
otherwise.^"  It  may,  however,  be  useful  to  observe,  in  this  place, 
by  way  of  analysis,  that  the  statute  provides  for  two  general 
classes  of  cases:  1.  Wills  of  residents  of  the  State,  2.  Wills 
of  nonresidents.  Probate  may  be  taken  in  all  cases  of  wills  of 
residents,  and  in  some  cases  of  wills  of  nonresidents.  The  cases 
where  ai)])li('ati()n  for  pmbiitc  of  the  will  of  n  nonresident^'"^  will  be 
entertained  may  be  arranged  under  two  heads: 

((/)   Where  there  is  ])ersonal  property  in  the  State. 

(b)  Where  real  pro])erty  of  the  decedent,  to  which  the  will 
relates,  or  which  a  surrogate  might  direct  to  be  sold,  etc.,  for 
debts,  etc.,  lies  in  the  State. 

The  cases  in  whicdi  the  statute  expressly  authorizes  probate  of 
the  will  of  a  nonresident,  on  the  ground  that  personal  property  of 
the  testator  is  in  the  State,  are  again  divisible  into  four  classes: 
1.  Where  he  dies  witliin  the  State,  leaving  personal  property 
therein.'^*  2.  Where  he  dies  within  the  State,  leaving  personal 
])roperty  which  thereafter  comes  into  the  State.  3.  Where  he  dies 
witlioul,  leaving  personal  property  within,  the  State.  4.  Where 
he  dies  without  the  State,  leaving  personal  property  which  there- 
after comes  Avithin  the  State.  The  general  plan,  then,  upon  which 
the  statute  may  be  stated  to  proceed,  is  to  allow  surrogates  to  take 
proof  of  a  duly  executed  will,  independently  of  the  place  of  the 
testator's  death,  where  he  resided  within  the  State,  or  where,  re- 
siding without  the  State,  he  left  real  property  therein,  affected 
by  the  will,  or  subject  to  a  surrogate's  disposition,  or  left  personal 
property  in,  or  Avhich  after  his  death  comes  into,  the  State. 

i>  142.  Assets  coming  into  State  after  death. —  These  provisions 
supply  two  cases  omitted  in  the  original,  A'iz.,  where  a  noninhabit- 

42  See  post,  §   143.  dent,  except  tiiat  the  beneficiaries,  only, 

43  See  L.  18il4,  c.  731.  Tiiat  statute  need  be  cited.  The  purpose  of  that  act 
provides,  in  substance,  that  the  will  of  is  obscure,  but  we  do  not  think  it  waa 
any  citizen,  or,  if  female,  whose  father  intended  to  enlarge  the  jurisdiction  of 
or  husband  shall  have  previously  de-  the  surrogates  as  alTectcd  by  the  mode 
<larcd  his  intenti(m  to  become  such  of  execution  of  a  will  of  real  ])roperty. 
citizen,  who  sliall  die  resident  in  Great  ■14  Jurisdiction  was  formerly  made 
IJritain  or  any  of  its  dependencies,  to  depend  upon  the  existencM;'  of  "  as- 
which  has  been  proven  in  such  foreign  sets:"  the  expression  above  employed 
jurisdiction  and  which  allects  ])rop-  is  "personal  property,"  because  the 
erty  in  this  State,  sliall  be  admitted  former  term,  as  now  defined,  does  not 
to  ])robate  uj)on  production  of  a  copy  include  efi'ects  exemjited  by  law  in 
thereof  and  of  the  proofs,  certified  i)y  favor  of  the  widow,  etc..  but  applies 
the  United  States  consul ;  but  the  same  exclusively  to  personal  property  ap- 
proceedings  shall  be  had  in  the  Surro-  plicable  to  the  payment  of  debts.  Co. 
gate's  Court  as  in  the  case  of  a  resi-  Civ.  Proc.,  §  2514,  subd.  2. 


§  142.  The  Probate  of  Wills.  102 

ant  testator  dies  in  any  county  in  the  State,  leaving  no  assets  in 
the  State,  but  assets  thereafter  come  within  the  county  of  his 
decease  or  any  other  county;  and  where  a  noninhabitant  testator 
dies  in  any  county  in  the  State,  leaving  no  assets  there,  but  leav- 
ing assets  in  some  other  county  in  the  State;  thus  superseding  a 
ruling  substantially  to  the  effect  that  Surrogates'  Courts  mav  take 
proof  of  wills,  either  (1)  where  the  Legislature  has  conferred 
jurisdiction;  or  (2),  in  an  analogous  case,  where  jurisdiction  has 
not  been  so  conferred.  It  is  true,  the  defects  referred  to  were 
theoretical  rather  than  practical,  since,  as  the  smallest  amount  of 
assets  is  enough  to  sustain  an  application  for  probate,  it  would 
scarcely  be  possible  for  any  one  to  die  in  a  county  without  leaving 
assets  enough  therein  for  that  purpose.'*"  The  fact  that  the  assets 
were  brought  here  irregularly,  after  decedent's  death,  upon  which 
letters  were  issued  here,  will  not  deprive  the  surrogate  of  juris- 
diction to  decree  distribution.^^  The  proviso  that  personal  prop- 
erty, of  a  nonresident,  coming  into  the  State  after  his  death,  must, 
in  order  to  give  jurisdiction  to  our  courts,  be  such  as  "  remains 
unadministered,"  is  in  consonance  with  principles  of  international 
and  interstate  comity  recognized  as  controlling  under  the  former 
statutes.*'^ 

45  In  Kohler  v.  Knapp  (1  Bradf.'  Dem.  242;  White  v.  Xelson,  2  id.  416. 
241),  the  application  for  probate  was  On  the  other  hand,  funds  transmit- 
sustained  on  the  ground  that  an  old  ted  to  this  State  by  a  foreign  executor 
cloak  belonging  to  the  testator  had  af-  to  be  paid  over  pursuant  to  a  will  are 
terwards  come  into  the  county  of  his  not  a  basis  for  the  grant  of  adminis- 
decease.  The  surrogate  has  jurisdic-  tration  here.  (Sedgwick  v.  Ashburner, 
tion  to  take  proof  of  a  nonresident  de-  1  Bradf.  105.)  In  Townsend  v.  Pell 
cedent's  will  where  a  note  secured  by  (3  Dem.  307),  a  nonresident  of  the 
mortgage  on  land  situated  in  another  State  died  without  its  limits,  leaving 
State  has  come  into  this  State  since  personal  property  in  New  York  county, 
testator's  death  (Matter  of  Kopper,  5  which  was  taken  into  actual  custody 
Dem.  242)  :  and  so  where  decedent  had  by  a  domiciliary  executrix  before  the 
an  interest  in  a  life  insurance  policy  filing  of  a  petition  in  the  Surrogate's 
of  a  New  York  company  (Johnston  v.  Court  of  that  county,  in  pursuance 
Smith,  25  Hun,  171)  ;  and  where  he  whereof  the  will  was  admitted  to  pro- 
had  a  claim  against  a  resident  of  the  bate  here.  Held,  that  the  court  had 
surrogate's  county,  for  money  depos-  no  jurisdiction.  See  also  Gulick  v. 
ited  with  him,  notwithstanding  it  was  Gulick.  21  How.  Pr.  22:  33  Barb.  92; 
subsequently  shown  to  be  invalid  and  Parsons  v.  Lyman,  20  N.  Y.  103;  18 
incapable  of  enforcement.     (Sullivan  v.  How.  Pr.  193. 

Fosdick,    101  Hun,  174.)       For    other  46  Matter  of  Hughes,  95  N.  Y^  55. 

illustrations,    see   ^Matter   of    Drowne,  47  Sedg\vick  v.  Ashburner,   1   Bradf. 

18  St.  Rep.  981;  Booth  v.  Timoney,  3  105. 


103  TiiE  PijoBATi:  OF  Wills.  §  143. 

TITLE  THIRD. 

APPLICATION   FOR   PROBATE. 

ARTICLE  FIRST. 

APPLICATION,    WHERE    MADE. 

§  143.  Exclusive  jurisdiction  of  one  surrogate. — Assuming  that 
the  will  is  one  of  which  a  tiiuTogute  is  authorized  to  take  tho  proof, 
it  becomes  necessary  to  determine  in  which  county  the  application 
should  be  made.  In  some  instances  the  applicant  is  confined  to 
one  particular  county,  while  in  others  the  surrogates  of  two  or 
more  counties  have  concurrent  jurisdiction. 

The  Surrogate's  Court  of  each  county  has  jurisdiction,  ex- 
clusive of  every  other  Surrogate's  Court,  to  take  the  proof  of  a 
will,  and  to  grant  letters  thereupon,  in  either  of  the  following 
cases:  1.  Where  the  decedent  was,  at  the  time  of  his  death,  a 
resident  of  that  county,  whether  his  death  happened  there  or  else- 
where. 2.  Where  the  decedent,  not  being  a  resident  of  the  State, 
died  within  that  county,  leaving  personal  property  within  the 
State,  or  leaving  personal  property  which  has,  since  his  death, 
come  into  the  State,  and  remains  unadministered.  3.  Where  the 
decedent,  not  being  a  resident  of  the  State,  died  without  the  State, 
leaving  personal  property  within  that  county,  and  no  other;  or 
leaving  personal  property  which  has,  since  his  death,  come  into 
that  county,  and  no  other,  and  remains  unadministered.  4.  Where 
the  decedent  was  not,  at  the  time  of  his  death,  a  resident  of  the 
State,  and  a  petition  for  probate  of  his  will,  or  for  a  grant  of  let- 
ters of  administration,  under  either  of  the  two  last  preceding 
clauses  (2  and  3),  has  not  been  filed  in  any  Surrogate's  Court;  but 
real  property  of  the  decedent,  to  which  the  will  relates,  or  which 
is  subject  to  disposition  pursuant  to  a  surrogate's  decree  for  the 
payment  of  the  decedent's  debts,  etc.,  is  situated  within  that 
county,  and  no  other.^®  It  \vi\\  be  observed  that  the  fii-st  of  these 
four  clauses  relates  to  residents,  while  the  remaining  three  apply 
to  nonresidents  of  the  State;  and  that,  of  the  last-named  three, 
the  first  two  contemplate  a  jurisdiction  depending  upon  residence, 
place  of  death,  and  locality  of  personalty,  while,  under  the  tinal 
clause,  jurisdiction  depends  upon  residence  and  locality  of  realty, 
and  cannot,  in  any  case,  be  exercised  where  it  has  been  invoked 
oinder  either  of  the  two  preceding  clauses. 

48  Co.  Civ.  Proc,  §  247G. 


§  li?>a.  The  Probate  of  Wills.  10-i 

§  143a.  Residence  in  county.— The  first  iiiqiiirv,  therefore,  in 
this  connection,  is  as  to  the  testator's  residence.  If  he  was  a  resi- 
dent of  the  State,  then,  no  matter  where  his  death  "occurred, 
probate  can  be  had  onlv  in  the  countv  of  snch  residence.^''  The 
word  ''  resident  "  throughout  this  section  replaces  the  word  ''  in- 
habitant "  in  the  original  statute.  The  words  "  resident  "  and 
''  residence  "  are  not  expressly  defined  in  the  Code,  and  I  ex- 
pressed an  opinion  in  former  editions  of  the  present  book,  that 
the  context  in  each  case  seemed  to  require  these  words  to  be  con- 
strued as  indicating  the  permanent  residence  —  the  home,  that  is, 
the  "  domicile;"  ^*^  and  that  the  general  distinction  taken  bv  the 
decisions,  between  "  residence  "  and  "  domicile,"  was  inapplicable 
to  the  word  "  reside,"  and  its  derivatives,  as  used  in  the  Code. 
It  has  since  been  determined  that,  while  the  distinction  between^ 
"  residence  "  and  "  domicile  "  still  exists,  "  it  is  not  necessary  to 
seek  the  aid  of  adjudications  bearing  upon  the  much  distorted 
questions  of  residence  and  domicile,  and  the  difference  between 
them  for  certain  purposes,  such  as  taxation  and  the  like.  A  man 
m.ay  reside  wdiere  he  chooses,  and  although,  by  a  quasi  fiction  of 
the  law,  he  may  be  located  in  different  places  for  public  purposes, 
such  as  taxation  and  the  like,  yet  his  home  he  determines  for  him- 
self; and  where  that  is  within  the  State,  his  residence  —  as  de- 
scribed for  the  appropriation  of  his  estate  by  the  legal  processes 
provided  by  law  —  is  where  that  is  situated."  ^^     The  question  of 


49  Oviedo  V.  Duffie,  5  Redf.  137.  The  ton  v.  Dallas,  L.  R.  1  Ch.  257 ;  15 
presentation  of  a  petition  for  probate,  Moak,  739. 

alleging     residence     of     the     decedent        51  Per  Brady.  J.,  ^Matter  cf  Zerega, 

within  the  connty,  gives  exclusive  ju-  58  Hun,  505:   12  X.  Y.  Supp.  497.     In 

risdiction  to  try  the  question  of  resi-  that  case,  testator  described  himself  in 

dence,  of  which  the  court  cannot  be  de-  his  will  as  a  resident  of  Westchester 

prived   by    subsequent    proceedings    in  county,  voted  and  paid  taxes  there,  al- 

the     Surrogate's     Court     of     another  though  he  had  sold  his  residence  there 

county   on   an    allegation   of   residence  and  passed  his  winters  in  Xcav  York; 

in  the  latter.     (Matter  of  Buckley,  41  —  Held,  that,  for  purposes  of  jurisdic- 

Hun,  106.)  tion  of  the  surrogate,  Westchester  was 

50  Such  was  the  meaning  attached  to  the  place  for  probate,  and  a  motion  to 
'■  inhabitant  "  in  the  statutes  revised  revoke  the  probate  in  Xew  York  county 
in  the  provisions  under  consideration,  should   have   been  gi-anted.      The   pro- 

I  Isham  V.  Gibbons,  1  Bradf.  69. )     For  ceedings  having  been   remitted   to   the 

the  general  distinction  taken  by  the  de-  Xew  York  surrogate  "  for  further  ac- 

cisions,  see  Frost  v.  Brisbin,  19  Wend,  tion,"'  additional  testimony  was  taken 

11;    Douglas   v.   Mayor,   etc.,    2    Duer,  on  the  question  of  testator's  residence. 

110;  Sherwood  V.  Jiidd,  3  Bradf.  419;  The    surrogate    held    that    "though    a 

Petersen  v.  Chemical  Bank.  32  X.  Y.  man  may  have  two  residences,  he  can 

21;     Brown  v.  Lynch,    2   Bradf.    214.  have    but    one    domicile    (Douglas    v. 

The  authorities  upon  the  question  of  Mayor,    etc..    2    Duer,    110:     Bell    v. 

domicile  are  collated  and  discussed  in  Pierce,  51  X.  Y.  16),  and  that  Zerega 

Dupuy  v.  Wurtz,  53  X.  Y.  556.     See  (the  testator)   had  two  residences,  one 

Mr.  Moak's  note  to  the  case  of  Hamil-  in  Westchester  and  the  other  in  Xew 


lOi 


Tin;    I'kohatk  of  Wills. 


§  143<i. 


the  testator's  residence  in  one  or  more  counties  is,  therefore,  one 
of  intention,  and  no  arbitrary  rule  is  to  be  laid  down  in  relation  to 
it;  courts  must  draw  their  conclusions  of  intention  to  fix  or  to 
change  a  domicile  from  all  the  circumstances  f»f  each  case.^" 


York  oounty."  On  a  review  of  the  tes- 
timony (20  X.  Y.  Siipp.  417).  the  sur- 
roirate  adhered  to  his  previous  decision 
and  refused  to  revoke  the  probati-. 
Tiic  written  dci-Iarations  of  tlio  testa- 
tor were  principally  relied  upon  by  the 
|)ctitioncr  for  revocation,  as  to  which 
the  court  said:  "With  written  decla- 
rations the  liability  to  a  distortion  of 
lantruape  is  lessened,  and  if  the  paper 
is  all  in  the  handwritinfr  of  the  party 
it  is  not  open  to  suspicion.  But  the 
value  of  written  declarations  as  evi- 
dence depends  upon  the  circumstances 
under  which  they  were  made  — 
whether  care  was  taken  to  have  the 
]iapcr  read  to  the  party,  if  only  the 
si^'nature  is  in  his  handwritinji,  and 
whetlier  his  mind  prasped  the  Icfjal  im- 
j)ort  of  the  words  used,  if  the  language 
in  the  paper  was  not  his  own."" 

In  Isham  v.  Gibbons  (1  Bradf.  91), 
Bradford,  8.,  said:  "  ^Vritten  declara- 
tions, even  of  the  most  solemn  charac- 
ter, are  but  facts  to  enable  the  court 
to  discover  the  intention  of  the  party. 
It  is  in  this  liglit  alone  that  they  are 
to  l)e  received  and  weighed.  At  best, 
tlie  iuiimus  of  the  party  is  only  to  be 
inferred  from  them.  In  this  respect 
they  are  taken  like  any  other  facts. 
Declarations  of  any  kind  are  not  con- 
trolling, but  may  be.  and  frequently 
are,  overcome  by  other  and  more  reli- 
able indications  of  the  true  intention."" 
So,  in  the  Attornev-Oeneral  v.  Kent. 
(1  Hurl  stone  &  c!  12),  though  the 
judges  held  that  jurisdiction  was  in 
the  English  courts,  tliey  stated  that 
the  declaratioTi  in  tlie  w  ill  tliat  the  de- 
cedent was  "  residing  in  tlie  county  of 
Surrey "'  was  entitled  to  very  little 
consideration.  And  in  (iilman  v.  Gil- 
man  i'rl  !Me.  Ifi.'i)  it  was  held,  though 
the  testator  described  himself  as  "of 
Die  city  and  State  of  Xew  York,"  that 
the  recital  could  not  weigh  against 
facts  wliich  led  it  to  the  conclusion 
that  his  domicile  continued  at  \Yater- 
ville,  in  the  State  of  Maine. 

In  liegeman  v.  Fox  (."^l  Barb.  478), 
referring  to  both  oral  and  written  dec- 
laratiims,  the  court  I.Tiulge  Kmott 
writing  the  opinion)  says:  "To  the 
evidence  of  what  he  said  at  various 
times  I  attach   little  importance.     It 


comes  to  us  impressed  with  tlie  charac- 
ter of  the  particular  mood  of  the  man 
when  he  uttered  it,  which,  no  doubt, 
varied  and  wan  afTected  by  tlie  condi- 
tion of  his  health,  by  his  family  cir- 
cumstances and  bv  other  causes.  It  is 
colored  more  or  less  by  the  medium 
through  wliich  it  comes,  and  it  depends 
altogether  upon  tlie  recollection  of  wit- 
nesses: nor  do  I  consider  the  statement 
in  Mr.  Moore's  hill  in  cliancery,  that 
he  was  an  inhabitant  of  Florida,  stand- 
ing alone,  as  at  all  decisive.  It  was 
necessary  for  him  to  make  such  an  al- 
legation for  the  purpose  of  his  suit, 
and  he  might  very  well  have  made  it 
without  fully  crmsidering  its  import 
or  its  extent  or  its  consequences  in 
other  relations.  Coupled,  liowever, 
with  his  conduct,  it  is  evidence  which 
may  disclose  another  motive  for  a 
wish,  on  his  part,  to  acquire  a  resi- 
dence in  Florida,  at  or  after  the  time 
when  he  settled  near  Jacksonville. 
*  *  *  But  the  whole  matter  is  a 
question  of  intention,  and  no  arbitrary 
rule  is  to  be  laid  down  in  relation  to  it. 
See  Mackenzie  v.  ^lackenzie,  3  Misc. 
200;  Matter  of  Jones,  19  id.  80;  Mat- 
ter of  Brant,  30  id.  14. 

52  Dupuy  V.  Wurtz,  53  X.  Y.  .502.  and 
cases  supra.  In  ^Matter  of  Gould  (.30 
St.  Rep.  949:  9  X.  Y.  Supp.  603),  de- 
ceased, who  resided  in  \Yayne  county 
until  188.5,  determined  to  change  his 
residence,  to  Monroe  county  and  re- 
moved the  principal  part  of  his  effects 
to  that  county  and  made  an  allidavit 
that  he  was  a  resident  of  that  county. 
Held,  tiiat  tiie  surrogate  of  Monroe 
county  properly  assumed  jurisdiction 
of  the  probate  of  his  will.  A  Surro- 
gate's Court  has  jurisdiction  to  pro- 
bate the  will  of  a  decedent  who  died 
within  the  surrogate's  county,  after 
having  been  judicially  declared  to  be 
insane  at  his  former  residence  in  an- 
other county,  and  wliose  residence  was 
thereafter  changed  to  the  surrogate'* 
county  by  the  act  of  his  committee. 
(Hill  V.  Horton.  4  Dem.  8S.)  See  Von 
Hoffman  v.  Ward.  4  Kedf.  244.  as  to 
how  far  a  parent  may  change  tiie  domi- 
cile of  an  infant.  Compare  Seiter  v. 
Straub,  1  Dem.  204. 


§§3  44,145.  The  Peobate  of  Wills.  100 

§  144.  Nonresident's  property  in  county. —  If  the  testator  was 
■domiciled  in  any  other  State,  the  nature  and  locus  of  his  property 
are  to  be  considered.  His  estate  may  consist  of  (a)  only  personal 
effects  within,  or  which,  after  his  death,  come  into  the  State,  or 
(b)  only  real  property,  in  the  State,  described  in  the  fonrth  clanse 
of  section  247G,  or  (c)  both  real  and  personal  property.  We  will 
consider  each  of  these  hypotheses. 

(a)  In  this  case,  the  place  of  the  testator's  death  is  to  be  noted. 
If  he  died  within  the  State,  the  application  can  be  made  only  in 
the  county  where  he  died;  while,  if  he  died  without  the  State,  it 
can  be  made  only  in  the  county  where  the  property  was  left  or 
has  come.^^ 

(&)  Here,  the  application  for  probate  mnst  be  made  in  the 
connty  where  the  real  property  is  sitnated,  independently  of  the 
place  of  the  testator's  deatli. 

(c)  In  such  a  case,  by  the  terms  of  the  statute,  if  a  petition  for 
probate,  or  for  letters  of  administration,  has  been  filed  under 
either  the  second  or  third  clauses  of  the  section,  no  surrogate  can 
gain  jurisdiction  under  the  fourth.  But  there  seems  to  be  a 
casus  omissus  in  the  statute,  in  failing  to  prohibit  the  invoking  of 
jurisdiction  based  upon  the  locality  of  personal  property  of  a  non- 
resident, after  a  petition  has  been  filed  imder  the  fourth  clause 
of  the  statute. 

§  145.  Nature  and  locality  of  personal  property. —  The  general 
definition  of  ''  personal  property  "  makes  the  term  include  money, 
goods  and  chattels,  things  in  action,  and  evidences  of  debt.^'*  As 
used  in  respect  to  surrogate's  proceedings,  the  exprcvssion  "  per- 
sonal property  "  signifies  e^ery  kind  of  property  Avhich  survives 
a  decedent,  other  than  real  property  as  defined  in  reference  to 
the  same  subject,  and  includes  a  right  of  action  conferred  by 
special  statutory  provision  upon  an  executor  or  administrator.^ 
The  question,  what  are  '*  assets,"  will  be  considered  in  a  subse- 
quent chapter.  That  term  having  been  expunged  from  the  statu- 
tory provision  now  under  discussion,  does  not  call  for  further 
notice  here. 

53  We  assume  here  that  there  is  only  eludes  every  elaim  or  demand  upon 
one  such  county.  The  case  where  which  a  money  judgment  could  be  re- 
property  is  left  in,  or  comes  into,  two  covered  in  an  action.  (Co.  Civ.  Proc, 
or  more  counties  is  subsequently  dis-  §  2514,  subd.  3.)  See  Despard  v. 
cussed.                                                   '  Churchill,  .5.3  N.  Y.  192. 

54  Co.  Civ.  Proc,  §  .3.34.3,  subd.  7.  55  Co.  Civ.  Proc,  §  2.514,  subd.  13. 
Subd.  7  of  §  3343,  defining  the  term  The  corresponding  definitions  of  real 
"personal  property"  was  repealed  by  property  are  given  in  the  next  para- 
L.  1892,  c.  677',  by  which  another  defi-  graph. 

nition  was  given  (§4).    A  "  debt  "  in- 


107  Tin-:   Piton.vTK  of  Wills.  §  14<;. 

In  re8i)ect  to  tli.- .-uhjcet  of  locality,  tanfriblo  personal  property 
presents  no  ditticulties.  Where  personal  property  left  by  a  de- 
■cedent  consists  of  a  debt  owing  by  a  resident  of  this  State,  its 
locality  is  established  by  the  Code  which  declares  that  "  for  the 
purpose  of  conferring  jurisdiction  upon  a  Surrogate's  Court,  a 
•debl,  owing  to  a  decedent  by  a  resident  of  the  State,  is  regarded 
AS  personal  property  situated  within  the  county  where  the  debtor 
or  either  of  two  or  more  joint  debtors  reside;  and  a  debt,  outing 
to  him  by  a  domestic  corporation,  is  regarded  as  personal  prop- 
erty situated  within  the  county  where  the  principal  office  of  the 
•corporation  is  situated.  But  the  foregoing  provision  does  not 
apply  to  a  debt  evidenced  by  a  l)ond,  promissory  note,  or  other 
instrument  for  the  payment  of  money  only,  in  terms  negotiable, 
or  payable  to  the  bearer  or  holder.  Such  a  debt,  whether  the 
•debtor  is  a  resident  or  a  nonresident  of  the  State,  or  a  foreign  or  a 
<lomestic  government,  State,  county,  public  officer,  association,  or 
corporation,  is,  for  the  purpose  of  so  conferring  jurisdiction,  re- 
garded as  personal  property,  at  the  place  where  the  bond,  note,  or 
other  instrument  is,  either  within  or  without  the  State."  ^*' 

§  146.  Nature  and  locality  of  real  property. —  Real  property  is, 
in  general,  coextensive  in  meaning  with  lands,  tenements,  and 
hereditaments.'^^  As  used  in  respect  to  surrogates'  proceedings, 
the  expression  includes  every  estate,  interest  and  right,  legal  or 
•equitabl(>,  in  lands,  tenements,  or  hereditaments,  except  those 
which  are  determined  or  extinguished  by  the  death  of  a  ]>erson 
seized  or  possessed  thereof,  or  in  any  manner  entitled  thereto, 
iind  except  those  which  are  by  law  declared  to  be  assets.^*  As 
regards  the  locality  of  real  property,  it  was  held  under  the  former 
statute,  ^'■*  giving  the  surrogate  jurisdiction  where  "  any  real  estate 
devised  by  the  testator  "  is  situated  in  his  county,  that  jurisdiction 
depended  not  upon  the  decedent's  ownership  of  such  property, 
but  upon  his  actual  or  apparent  devise  thereof.*^*^  But  such  a 
•question  cannot  arise  under  the  present  Code,  which,  in  tlds  in- 
stance, adopts  the  language  of  the  Revised  Statutes.'*' 

The  provision  giving  the  surrogate  jurisdiction  to  grant  jn-o- 
bate  of  the  will  of  a  nonresident  by  reason  of  real  property  being 

5«Co.   Civ.   Proc,    §   2478;    suhstan-  pealed     subd.    6    of    Co.     Civ.     Proc, 

liallv  enacting  what  was  formerly  the  §  3:}43. 

rule."     See  Kohlcr  v.  Knapp,   1   liradf.        •"'•'^  Co.  Civ.  Proe..  §  2r)14.  subd.  13. 
241:   Ferris  v.  Van  Vechten,  73  N.  Y.        ML.  1S37.  c.  4(iO.  §  1.  subd.  r>. 
113;   Beers  v.  Shannon,  id.  292;  Mat-        ••'>  Vreeland  v.  McClelland,    1   Bradf. 

ter  of  Hopper,  5   Dera.  242.  393. 

57  L.    1892,   c.    077,    §    3,    which    re-       •'12  R.  S.  220,  §  1,  subd.  1. 


§§147,148.  The  Profjate  of  Wills.  lOS 

situated  in  his  county,  is  important,  chietly  with  reference  to 
giving  effect  to  the  devises  and  powers  of  sale  relating  to  real 
property  within  the  State,  contained  in  a  will,  in  a  case  where^ 
so  far  as  personal  property  is  concerned,  there  is  no  jurisdiction 
to  take  probate  liere;^'"  and  also  in  that  class  of  cases  wdiere,  by 
reason  of  there  being  insufficient  assets,  creditors  must  resort  to 
the  real  property  for  the  satisfaction  of  debts.^^  It  removes 
doubts  and  obscurities  which  existed  under  the  original  enact- 
ments of  which  it  is  a  revision,  but  appears,  as  has  been  already 
intimated,  still  to  leave  open  a  question  which  may  give  rise  to  a 
conflict  of  jurisdiction. 

§  147.  Concurrent  jurisdiction  of  two  or  more  surrogates. —  It  is 
manifest  that  where  jurisdiction  depends  on  the  existence  of  prop- 
erty in  a  county  of  the  State,  two  or  more  surrogates  might  have 
equal  claim  to  jurisdiction.  The  Code  provides  for  such  a  con- 
tingency, by  establishing  the  rule  that  where  personal  property  of 
a  nonresident  testator  dying  without  the  State,  is  within,  or  after 
his  death  comes  into,  two  or  more  counties,  under  such  circum 
stances  as  to  confer  jurisdiction  to  take  the  probate;  or  real  prop- 
erty of  any  nonresident  testator  is  situated  in  two  or  more 
counties,  under  the  like  circumstances,  the  Surrogates'  Courts  of 
those  counties  have  concurrent  jurisdiction,  exclusive  of  everj^ 
other  Surrogate's  Court,  to  take  the  proof  of  the  %\all  and  grant 
letters  thereupon;  but  where  a  petition  for  probate,  or  for  letters 
of  administration,  has  been  duly  fiJed  in  either  of  the  courts  so 
possessing  concurrent  jurisdiction,  the  jurisdiction  of  that  court 
excludes  that  of  the  other. ^'^ 

ARTICLE  SECOXD. 

APPLICATION    FOR    PROBATE,    HOW    AXD    BY    WHOM    MADE. 

§  148.  In  general. —  The  person  who,  it  might  be  supposed^ 
would  naturally  take  steps  to  have  a  will  proved,  is  the  executor, 
if  any,  named  therein.  It  is  competent,  however,  for  either  "  a. 
person  designated  in  a  will  as  executor,  devisee,  or  legatee,  or  any" 
other  person  interested  in  the  estate,  or  a  creditor  of  the  decedent, 
or  any  party  to  an  action  brought  or  about  to  be  brought,  and 
interested  in  the  subject  thereof,  in  which  action  the  decedent,. 

62  See  Young  v.  Brush,  28  N.  Y.  667 ;  63  See  Hollister  v.  Hollister,  10  How- 
Thorn  V.  Sheil,  15  Abb.  Pr.  (N.  S.)  81.    Pr.  532. 

04  Co.  Civ.  Proc,  §  2477. 


10!>  Till-:   PifoBA-iK   oi    Wii.r.s.  §140. 

if  living',  would  ]>o  a  pro])cr  party,""*'''  to  prosont  \<>  the  Surn;- 
^ate's  Court  having  jurisdiotion  a  petition  for  the  probate  of  the 
will.  Under  the  detlnition/"'  given  in  the  Code,  of  a  ''  person  in- 
terested," this  enumeration  includes,  l)esides  the  persons  specifi- 
cally designated,  a  husband  or  wife,  and  those  coming  witiiin  the 
<.lescri])tion  of  hoii-s.and  next  of  kin.  Doubtless,  under  the 
language  of  the  ])resent,  as  under  that  of  the  former  statute,  the 
rule  obtains,  that  any  interest,  or  the  bare  possibility  of  interest, 
is  sufficient  to  entitle  one  t<>  be  a  jiarty  to  the  jiroceeding.*'"  A 
person  interested  may  make  the  apj)lieation  l)y  a  duly  anthoi-ized 
agent;  it  is  not  necessary  tliat  he  should  a])i>ly  personally.'"* 
Pomierly,  where  a  married  woman  propounded  a  will,  her  hus- 
band was  usually  required  to  join  with  her;  but  now,  married 
women  are  capable  of  receiving  letters  as  though  they  were  single 
women,*''*  and  it  is  expressly  declared  that  a  married  woman 
prosecutes  or  defends  a  special  proceeding  as  if  she  were  single.^** 

The  term  "  creditor  "  includes  every  person  having  a  claim  or 
demand  against  the  testator,  upon  which  a  judgment  for,  or  a 
<iirection  for  the  payment  of, 'money  could  be  recovered  in  an 
action,  and  also  any  person  having  a  claim  for  expense  of  ad- 
ministration or  for  funeral  expenses."^ 

§  149.  Presence  of  the  will. —  It  is  not  only  the  right,  but  the 
duty  of  one  who  finds  a  will  which  he  is  interested  to  prove,  to 
propound  it  for  prol)ate.'"  The  ju'oponent  need  not,  even  where 
the  will  is  not  lost  or  destroyed,'^  have  the  document  in  hi^  pos- 
session, or  produce  it  as  a  condition  of  obtaining  a  citatiim.  Its 
production  can  be  compelled,  at  the  proper  time,  by  a  subj)aMU\ 
duces  iecum.''^  If  the  instrument  is  inaccessible,  that  is,  in  an- 
other State  or  counti'v  under  such  circumstances  that  it  cannot  be 
•obtained  here,  it  may  nevertheless  be  proved.'^     If  lost  or  de- 

«5Co.  Civ.  Proc.  §  2014,  as  amended  T2  Matter  of  Griswold.    1.')   Ahb.    Pr. 

1807.     No  act  of  an  executor,  ofTerinj^  209.     And  see  Thorn  v.  Slicil.   ].")  Abb. 

a  will  for  probate,  can  deprive  persons  Pr.   (X.   S. )    81. 

interested  in  the  estate  of  tlie  rij,dit  to  "'i  See  Co.  Civ.  Proc,  §  2(,i21. 

have  it  admitted.     (Paxton  v.   Patter-  74  Co.  Civ.  Proe..  §  2481,  subd.  3. 

son,  20  Abb.  X.  C.  .380:  s.  c.  sub   nom.  ".  :Matter  of  Delaplaine,  ;5  Deni.  398: 

Paxton  v.  Brofran.  3r>  St.  Rep.  479:   12  10  Abl).  X.  C  30.     And  this  is  so,  even 

N.  Y.  Supp.  .503.)  where  there  were  no  subseribinjr  wit- 

C6Co.  Civ.  Proc.,  §  2.")14,  subd.  11.  nesses,  if  the  will  has  been  executed  in 

e";^^atter  of  Greelev.  15  Abb.  (X'.  S.)  conformity  with  the  laws  of  decedenfs 

303;    Bovnton    v.    Laddv.    20    St.    Rep.  residence.'    (lb.)      As   tiie   statute    ( L. 

148.     See  other  cases,  ante,  §   98.  1837.  e.  400.  §  1 )  stood  before  the  jires- 

68  Russell  V.  llartt,  87  X.  Y.   10.  ent  Code,  Surrouates"  Courts  were  a\i- 

eSL.  1807,  c.  782,  §  2.  thorized  to  take  proof  of  the  last  wills 

70  Co.  Civ.  Proc.,  §  4;i0.  of  all  deceased  i)ersoiis.  where  the  tes- 

71  Co.  Civ.  Proc,  §  2."3l4,  sulxl.  3,  as  tator,  bein^  a  noninbabitant.  died  out, 
amended  1000  (L.  1900,  c.  120).  of    the   State,    leaviny    assets    in    the 


§§150,  151.  TiiE  Pkobate  of  Wills.  ll(r 

stroyed,  it  may  be  proved  either  by  action,  or  by  a  special  pro- 
ceeding in  the  Surrogate's  Conrt.  If  it  has  been  already  proved 
before  a  foreign  tribunal,  it  may  be  recorded  here  upon  a  duly 
exemplified  copy  of  the  will,  etc. 

§  150.  Foreign  wills. —  The  statute  makes  no  distinction,  in 
respect  to  the  right  to  apply  for  probate,  between  a  domestic  and 
a  foreign  Avill.  In  the  case  of  the  latter,  the  application  is  usually 
made  by  the  foreign  representative,  in  person  or  by  his  attorney 
in  fact.  The  right  of  a  foreign  consul  to  intervene  in  any  such 
proceeding  on  behalf  of  a  member  of  his  nation  not  ^\"ithin  the 
country,  has  been  generally  recognized.  The  jurisdictional  facts 
existing,  the  court  here  is  not  bound  to  postpone  the  probate  of  a 
foreign  Avill,  until  the  instrument  has  been  submitted  to  the 
proper  judicial  tribunal  of  the  decedent's  domicile."^ 

§  151.  Application  by  written  petition. —  The  formalities  of  the 
application  for  proof  of  a  will,  so  far  as  they  are  prescribed  by 
statute,  are  very  simple.  The  application  is  by  petition.  What- 
ever may  liave  been  the  former  practice, ^^  the  statute  now  recog- 
nizes the  general  rule,'^  that  the  petition  for  probate  must  be  in 
writing  and  duly  verified.'^  The  requisite  form  of  the  allegations 
and  mode  of  verification  are  the  same  as  in  case  of  a  verified 
pleading  in  a  civil  action.**^  The  affidavit  of  verification  may  be 
taken  before  any  officer  authorized  to  administer  oaths  and  affi- 
davits generally.*^  Where  the  property  is  small,  and  the  parties 
are  few,  it  has  been  not  unusual  for  them  to  go  before  the  sur- 
rogate together,  produce  the  wiU,  and  state  the  facts,  in  answei- 
to  inquiries  addressed  to  them;  and  in  such  case,  if  no  objection 
appeared,  the  surrogate  would  proceed  at  once  to  take  proof  of 
the  yviU,  the  citation  sometimes  being  dispensed  with,  on  the 
ground  of  a  personal  appearance  of  all  parties  in  interest.^^ 


county,  etc.,   and  provision  was  made  by  the  commissioners  as  correct.   Held,. 

for   the   taking   of   testimony  by   com-  that  the  surrofjate  had  jurisdiction  to. 

missioners  in  foreijrn  countries.     Orig-  admit  the  will  to  probate  without  pro- 

inal  probate  was.  therefore,  granted  on  duction   of  the   original.      (Russell  v.. 

Avills,  the  originals  of  which  were  not  Hartt,  87  N.  Y.  19.) 

produced.      Thus,   a   will   disposing  of  76  Booth  v.  Timoney,  3  Dem.  416. 

real    and    personal    property    in    this  77  See  Smith  v.  Remington,  42  Barb.. 

State  was  executed  in  Scotland,  accord-  75 ;   Wright  v.   Fleming,  19  Hun,  370> 

ing  to  the  laws  of  that  country,  and  78  See  Foster  v.  Wilber,  1  Paige,  537.. 

also    according    to   the    laws   of    this  '9  Co.  Civ.  Proc,  §  2614. 

State.    The  evidence  of  the  subscribing  SO  See  Co.  Civ.  Proc,  §§  523-526  and 

Avitnesses  was    taken   in    Scotland,  by  2534. 

commissioners  appointed  by  the  surro-  ^l  Co.  Civ.  Proc.,   §  842. 

gate  here,  and  a  copy  of  the  will  an-  '^2  See  Everts  v.  Everts,  62  Barb.  577; 

ne.xed  to  the  commission  was  certified  Bailey  v.  Stewart,  2  Redf.  212. 


Ill  TiiK  Pkohatk  ok  Wills.  §152. 

Under  tlio  present  CVxle  it  is  l)clieve;l  that  the  provision  for  a 
verified  written  j)etiti()n  for  prol)ate  is  compulsorv;  for  although 
its  language  is  that  the  proponent  "  may  present  "  such  a  peti- 
tion, the  permissive  form  of  the  expression  appears  to  be,  o\\'ing 
to  the  main  purpose  of  the  section,  to  confer  upon  the  persons 
specitied  the  right  to  apply  for  probate;  and  no  other  method  of 
invoking  the  jurisdiction  of  the  court  is  prescril)ed.  And  such, 
indeed,  has  been  the  general  and  orderly  course  of  practice.  On 
the  other  hand,  if  the  petition  shows  that  there  are  no  persons 
entitled,  under  the  statute,  to  be  cited,  or  if  the  parties  interested 
have  waived  issue  and  ser^'ice,*^  a  prayer  for  a  citation  and  the 
citation  itself  are  needless  formalities;  so  that  the  ruling  above 
cited  may  be  expected  to  be  held  still  applicable,  notAvithstanding 
the  mandatory  language  of  the  Code,  viz.,  that,  "  upon  the  pre- 
sentation of  such  a  petition,  the  surrogate  must  issue  a  citation 
accordingly." 

§  152.  Contents  of  the  petition. —  The  requirements  of  the  Code,. 

as  to  the  contents  of  the  petition,  are  briefly  that  it  describe  the 
will,  set  forth  the  facts  upon  which  the  jurisdiction  of  the  court 
to  grant  probate  thereof  depends,  and  pray  that  the  will  may  be 
])roved,  and  that  the  persons  specified  in  the  statute  as  entitled  to 
citation  may  be  cited  to  attend  the  probate  thereof.''*'*  Under  the 
head  of  a  description  of  the  will,  the  petition  should  show  whether 
it  is  oral  or  nuncupative;  and  whether  it  relates  to  real  or  personal 
property,  or  both.  It  is  usual,  if  the  will  relates  to  real  estate, 
though  this  is  not  essential,  to  state  facts  showing  the  competency 
of  the  testator  to  hold  and  convey  land  —  as  that  he  was  of  full 
age,  also  that  he  Avas  a  citizen  of  the  United  States,  etc.  As  to 
the  jurisdictional  facts,  the  allegations  will  naturally  vary  for 
different  cases.  Where  the  will  is  executed  ""  as  prescribed  l>v  the 
laws  of  the  State,''  ^"  and  the  testator  "  was  at  the  time  of  his 
death  a  resident  of  "  the  surrogate's  county,  an  averment  of  such 
residence,  and  of  the  time  and  place  of  his  death,  is  all  that  is 
required.  In  other  cases,  tho  existence  and  locality  of  peri^onal  or 
real  property  must  1)0  shown;  and  a  statement  of  the  place  of 
execution  of  the  will  may  be  material.^*' 

The  petition  should  also  set  forth  the  name  and  residence  of 
every  person  who  is  eutifled  to  be  cited   on  the  probate,  c.  g.,. 

f^^Svo    §    84,    ante.      Prior    to    the  service  of  a  citation,     (^tattor  of  Grog- 

ameiidincnt  of  §  2528  (L.  18i)(i,  c.  fiTO)  ory,  13  Misc.  3(i3 :  35  X.  Y.  Siipp.  105.) 

it  was  lu'ld  hy  the   svirrofjate  of   New  •'^•*  Co.  Civ.  Proc.  §  2(114. 

York  county  that  a  waiver  could  not  sn  See  Co.  Civ.  Proc  §  2(111. 

be   accepted,   in   lieu   of  the   issue   and  8"  See  Co.  Civ.  Proc,  §  2t)ll. 


:§§  153,  154.  The  Probate  of  Wills.  112 

each  of  the  heirs,  or  each  of  the  next  of  kin  ^'  (including  adopted 
chihlren),^^  or  both,  according  to  whether  the  will  is  sought  to  be 
proved  as  one  of  real  or  personal  property,  or  both,  and  the  hus- 
band or  the  wife  of  the  testator,  unless  the  name  or  part  of  the 
name,  or  residence  of  one  or  more  of  them  cannot,  after  diligent 
inquiry,  be  ascertained  by  the  petitioner,  in  which  case  that  fact 
must  be  alleged.^''  If  any  of  those  persons  are  infants,  that  fact, 
and  the  name,  age,  and  residence  of  each  infant  should  be  stated. 
The  petition  closes  with  a  prayer  for  probate  and  for  a  citation,  as 
prescribed  in  the  statute.  It  is  customary  for  surrogates  to  have 
printed  forms  of  petitions,  and  it  is  suggested  that  these  be  used 
by  the  practitioner  whenever  available. 

It  is  obvious,  that  in  order  to  make  a  probate  decree  conclusive, 
great  care  is  to  be  observed  that  all  persons  who  may  possibly 
have  an  interest  should  be  cited.^'^ 

§  153.  Will  in  foreign  languag^e. —  Where  the  will  is  written  in 
a  foreign  language,  it  may  be  oifered  for  probate  in  that  language, 
with  or  without  a  translation  thereof  annexed;  but,  before  decree, 
it  is  the  duty  of  the  court  to  translate  it  into  English,  to  ascer- 
tain its  meaning,  and  to  see  that  the  proper  parties  have  been 
■cited.  The  translation  is  to  be  treated  as  a  part  of  the  decree 
admitting  the  will  to  probate,  and  is  unassailable  collaterally  like 
the  rest  of  the  decree.^^ 

§  154.  Duplicate  and  mutual  wills. —  Where  a  will  is  executed  in 
■duplicate,  although  each  duplicate  may  be  said  to  be  a  part  of  the 
will,  in  the  sense  that  it  is  not  a  separate  will,  yet  from  the  nature 
of  the  case,  each  duplicate  is  a  complete  will  in  itself,  since  each 
is  an  original.  On  the  probate  of  a  wall  executed  in  duplicate, 
the  petition  should  describe  the  will  as  so  executed,  and  the  part 
kept  by  the  testator  must  be  produced  or  accounted  for,  as  in  case 
it  cannot  be  found,  a  presumption  arises  that  the  testator  has  de- 
stroyed it  with  the  intention  of  revoking  his  wUl.^'     A  conjoint  or 


87  The  question  as  to  who  are  the  cited  to  appear  at  the  probate  of  his 
Tieirs-at-law  and  next  of  kin  of  a  de-  will  and  codicil,  the  latter  of  which, 
ceased  person  is  to  be  determined  by  giving  a  life  estate  only  to  testator's 
the  Statute  of  Descents  and  the  Stat-  children,  was  rejected.  Held,  that  the 
ute  of  Distributions.  See  §§  92,  9.3,  interests  of  the  grandchild  were  not 
ante;  and  see  Co.  Civ.  Proc,   §   2514,  concluded  bv  the  decision. 

subd.  12.  91  Caulfield  v.  Sullivan,  8.5  N.  Y.  1.53. 

88  Matter  of  Gregory,  13  Misc.  363 ;  92  Williams  on  Exrs.  158.  Either  of 
35  N.  Y.  Supp.  105.  two    duplicate    wills    may    be    proved 

89  Co.  Civ.  Proc,  §§  2518.  2523.  without  the  other.    (Crossiuan  v.  Cross- 

90  In  Matter  of  Dates  (35  St.  Rep.  man,  95  X.  Y.  145.)  Upon  a  petition 
338:  12  N.  Y.  Supp.  205),  an  infant  for  probate  of  a  will  executed  in  dupli- 
grandchild    of    the    testator    was    not  cate,   one   of   the   two   originals   being 


113 


The  Puobate  of  Wills. 


.^  154a. 


imitual  will  is  valid,  aii<l  may  i)C  proved  on  the  death  of  either 
party."^ 

§  154a.  Supplemental  petition;  intervention  of  parties. —  In  case 
the  iiaiiie  of  any  pci'son  {iititicil  to  In-  ciUmI  ha-  Ix-cn  omitted  in 
the  orig-inal  ])ctition,  a  supplemental  jietition  may  be  tiled  at  any 
time  on  discoverini>'  the  omis.'^ion,  and  a  new  citation  issued  to 
bring  him  into  court;  the  parties  already  cited  need  not  again  be 
served  with  the  citation."^  The  statute  provides  that  "  any  per- 
son, although  not  cited,  who  is  named  as  a  devisee  or  legatee,  in 
the  will  propounded,  or  as  executor,  triLstee,  devisee,  or  legatee, 
in  any  other  jxijxt,  jiui'porting  to  be  a  will  of  the  decedent,  or 
who  is  otherwise  interested  in  sustaining  or  defeating  the  will, 
may  appear,  and,  at  his  election,  support  or  oppose  the  a])plica- 
tion.  A  person  so  appearing  becomes  a  party  to  the  special  pro- 
ceeding." But  this  provision  is  declared  not  to  affect  the  right 
or  interest  of  such  person,  unless  he  becomes  a  ]>arty.''^  In  order, 
therefore,  to  conchulc  a  third  party,  it  is  well,  though  not  neces- 
sary, to  enter  a  formal  order,  making  him  a  party  to  the  pending 
l^roceeding.     The  trial  of  issues  raised  by  ]:»arties  op])osing  the 


shown  to  have  been  destroyed  hy  the 
maker,  animo  revoanidi,  and  there  be- 
inf,'  no  proof  that  the  other  was  in  her 
possession  at  any  time  after  its  execu- 
tion, thouprh  it  did  not  appear  but  that 
it  was  still  intact;  held,  that  a  decree 
might  be  entered  denying  the  applica- 
tion. lAsinari  v.  Bangs,  3  Dem.  SSo.) 
And  see  Biggs  v.  Angus,  id.  03.  The 
nonpresentment  of  both  dujdicates  is 
not  a  ground  revoking  the  probate  of 
the  will,  where  both  are  subsequentlv 
]>roduced.  At  most  the  probate  was 
irregular.  iMatter  of  Crossman,  3  Civ. 
Proc.  Rep.  ()5,  afTd.,  30  Ilun,  38,5;  9.)  X. 
Y.  145.) 

!>;!  Matter  of  Raupp,  10  :Misc.  300; 
31  N.  Y.  Supp.  ("SO.  A  nuitual  will 
executed  by  husband  and  wife,  devis- 
ing reciprocally  to  each  other,  is  valid. 
Such  an  instrument  operates  as  the 
.separate  will  of  whichsoever  dies  first. 
(Matter  of  Diez.  50  N.  Y.  88;  E.r  p. 
Day,  1  Bradf.  47(>,  and  cases  cited.) 
And  see  Ex  p.  MeCormick,  2  liradf. 
169.  As  to  effect  of  wills  made  by 
father  and  son  witii  reference  to  each 
other,  and  of  a  release  by  the  father  to 
the  executors  of  the  son,  in  a  ])eculiar 
case,  see  Wood  v.  Vandenburgh.  C> 
Paige,  277.  In  order  to  make  a  mutual 
will,  it  must  be  made  under  an  agree- 
ment that  the  survivor  shall  be  enti- 

8 


tied  to  the  otlier's  property.  (Drisch- 
ler  v.  Van  Den  Heiiden,  4!)  Super.  Ct. 
[J.  &  S.]  508.)  Two  parties  may 
agree  between  themselves  to  execute 
mutual  and  reciprocal  wills,  which, 
though  remaining  revocable  upon  no- 
tice being  given  by  cither  of  an  in- 
tention to  revoke,  become,  upon  the 
deatli  of  one,  fixed  obligatii'ns.  of 
which  equity  will  assume  the  enforce- 
ment, if  attempted  to  be  impaired  by 
subsequent  testamentary  provisions  on 
the  part  of  the  survivor.  ( Edson  v. 
Parsons,  155  X.  Y.  555;  50  X'.  E.  2(35 : 
Kvcrdell  v.  Hill,  27  :\[isc.  285;  58  X. 
Y.  Supp.  447.)  See  Martin  v.  Hillen, 
142  X.  Y.  140;  58  St.  Rep.  617;  Her- 
rick  v.  Snyder,  27  Misc.  462 ;  59  X.  Y. 
Supp.  229'. 

u-t  See  ante,  §  107.  Merritt  v.  .Tack- 
son,  2  Dem.  214;  Matter  of  Crumb,  G 
id.  478;  :\Iatter  of  Ellis,  22  St.  Rep. 
77;  :Matter  of  Odell,  1  Misc.  390. 

"••5  Co.  Civ.  Proc,  §  2617.  See  Laf- 
ferty  v.  Lafferty,  5  Redf.  326.  To  in- 
tervene in  probate  procwnlings,  as  a 
beneficiary  under  a  former  will,  such 
will  must  either  have  been  in  existence 
when  decedent  dieil,  or  nuist  have  been 
lost  or  destroyed  without  decedent's 
])rocurement.  (Hamersley  v.  Lockman. 
2  Dem.  524.) 


§§155-157.  The  Probate  of  Wills.  114r 

probate  of  a  will,  can  only  be  had  in  an  independent  proceeding. 
It  cannot  be  had,  for  instance,  upon  an  application  by  the  tem- 
porary administrator  of  decedent's  estate  for  leave  to  discharge 
certain  items  of  alleged  indebtedness.^'^ 

§  155.  Consolidating  proceedings. —  Where  two  instruments  are 
propounded  by  different  parties,  the  several  applications  for  pro- 
bate will  be  consolidated  and  tried  together  as  one  proceeding.^^ 
So,  where  an  alleged  codicil  is  produced  by  persons  intervening 
for  their  interest,  but  who  were  not  cited. ^^ 

§  156.  Withdrawal  of  petition  for  probate. — When  once  a  Anil  has- 
been  produced  in  court  —  and  the  parties  cited  —  the  proponents 
may  not  withdraw  it  from  the  files,  nor  by  such  means  procure 
its  probate.^^  Although  no  act  of  an  executor  propounding  a  will 
for  probate  can  deprive  a  person  interested  under  it  of  the  right 
to  have  the  will  admitted,  on  due  proof,^  it  does  not  follow  that 
in  a  proper  case  the  court  will  not  grant  leave  to  mthdraw  a  peti- 
tion for  probate,  on  objections  filed.^  If  all  the  parties  cited, 
being  of  full  age,  should  ask  that  the  proceeding  be  dismissed,  no 
one  appearing  in  support  of  the  will,  it  would  be  the  duty  of  the 
surrogate  to  dismiss  the  proceeding.  The  same  result  Avould  be 
produced  if  all  the  parties  cited  should  formally  admit  that  the 
will  was  not  legally  executed,  or  that  the  testator  was  incompetent. 
But  so  long  as  any  person  cited  is  before  the  surrogate  in  support 
of  the  will,  he  has  no  right,  upon  the  motion  of  any  other  party, 
arbitrarily  to  arrest  or  dismiss  the  proceeding.^  It  follows  that 
after  the  petition  for  the  probate  of  a  will  is  filed  w^th  the  sur- 
rogate, and  the  proper  parties  cited  can  become  actors,  any  of 
them  can  contest  and  produce  witnesses  in  opposition  to  probate, 
and  any  can  offer  witnesses  in  support  of  the  will  and  cross-ex- 
amine those  called  in  opposition.'* 

AKTICLE  THIRD. 

THE    CITATION    AN'D    ITS    SERVICE. 

§  157.  Classes  of  persons  to  be  cited. —  We  have  alreadv,  in  the 
chapter  on  Parties,  treated  generally  of  partips  to  special  pro- 
ceedings in  Surrogates'  Courts,  but  it  will  be  proper  to  refer,  in 

9G  Mason  v.  Williams,  3  Dem.  285.  i  Paxton  v.  Patterson.  26  Abb.  X.  C. 

^    97  Van   Wert   v.    Benedict,    1    Bradf.  389;  12  N.  Y.  Supp.  562. 

114.  2Heermans  v.  Hill,  2  Hun,  409;    4 

98  Carle  v.  Underbill,  3  Bradf.   101.  Sup.  Ct.  (T.  &  C.)   602. 

99Hoyt    V.   Jackson.    2   Dem.     443;  3  Matter  of  Lasak,  131  N.  Y.  624;  4J 

Raven  v.  Norton,  id.  110.  St.  Rep.  101. 

4  Matter  of  Lasak,  supra. 


115  The  Probate  of  AVills.  §§  158,  151). 

t'his  place,  to  tlio  rules  relating  especially  to  a  proceeding  for 
probate.'^  The  relatives  of  a  testator  who  are  entitled  to  be  cited 
to  attend  the  probate  of  his  will  are:  ''  1.  If  the  wilb relates  ex- 
clusively to  real  property,  the  husband,  or  A\ife,  if  any,  and  all 
the  heirs  of  the  testator.  2.  If  the  will  relates  exclusively  to  per- 
sonal property,  the  husband  or  wife,  if  any,  and  all  the  next  of 
kin  of  the  testator.  3.  If  the  will  relates  to  both  real  and  personal 
property,  the  husband  or  wife,  if  any,  and  all  the  heirs,  and  aU 
the  next  of  kin  of  the  testator."  ^  The  first  subdivision  looks  to 
the  protection  of  the  husband's  possible  estate  by  the  curtesy.^ 
A  widow's  dower  cannot,  of  course,  be  impaired  bv  her  husband's 
will. 

g   158.   Public   administrator  and   attorney-general. — Where  the 

surrogate  is  unaldc  to  ascertain,  to  his  satisfaction,  whether  the 
•  lecedeiit  left  surviving  him  any  ])erson  who  would  be  entitled  to 
the  ])roi)erty  affected  by  the  will,  if  the  decedent  had  died  in- 
testate, the  citation  must  be  directed,  where  the  will  relates  to 
real  property,  to  the  attorney-general ;  where  it  relates  to  personal 
property,  to  the  public  administrator,  who  would  have  been 
entitled  to  administration  if  the  decedent  had  died  intestate.* 

§  159.  Service  of  citation. —  The  rule  governing  the  manner  and 
proof  of  its  service  and  the  general  requisites,  as  to  form  and  con- 
tents of  a  citation,  are  detailed  on  a  previous  page.^  In  addition 
to  the  requirements  common  to  all  citations,  viz.,  that  the  names 
of  all  the  persons  to  be  cited,  so  far  as  they  can  be  ascertained, 
must  be  contained  therein,  etc.,  the  Code  provides  that  the  citation 
to  attend  (he  prohale  of  a  ivill  must  set  fortli  the  name  of  the 
decetleiit,  and  that  of  the  person  by  whom  the  will  is  ju'opounded; 
and  must  state  wlu^her  the  will  relates,  or  purjiorts  to  relate,  ex- 
clusively to  real  pro])erty,  or  personal  property,  or  to  both;  and 
where  the  will  ]u-o])ounded  was  nuncupative,  the  fact  must  be 

•'"'  t'pon  an  applirnlion  for  proliatc  of  tcn-sts  of  those  persons  are  now  pro- 

Tiieiiioranda    of    names    of    legatees    re-  ter-ted    by    section    2G17,    as    amended 

ferred  to  in  a  will  previously  probated,  lSf)4.  requiring  notice  of  the  hearing  of 

the  same  parties  should  be  cited  as  if  objections  to  probate  to  be  served  on 

the  question  had  risen  at  the  time  of  them.      See   §    162.   post.     See   also  L. 

the  probate  of  the  will.     (Dyer  v.  Err-  1894.  e.  731.  and  §§  02.  0.3,  ante. 

iiig.  2  Dem.  KiO. )                     ^  "See    Hatfield   v.    Sneden.   .54   X.   Y. 

'■>Co.  Civ.  Proc.  §  2015,  as  amended  280. 

1S04,   substantially   restoring  the  pro-  8  Co.  Civ.  Proc,  S  2til(>.  adopting  the 

visions  of  the  statute  as  it  existed  ])ri(ir  rule  laid  down  in  (unnliault   v.   Public 

to   L.    1802,   e.   627,   which    required    a  Administrator.  4  T^radf.  226. 

citation  to  all  persons  interested  in  the  9  See  Gntc,  §  73  ct  scq. 
"will,  us  legatees,  devisees,  etc.    The  in- 


§  160.  The  Probate  of  Wills.  116 

stated  in  the  citation.^*^  Personal  service  of  the  citation  is  made 
by  delivering  a  copy.  It  is  not  necessary  to  exhibit  the  original. ^'^ 
On  or  before  the  return  day,  the  original,  with  j^roof  of  due 
service,  should  be  left  in  the  surrogate's  office.  It  is  no  objection 
that  the  service  was  made  by  an  executor  or  legatee  named  in  the 
will.^^  If  any  of  the  parties  cited  are  infants,  or  otherwise  in- 
capable, the  surrogate  will  appoint  a  guardian  ad  litem  for  the 
protection  of  their  interests.  This  is  necessary,  whether  there  is 
a  contest  over  the  will  or  not.  The  steps  necessary  for  such 
appointment  are  stated  in  the  chapter  on  Parties, 

TITLE  POURTH. 

PROOF  OF   WILLS. 

ARTICLE  FIRST. 

UNCONTESTED    AND    CONTESTED    PROBATE. 

§  160.  Uncontested  probate. —  The  court  having  acquired  juris- 
diction of  the  parties,  the  further  steps  to  be  taken  toward  the 
proof  of  the  will  are  governed  by  the  fact  whether  or  not  the 
probate  is  contested.  In  case  no  caveat  has  been  filed  against  the 
probate,  and  there  is  no  demand  on  the  part  of  any  of  the  parties 
in  interest  for  an  oral  examination  of  the  subscribing  witnesses, 
the  practice,  in  an  ordinary  case  of  a  written  will,  is  to  take  the 
affidavit  of  each  subscribing  witness,  sworn  to  before  the  surro- 
gate or  one  of  his  clerks,  to  the  effect  that  the  witness  was  ac- 
quainted with  the  decedent  in  his  lifetime;  that  he  was  present  as 
a  wdtness  and  the  decedent  subscribed  the  paper  propounded  and 
now  shown  witness,  dated,  etc.,  purporting  to  be  the  last  will  and 
testament  of,  etc. ;  that,  at  the  time  of  making  such  subscription, 
the  decedent  declared  the  said  instrument  to  be  his  last  will  and 
testament,  and  requested  the  deponent  to  sign  his  name  as  a  wit- 
ness thereto,  which  deponent  thereupon  did;  that  the  decedent 
was  a  citizen  of  the  United  States,  of  full  age,  of  sound  mind  and 
memory,  in  all  respects  competent  to  devise  real  estate,  and  not 

10  Co.  Civ.  Proc,  §  2616.     See,  as  to  for  infant  parties,  Id.,  §  2530,   §   108, 

proof  of  service,  Co.  Civ.  Proc,  §  2532,  ante. 

§    76,    ante;    as    to    appearance    as    a  Jl  The  surrogate's  rules  in  New  York 

substitute    for    service,    Id.,     §     2528,  county   do  not  require   a   copy   of   the 

§  84,  ante;  as  to  a  supplemental  cita-  petition  to  be  served  with  the  citation 

tion.  Id.,  §  2481,  subd.  2,  §  107,  ante;  (Rule  III).     See  ante.  §  76,  note. 

as  to  appointment  of  special  guardian  i^  Co.   Civ.  Proc,   §   2520;   Wetmore 

T.  Parker,  52  X.  Y.  450. 


117  Till-:  TuoBATE  OF  Wills.  §  161. 

under  ro?traint;  and  that  tlie  deponent  saw  tlie  other  witnesse.s 
(naming-  them)  sign  their  names  as  witnesses,  in  tlie  presence, 
and  at  the  request,  of  the  decedent.  The  affidavits  being  duly 
verified  and  filed,  together  with  the  will,  letters  forthwith  issue 
to  the  executors  named,  or,  in  case  of  their  renunciation,  to  the 
persons  next  entitled.  .An  oral  examination  of  the  witnesses  is 
had  only  in  case  it  is  required  by  some  party  in  interest.  How- 
ever taken,  "  the  proofs  must  be  reduced  to  \\Titing."  ^^  There 
would  seem  to  be  no  legal  objection  to  such  deposition  being 
sworn  to  l)efore  one  of  the  clerks  of  the  office  authorized  to  ad- 
minister oaths,  as  is  usually  done,  although  the  language  of  the 
statute  is  explicit,  that  the  surrogate  must  "  cause  the  witnesses 
to  be  examined  before  him."  ^*  The  acting  upon  the  proofs  taken 
Avhether  by  affidavit  or  otherwise, —  that  is,  the  admission  of  the 
will  to  probate, —  is  of  course  a  judicial  function  which  cannot  be 
delegated. ^^  As  regards  the  form  of  the  examination,  the  lan- 
guage, that  two,  at  least,  of  the  witnesses  must  be  *'  produced  and 
examined,  if  so  many  are  within  the  State,  and  competent  and 
able  to  testify,"  would  seem  to  imply  that  the  examination  should 
be  oral  in  all  cases.  A  party  in  interest  desiring  an  oral  examina- 
tion of  the  subscribing  witness,  may  demand  it  ^^^thout  filing  a 
formal  answer  to  the  petition  for  probate. 

^  161.  Contested  probate.—  If,  upon  the  return  day  of  the  cita- 
tion, any  person  desires  to  contest  the  validity  of  the  will,  he  must 
present  his  grounds  of  objection  in  writing.  Xo  particular  form 
is  prescribed  by  statute  for  the  presentation  of  such  objections, 
and  the  courts  have  permitted  the  most  general  and  indefinite 
allegations  to  be  presented  as  a  basis  of  contest,  resulting  too 
frequently  in  a  confused  and  disorderly  trial,  with  accumulations 
of  irrelevant  and  redundant  testimony.  It  is,  in  eA^ery  case,  the 
better  practice  for  the  contestant  to  formulate  his  grounds  of  ob- 
ject i(»n  on  the  principles  of  pleading  in  civil  actions.  If,  in  the 
course  of  the  trial,  it  should  appear  that  he  has  not  covered  every 
ground  of  objection,  he  may  have  leave  to  amend  his  answer  in 
that  regard.  There  is  no  doubt,  wc  think,  that  the  surrogate  may 
require  definiteness  and  certainty,  in  the  allegations  filed  by  the 
contestant,  so  as  to  settle  the  ])recise  issues  to  be  presented  for 

1-5  Co.  Civ.  Proc,  §  2G18.  power  to   rule  upon   the   adinissihility 

1-1  Co.   Civ.   Proc,   §    ■2(il8.  Under  L.  of   evidence.      (Matter  of  Allemann,    1 

1887,    e.   701,  the    surrogate   of    New  Connoly,  441;  22  St.  Rep.  88.5.) 

York  eonnty  may  appoint  an  assistant        15  Rodoripas  v.  East  Riv.  Sav.  Inst., 

to  take  testimony  in  the  case  of  a  pro-  70  N.  Y.  310. 

bate   contest,   and   such   assistant   lias 


§§  162,  163.  The  Probate  of  Wills.  118 

trial.  He  is,  indeed,  expressly  authorized  at  any  time,  at  the  com- 
mencement or  in  the  course  of  a  proceeding,  to  ''  require  a  party 
to  file  a  written  petition  or  answer  containing  a  plain  and  concise 
statement  of  the  facts  constituting  his  claim,  objection  or  defense, 
and  a  demand  of  the  decree,  order  or  other  relief,  to  which  he 
supposes  himself  to  be  entitled,"  ^^  and  there  can  be  no  doubt  that 
he  has  a  discretion  to  control  the  introduction  of  evidence  in  con- 
formity thereto. 

§  162.  Notice  of  hearing  of  objections. —  In  order  that  the  rights 
of  persons  named  in  the  will,  upon  whom  a  copy  of  the  citation 
is  not  required  to  be  served,  may  be  protected,  the  statute  pro- 
vides that  "  in  case  the  will  propounded  for  probate  is  opposed, 
due  and  timely  notice  of  the  hearing  of  the  objections  to  the  will 
shall  be  given,  in  such  manner  as  the  surrogate  shall  direct,  to  all 
jjersons  in  being,  who  would  take  any  interest  in  any  property 
under  the  provisions  of  the  will,  and  to  the  executor  or  executors, 
trustee  or  trustees  named  therein,  if  any,  who  have  not  appeared 
in  the  proceeding."  ^^ 

§  163.  Hearing  and  determination  of  allegations  against  probate. — 

Not  every  person  who  fancies  himself  possessed  of  an  interest  in 
the  estate,  can  be  heard  to  oppose  the  probate  of  a  will  by  which 
such  estate  is  passed;  nor  can  a  proponent,  by  naming  a  person  in 
the  petition,  give  that  person  a  status  as  contestant,  where  such 
relation  does  not  exist.  ^^  Thus,  persons  whose  sole  rights  are 
those  of  legatees  and  devisees  under  a  will  properly  rejected  on 
probate  have  no  standing  to  object  to  the  probate  of  a  prior  ^nll.^^ 
The  question  of  the  contestant's  interest  may,  and  ought  to  be, 
determined  before  testimony  is  taken  as  to  the  factum  of  the  will.^^ 
A  statement  of  the  various  questions  which  are  likely  to  confront 
the  surrogate,  and  the  principles  upon  which  they  should  be  de- 
termined, are  treated  of  in  other  parts  of  this  work,  but  in  this 

16  Co.  Civ.  Proc,  §  2.533.     It  is  not  fied.       (lb.)       This     clause    must,     of 

necessary  that  copies  be   served  upon  course,  be  taken  to  refer  to  a   decree 

the  proponents  or  their  attorneys.  The  adverse  to  the  interest  of  such  person, 

filing  operates  as  a  caveat.     Where  a  See  Cook  v.  White,  43  App.  Div.  388 

contestant    files    his    objections    after  60  X.  Y.  Supp.  153. 

witnesses   are   examined,   their  exami-  18  IMatter  of  Hamilton,  7G  Hun,  200 

nation  is  not  thereby  invalidated,  nor  27  X.  Y.  Supp.  813. 

can  the  proponent  be  compelled  to  re-  !'■>  Matter   of   Gaines,   84   Hun,   520 

call    them.      (Downey  v.  Dovmej,    16  32  X.  Y.  Supp.  398.     But  a  judgment 

Hun,  482.)  creditor  of  a  devisee  under  a  will  may 

1"  Co.  Civ.  Proc,  §  2617,  as  amended  contest  a  codicil  which  supersedes  the 

1804.     The    decree    in    the    proceeding  will.     (Matter  of  Coryell,  4  App.  Div. 

does  not  affect  the  right  or  interest  of  420:  39  X.  Y.  Supp.  508.) 

any  such  person  unless  he  is  so  noti-  20  Matter  of  Hamilton,  supra. 


119  The  Pkobate  of  AVills.  §  1C4. 

connection,  we  should  point  out  the  statutory  requirement,  that 
"  the  surrogate  must  inquire  particularly  into  all  ike  facts  atid 
circumstances,  and  must  be  satisfied  of  the  genuineness  of  the  will 
and  the  validity  of  its  execution,"  before  admitting  it  to  probate.^' 
This  duty  is  to  be  discharged,  irrespectively  of  the  fonn  or  char- 
acter of  the  objections  filed;  so  that,  in  view  of  the  nature  of  the 
proceeding  and  the  peculiar  functions  of  the  court,  strict  rules  as 
to  forms  of  pleading  and  relevancy  of  evidence  are  inapplicable. 
So  far  at  least  as  regards  matters  relating  to  the  probate  of  testa- 
ments and  the  administration  of  the  estates  of  deceased  persons, 
the  surrogate  proceeds  in  conformity  with  prescription  and  estal>- 
lished  usage,  except  as  modified  from  time  to  time  by  statutory 
regulations,  and  in  a  case  where  the  statute  prescribes  no  par- 
ticular method  of  proceeding,  he  follows  the  practice  of  the  Eng- 
lish ecclesiastical  courts  in  testamentary  matters.^" 

§  164.  Jury  trials  in  probate  cases.— The  Code  provides  for  the 
trial  of  issues  of  fact  by  a  jury  in  probate  cases.  First.  Where 
on  appeal  from  a  Surrogate's  Court,  its  decree,  admitting  a  will 
to  probate  or  revoking  the  probate,  is  reversed  or  modified  upon 
a  question  of  fact,  the  appellate  court  must  direct  a  trial  by  jury 
of  the  material  questions  of  fact  arising  upon  the  issues  between 
the  parties."^  The  order  must  state  the  questions  of  fact  to  be 
tried,  and  must  direct  the  trial  to  take  place  either  at  a  Trial  Term 

21  Co.  Civ.  Proc,  §  2022.  See  Matter  tine.  .3  St.  Rep.  1.54;  ^Fatter  of  Hannah, 
of  Boardnian,  20  N.  Y.  Supp.  60.  In  11  id.  807.  Where  a  surropate's  decree 
Matter  of  Follett  (X.  Y.  Law  J.,  April  refusing  probate  is  reversed,  and  tlio 
27,  ISOl)  no  alle<j;ations  were  filed  issues  tried  by  jury,  the  trial  court 
atfainst  the  will,  but  the  circumstances  can  only  certify  the  verdict  to  the  sur- 
attcndin^  its  execution  were  "  such  as  rotate,  but  cannot  order  a  judfrinent 
make  it  necessary  for  the  surroo:ate.  of  for  the  proponent  awardinj,'  him  costs, 
liis  own  motion,  to  investigate  the  (Matter  of  Cajnpbell,  48  Hun.  417.)  A 
facts."  (Ransom,  S. )  See  ^Matter  of  verdict  of  a  jurv  upon  a  question  of 
Way.  0  Misc.  484;  27  X.  Y.  Supp.  23.5.  fact  is  to  be  certified  by  the  clerk  of 

Where  the  surrogate  is  satisfied  that  the  court  in  which  tlie  trial  took  place, 

"testator   had   not   mental    capacity   to  and    sent   directly   to   the    Siirnigate's 

make  a  will,  and  tliat  the  instrument  Court.       (flatter    of    Hatten,    22    Abb. 

offered    for    probate    was    obtained    by  X.  C.  fifi.)      After  a  verdict  by  a  jury, 

fraud  and  undue  influence,  he  has  the  a   motion   for   a   new   trial    should   be 

right  and  it  is  his  duty  to  wholly  re-  made  at  Special  and  not.  as  formerly, 

fuse  probate,  even  though  the  contest-  at  the   Appellate   Court.      ( Matter   of 

ant   is  only  an  heir-at-law.     He  is  not  Clark,  40  llun.  2.3:5.)      Hut  the  Special 

obliged  in  sucli  case  to  admit  it  as  a  Term  has  no  authority  to  enter  a  judg 

will  of  personal  property  only,  because  nient    upon    the    verdict.      (Matter    of 

the  next  of  kin  do  not  contest.     (Matter  Laudv.    35    App.    Div.    ,"i42 ;    'yr>    X.    Y. 

of  Bartholick,   141   X.  Y.   1G6;   50   St.  Supp".   08.)      Entry  of   final   judgment 

Rep.  684.)  should  not  be  stayed  because  a  motion 

22  Campbell  v.  Logan,  2  Bradf.  90;  for  a  new  trial  has  been  made  on  the 
Pew  v.  Hastings,  1  Barb.  Ch.  ^52.  minutes  of  the  judge  who  presided  at 

23  Co.  Civ.  Proc.,  §  2588,  as  amended  the  trial.  (Matter  of  Moss.  24  Civ. 
by  L.  1895,  e.  946.    Valentine  v.  Valen-  Pro.  438:  34  X.  Y.  Supp.  7"JS.) 


§  105.  The  Pkobate  of  AVills.  120 

of  the  Supreme  Court,  or  in  the  County  Court  of  the  county  of 
the  surrogate.  Second.  The  surrogate  of  New  York  county  is 
authorized,  in  his  discretion,  to  transfer  by  order  any  proceeding- 
for  the  probate  of  a  will,  pending  before  him,  to  the  Supreme 
Court  for  trial  by  a  jury.^'*  The  issues  must  be  tried  by  a  jury^ 
and  the  verdict  can  be  reviewed  only  by  a  motion  for  a  new 
trial  upon  the  minutes  of  the  judge,  made  within  ten  days  after 
the  verdict  is  rendered."^  The  surrogate  has  no  jurisdiction  to 
entertain  an  application  for  a  new  trial,  after  the  trial  of  such 
issues.^^ 

ARTICLE  SECOND. 

MEANS     OF     proof;     COMPETENCY     AND     QUALIFICATION     OF     WIT- 
NESSES. 

§  165.  Subscribing  witnesses  to  be  examined. —  Before  a  written 
will  is  admitted  to  probate,  two,  at  least,  of  the  subscribing  wit- 
nesses must  be  produced  and  examined,  if  so  many  are  within  the 
State  and  competent  and  able  to  testify.  Probate  cannot  be 
granted  unless  both  witnesses  are  produced  or  their  absence  satis- 
factorily explained.^^  Any  party,  who  contests  the  probate  of  a 
Avill,  may,  by  a  notice  filed  with  the  surrogate  at  any  time  before 
the  proofs  are  closed,  require  the  examination  of  all  the  sub- 
scribing witnesses  to  a  written  will,  or  of  any  other  witness,  whose 
testimony  the  surrogate  is  satisfied  may  be  material;  in  which  case, 
all  such  witnesses,  who  are  A\athin  the  State,  and  competent  and 
able  to  testify,  must  be  so  examined.^^  It  is  sufficient  if  both 
testify,   no  matter   by  which  party  called  and   examined.^     Xo 

24  Co.  Civ.  Proc,  §  2.547,  as  amended  ness  sipned  at  the  request  of  the  testa- 
1895.  The  power  of  the  surrogate  to  tor,  held,  that  the  will  was  not  exe- 
recall  probate  proceedings  from  the  exited  or  proven  according  to  the  laws 
Court  of  Common  Pleas  was  doubted  of  this  State.  (Lockwood  v.  Loekwood, 
in  Matter  of  Delaplaine,  6  Dem.  269.  21  St.  Rep.  93.) 

25  The  Constitution  of  1869,  art.  6,  28  Co.  Civ.  Proc,  §  2618.  This  see- 
§  27,  provides  that  the  Legislature  tion  relates  to  proceedings  upon  a  re- 
n>ay  confer  upon  courts  of  record  in  turn  of  citation  issued  upon  the  pre- 
any  county  liaving  a  population  ex-  sentation  of  a  will  for  probate,  and 
ceeding  40.000,  the  powers  and  juris-  has  no  application  to  a  proceeding  to 
diction  of  surrogates,  with  authority  revoke  the  probate  of  a  will  on  the 
to  try  issues  of  fact  bv  jury  in  probate  ground  that  it  had  been  proevired  by 
eases.     See  Const.  1894,'  art.  6,  §  15.  fraud.    (Hoyt  v.  Hoyt,  9  St.  Rep.  731.) 

26  ^Matter  of  Patterson,  63  Hun,  529:  It  is  not  necessary  to  obtain  the  evi- 
44  St.  Rep.  842.  dence  of  a  subscribing  witness  w-ho  is 

2"  Graber    v.     Haaz,     2     Dem.     216.  absent  from  the  State  to  authorize  pro- 

Where  a  will  was  admitted  in   South  bate  of  the  will,  unless  such  evidence 

Carolina  and  but  one  witness  appeared,  is    asked    for   by   one    of    the    parties, 

and  there  was  no   proof  either  as  to  (Matter  of  Clark,  75  Hun,  471;  27  N. 

the  absence  of  the  other  witnesses  or  Y.  Supp.  681.) 

as   to   their  handwriting,   nor   did   the  29  Matter  of  Stewart,  36  St.  Rep.  56; 

attestation  clause  state  that  any  wit-  13  N.  Y.  Supp.  219. 


121  The  Probate  ok  AVills.  §^  Kjtj,  107. 

order  is  necessary  to  require  the  production  of  the  subscribing 
witnesses,  but  the  examination  of  other  persons  is  an  essential 
])rere(|uisite  to  probate  only  when  the  surrogate  is  satisfied  that 
their  testimony  may  be  material,  in  which  case  the  witnesses  must 
be  brought  before  him  and  examined,  unless  they  are  absent  from 
the  State  or  incompetent  or  unable  to  testify.^**  The  surrogate 
has  power  to  compel  attendance  of  a  witness  other  than  a  sub- 
scribing witness,  whether  present  at  the  execution  of  the  will  or 
not.  And  when  produced,  it  is  the  duty  of  the  surrogate  to  ex- 
amine such  witnesses  even  though  the  contestants  be  not  present. ^^ 
The  refusal  of  the  surrogate  to  re{iuire  the  proponent  to  produce 
such  witness  in  a  proper  case,  is  sufficient  ground  for  reversing  the 
probate  on  appeal.^" 

§  166.  Dead,  disabled,  and  absent  witnesses. — A  subscribing  or 
other  witness  may  have  died,  or  be  subject  to  any  of  several  dis- 
abilities or  inabilities,  as  age,  sickness,  infirmity,  lunacy,  absence 
from  the  State,  etc.,  and  provision  is  made  for  such  cases.  The 
death,  absence  from  the  State,  lunacy,  or  other  incompetency  of 
any  witness,  required  to  be  examined  upon  the  probate,  or  proof 
that  such  witness  cannot  after  due  diligence  be  found  within  the 
State  or  elsewhere,  must  be  shown  by  affidavit  or  other  competent 
evidence,  to  the  satisfaction  of  the  surrogate,  before  dispensing- 
with  his  testimony. ^^  ^Fere  absence  from  the  State  of  a  subscrib- 
ing witness  does  not  dispense  with  his  examination  if  demanded. 
Ilis  examination  may  be  taken  by  commission,  in  case  he  cannot 
after  due  diligence  be  found  in  the  State. ^'* 

§   167.   Subscribing  witness  in  another  county. — A  subscribing 

witness  who  is  in  another  county,  and  who,  the  surrogate  has 
good  reason  to  believe,  cannot  attend  before  him,  within  a  reason- 
able time,  to  which  the  hearing  may  be  adjourned,  may  lie  ex- 
amined before  the  surrogate  of  the  county  in  which  he  is.^^  It 
will  be  observed,  that  where  the  disabled  witness  is  not  in  the 
surrogate's  county,  the  statute  declares  that  the  surrogate  "  may 
make  "  the  order  for  examination,  v.diile  the  examination  of  wit- 


•">"  Matter  of  MoOovern.  5  Dem.  424.  of  interest,  for  the  demand  is  a  waiver 

Tlie  snrro<;ate  will  not  pass  upon  the  of  the  objectioii.     (lb.)      See  flatter  of 

(luestion    of    the    materiality    of    wit-  Hoyt,  67  How.  Pr.  ;i7;  S.  c.  sub  noni. 

nesses  in  a  ease  which  had  been  moved  Hoyt  v.  .Tackson.  2  Dem.  443. 

for  trial  in  another  court.     (lb.)  32  Matter  of  Baird.  supra. 

■11  Matter  of   Baird,   41   Hun.   SO;    2  33  Co.  Civ.  Proc.,  §  2G10,  as  amended 

St.    Bej).    :?r)3.       The    contestants   may  1S82. 

thus  demand  the  examination  of  a  wit-  34  Co.  Civ.  Proc,  §  2ti20. 

m>ss    ajfainst    whose    testimony    they  35  Co.  Civ.  Proc.,  §  2540. 
mipht  object  as  incompetent  by  reason 


§§  168,  169.  The  Probate  of  Wills.  122 

nesses  under  section  2539,  in  case  of  the  probate  or  revocation  of 
probate  of  a  will,  is  imperative.  In  either  instance,  the  residence 
of  the  witness  is  no  longer  material.  It  should  be  further  noticed 
that,  under  section  2540,  the  \ntness  to  be  examined  in  another 
county  is  a  subscribing  tvitness;  also  that  the  inability  of  such 
witness  is  not  that  of  age,  sickness,  etc.,  but  that  he  cannot 
attend  the  trial  ^^■ithin  a  reasonable  time. 

§  168.  Aged,  sick,  and  infirm  witnesses. —  Where  a  subscribing  or 
other  witness,  whose  testimony  is  required  upon  the  probate,  is 
within  the  State  and  able  to  testify,  but  disabled  from  attending, 
by  age,  sickness,  or  infirmity,  the  statute  requires  that  the  sur- 
rogate, if  the  witness  is  Avithin  his  county,  proceed  to  the  place 
where  he  is,  and  there,  as  in  open  court,  take  his  examination ;  or, 
if  he  is  without  the  surrogate's  county,  the  court  may  cause  him 
to  be  examined  before  the  surrogate  of  the  county  where  he  is.^^ 
In  either  case,  the  testimony  of  the  witness,  so  taken,  must  be 
taken  in  the  manner  prescribed  by  law  and  produced  before  the 
surrogate  as  part  of  the  proofs.^^ 

§  169.  Probate  on  proof  of  handwriting,  etc.—  If  all  the  subscrib- 
ing witnesses  are,  or  if  a  subscribing  witness  whose  testimony  is 
required  is,  dead  or  incompetent,  by  reason  of  lunacy  or  other- 
wise, to  testify  or  unable  to  testify,  or  if  such  a  subscribing  wit- 
ness is  absent  from  the  State,  or  if  such  a  subscribing  witness  has 
forgotten  the  occurrence,  or  testifies  against  the  execution  of  the 
will,  the  will  may  nevertheless  be  established,  upon  proof  of  the 
handwriting  of  the  tes-tator,  and  of  the  subscribing  witnesses,  and 
also  of  such  other  circumstances  as  would  be  sufficient  to  prove 
the  will  upon  the  trial  of  an  action.^^  It  is  even  held  that  where 
there  is  proof  that  a  subscribing  witness  is  being  induced  to  ab- 
sent himself  from  the  trial,  by  contestant's  counsel,  his  hand- 
writing may  be  proved.^^  A  will  signed  by  testator's  mark  is  not 
])roved  by  the  testimony  of  a  single  subscribing  witness  proving 
the  handwriting  of  the  deceased  subscribing  witness,  but  wlio  did 


36  Co.  Civ.  Proc,  §§  2.539,  2540.  As  139,  §§  9,  12),  of  which  this  section  is 
to  the  details  of  procedure  in  such  a  a  partial  adoption,  it  was  only  in  case 
case,  see  §  125,  ante.  a  witness  "  resided  "  out  of  the  State 

37  Co.  Civ.  Proc,  §  2619.  See  Co.  that  proof  of  handwriting  was  allowed: 
Civ.  Proc,   §  2538.  and  it  was  held,  that  mere  absence  on 

38  Co.  Civ.  Proc,  §  2620.     See  Mas-  a  journey  did  not  authorize  such  proof, 
ters'   Estate,    1    Civ.   Proc   Rep.    459;  (Stow  v.' Stow,  1  Redf.  305.)" 
Matter   of   Hesdra,    17    St.   Rep.   612;        39  Matter  of  Dates,  35  St.  Rep.  338 ; 
:vrafter  of  Oliver,  13  Misc.  466:  34  N.  12  N.  Y.  Supp.  205. 

Y.  Supp.  706.     Bv  the  statute  (2  R.  S. 


123  TiiK   Pkohatk  of  Wills.  §  170. 

not  see  the  mark  made."*"  Where  testator  signed  Ijy  making  his 
mark,  and  the  sulwcril)ing  witnesses  are  dead,  the  testimony  of  a 
third  pei*son,  who  was  present,  that  testator  made  his  mark,  is 
snthcient  proof  of  his  handwriting.*^  A  case  may  occur  where 
proof  of  testator'?  handwriting  can  be  dispensed  with,  as  where, 
for  example,  the  signatures  of  both  of  the  deceased  witnesses  were 
proved,  and  the  will,  which  was  in  the  handwriting  of  one  of 
them,  a  lawyer,  was  found  among  the  testator's  private  papers.**^ 
Photorjraphs  of  a  luill  cannot  be  received  in  evidence,  tliough 
"where  the  genuineness  of  the  instrument  is  disputed,  the  court 
may  permit  ])hot<)gra])hi('  coi)ics  to  be  made.*"*  The  court  may 
grant  leave  to  a  contestiint  to  subject  the  will  to  chemical  tests 
for  the  purpose  of  disclosing  the  nature  and  composition  of  the 
ink,  and  the  process  or  processes  to  which  it  has  been  subjected.** 

§  170.  Interested  parties  as  witnesses. —  Previously  to  the  re- 
moval, by  the  Code  of  Procedure,  of  the  disqualification  of  parties 
and  interested  persons  to  testify  as  ^^'itnesses,  it  was  held  that,  as 
the  probate  of  a  will  was,  as  to  persons  interested,  lis  inter  partes, 
none  of  the  parties  were  comjx^tent  witnesses,  except  so  far  as  the 
statute  authorized  their  examination  touching  the  circumstances 
of  the  execution,  delivery,  and  custody  of  the  instrument.*^  The 
act  referred  to,  while,  in  general,  abrogating  the  disqualification, 
contained,  a  restriction  as  to  the  case  of  personal  transactions  or 
-communications  between  the  proposed  witness  and  a  person,  at 
the  time  of  the  examination,  deceased,  etc.,  where   the  witness 

40 Matter  of  Porter,  1  Misc.  2(52;  22  was  denied,  "although,"  said  Ransom, 

N.    Y.     Supp.     10(52.       But    otherwise  S.,  "  I  am  morally  conviiRed  that  the 

-where   tlie    making   of   the   mark   was  paper  was  properly  executed."' 

seen.     (Matter  of  Wilson,  70  llun,   1;  «  Taylors  Will,  10  Abb.  Pr.  (X.  S.) 

27  N.  Y.  Supp.  957.)  300;    Cornwell   v.   Wooley.    1   Abb.   Ct. 

41  Matter  of  Smith,  39  St.  Rep.  G98 ;  App.  Dec.  441;  43  How.  Pr.  475;  Law- 
15  N.  Y.  Supp.  425.  It  is  not  necessary  rence  v.  Norton,  45  Barb.  448 :  30  How. 
to  produce  two  witnesses,  who  saw  the  Pr.  232;  Tarrant  v.  Ware,  25  X.  Y. 
testator  make  his  mark.  (Matter  of  425,  note;  Mercliant"s  Estate.  1  Tuck. 
Kane,  2  Connoly,  249;  :\Iatter  of  Hy-  151;  Johnson  v.  Hicks,  1  Lans.  150. 
land,  27  X.  Y.  Supp.  901;  58  St.  Rep.  44  Matter  of  MonriK'.  1  Connoly.  490; 
798.)  Matter  of  Boardman.  40  St.  Rep.  444. 

42  Matter  of  O'Hara.  2  Law  Bull.  83 ;  For  tiie  rules  governing  i)roof  of  a  dis- 
eiting  Rider  v.  Legg.  51  Barb.  200.  In  puted  signature,  by  declarations  of  the 
Matter  of  Drever  (X.  Y.  Law  J.,  Feb.  decedent,  by  experts  in  handwriting. 
27,  1892).  the' will  was  made  in  1807.  and  as  to  the  use  of  photographic 
Xeitlier  of  the  witnesses  were  pro-  copies  of  signature,  see  Taylor's  WilL 
duced,  the  testator's  son  and  daughter  .-^upra.  Johnson  v.  Hicks,  1  Lans.  1.50; 
(proponents)  proved  his  signature;  in  Waterman  v.  Whitney.  11  X.  Y.  157; 
their  younger  days,  they  knew  the  two  Jackson  v.  Betts.  0  Cow.  377:  Matter 
Avitnesses.  but  were  imablc  to  prove  the  of  Williams.  2  Connoly,  579;  alTd..  40 
signature  of  either,  and  did  not  know  St.  Rep.  791:  19  X.  Y.  Supp.  778. 
where  either  could  be  found.     Probate  45  Brush  v.  Holland.  3  Bradf.  240. 


§171. 


The  Pbobate  ok  Wills. 


124 


was  offered  against  the  personal  representative  or  successors  in 
interest  of  the  deceased/*^  The  provision  of  the  present  Code  is- 
A^ery  broad,  including  among  the  protected  persons  not  only  the 
executor,  administrator,  or  survivor  of  a  deceased  person,  but  also 
a  person  deriving  liis  title  or  interest  from,  through,  or  under  a 
deceased  person,  by  assignment  or  otherwise;'*^  and  has  been  held 
to  apply  to  proceedings  in  a  Surrogate's  Court  upon  an  application 
for  probate.'*^  The  husband  or  Avife  of  a  party  or  person  inter- 
ested is,  in  general,  no  longer  incompetent  ;"'^  and  there  can  be  no 
question  that  a  person  named  as  executor  in  a  will  is  competent 
to  testify  as  to  its  execution. ^^ 

§  171.  Qualification  of  witnesses  as  to  execution  of  will. —  It  is 

expressly  provided  that  "  a  person  is  not  disqualitied  or  excused 
from  testifying  respecting  the  execution  of  a  will,  by  a  provision, 
therein,  Avhether  it  is  beneficial  to  him  or  otherwise."  "^     In  view 


46  Code  of  Procedure,  §  399. 

47  Co.  Civ.  Proc,  §  829.  The  words 
of  this  section,  any  person  deriving  his 
title  or  interest  from,  through  or  vuider 
a  deceased  person,  concerning  a  per- 
sonal transaction  or  communication 
between  the  witness  and  the  deceased 
person,  slioukl  be  construed  as  being 
equivalent  to  "any  person  elaiming  to 
derive."'  etc.,  and  so  to  include  the  con- 
testant of  a  will,  upon  the  hearing  of  a 
special  proceeding  for  its  probate. 
(Cadmus  v.  Oakley,  3  Dem.  324.) 
Hence,  a  person  named  as  legatee  is 
jiot  competent  to  testify  in  his  own  be- 
half or  interest  {i.  e.,  in  general,  in 
support  of  the  application  for  pro- 
bate), concerning  a  personal  transac- 
tion or  comnmnication  between  himself 
and  the  decedent.  Section  2544  of  the 
Code,  declaring  that  "  a  person  is  not 
disqualified  or  excused  from  testifying 
respecting  the  execution  of  a  will  by  a 
provision  therein,  whether  it  is  benefi- 
cial to  him  or  otherwise,"  conveys  no 
intimation  that  a  person  within  its 
description  is  not,  in  like  manner  as 
others,  subject  to  the  limitations  con- 
tained in  the  former  section.  (lb.)  As 
to  waiver  of  objection,  see  Matter  of 
Beach,  1  ^Misc.  27. 

48  Schoonmaker  \.  Wolford,  20  Hun, 
16(5:  Lane  v.  Lane,  95  X.  Y.  494.  See 
Matter  of  Snelling,  136  N.  Y.  515; 
Matter  of  Palmateer,  78  Hun,  43;  28 
K.  Y.  Supp.  1062. 

49  Co.  Civ.  Proc,  §  828:  Talbot  v. 
Talbot,  23  X.  Y.  17.     But  see  Johnson 


V.  Cochrane,  91  Hun,  165;  affd.,  159 
X^.  Y.  555. 

^<J  See  Co.  Civ.  Proc.,  §  2544;  Burritt 
V.  Silliman,  13  X.  Y.  93;  Children's 
Aid  Soc.  V.  Loveridge,  70  X^.  Y.  387; 
Rugg  V.  Pugg,  21  Hun,  383;  aflfd.,  83 
X.  Y.  592;  Schoonmaker  v.  Wolford,  20 
Hun,  106:  Levy's  Estate,  1  Tuck.  87; 
McDonouah  v.  Loughlin,  20  Barb.  238; 
Matter  of  Folts,  71  Hun,  492;  24  X.  Y._ 
Supp.  1052.  Even  where  the  executor 
is  the  proponent  of  the  alleged  will,  he 
is,  in  his  capacity  of  executor,  a  party 
icithout  interest,  and,  therefore,  not  in- 
cluded in  the  prohiliition  of  that  sec- 
tion, because  it  is  impossible  that  he 
should  be  examined  "  in  his  own  be- 
half or  interest:''  besides,  contestants, 
against  whom  he  would  testify,  are 
not  persons  deriving  their  "  title  or 
interest  from,  through  or  under  "  the 
deceased,  bv  assisrnment  or  otherwise. 
(Whelpley  v.  Loder,  1  Dem.  368.)  A 
person  named  executor  is  not  made  in- 
competent by  a  bequest  to  him  of  a 
sum  of  money,  as  a  compensation  for 
his  services  as  executor,  over  and  above 
his  commission.  (Pruvn  v.  Brinker- 
hoff,  57  Barb.  176.)  s"^.  p..  Matter  of 
Wilson,  103  X.  Y.  374:  Matter  of  Hues- 
tis,  23  Week.  Dig.  224;  Matter  of 
Gagan,  47  St.  Rep.  444;  21  X.  Y.  Supp. 
350. 

51  Co.  Civ.  Proc,  §  2544 ;  replacing  2 
R.  S.  57,  §  6,  and  id.  65,  §  50,  in  part. 
See  Hopkins  v.  Lane,  6  Dem.  12,  as  to 
right  to  waive  the  statute  provision^ 
A    similar    English    statute   has    beea 


125 


Tnv.    Pnov.ATK  of  Wills, 


fi:  1- 


171. 


of  the  context,  this  provision  niifiht  1)0  tlioujn^ht  applicable  only 
to  j)robate  proceedings,  or  ])roceedings  to  revoke  ])rol>ate;  but  we 
think  testimony  resj)eetin<>-  tlie  execntion  of  the  will  is  admissible 
in  any  judicial  proceeding,  though  offered  by  a  person  having  a 
benelicial  interest  under  the  will.  Although  a  subscnbing  witness 
to  whom  "  any  beneiicial  devise,  legacy,  or  appointment  of  any 
real  or  ])ersonal  estate  is  made  "  by  the  will,  is  competent  and 
■compellable  to  testify,  respecting  the  execntion  of  the  will,  where 
it  cannot  be  proved  without  his  testimony,  he  cannot  take  under 
the  will,  if  he  testifies.''^  Where,  however,  the  will  can  be  proved 
without  the  testimony  of  the  witness  —  as  where  such  witness  is 
a  nonresident  of  the  State,  and  the  testimony  of  the  other  sub- 
scribing witness  can  be  obtained  —  a  legacy  to  him  is  not  avoide<l ; 
and  this  notwithstanding  the  legatee-watness  was  examined, 
though  unnecessarily.^^  The  statute  means,  therefore,  the  case  of 
a  witness  who  is  necessarily  called  on  to  prove  the  will ;  so  that, 
though  examined  as  such  on  the  probate,  if  his  examination  was 
not  necessary,  and  the  will  was  suthciently  proved,  under  the 
statute,  by  the  testimony  of  the  other  ^^'itness,  his  interest  under 
the  will  is  not  affected/"* 


held  to  entitle  an  executor,  who  is  also 
a  legatee,  to  he.  a  witness  to  support 
the  will.  (^lunday  v.  Shiughter,  2  Cur- 
teis,  72.)  See  Children's  Aid  See.  v. 
Loveridsje,  70  N.  Y.  387;  INrcDononi,']! 
V.  Loughlin,  20  Barb.  238  (disaj)pr()v- 
ing  Burritt  v.  Silliman,  Hi  id.  108)  : 
IMatter  of  Lew,  1  Tuok.  87  :  Cadmus  v. 
Oakley,  3  Dem.  324 ;  ante,  §  98,  n.  28. 

r>2I\i()rse  V.  Tildcn,  35  Misc.  otiO;  72 
N.  Y.  Supp.  30. 

53  2  R.  S.  65,  §§  50,  51 ;  Caw  v.  Robert- 
son, 5  N.  Y.  125;  Reeve  v.  Crosby,  3 
Redf.  74;  Cornell  v.  Wooley,  3  Keyes, 
378.  The  discharge  or  the  release  of  a 
debt  in  a  will  is,  by  2  R.  S.  84,  §  14,  a 
specific  legacy  to  the  debtor  of  the  debt 
released,  and  when  an  attesting  wit- 
ness is,  by  the  will,  discharged  from 
a  debt  due  the  estate,  and  there  is  legal 
necessity  of  his  becoming  a  witness,  it 
operates  as  a  discharge  of  the  legacy. 
(Matter  of  Tcmnele,  5  N.  Y.  Leg.  Obs. 
254.)  A  devise  of  real  estate  in  trust 
to  make  jiartition  aTid  for  various  spe- 
cial purposes,  or  a  gift  of  personal  es- 
tate in  trust,  is  not  forfeited  by  the 
devisee  or  legatee  becoming  a  subscrib- 
ing witness.  (Pruyn  v.  BrinkerhofT.  57 
Barb.  170.)  An  attesting  witness  hav- 
ing hired  personal  property  from  the 
executor,    is  not,   therefore,   an   inter- 


ested witness.  ( Seguine  v.  Seguine.  2 
Barb.  385.)  Under  2  R.  S.  05.  §  50. 
providing  that  any  subscribing  witness 
to  a  will  wherein  any  beneficial  devise 
is  made  to  such  witness,  whose  testi- 
mony is  necessary  to  prove  the  will, 
shall  not  be  entitled  to  the  legacy,  does 
not  ajiply  where  the  legatees  under  a 
will  are  subscribing  witnesses  to  a 
codicil,  and  the  will  alone  is  proved, 
and  the  codicil  does  not  benefit  them, 
and  is  not  necessary  to  the  proof  of 
the  will.  (Matter  of  Johnson's  Will, 
37  Misc.  334;   75  X.  Y.  Supp.  480.) 

54  Matter  of  Beck,  20  Misc.  17!> :  alVd.. 
0  App.  Div.  211;  Matter  of  Owen,  48 
App.  Div.  507:  02  X.  Y.  Supp.  910.  A 
bequest  to  a  necessary  witness  cannot 
be  validated  on  the  ground  that,  as  the 
surrogate  may  believe  one  of  two  wit- 
nesses and  not  the  other,  a  will  may  1m> 
jiroved  without  two  witnesses  in  fact. 
(Matter  of  Brown,  31  llim.  10(i.)  The 
fact  that  one  of  two  legatees  is  disquali- 
fied to  take,  by  being  a  necessary  wit- 
ness, does  not  afTect  the  validity  of  the 
legacy  to  the  other.  ( Matter  of  OrstT. 
4  Civ.  Proc.  Rep.  129.)  A  necessary 
subscribing  witness  to  a  will  is  ]>re- 
cluded  from  taking  more  than  his  .share 
of  the  personalty  that  would  have  Iven 
his  had  the  will  not  been  established. 


§  172.  The  Probate  of  Wills.  126> 

§  172.  Qualification  as  to  other  issues. —  Where  the  testimony  of 
the  interested  witness  is  directed  to  some  other  issue  than  that  of 
the  execution  of  the  will,  e.  g.,  to  the  issue  of  the  testator's  mental 
capacity,  it  is  incompetent.  Thus  in  a  probate  proceeding,  one 
who  is  interested  in  opposition  to  the  probate,  e.  g.,  an  heir-at- 
law,^^  or  one  who  is  interested  in  favor  of  it,  e.  g.,  a  legatee,^*^ 
is  incompetent  to  testify  in  his  own  behalf  as  to  personal  trans- 
actions had  with  the  deceased,  on  the  issue  of  the  testator's  mental 
capacity.'^^  But  not  so  where  the  witness  is  called  by  the  con- 
testant, for  in  such  case  he  testifies  against  interest.^*  So  one 
claiming"  to  be  decedent's  A\'idow  is  incompetent  to  testify  as  to 
her  marriage  in  a  proceeding  instituted  by  her  to  revoke'  letters 
of  administration  granted  to  another.^^  The  interest  which  will 
disqualify  a  witness  must  be  present,  certain  and  vested,  as 
distinguished  from  a  remote,  uncertain  or  contingent  interest. 
The  true  test  is  that  the  witness  will  gain  or  lose  by  the  direct 
legal  operation  of  the  decree,  or  that  the  record  will  be  legal 
evidence  for  or  against  him  in  some  other  action.  Hence  the  pos- 
sible right  of  dower  of  the  wife  of  a  son  of  a  deceased  owner  of 
real  property  in  such  of  the  property  as  the  son  might  inherit,  if 
decedent  is  adjudged  intestate,  is  not  such  an  interest  as  to  dis- 
qualify her  from  testifying  against  the  executor,  on  the  probate 
of  decedent's  will,  to  a  personal  transaction  or  communication  with 
decedent  on  the  issue  of  the  validitv  of  the  will.*^** 


(lb.)      The  admission  of  testimony  of  tors,  see  siibd.  4  of  art.  3  of  this  chap- 
one  of   the   beneficiaries   under    a   will  ter,  post. 

who  was  present  at  its  execution,  proof  5S  Matter  of  Potter,  161  N.  Y.  S4;  55 

of  which  was  sufficiently  made  by  the  X.  E.  Rep.  .387 ;  Matter  of  Woodward, 

subscribing    witnesses, —  Held    imma-  1G7    X.   Y.   28;    Matter   of   Hedges,   57 

terial.      (Matter   of   Bernsee,   71    Hun,  App.  Div.  48;  07  K.  Y.  Supp.  1028. 

27;  24  N.  Y.  Supp.  504;   aflfd.,  141  F  59  Angevine    v.    Angevine,    48    Barb.. 

Y.  389.)  417. 

55  Schoonmaker  v.  Wolford,  20  Hun,  oo  Scherrer  v.  Kaufman,  1  Dem.  39. 
166;  Snyder  v.  Sherman,  23  id.  139;  ^^i  see  Johnson  v.  Cochrane,  91  Hun, 
affd..  88  N.  Y.  656.  165;    36   N.   Y.    Suop.   283;    aflfd.,    L59 

56  Matter  of  Burke,  5  Redf .  369 ;  Cad-  N.  Y.  555.  The  mother  of  a  bene- 
mus  V.  Oaklev,  3  Dem.  324 :  Lane  v.  ficiary  is  not  an  interested  person. 
Lane,  95  N.  y!  494 ;  Matter  of  Stewart,  (Matter  of  Bedlow,  22  X.  Y.  Supp. 
1  Connoly,  413;  Matter  of  Bedlow,  22  290.)  Testimony  of  the  executor,  as 
X.  Y.  Supp.  290.  Where  testimony  as  to  transactions  and  communications 
to  a  transaction  between  the  testator  with  decedent,  and  what  he  did,  as- 
and  a  legatee  has  been  given  by  the  tending  to  show  an  implied  agree- 
contestant,  the  legatee  may  testify  in  ment  to  pay  for  his  services,  is  incom- 
rebuttal,  though  interested  in  the  event,  petent.  (Burnett  v.  Xoble,  5  Redf.  09.) 
(Matter  of  Crane,  68  App.  Div,  355 ;  74  See  Smith  v.  Christopher,  6  Suj).  Ct. 
N.  Y.  Supp.  88.)  (T.  &  C.)  288;  and  Abbot's  Trial  Evi- 

57  As  to  the  competency  and  weight  dence,  p.  62  et  scq.  And  so,  also,  a 
of  the  opinions  of  nonprofessional  wit-  surety  upon  an  executor's  bond  is  so 
nesses,  as  to  mental  capacity  of  testa-  far  interested  in  the  event  of  the  ac- 


127 


Tjie   Pkoha'ji:   ()!■    Wills. 


§173. 


§  173.  Releasing  interest. —  It  would  seem  that  after  a  cause  be- 
fore the  surrogate  has  advanced  to  the  examination  of  witnesses^ 
a  party  litigant  "vvill  not  he  allowed,  in  general,  to  renounce  con- 
testation, assign  his  interest,  and  become  a  Avitness."'  But  the 
common-hiw  rule  which  permitted  a  person  having  a  pecuniary 
interest  in  the  result  of  an  action  to  assign  or  release  such  in- 
terest, and  thus  become  competent  to  testify,  is  not  changed  by 
any  statute,  it  would  seem,  unless  it  be  by  the  provision  of  section 
829  of  the  Code  of  Civil  Procedure,  which  forbids  an  assignor  to 
testify  in  certain  cases  in  favor  of  the  assignee.  If  a  legatee 
releases  his  interest  to  the  executor,  his  relatives  will  take  the 
legacy,  but  they  can  hardly  be  regarded  as  his  assignees,  and  he  is 
a  competent  witness. *^^ 


counting  of  his  principal,  that  ho  is 
incompetent  to  testify  as  a  witness  on 
belialf  of  the  executor,  to  a  personal 
transaction  or  communication  be- 
tween him  and  the  deceased.  (Mil- 
ler V.  Montgomery,  78  N.  Y.  282.) 
But  in  an  action  by  an  administrator 
to  set  aside  an  assignment  of  a  mort- 
gage made  by  his  intestate,  the  next  of 
kin,  thougli  interested  in  the  event  of 
tlie  action,  and  claiming  rights  through 
the  plaintilT,  are  not  incompetent  to  tes- 
tify in  liis  behalf,  as  to  the  conduct 
and  actions  of  tlie  intestate,  and  as  to 
personal  transactions  of  his  with  which 
they  had  no  connection,  and  also  as  to 
communications  made  by  him  to  others 
in  their  presence.  (Holcomb  v.  IIol- 
comb,  20  Hun,  156.)  The  fact  that 
a  witness  upon  a  contested  applica- 
tion for  administration  by  one  alleged 
to  be  the  husband  of  a  decedent,  is 
a  second  cousin  of  decedent,  and  en- 
titled to  participate  in  the  estate  as 
one  of  the  next  of  kin,  in  the  event  of 
the  decease  of  all  the  tirst  cousins  of 
the  latter,  who  are  numerous,  does  not 
interest  the  witness  in  the  event  so  as 
to  prevent  his  testifying  to  a  conversa- 
tion with  the  deceased.  The  exclusion 
depends  u])on  a  present  fixed  interest, 
not  one  remote  and  contingent  and 
amounting  to  a  mere  possil)ility.  (Mat- 
ter of  Hanley.  44  Hun,  ;")")!>.)  The  pro- 
hibition does  not  apply  when  the  de- 
ceased jjcrson  is  other  than  the  one 
whose  estate  is  in  controversy  in  the 
proceeding.  (Matter  of  De  Baun,  1 
Connoly.  203.) 

61  Sherwood  v.  Judd,  3  Bradf.  267. 


<J2  Whelpley  v.  Loder,  1  Dem.  368 ; 
Meehan  v.  Kourke,  2  Bradf.  385;  Reeve 
v.  Crosby,  3  Kedf.  74;  Collin  v.  Collin, 
23  N.  Y.  9;  Matter  of  Wilson,  7  Eastern 
Rep.  736;  Matter  of  Fitzgerald,  33 
:\Iisc.  325;  68  X.  Y.  Supp.  632.  Upon 
the  hearing  of  a  contested  probate  one 
named  as  a  legatee  was  called  to  testify 
to  personal  transactions  with  the  testa- 
tor. Upon  his  competency  being  ques- 
tioned, a  release  of  his  legacy  to  the 
tem])orarv  administrator  of  the  estate 
\\as  ])roduced.  01)jei-tion  being  raised 
that  the  release  did  not  discharge  the 
legacy,  and  that  if  it  did,  it  became  in 
etl'ect  an  assignment  to  the  residuary 
legatee  which  would  prevent  the  as- 
signor from  testifying  in  her  behalf, 
licld,  that  the  paper  was  receivable  in 
evidence  and  the  witness  competent. 
(Stebbins  v.  Hart.  4  Dem.  501,  506.  n. ) 

But  a  release  bv  a  son  of  a  testatrix, 
of  all  his  riglit.  title  and  interest  in  her 
estate,  in  considcr.it ion  of  lanil  con- 
veyed to  him  by  her  in  her  lifetime,  if 
effectual,  would  not  make  him  a  com- 
petent witness  as  to  personal  tran.sac- 
tions  witli  his  mother  in  an  action  to 
have  probate  of  her  will  set  aside, 
brought  by  another  son,  who  would  de- 
rive part  of  his  title  and  interest  by 
virtue  of  the  release.  (Bennett  v.  Ben- 
nett. 50  App.  Div.  127:  63  X.  Y.  Supp. 
387.)  A  release  of  the  interest  of  a 
proposed  witness  in  the  estate  in  ques- 
tion which  names  no  releasee  and  is  not 
sliowni  to  have  been  delivci'ed  lo  any 
one  is  insufficient  to  q\ialify  him  to  tes- 
tify as  to  a  personal  transaction  with 
the  decedent.  (>ratter  of  Torkington, 
79  Hun,  128:  61  St.  Rep.  426.) 


:§  174.  The  Probate  of  Wills.  128 

§  174.  Privileged  communications. —  The  competency  of  clergy- 
men, attorneys,  and  physicians,  to  testify  conceniing  confessions 
and  other  confidential  comnmnications  or  information,  is  regu- 
lated l)y  express  provisions  of  the  statute.  The  privilege  of  com- 
munication to  a  physician  or  surgeon,"^  and  Ijetween  attorney  and 
client,''^  and  of  confessions  to  a  clergyman  or  other  minister  of 
any  religion,*^'^  is  that  of  the  person  confessing,  the  patient,  or  the 
client,  and  not  of  the  witness.  The  Code  expressly  declares  that 
the  sections  forbidding  disclosures  in  the  cases  specified,  apply  to 
every  examination  of  a  person  as  a  witness,  unless  the  provisions 
thereof  are  expressly  waived  upon  the  trial  or  examination  by 
the  person  confessing,  the  patient,  or  the  client.*^  The  chief 
application  of  these  rules  to  proceedings  for  the  probate  of  a  ^A-ill, 
is  where  the  person  confessing,  the  patient,  or  the  client,  was  the 
testator,  and  the  opinion  was  formerly  advanced  that,  although 
the  privilege  cannot  be  said  to  die  ^^'ith  the  person,  yet  where, 
from  his  death,  there  is  no  one  to  claim  it,  the  assertion  of  the 
privilege  is  of  necessity  excluded,  except  so  far  as  may  depend 
upon  the  discretion  of  the  court.''"      But  it  has  been  held,  that 

C3Co.  Civ.  Proc,  §  834.  Sanford    v.     Sanford,    61     Barb.    293; 

C4  Co.  Civ.  Proc,  §  835.  The  prohibi-  Brand  v.  Brand,  39  How.  Pr.  193; 
tion  applies  to  instructions  given,  by  Graham  v.  People,  03  Barb.  468;  Rog- 
one  proposing  to  execute  a  will,  to  an  ers  v.  Lyon.  64  id.  373;  Carnes  v.  Piatt, 
attorney  employed  to  draw  it,  and  to  1.5  Abb.  Pr.  (X.  S.)  337;  Britton  v. 
conversations  had  with  the  attorney  Lorenz.  45  X.  Y.  51;  Taylor's  Will,  10 
for  the  purpose  of  enabling  him  to  Abb.  Pr.  (X.  S. )  300;  Matter  of  Chap- 
carry  out  the  instructions.  (Matter  of  man,  27  Hun,  573;  Matter  of  Sears,  33 
Coleman,  111  X.  Y.  220.)  A  question  Misc.  141;  68  X.  Y.  Supp.  363. 
put  to  the  attorney  who  drew  the  will  Co  Co.  Civ.  Proc,  §  833.  See  People 
as  to.  who  instructed  him  to  draw  it  v.  Gates,  13  Wend.  311. 
(such  instructions  not  being  given  in  66  Co.  Civ.  Proc,  §  830. 
the  hearing  or  presence  of  any  other  C7  Allen  v.  Public  Adm'r,  1  Bradf. 
person  than  the  testator  and  witness)  221.  But  see  Renihan  v.  Dennin,  103 
was  held  to  be  incompetent  in  Matter  X.  Y.  573.  It  is  not  easy  to  discover 
of  [McCarthy,  48  St.  Rep.  315.  See  any  good  reason  why  courts  should 
jMatter  of  Bedlow,  22  X.  Y.  Supp.  vohmteer  to  stop  the  'mouth  of  a  wit- 
290.  But  where  the  attorney,  at  the  ness,  and  be  "  compelled  to  grope  in 
request  of  the  testator,  read  the  will  the  dark  when  there  is  testimony  of  in- 
aloud  in  the  presence  of  the  witnesses,  telligent  witnesses  within  their  reach  to 
he  is  not  prohibited  from  testifying,  as  enable  them  to  ascertain  where  the 
such  reading  is  an  express  waiver  of  truth  lies  on  the  issues  that  they  have 
secrecy.  (Matter  of  Barnes,  70  App.  to  decide,  the  disclosure  of  which  will 
Div.  523;  75  X.  Y.  Supp.  373.)  The  at-  not  be  a  stain  upon  the  memory  of  the 
torney  Avho  drew  the  will  or  advised  the  dead  man.  which  is  the  property  of  his 
testator  upon  it,  and  afterward  ac-  family  and  kindred."  (Per  Ransom, 
cepted  a  retainer  to  contest  its  probate,  S.,  in  Matter  of  Coop.  X.  Y.  Law  J., 
cannot  claim  a  privilege  from  testify-  May  13,  1891.)  The  difficulty  is  now 
ing  as  a  witness  at  the  instance  of  the  remedied  by  the  amendment  of  1892, 
proponents.  (Sheridan  v.  Houghton,  6  infra.  Even  before  such  legislation. 
Abb.  X.  C.  234;  16  Hun.  628.)  See  the  General  Term  of  the  Fifth  Depart- 
Blackburn  v.  Crawford,  3  Wall.  175;  ment  held  that  all  instructions  by 
Allen  v.  Public  Adm'r,   1   Bradf.  221;  counsel  and   all  acts  of  a  testator  in 


129  Tin;  rijoBATK  <)i    Wii.i.s.  §175. 

the  right  to  oxchich'  the  prithihitfl  testimony  survives  to  the  rej)- 
reseiitativcs,  in  (In-  prciiiisrs,  of  a  deceased  person.*'* 

^  175.  ftualification  of  physician. —  A  large  number  of  dct-isions 
on  the  subjeet  of  the  (|Uiilitication  of  a  physician  to  testify  from 
knowledge  acquired  while  attending  a  patient  have  been  super- 
seded (or  else  made  statutory  law)  by  the  amendment  of  section 
830,  adopted  in  1892."'^  It  was  formerly  established  that  a  phy- 
sician who  had  attended  the  deceased  in  a  professional  capacity, 
was  not  a  competent  witness  to  testify,  from  knowledge  acquired 
while  attending  him,  as  to  his  mental  capacity,^**  although  he  might 
testify  to  any  knowledge  obtained  from  personal  acquaintance 
with  the  decedent  before  his  professional  relations  with  him  com- 
menced, and  after  they  ceased."^  By  the  amendment  referred  to, 
the  disqualification  of  a  physician  or  surgeon  to  testify,  etc.,  is 
limited  to  the  disclosure  of  "  confidential  communications,  and 
such  facts  as  would  tend  to  disgrace  the  memory  of  the  patient:" 
wdth  this  exception,  he  may  "  disclose  any  information  as  to  the 
mental  or  physical  condition  "  of  his  deceased  patient,  which  he 
acquired  in  attending  him,  only,  however,  when  "  the  personal 
representatives  of  the  deceased  patient,  or,  if  the  validity  of  the 
last  will  and  testament  of  such  deceased  patient  is  in  question,  the 
executor,  or  executors,  named  in  said  \vW\,  or  the  surviving  hus- 
band, widow,  or  an  heir-at-law,  or  any  of  the  next  of  kin  of  said 
•deceased,  or  any  other  party  in  interest,"  shall  expressly  Avaive 
the  statutory'  disqualification  upon  the  trial  or  examination.'" 

the  presence  of  witnesses  connected  "o  Matter  of  Coleman.  1 1 1  X.  Y.  220. 
with  the  making  and  execution  of  a  "l  Fisher  v.  Fisher,  129  X.  Y.  054. 
will,  which  will  tend  to  uphold  and  See,  generally,  on  this  subject,  John- 
support  the  instrument,  may  be  proved  son  v.  .Johnson,  14  Wend,  (i.37  :  Ken- 
by  the  person  who  assisted  in  its  dall  v.  Grey,  2  Hilt.  .300;  People  v. 
preparation  at  the  time,  though  he  Stout,  .3  Park.  Cr.  (170 :  Westover  v. 
was  acting  as  testator's  legal  adviser.  .'Etna  Ins.  Co.,  99  X.  Y*.  5(5 ;  Grattan  v. 
(Matter  of  McCarthy.  28  St.  Rep.  Metrop.  Life  Ins.  Co.,  SO  id.  2S1 ;  Keni- 
342.)                                  '  ban  v.  Dennin,  ;?S  Ihui,  27(1:    10.3  X.  Y. 

«»  Staunton  v.  Parker,   19  Hun,  55.  ,573;  Edington  v.  ;Mutual  Life  Ins.  Co.. 

This   case   is  critici-sed    in   Pearsall   v.  (i7  X.  Y'.  1S5;  Dilleber  v.  Home  L.  lui. 

Elmer    (5   Redf.   181),   where,   upon  a  Co.,  G9.  id.  256 ;  Matter  of  Loewenstine. 

contested   application   for  the  probate  2  Misc.  323:  21  X'.  Y.  Supp.  93. 

of  a  codicil,  an  attorney  was  asked  by  T2  "  The  waivers  herein  provided  for 

eontestants  to  state  a  conversation  had  must  be   made    in   ojicn   court,   on   tlie 

between  him  and  decedent,  relating  to  trial  of  tlie  action,  or  pr.  ceeding,  and  a 

the  preparation  by  him.  for  decedent,  ])ai)er  executed  by  a  ])arty  prior  to  tin- 

of  a  codicil  not  executed,  suhsecjucntly  trial,  jirovidiiig  for  such   waiver  shall 

to  the  execution  of  the  instrument  pro-  be  insutlicient  as  such  a  waiver.     lUit 

pounded.      Held  privileged,  but   other-  the  attorneys  for  the  respective  parties, 

wise,  it  seems,  as  to  conversation,  etc.,  may,  prior  to   the   trial,   stipulato   for 

relating  to  the  paper  presented  for  pro-  such    waiver,    and    the    same    shall    be 

bate.  sulRcient   therefor.''      (Co.    Civ.    Proc. 

19  L.  1892,  c.  514.  §  830,  as  amended  1809.1      See  Holden 


§§176,177.  The  Probate   of  Wills.         •  130' 

§  176.  Qualification  of  attorney  who  is  subscribing  witness. — A 
testator,  in  requesting  a  person  to  sign  as  a  subscribing  witness. 
to  his  will,  is  pra^mned  to  know  the  obligations  assumed  hv  the 
witness  in  respect  to  the  proof  of  the  will;  aniong  other  things, 
the  duty  to  testify  as  to  the  circumstances  attending  its  execution, 
including  the  mental  condition  of  the  testator  at  that  time,  as 
evidenced  by  his  action,  conduct  and  conversation.  The  act  of 
the  testator,  therefore,  in  requesting  his  attorney,  who  drew  his 
vrill,  to  become  a  witness  to  it,  is  clearly  indicative  of  an  intention 
to  waive  the  statutory  prohibition,  and  so  leave  the  ^^^tness  free 
to  perform  the  duties  of  the  office  assigned  him.'^  This  rule  is 
now"  made  statutory  by  the  amendment  above  referred  to,  which, 
declares,  in  effect,  that  "  an  attorney,  on  the  probate  of  a  will," 
is  not  disqualified  "  from  becoming  a  witness  as  to  its  prepara- 
tion and  execution,  in  case  such  attorney  is  one  of  the  subscribing 
witnesses  thereto.''* 

ARTICLE  THIRD. 

WHAT    LAW    GOVERXS    PROBATE. 

§  177.  law  at  time  of  testator's  death. —  The  formalities  requi- 
site to  the  due  execution  of  a  will  are  governed  by  the  law  exist- 
ing at  the  time  of  the  testator's  death,  unless  otherwise  provided 
by  the  law;  for  a  mil  is  ambulatory  while  the  testator  lives,  and 
it  takes  effect  only  on  his  death.  Hence,  a  statisite  affecting  wills, 
which  is  enacted  after  a  will  is  made,  but  before  a  testator's  death,, 
must,  unless  there  be  a  saving  clause  as  to  such  wills,  take  effect 
thereon."^     But  it  is  usual  for  the  Legislature,  in  changing  the 


V.  Metropolitan  Life  Ins.  Co.,  165  X.  Y.  torney  being  a  subi5cribing  witness  is- 
13.  It  is  not  necessary  that  all  the  prima  facie  evidence  of  such  waiver, 
persons  mentioned  should  unite  in  and  the  burden  is  thro\A-n  upon  the  ccn- 
such  waiver.  (Matter  of  Murphy,  testants  to  snow  by  affirmative  proof 
85  Hun,  575;  ,33  X.  Y.  Supp.  19S.)  that  the  legal  inference  is  not  war- 
The  calling  of  the  physician  as  a  wit-  ranted.  A  statute  whi;h  seeks  to  limit 
ness  by  the  personal  representative  and  the  extent  to  which  witnesses,  whose  re- 
asking  him  questions  calculated  to  lation  to  the  case  may  raise  a  doubt  of 
elicit  such  evidence  is  a  sufficient  their  competency  to  testify,  must  be 
waiver.  (Holcomb  v.  Harris,  160  X.  Y.  strictlv  construed,  (flatter  of  Halsey, 
257;  Pringle  v.  Burroughs,  70  App.  X.  Y.  Law  J.,  May  13,  1890.) 
Div.  12;  74  X".  Y.  Supp.  1055.  t  T4  Co.  Civ.  Prrc.,  §  830,  as  amended 
73  Matter  of  Coleman,  111  X.  Y.  220:  1892;  Matter  of  Gagan,  47  St.  Rep. 
Matter  of  Gagan,  47  St.  Eep.  444;  affd.,  444;  affd.,  49  id.  360. 
49  id.  306;  21  X.  Y.  Supp.  350.  The  75  Root  v.  Stu^wesant  18  Wend.  257; 
waiver  extends  to  all  communications  Bishop  v.  Bishop,  4  Hill,  138;  Double- 
and  transactions,  between  the  testator  day  v.  Xewton.  27  Barb.  431;  De  Pey- 
and  the  attorney,  having  reference  to  ster  v.  Clendining,  8  Paige,  295;  affd., 
the  paper  under  consideration.  (Mat-  on  other  points  sub  nom.  Bulkley  v. 
ter  of  Lamb,  21  Civ.  Proc.  Rep.  324;  18  De  Peyster,  26  Wend.  21. 
X.  Y.  Supp.  173.)     The  fact  of  the  at- 


131  Tjik  Pkobate  OK  Wills.  §§178,179. 

formalitio!^  proscril)od  for  the  cine  cxeentitjii  of  wills,  to  except 
instriimcnts  previously  executed,  but  not  yet  made  effective  by 
•  Icatli.  Such  j)rovision  was  made  in  the  Revised  Statutes.^"  But 
by  adding  a  codicil  after  a  new  statute  has  been  passed,  the  tes- 
tator republishes  his  will,  and  subjects  it,  in  some  degree,  at  least, 
to  the  effect  of  the  new  statute."  In  respect  to  the  mode  of 
proof,  the  case  is  governed  by  the  laVv  in  force  when  the  will  is 
propounded  for  probate.'*  But  the  topic  under  consideration  in- 
volves, also,  questions  conccrniug  the  /r-.r  loci. 

ij  178.  Law  of  place  as  to  wills  of  real  property. —  In  respect  to 
wills  of  real  i)r()p<M'ty,  situated  within  the  State,  the  fonnalities 
of  execution  must  of  course  be  those  prescribed  by  our  own  law;'^ 
but  where  the  real  property  is  situated  in  another  State,  the  for- 
malities prescribed  by  the"  laws  of  that  State  must  be  complied 
with. 

§  179.  Wills  of  personal  property. —  In  respect  to  wills  of  j)er- 
sonal  ]iro]»erTy,  the  I'ule  in  this  State  formerly  was  that  the  for- 
malities of  exeeutiou  aud  attestation  must  be  those  prescribed  by 
the  law  of  tiie  place  where  the  testator  was  domiciled  at  the  time  of 
///.s  death,  for  the  reason,  as  was  argued,  that,  as  a  will  is  wholly 
iui)])erative  until  the  testator's  death,  aud  as  the  law  (^f  the  <li>ni- 
ieile  applies  to  the  person  and  the  personal  property,  the  will, 
wherever  made,  and  notwithstanding  any  changes  of  domicile, 
must  be  sustained,  if  at  all,  in  respect  to  its  formalities  of  execu- 
tion, by  the  law  which  was  applicable  to  his  person  and  his  per- 
sonal property  at  that  time.'^'^  But  this  doctrine  is  now  changed 
in  this  State,  and  a  will  of  personal  pro])erty  executed  in  any  other 
State  or  Territory  of  the  L^nited  States,  the  dominion  of  Canada, 
or  the  kingdom  of  Great  Britain  and  Ireland,  if  executed  as  pre- 
scribed by  the  laws  of  the  State  or  country  where  it  was  executed, 
or  a  will  of  })ersoual  property  executed,  by  a  nonresident  of  the 
State,  according  to  the  laws  of  the  testator's  residence  may  be 
|)rove(l  here,''^  and  this  right  to  ])robate,  as  well  as  the  validity  of 


T'i  Lawrence    v.    Hebbard.    1    Bradf.  80  :Moviltne  v.  Hunt.  2:^  X.  Y.  .394; 

2.")2;   rricc  v.   Brown,  id.  291.  Dupiiy  v.  Wiirtz.  53  X.  Y.  ."i.ili.     Real 

T7  Salmon    v.    Stuyvesant,    16   Wend,  and  personal  proi>erty,  tliouph  «,Mven  by 

.320;    Root  v.    Stnyvesant,    18    id.   257,  the  same  clause  of  a  will,  and  upon  the 

.■ilo.  same    trust,    are    severable,    and    the 

"s  Co.  Civ.  Proc,  §  2482;  Jaiincej^  v.  validity  of  one  does  not  depend  upon 

Thome,  2  Barb.  Ch.  40.  that  of  the  other.      (Knox  v.  .lones.  47 

TOSee  Vogel  v.  Lehritter,  139  X.  Y.  X\  Y.  389.) 

'223:   r)4  St.  Rep.  r)9.'> ;  Matter  of  Law.  si  Matter  of  (Raines.  S4  Hun,  .■■)20:  32 

r,C,  Apj).  Div.  4.54;  07  X.  Y.  Supp.  8.57:  X.  Y.  Supp.  398;  afTd..  154  X'.  Y.  747 ; 

Ko))peI  V.  Holm.  23  Misc.  557,  52  X.  Y.  Matter  of  Cruper.  30  Misc.  477;   73  X. 

Supp.  830.  Y.  Supp.  812. 


§  179.  The  Probate  of  Wills.  132 

the  execution  of  the  will  or  its  construction,  is  not  affected  by  a 
change  of  the  testator's  residence  iiiade  after  its  execution  and 
publication.*^  The  law  of  the  domicile  governs  the  formalities 
of  execution  of  a  will  of  personal  property,^^  the  question  of 
testamentary  capacity,*"*  the  right  of  the  persons  to  dispose  of  the 
estate,^^  and  the  construction  of  the  instrument  f^  but  the  validity 
of  bequests,  unless  expressly  prohibited  by  the  law.  of  the  testator's 
domicile,  depends  upon  the  law  of  the  domicile  of  the  legatee.*^ 
Questions  of  evidence,  however,  are  determined  by  the  lex  fori 
or  law  of  the  jurisdiction  in  whose  courts  they  are  raised.**  On 
the  other  hand,  a  nonresident's  will,  though  not  executed  in  con- 
formity with  the  laws  of  his  foreign  domicile,  where  executed, 
may  nevertheless  be  admitted  to  probate  here,  where  there  are 
assets,  provided  it  was  executed  with  the  formalities  required  by 
our  own  statute.*^ 


82  Co.  Civ.  Proc,  §  2011,  as  amended  v.  Mercein,  34  IMise.  414;  09  N.Y.  Supp. 
1893.  See  Booth  v.  Timoney,  3  Dem.  930;  Mackenzie  v.  Mackenzie,  3  Misc. 
416;  Matter  of  Booth,  127  X.  Y.  109,  200;  23  N.  Y.  Supp.  270.  Compare 
and  ante,  §   140.  Mills  v.  Fo<ial,  4  Edw.  .559;   Isham  v. 

83  The  courts  of  this  State  have  Gibbons,  1  Bradf.  69;  Matter  of  Rob- 
jurisdiction  to  determine  whether  the  erts,  8  Paig:e,  446 ;  1  Redf .  on  Wills, 
will  of  a  resident  of  another  State  was  393.  See  Co.  Civ.  Proc,  §  2094.  The 
properly  admitted  to  probate  in  such  rule  of  law  in  another  State  in  refer- 
State,  and  will  restrain  the  distrib-  ence  to  construing  a  will,  is  prima 
utees  from  receiving  their  shares  on  facie  the  same  as  that  of  New  York, 
the  ground  of  fraud  and  collusion  in  ( Putnam  v.  Lincoln  Safe  Deposit  Co., 
procuring  such  probate.  (Davis  v.  34  Misc.  333;  06  App.  Div.  130;  Con- 
Cornue,   151    N.   Y.   172.)  gregational   Society  v.   Hale,   29   App. 

84  Davison's  Estate,  1  Tuck.  479.  Div.    396;    51    N.  "Y.    Supp.   704.)      A 

85  Schultz  v.  Dambmann,  3  Bradf.  married  woman,  separated  from  her 
379 ;  Wood  v.  Wood,  5  Paige,  596 ;  Hope  husband,  but  not  divorced,  has  no 
V.  Brewer,  136  N.  Y.  126.  A  leasehold  separate  domicile,  and  her  will  must 
estate  for  years  in  lands  situated  in  be  construed  according  to  the  law  of 
this  State,  owned  by  a  resident  of  an-  the  husband's  domicile.  (Jones  v. 
other  State,  will  be  considered  as  per-  Jones,  8  INIisc.  660 ;  60  St.  Rep.  429. ) 
sonal  property,  and  as  such,  as  to  its  But  a  will  executed  in  New  Jersey  by 
transmission  by  last  will  and  testa-  an  unmarried  woman  who  afterward 
ment,  controlled  by  the  law  which  gov-  marries  and  removes  to  and  dies  in  this 
erned  the  person  of  its  owner.  (Des-  State  is  governed  by  the  law  of  this 
pard  V.  Churchill,  53  X.  Y.  192.)  State  and  cannot  be  admitted  to  pro- 

86  Chamberlain  v.  Chamberlain,  43  N.  bate,  as  it  is  revoked  by  the  subsequent 
Y.  424:  Knox  v.  .Jones,  47  id.  389;  marriage.  (Matter  of  Coburn,  9  Misc. 
Caulfield  v.  Sullivan,  85  id.  153;  Dam-  437:  30  X.  Y.  Supp.  383.) 

mert  v.  Osborn,  140  id.  30,  motion  for  87  Congregational,    etc..     Society    v. 

reargument  denied  in   141   id.  564;   60  Hale.  29  App.  Div.  396:  51  X.  Y.  Supp. 

St.   Rep.   337,   which   see;    X.   Y.   Life.  704:  ^Matter  of  Lang,  9  Misc.  521;   30 

etc..   Co.   v.   Viele,    161    X.   Y.    11;    55  X.  Y.  Supp.  388. 

N.    E.    311;    Matter    of    Cleveland,  28  S8  Wharton,  Conflict  of  L.,  §  574. 

Misc.  369 ;  59  N.  Y.  Supp.  985 ;  Wright  89  Matter  of  McMulkin,  5  Dem.  295, 


133  The  Pkohate  of  Wills.  §180. 

ARTICLE  FOURTH. 

FACTS    JLVTEKIAL    TO    THE    (QUESTION    OF     PROBATE. 

SUBDIVISION  1. 

PKELIMIXAKY    CO.NSI  DKIIAI'IONS. 

§  180.  The  issues  in  probate  cases. —  The  subject-matter  of  a 
contest  in  a  probate  proceeding  may  be  confined  exclusively  to 
the  f del  inn  of  the  will,  or  it  may  include  also  (lie  exposition  of  the 
will,  that  is,  its  construction  and  effect,  if  it  be  found  to  be  a 
A'alid  will  for  any  ])urpose.  The  distinction  between  these  two 
Hui)je<'t-s  of  jurisdiction  is  important.  The  one  question  is  as  to 
the  genuineness  and  valid  execution  of  the  paper,  involving  the 
testamentary  capacity  of  the  testator,  his  freedom  from  restraint, 
and.  all  questions  of  fraud  a,nd  mistake  in  the  testamentary  act, 
including  in  some  measure  the  legality  of  the  testamentary  dis- 
])ositions.  The  other  question  is  as  to  the  meaning  of  the  lan- 
guage of  the  will  and  its  effect  as  a  'disposition  of  property.  The 
distinction  is  important  because,  as  to  the  factum  of  the  will, 
])arol  or  extrinsic  evidence  is  admissible  to  impeach  or  to  sustain 
the  will,  while,  on  the  question  of  construction,  such  evidence  is 
only  admissible  within  certain  strict  rules  and  limitations.^^  Pre- 
vious to  the  adoption  of  chapter  18  of  the  Code  of  Civil  Proced- 
ure, Surrogates'  Courts  (with  the  single  exception  of  that  of  New 
York  county'^^)  had  no  jurisdiction  to  pass  upon  any  question 
other  than  the  fact  of  the  due  execution  and  attestation,  aiid  the 
"  validity  "  of  the  will;  and  this  "validity"  was  interpreted  to 
niea.n  the  validity  of  its  execution  as  the  act  of  a  capable  testator, 
free  from  restraint,  etc.  The  court  had  no  authority,  in  a  pro- 
ceeding for  probate,  to  pass  upon  the  (piestion,  whether  any  ])ro- 
vision  of  the  will  was  in  contravention  of  a  statutory  limitati<^n 
of  testamentary  power,  or  whether  a  devisee  or  legatee  was  legally 
competent  to  take  under  the  ^nll,  or  like  questions  involving  the 
legality  and  construction  of  dispositive  clauses  in  a  Anll.'^*^'     The 


90  Matt«r  of  Keleman,  126  N.  Y.  73.  92  See  McLaujjhlins  Estate.  1  Tuck. 

!»i  L.  1870.  c.  359.  §  11.    That  statute  70:   Matter  of  Giliiian.  38   Harb.  3G4 ; 

conferred   on  the  surrogate  the    same  Nelson  v.  McGi^Iert.  3  Barb.  Ch.  158; 

power  and  jurisdiction  as  the  Supreme  Matter  of  Forman.  54  Harb.  274;  Bevan 

Court  had,  in  determininj,'  the  construe-  v.  Cooper.  72  N.  Y.  317  :  Waters  v.  Cul- 

tion,  validity,  or  lo<,'al   elTect  of  wills  len,  2  Bradf.  354;  Hillis  v.  Hillis,   16 

of   real   or   personal   property  —  much  Hun,  76. 
broader  tlian   those   conferred  by    the 
present  statute. 


§§  181,  182.  The  Probate  of  Wills  134 

inqinrv  of  the  court  was  limited  to  the  single  question  of  the  valid 
execution  of  the  paper  as  the  last  will  of  a  free  and  competent 
testator.  And  probate  could  not  be  resisted  on  the  ground  that 
the  testator  had  no  power  to  dispose  of  the  property  referred  to, 
or  that  his  proposed  disposition  was  illegal.  The  law  is  now 
otherwise;  and  in  the  same  proceeding  bv  which  "the  genuineness 
of  the  will  and  the  validity  of  its  execution  are  determined,  the 
court  may,  if  so  required  by  any  party  in  interest,  pass  upon  "  the 
validity,  construction,  or  effect  of  any  disposition  of  personal 
property,  contained  in  the  will  of  a  resident  of  the  State,  executed 
within  the  State,"  unless  the  will  is  rejected  for  failure  of  proof 
of  the  statutory  requisites.^'^  The  present  chapter  is  devoted  to 
a  consideration  of  the  rules  and  practice  governing  the  determi- 
nation of  questions  arising  upon  the  factum  of  the  will. 

§  181.  Factum  of  the  will. —  By  this  phrase  is  not  meant  merely 
the  formal  execution  and  attestation  of  the  instrument.  It  is 
true  that  the  formal  execution  and  publication  of  the  testament- 
ary paper  is  the  best,  and,  in  most  cases,  the  only  evidence  of  the 
testator's  intention  to  make  a  will,  but  the  questions,  whether  the 
testator  intended  to  make  the  particular  will  offered  for  probate; 
whether  his  instructions  to  the  draftsman  were  comprehended; 
whether  those  instructions  were  correctly  put  in  writing;  whether, 
when  the  will  was  read,  he  understood  its  contents;  whether  they 
conformed  to  his  real  wish;  whether,  in  fact,  //i/s  particular  instru- 
ment is  his  will  —  are  all  elements  of  the  factum  of  the  will,  and 
are  to  be  determined  by  a  considerate  examination  of  all  the  facts 
and  circumstances  attending  the  transaction.  For  the  factum 
of  a  will,  as  was  said  by  Sir  John  Xicoll,^^  "  means  not  barely 
the  signing  of  it,  and  the  formal  publication  or  delivery,  but  proof, 
in  the  language  of  the  condidit,  that  he  well  knew  and  under- 
stood the  contents  thereof,  and  did  give,  will,  dispose,  and  do,  in 
all  things  as  in  the  said  will  contained."  It  may  be  said  gener- 
ally, then,  that  questions  of  error  or  mistakes  or  variances,  as  well 
as  of  fraud  and  incapacity,  when  they  relate  to  the  factum  of  the 
will,  are  to  be  determined  by  the  surrogate  whenever  they  ar& 
raised  in  a  proceeding  for  the  probate  of  the  instrument. 

§  182.  Testamentary  character  of  the  paper  propounded. —  But  it 
is  proper  to  observe,  in  the  first  place,  that  the  instrument  must 

93  Co.  Civ.  Proc,  §  2624.  The  exer-  94  Zacharias  v.  Collis,  3  Phillim.  170. 
cise  of  this  jurisdiction  is  the  subject  of  And  see  Burpjer  v.  Hill.  1  Bradf.  .363: 
the  next  following  chapter.  Fisher  v.  Clark,  1  Paige,  176;   Colton. 

V.  Ross,  2  id.  398. 


135  The  Probate  of  Wills.  §  182. 

be  tcstamentarv  in  its  character  —  that  is,  it  iiuist  havo  Lofn  in- 
tended by  the  testator  as  a  last  disposition  of  his  i)roperty  and 
estate.^'*  Xo  technical  language  or  form  is  essential,  as  in  a  deed, 
to  give  effect  to  a  testator's  intention,  and  before  the  requisites, 
as  to  execution  and  pul)lication  of  wills,  were  prescribed  by  the 
Revised  Statutes,  almost  any  form  of  instrument  and  memoran- 
dum might  operate  as  a  testamentary  disposition  of  personal  prop- 
erty. Only  wills  of  real  property  were  required  to  be  executed 
and  attested  \\iih.  certain  formalities,  although  wills  of  personal 
property,  like  wills  of  real  property,  were  required  to  be  in  writ- 
ing, A^th  some  limited  exceptions.  A  will  of  real  property  could 
be  proved  in  the  Supreme  Court  or  the  Common  Pleas  of  the 
county  only.  The  Surrogates'  Courts  had  jurisdiction  to  grant 
probate  of  a  will  of  personalty  only,  and,  in  one  case  at  least,**" 
such  a  court  was  upheld  in  granting  probate  on  a  testamentary 
paper,  unsigned  by  the  testator,  and  unattested  by  witnesses.  But 
it  is  not  so  now.  Thus,  a  memorandum  annexed  to  bonds,  direct- 
ing that,  after  the  holder's  death,  they  be  canceled  or  not  en- 
forced, except  by  way  of  set-off,  not  being  executed  as  a  will,  has 
no  validity  as  such.^^  But  a  paper  expressing  a  wish  to  give  cer- 
tain sums,  and  that  neither  '"'  executors  nor  heirs  will  object  to 
carrying  out  this  my  will,"  is  testamentary  in  its  character.  The 
character  of  the  instrument  depends  on  its  substance,  not  on  its 
form  or  any  declaration  of  the  testator.''®  A  paper  need  not  con- 
tain a  statement  that  it  is  a  will  to  make  it  one.  Thus,  an  instru- 
ment duly  executed  by  the  deceased,  which  simply  nominates  cer- 
tain persons  as  executors,  and  authorizes  them  to  sell  real  estate, 

9''  If    it    i>»    sho\\-n    tliat    the    paper,  ripient  to  put  others  in  possession  of 

though  perfectly  exeented  and  attested,  lii  <    pi-oi)erly.    was    lield    a    valid  will, 

was  made,  not  «/M'»io  tcstandi  but  in  (Morrell  v.  Dickey,  1  Johns.  Ch.  153.) 

jest,  only  to  exhibit  the  brevity  of  ex-  And  a  Scottish  deed  of  disposition  and 

pression  of  which  a  will  was  capable,  it  settlement  was  held  a  will,  and  prova- 

is  rot  the  will  of  the  testator.  (Nicholas  ble.     (Matter  of  Easton,  (5  Pai.-re.  18.3.) 

V.  Nicholas.  2  Phillim.  180.)     And,  to  aT  BrinckerholT  v.  Brinckerhoff,  2  N. 

the  same  effect,  see  Trevelyan  v.  Trevel-  Y.  Lejj;.  Obs.  424. 

van,  4  id.  153.     If  two  persons,  intend-  9s Carle  v.   Underbill,   3  Bradf.   101. 

ing  to  make  their  wills,  each,  by  mis-  An   instrument   conveyin<jr  land,   which 

take,  executes  the  document  prepared  is  not  intended  to  take  effect  until  after 

for  the  other  {Rr  Hunt,  L.  R.  3  P.  &  D.  tlie  dcatli  of  tiie  person  executinu'  it.  is 

250)  ;  or  if  the  document  was  intended  jiroperly   construed'  to   be   a    will,   and 

only  as  a  contrivance  to  effect  some  col-  not  a  deed,  wher;>  there  is  nothing  in 

lateral  object,  c.  ff.,  to  be  shown  to  an-  the  language  of  the  instrument  and  in 

other  person  to  induce  him  to  comply  the  circumstances  under  which  it  was 

with    the    testator's    wish     (Lister    v.  executed   to    indicate   that    it   was   in- 

Smith,  3   Sw.   &  Tr.  282);    in  neither  tended  as  anything  else  than  a  will,  and 

ease  is  there  animuf!  testcDidi.  hence    such    instrument    is    siibject    to 

96  Watts  V.   Public  Admr.   4   Wend,  revocation  by  the  jierson  executing  it  at 

168.      So    a    letter    contemplating    the  any   time   durmg^  bis   life.       (Perry   v. 

writers  death,  and  requesting  the  re-  Perry,  21  N.  Y.  Supp.  133.) 


§§  183,  184.  The  Probate  of  Wills.  13G 

is  a  will;*^^  so,  too,  one  which  merely  directs  pa;)nnent  of  funeral 
expenses  and  legacies.^ 

§  183.  Conditional  will. —  Where  the  paper  propounded  is. 
clearly  matle  dependent  upon  a  condition  precedent  in  its  very 
teirms,  })erformance  of  the  condition  must  be  shown  before  the 
paper  can  be  upheld  as  a  will.  If  it  clearly  appears,  on  its  face, 
that  the  paper  was  not  intended  to  remain  an  operative  wdll,  ex- 
cept on  the  happening  of  a  certain  event,  or  other  contingency, 
then  the  surrogate  will  inquire,  before  granting  probate,  whether 
that  contingency  has  arisen.  If  the  condition  is  of  partial  appli- 
cation, however,  and  does  not  express  that  the  entire  instrument 
is  to  take  effect  or  fail  upon  a  particular  event,  probate  will  he 
granted,  and  the  effect  of  the  condition  upon  particular  legacies 
be  left  to  future  consideration.^  We  have  already  mentioned 
conjoint  or  mutual  wills  which  are  proval)le  on  the  death  of 
either  party.^ 

§  184.  Circumstances  of  execution,  delivery,  and  custody  of  will. — 
Besides  the  formalities  re([uisite  for  the  due  execution,  publica- 
tion, and  attestation  of  the  paper  propounded,  the  surrogate  may 
inquire,  if  he  desire  to  do  so,  into  the  circumstances  of  the  deliv- 
ery and  possession  of  the  will,  and  for  that  purpose  may,  in  his 
discretion,  require  proof  of  the  circumstances  attending  the  execu- 
tion, the  delivery,  and  the  possession  thereof,  or  other  circum- 
stances, to  be  made  by  the  person  who  received  the  will  from  the 
testator,  if  he  can  be  produced,  as  also  by  the  person  presenting 
it  for  probate.'*  The  court  is  not  confined,  therefore,  to  the  par- 
ticular issues  raised  by  the  objections  of  the  contestant.  While 
the  surrogate  may,  in  his  discretion,  require  the  examination  of 
the  person  who  has  had  possession  of  the  will  since  its  execution, 
he  cannot  compel  the  examination  of  the  lawver  who  drew  the 
will.^ 

But  extrinsic  evidence  of  this,  or  of  any  sort,  is  only  competent 

99  Barber  v.  Barber,  17  Hun,  72.  3  See   §    154,  ante. 

1  Matter  of  Buchan,  16  Misc.  204;  4  Co.  Civ.  Proc,  §  2622.  Evidence  of 
38  N.  Y.  Supp.   1124.  the   circumstances    surrounding   testa- 

2  Ex  p.  Lindsay,  2  Bradf.  204 ;  tor,  at  the  time  of  the  execution  of  a 
Thompson  v.  Connor,  3  id.  366.  For  will,  where  its  terms  are  doubtful,  is 
the  case  of  a  codicil  adjudged  to  have  admissible  to  show  intent,  but  occur- 
been  executed  conditionally,  to  be  made  rences  long  thereafter  may  not  be 
effectual  only  by  its  being  attached  to  proved  for  the  purpose.  Qlorris  v. 
the  will  at  a  subsequent  period,  which  Sickly,  133  N.  Y.  456;  45  St.  Rep. 
never  was  done,  and  it  did  not  at  the  735. ) 

time  express  testator's  wish,  see  Mat-       5  Tavlor's  Will,  10  Abb.  Pr.   (N.  S. ) 
ter  of  Buckwell,  X.  Y.  Law  J.,  Mar.    300. 
18,  1891  (N.  Y.  Surr.  Ct.). 


1.37.  TiiK    PuoiiATi:   OK   Wills.  §§  185,  18G. 

on  the  trial  of  an  issue  as  to  the  factum  of  the  will.  Where  no 
question  of  the  validity  of  the  will  itself  is  raised,  and  the  only 
issue  is  as  to  "  the  construction,  validity,  and  effect  "  of  its  dispo- 
sitions of  property,  extrinsic  parol  evidence  of  the  circumstances 
under  which  the  will  was  executed  is  incompetent.  Even  if  by 
such  extrinsic  evidence, a  trust  ex  maleficio  could  be  established, 
u  Surrog-ate's  Court  has  no  jurisdiction  to  determine  such  an  issue.* 

§  185.  Order  of  proof. —  If  the  allegations  of  tlie  petition  as  to 
the  death  of  the  testator,  his  residence  in  the  county,  or  the  exist- 
ence of  property  there,  or  as  to  any  other  jurisdictional  fact,  are 
])ut  in  issue  by  an  answer,  or,  even  in  a  case  not  contested,  where 
these  facts  are  imperfectly  alleged,  the  proponent,  in  the  due 
order  of  proof,  is  bound,  first,  to  establish  these  facts  by  proof. 
The  next  step  is  to  prove  the  requisite  formalities  attending  the 
execution,  publication,  and  attestation  of  the  Avill,  and  then  to 
>how  that  the  testator  was,  at  the  time,  of  proper  age  and  mental 
soundness,  and  was  not  unduly  influenced  in  the  testamentary 
act.  Accordingly,  it  has  l)een  held  that  where  the  probate  is 
contested  in  respect  to  the  genuineness  of  the  paper,  the  testa- 
mentary capacity  of  the  decedent,  and  the  freedom  of  the  act,, 
the  contestant's  e^'idence  as  to  the  genuineness  of  the  paper  shonld 
first  be  received,  and  that  relating  to  capacity  and  imdue  influence 
successively  afterward. ' 

§  186.  Decedent's  death  and  identity. —  "•  The  existence  of  the 
jurisdictional  facta  prescribed  by  the  statute  "  ^  is  essential  to  the 
validity  of  the  surrogate's  decree  in  this,  as  in  every  other,  ]iro- 
ceeding.  The  fact  of  the  death  of  the  person  whose  will  is  sought 
to  be  ])roved  is,  of  course,  of  the  first  importance,  as  a  test  of  juris- 
diction. Where  the  testator's  death  is  controverted,  or  is  not 
stated  in  the  petition  for  probate,  on  positive  personal  knowledge^ 
the  burden  of  proving  it  is  upon  the  proponent.^  If  the  fact  can 
only  be  imperfectly  proved,  circumstances  must  be  sho\ni  suifi- 
cient  to  raise  a  legal  presumption  of  death.  It  is  necessarily  im- 
possible to  give  any  standard  by  which  to  measure  the  sutficiency 
of  circumstantial  evidence  of  death;  mere  information  and  belief, 
founded  on  nothing,  is  of  course  not  proof  in  any  legal  sense. ^** 


f'lMattor  of  Koleman.  120  N.  Y.  73.  lORoderigas  v.   East   River   Savinp^ 

To  tlie  same  effect,  Matter  of  Walker,  Rank,   76   N.   Y.   316.      See   Matter   of 

13()  id.  20.     See  c.  VII,  posl.  Morgan.  30  Misc.  578,  where  the  facts 

7  Taylor's  Will,  10  Abb.  Pr.    (X.  S. )  and  circumstances   were   reviewed   and 

300.     "  lu'ld  siitticient  to  establish  the  death  of 

s  Co.  Civ.  Proc,  §  2474.  the  testator  in  a  hotel  tire. 

sProut  V.  McNab,  6  Dem.  152. 


§  186. 


The  Probate  of  Wit.ls. 


138 


It  is  not  necessary,  speaking  generallj,  that  any  specific  ])oriod 
of  time  should  elapse  to  create  the  presumption  of  deatii,  l)ut  it 
mav  arise  ^vhenever  the  facts  of  the  case  will  warrant. ^^      The 


n  In  Matter  of  Nolting  (43  Hun, 
450),  it  appeared  that  the  alleged  de- 
cedent had  left  his  home  under  the  de- 
pression following  an  attack  of  delirium 
tremens,  declaring  his  intention  to  com- 
mit suicide,  and  had  gone  toward  the 
river ;  that  thereafter  he  had  not  been 
heard  from  for  more  than  ten  years, 
althougli  previously  he  had  communi- 
cated regularly  with  his  relatives. 
Held,  that,  from  his  silent  absence  dur- 
ing teu  years,  the  law  would  raise  a 
presumption  of  his  death,  which, 
coupled  with  the  facts  and  circum- 
stances produced  to  the  surrogate,  was 
sufficient  to  justify  the  issuing  of  let- 
ters of  administration,  and  that  the 
surrogate  erred  in  refusing  to  do  so. 

As  to  presumption  of  death  arising 
from  prolonged  absence,  see  Keller  v. 
Stuck,  4  Redf .  294 ;  :\Iachini  v.  Zanoni, 
5  id.  492;  ]\Iatter  of  Sullivan,  51  Hun, 
378;  Stouvenel  v.  Stephens,  2  Daly, 
319;  Oppenheim  v.  Wolf,  3  Sandf.  Ch. 
571;  Gerry  v.  Post,  13  How.  Pr.  118; 
Merritt  v.  Thompson,  1  Hilt.  550;  King 
V.  Paddock,  IS  Johns.  141 ;  McCartee  v. 
Camel,  1  Barb.  Ch.  455;  Eagle  v.  Em- 
met, 4  Bradf.  117:  3  Abb.  Pr.  218; 
Moehring  v.  :\Iitchell,  1  Barb.  Ch.  264 ; 
Clarke  v.  Cummings,  5  Barb.  33G,  354; 
:Matter  of  Ackern;an,  2  Redf.  521 :  :\Iat- 
ter  of  Ridgewav,  id.  226;  Matter  of 
Tobin,  15  St.  Rep.  749;  :\Iatter  of  Ship- 
man,  22  id.  362 ;  Allen  v.  Ketcham.  24 
id.  251;  Ferry  v.  Sampson,  17  id.  428; 
Karstens  v.  Karstens,  20  Misc.  247  :  45 
N.  Y.  Supp.  966;  aflfd.,  9  App.  Div. 
229;  Czech  v.  Bean,  35  Misc.  729;  72 
N.  Y.  Supp.  402;  Matter  of  Taylor, 
49    St.    Rep.    644. 

If  the  party  whose  death  is  in  qvies- 
tion  wert  to  sea,  and  nothing  has  been 
heard  of  the  vessel  in  which  he  sailed, 
or  of  those  who  accompanied  him,  the 
presumption,  after  a  sufficient  length 
of  time  has  elapsed,  will  be  that  the 
vessel  was  lost,  and  all  on  board  per- 
ished; especially  where  the  family  and 
friends  of  the  missing  man  have  made 
every  effort  and  exhausted  apparently 
every  source  of  information  to  ascer- 
tain news  cf  him  and  the  vessel. 
CNIatter  of  Stewart,  1  Connoly,  86; 
IS  St.  Rep.  978.)  In  Matter  of 
Xorton  (N.  Y.  Law  J.,  June  12, 
1891),    there    was    no    positive    pro(  f 


of  the  time  or  place  of  testator's 
death ;  "  but,"  said  Ransom,  S.,  '"  1  am 
satisfied  from  the  proofs  that,  months 
since,  he  was  lost  at  sea.  On  Novem- 
ber 24,  1890,  a  little  steamer,  named 
for  the  testator,  departed  from  New 
London,  Conn.,  for  Toulon,  France, 
having  on  board  himself,  his  wife  and 
niece,  and  a  crew  of  seven  men.  Noth- 
ing was  heard  of  its  movements  there- 
after, except  a  dubious  statement  trans- 
mitted by  cable,  that  an  Algerian  trav- 
eler in  Toidon  stated  that  it  had  been 
seen  in  Gibraltar  in  the  latter  part  of 
December.  Subsequent  inquiry  failed 
to  discover  who  the  traveler  was  or 
what  was  the  source  of  his  knowledge. 
Tlie  vessel  was  less  than  sixty  feet  long, 
and  had  been  thoroughly  tested  as  a 
sailing  vessel,  but  when  laden  witli  the 
additional  weight  of  boilers  and  en- 
gines, and  the  necessary  coal  for  the 
voyage,  it  was  so  low  in  the  water  that 
the  deck  was  only  from  twenty  to 
twenty-two  inches  above  the  water  line. 
Within  three  days  after  its  departure, 
heavy  gales  beginning  on  the  southeast 
coast  of  the  United  States,  moved  in  a 
northeasterly  course,  increasing  in  vio- 
lence until  they  became  hurricanes. 
Tlie  time  of  the  departure  of  the  vessel, 
the  speed  at  which  it  moved,  and  the 
course  taken,  would  have  carried  it  into 
the  track  of  the  gales.  In  this  case, 
many  months  having  elapsed  since  the 
departure  of  the  vessel,  and  after  ex- 
traordinary efforts  made,  no  intelli- 
gence having  been  received  of  its  ex- 
istence or  the  existence  of  any  of 
those  on  board,  I  hold  that  the  tes- 
tator's death  is  proven,  and  a  decree 
of  probate  of  the  will  may  be  pre- 
sented. In  Matter  of  Alexand?r  (N. 
Y.  Law  J.,  Jan.  7,  1893),  it  ap- 
peared that  testator  took  his  departure 
on  the  brig  of  which  he  was  the  master 
in  August,  1892,  for  ^lartinioue,  and 
neither  he  nor  the  crew  had  been  heard 
of  since.  A  brig  answering  the  descrip- 
tion of  his  vessel  was  seen  to  sink  off 
th'i  Bermudas  a  few  days  afterward, 
and  about  tlie  time  it  should  have 
reached  the  locality.  Different  articles 
of  cargo  were  fotind  floating  in  the 
vicinity  which  were  identified  as  of  the 
same  character  and  marks  of  mer- 
chandise  shipped  by  the  owners  of  the 


130 


TiiK  PiioitATK  oi-  Wills. 


§187. 


.^tatiito  (loclaros  tluit  "  a  person  uj)on  whoso  life  an  estate  in  /v.-  I 
prupcrtij  depends,  who  remains  without  the  United  Statt's,  or 
absents  himself  in  the  State  oy  elsewhere  for  seven  years  together, 
is  presumed  to  be  dead,  in  an  action  or  special  proceeding  con- 
cerning' the  property  in  which  his  death  comes  in  question,  unless 
it  is  athrmativoly  proved  that  he  was  alive  within  that  time."  '" 
The  presumption  of  death,  arising  from  long,  nnexplaineil  absence, 
may  be  rebutted  by  proof  of  the  person's  character  and  habit.-^, 
and  the  manner  of  his  disappearance,  making  it  improbaljle  that 
he  w»»uld  have  communicated  with  his  friends.''^ 

Similar  to  the  question  of  testator's  death  is  that  of  his  identity ; 
as  where  the  persons  called  in  by  him  to  witness  his  will  were 
strangers.  In  such  a  case,  his  identity  must  be  shown,  and  this 
nnay  be  done  by  ])ri)ving  that  the  signature  to  the  pai)er  offered 
for  probate  is  in  his  handwriting.^"* 

§  187.  Burden  of  proof  generally.—  Tiio  proof  of  a  will  must 
be  in  accordance  with  the  rules  of  evidence  which  prevail  in  all 
judicial  investigations.^^  The  party  propounding  the  will  has  the 
alHrmative,  and  the  burden  of  proof  rests  on  him  to  show  to  the 
satisfaction  of  the  court  that  the  instrument  was  duly  executed 
I)y  a  testator  of  sound  mind  and  lawful  age,  etc.^'^      The  subject 


\>r\g  from  tliis  city  on  the  voyage.  The 
hydrographic  reports  and  the  news- 
pa),er  reports  showed  that  about  the 
time  the  vessel  sunk  violent  gales  pre- 
vailed in  the  vicinity.  An  insurance 
company  paid  the  owners  for  tlie  loss 
of  the  cargo.  A  decree  of  probate  was 
«:ranted.  A  presumption  of  the  death 
of  an  emigrant  from  a  foreign  country 
to  tlie  I'nited  States,  who  came  here 
in  18.51,  and  has  not  been  heard  from 
since  at  his  former  home,  does  not 
arise,  in  the  absence  of  evidence  of 
inquiry  for  him  in  this  country. 
(Matter  of  White,  31  Misc.  484;  (55 'N. 
Y.  Supp.  567.) 

1- Co.  C"iv.  Proc,  §  841,  as  amen<l<'d 
1891.  The  section  also  specifies  what 
length  of  time,  in  failing  to  claim  pro- 
ceeds of  land  deposited  for  unkn(n\ai 
heirs,  in  partition  sales,  siiall  work  a 
presumption  of  death. 

13  In  Matter  of  Miller  (X.  Y.  Law  J.. 
3Iar.  IS,  1890),  on  a  question  of  dis- 
tribution of  an  estate  in  remainder,  the 
■death  of  an  infant  remainderman  was 
sought  to  be  inferred  from  her  absence 
and  failure  to  communicate  with  her 
relatives  for  more  than  seven  years. 
•"  From  the  facts  as  to  the  character 


and  habits  of  the  alleged  decedent  and 
the  manner  of  her  disappearance,  it  is 
extremely  inii)rohable  that  she  woald 
have  been  desirous  to  communicate 
with  her  relatives.  On  the  streets  of  a 
large  city,  witliout  money,  without 
friends,  with  no  moral  training  and  no 
education,  and  witli  the  vicious  pr<ii)cn- 
sities  which  are  hereafter  described,  it 
requires  no  sugi^estion  on  my  |)art  t'l 
imagine  tlie  fate  that  overtook '  her." 
The  court  refused  to  entertain  tlie  ])re- 
sumption  of  death.  Keller  v.  Stuck  (4 
Redf.  294)  was  the  case  of  two  children 
who,  when  very  young  and  twelve  years 
before  testator's  death,  were  removed 
to  a  western  State  to  acquire  a  resi- 
dence there.  Held,  that  the  fact  of 
their  not  having  been  heard  from  sijice 
then,  raised  no  presumption  of  their 
death,  jirior  to  that  of  testator. 

i+Mowrv  v.  Silber.  J  Hradf.  13.1. 

ir.  Peebles  v.  (  ase.  2  Tiradf.  22»!. 

i«i  Delafield  v.  P.irish,  2."i  X.  Y.  9.  07: 
?»ratter  of  Kcllum.  52  id.  517:  Roll- 
wagen  v.  Rollwagen,  03  id.  504:  Kings- 
ley  v.  Blanchard.  (>(]  Rarb.  317:  Dickie 
V."  Van  Vleck,  5  Redf.  284:  Le^rsi  v. 
:\reyer.  id.  G2S :  ^filler  v.  White, 
id.    320:    Cooper   v.   Benedict.    3   Dem. 


§  187.  The  Prorate  of  Wills.  140 

of  presmnptions  and  burden  of  proof  as  to  the  mental  capacity  of 
a  testator,  is  more  in  order  for  a  subsequent  page.^'  As  to  prov- 
ing the  due  execution  and  attestation  of  the  wall,  it  is  sufficient 
to  say,  in  this  place,  generally,  that  if  the  attestation  clause  is 
full,  the  signature  genuine,  the  circumstances  corroborative  of 
due  execution,  and  no  evidence  is  given  disproving  a  compliance 
in  any  particular,  the  presumption  may  be  la^vfully  indulged  that 
all  the  provisions  of  the  statute  were  complied  with,  although  the 
"witnesses  are  unable  to  recollect  the  execution,  or  what  took  place 
at  the  time.^^  Where  the  testimony  leaves  the  matter  in  such  a 
state  of  doubt  and  uncertainty  that  the  mind  of  the  court  is  not 
brought  to  the  belief  of  the  actual  execution  of  the  will,  although 
it  is  not  convinced  to  the  contrary,  a  decree  admitting  it  to  pro- 
bate will  be  reversed/^  In  general,  the  burden  of  proof  remains 
with  the  proponent  to  the  end  of  the  trial,  and  if,  upon  considera- 
tion of  all  the  evidence  on  both  sides,  the  court  is  not  satisfied 
that  the  paper  propounded  contains  the  last  will  of  the  deceased, 
it  must  refuse  probate.  Indeed,  if  there  is  a  reasonable  doubt 
whether  one  or  more  of  the  directions  of  the  statute  have  not 
been  omitted,  the  probate  must  be  refused,  although  it  may 
appear  probable  that  the  paper  expresses  the  testator's  intentions.^ 
Where  it  is  alleged  as  a  ground  of  contest,  that  a  subsequent  will 
was  executed  by  the  testator,  the  burden  is  on  the  contestant  to 
show  the  due  execution  of  the  subsequent  will,  in  order  to  estab- 
lish a  revocation  of  the  one  propounded.'^  Even  where  the  will 
has  once  been  admitted  to  probate,  and  allegations  against  its 
validity  or  the  competency  of  its  proofs  are  filed,  the  burden  of 
proving  anew  is  upon  the  parties  resisting  the  allegations.^^ 

13G:   Matter  of  Mc^SIulkin,  6  id.  347;  mittiiig     it  to  probate.      (Delafield  v.. 

Matter  of  Elmer,  88  Hun,  290:  34  X.  Y.  Parish,  25  N.  Y.  35.)     A  grave  doubt,. 

Supp.  406 ;  Matter  of  Hitchler,  25  Misc.  such    as    will    justify    reversal,    is    not 

365;  55  X.  Y.  Supp.  040.     The  subject  formed  by  the  fact  that  the  sustainin'^ 

of  the  burden  of  proof  in  probate  cases,  witnesses  contradict  each  other,  as  to 

and  of  the  effect  of  Delafield  v.  Parish,  the  facts  attending;  the  execution,  where 

are  discussed  in  the  Albany  Law  Jour-  the  evidence  of  each  witness  taken  sepa- 

nal  of  Julv  16,  1881.  rately  shows  the  due  execution  of  the 

17  See  §§  206,  212,  217.  post.  will.      (Matter  of  Lyddy,  24  St.  Rep. 

18  Matter  of  Kellum,  52  X.  Y.  517;  607.) 

Orser  v.   Orser,   24   id.   51 ;    Brown  v.  20  Theological  Seminary  of  Auburn  v. 

Clark,  77  id.  369.     As  to  effect  of  the  Calhoun,  25  N.  Y.  422.  note;  Howlani 

attestation  clause  as  evidence  of  execu-  v.  Taylor,  53  X.  Y.  027.    And  see  Irwin 

tion  and  publication,  see  post,  §  203.  v.  Irwin,  1  Redf.  495 ;  Crispell  v.  Du- 

iSHowland  v.  Taylor,  53  X.  Y.  627;  bois,  4  Barb.  393:  and  Burritt  v.  Silli- 

Knapp  V.  Reilly,  3  Dem.  427.     A  mere  man,  16  id.  198. 

doubt  as  to  the  validity  of  the  will,  will  2i  Mairs  v.  Freeman.  3  Redf.  181. 

not  justify  the  appellate  court   in   re-  22  Collier  v.  Idley,  1  Bradf.  94.    Com- 

versing    a  decree  of  the  surrogate  ad-  pare  Shaw  v.  Shaw,  1  Dem.  21. 


14]  Tin:    Pi;<;i:ati:   ok   Wills.  §§188-190. 

§  188.  Weight  of  evidence.—  ,\(,  unvarvinp  nilo  as  to  the  aiiioiuit 
of  evidence  iiecet^sary  to  establish  the  execution  of  a  will  can  Ije. 
laid  down,  which  is  to  control  in  every  case,  as  the  circumstances 
of  each  case  must  differ  from  any  other.  It  is  the  duty  of  the 
court  to  ascertain,  from  the  facts  and  circumstances,  whether  the 
instrument  offered  .is  established  with  reasonable  certainty.^* 
The  instrument  propounded  for  probate  must  stand  or  fall  on 
the  testimony  adduced  before  the  surrogate  in  the  proceeding  for 
its  proof.  The  fact  that  the  instrument  propounded  has  been 
already  proved  in  the  Supreme  Court,  as  a  will  of  realty,  is  not  a 
material  fact  in  a  j)roeeeding  for  its  proof  as  a  will  of  personalty 
in  the  Surrogate's  Court.""*  The  proponent  is  not  required  to  pro- 
duce all  the  witnesses,  except  in  certain  cases  already  pointed 
out;^  and  even  in  those  cases  it  is  not  essential  that  each  witness 
should  be  able  to  testify  that  all  the  formalities  required  by  law 
were  complied  with. 

SUBDIVISI0X«2. 

EXECUTION,   PUBLICATION,  AXD  ATTESTATION  OF  WILL. 

§  189.  Formalities  of  execution.— To  entitle  a  testamentary  pa- 
per to  be  admitted  to  ]>robato,  certain  facts  in  reference  to  its 
mode  of  execution,  publication,  and  attestation,  are  retpiired  by 
the  statute  to  be  shown.""  The  provision  of  the  Statute  of  Wills, 
just  cited,  has  been  the  subject  of  very  frequent  adjudications, 
and  its  construction,  as  now  settled,  may  be  best  stated  in  the  fol- 
lowing langTiage,  slightly  modified  from  that  of  the  section,  as  it 
stands  on  the  statute  book:  Every  will,  except  nuncupative  wills 
(made  in  the  cases  prescribed  in  another  section),  must  be  exe- 
cuted before  the  testator's  death,""  and  completely  attested  in  the 
following  manner: 

§  190.  Subscription  of  will. —  It  must  be  suhscrihed  by  th^  tes- 
taior  at  the  end  of  the  will :  that  is,  the  testator  must  sign  his  name 
or  make  his  mark  beloic  the  bodv  of  the  \\Titinc:.      His  signina-  his 


23  Rider  v.  Leps.  51  Barb.  2G0 ;  Xex-  of  execution  of  a  will  under  the  Knjr- 

sen  V.   Nexsen,   3   Abb.   Ct.   App.   Dee.  lish  statute,  and  in  this  State,  befon' 

360;  2  Keves,  229.  1830,    see    Wans    v.    Public    Adniinis- 

24Isham"    V.    Gibbons,    1    Bradf.    60.  trator,     4     Wend.      ItiS :     Jauncey     v. 

And  sec  Collier  v.  Idley.  id.  !t4.      And  Tliorne.  2  Barb.  Ch.  40:  Price  v.  Brown, 

•conversely,   a   will    once    proved    as   a  1  Bradf.  COl.    For  the  history  and  cnn- 

will  of  personalty,  may  afterward,  on  struction    of    our    statutes    rejrnlatin;; 

the    discovery    of    real    property,    be  the  execution  and  attestation  of  wil!>. 

proved  anew  as  a  will   of  real  estate,  see  Iloysradt  v.  Kinj:iiian.  22  X.  V.  372. 

(Smith's  Estate,  1  Tuck.  108.)  27  The  formalities  must  be  fully  com- 

25  See  §   165,  ante.  pleted  before  the  death  of  the  testator. 

20  2  R.  S.  63j  §  40.   Fur  the  requisites  If  he  dies  in  the  act,  and,  though  after 


§100. 


The  Probate  of  Wills. 


141 


name  in  the  body  of  the  writing  is  not  a  subscription  within  the 
meaning  of  the  statute.^^  The  "  end  of  the  will,"  in  the  statute, 
means  the  end  of  the  instrument  as  a  completed  whole,  and  where 
the  name  is  written  in  the  body  of  the  instrument,  with  any 
material  portion, —  e.  g.,  a  clause  revoking  former  wills,  and  a 
portion  only  of  a  clause  naming  an  executor, —  f ollo\ving  the  sig- 
nature, it  is  not  properly  subscribed,  nor  can  it  be  claimed  that 
the  portion  preceding  the  signature  is  valid  as  a  will.^^  Where  a 
A\411,  after  the  signature  of  the  decedent  and  the  witnesses,  con- 
tains a  clause  appointing  an  executor,  the  validity  of  the  instru- 
ment depends  upon  the  question  whether  such  clause  was  wTitten. 
before  or  after  execution.  If  written  before  execution  the  sig- 
nature is  not  at  the  end  of  the  will,  and  the  instrument  is  invalid. ^*^' 


his  subscription,  before  the  witnesses 
have  signed,  the  will  is  not  valid.  (Ver- 
nam  v.  Spencer,  3  Bradf.  16;  Matter  of 
Fish,  88  Hun,  56;  34  N.  Y.  Supp. 
536;  aflfd.,  153  N.  Y.  6/9.)  In 
Knapp  V.  Reilly  (3  Dem.  427),  the 
testator  began  to  sign  his  name  Pat- 
rick, and  after  writing  "  Pat "  be- 
came too  weak  to  go  on,  and  desisted, 
though  not  as  having  completed  all  he 
set  out  to  write.  Held,  no  signature, 
what  was  written  not  being  intended  as 
a  complete  signature. 

28  At  common  law,  if  a  person  wrote 
his  name 'in  the  body  oi  a  will  or  con- 
tract with  intent  to  execute  it  in  that 
manner,  the  signature  so  written  Avas 
as  valid  as  though  sigiied  at  the  end  of 
the  instrument.  See  !Matter  of  Booth, 
127  X.  Y.  lOD. 

29  Sisters  of  Charity  v.  Kelly,  67 
X.  Y.  409.  In  this  case.  K.  presented 
to  two  persons  a  paper,  Avhich  he  stated 
he  had  drawn  as  his  will,  and  requested 
them  to  witness  it.  The  last  clause 
of  the  instrument  was  as  follows:  "I 
make,  constitute  and  appoint  Edward 
McCarthy  to  be  executor  (-J.  Kelly)  of 
this,  my  last  Avill  and  testament,  here- 
by reyokins  all  former  wills  l)y  mo 
made."'  There  was  no  evidence  that 
the  testator  wrote  the  name  "J.  Kelly  " 
save  his  statement  as  to  drawing  the 
will.  After  the  two  witnesses  had 
signed,  K.  wrote  his  name,  in  the  at- 
testation clause,  so  that  it  read:  "  Sub- 
scribed by  John  Kelly."  etc.  There  was 
no  other  signature.  Held,  probate  was 
7)roperly  refused:  that  the  signature 
in  tlie  attestation  clause  was  not  a  due 
execution,  as  it  was  written  after  the 
witnesses  had  signed  their  names ;  that 


the  writing  of  the  name  "  J.  Kelly  "  in 
the  last  clause  of  the  will,  if  written 
by  the  testator,  was  not  a  valid  sub- 
scription: first,  because  he  did  not 
present  that  name  to  the  witnesses  for 
their  attestation,  and  the  subsequent 
signing  precluded  the  idea  that  he 
wrote  it  or  adopted  u  for  his  signature 
to  the  paper  as  a  will :  second,  because 
the  place  where  the  name  appears 
was  not  the  end  of  the  will.  See 
also  Matter  of  O'Neil,  91  X.  Y. 
516;  Jackson  v.  .Jackson,  39  id.  153: 
Matter  of  Donner,  37  Misc.  57:  74 
X.  Y.  Supp.  828:  Matter  of  Conwav, 
124  X.  Y.  455:  Matter  of  Blair,  84 
Hun,  581;  affd.,  152  X.  Y.  645: 
Matter  of  Whitnev,  153  id.  259; 
Matter  of  Andrews,  162  id.  L 
But  see  Matter  of  Xoon.  31  Misc. 
420,  where  the  pajjer  propounded  for 
probate  was  entirely  in  the  handwrit- 
ing of  the  testatrix,  who  had  left  a 
blank  space  in  the  attestation  clause  so- 

that  it  read,  *"  Subscribed  by ,  the 

testatrix,"'  etc.,  where  she  signed  it 
with  the  intention  of  executing  the 
will  in  the  presence  of  the  witnesses 
who  thereupon  signed  as  such  at  her 
request.  Held,  a  sufficient  subscrip- 
tion within  the  statute.  (Distinguish- 
ing Sisters  of  Charity  v.  Kelly,  supra.) 
The  validity  of  the  will  is  not  af- 
fected because  at  the  time  it  was  exe- 
cutc'l  the  separate  sheets  were  not  fas- 
tened together.  (Matter  of  Snell,  32 
:\risc.  61  i  :  67  X.  Y.  Supp.  581;  Matter 
of  Fitzgerald,  33  Misc.  325;  68  X.  Y. 
Supp.  632.) 

w:\ratter  of  Jacobson,  6  Dem.  299. 
See  Matter  of  Gednev,  17  Misc.  500;  41 
X.  Y.  Supp.  205. 


143  TlIK    PROHATK    OF    WiLLS.  §  190. 

Tlie  subscription  iinist  Ite  made  iiinii('<liately  Ix-low  whero  the 
body  of  the  will  terminates,  and  without  any  considerable  inter- 
vening space.  A  moderate  blank  space,  however,  left  between 
the  last  line  of  the  will  and  the  subscription  is  not  fatal.^^  But 
where,  after  the  usual  subscription  of  the  testator,  the  appoint- 
ment of  executors  was  under-written  and  signed  by  the  witnesses 
only,  and  then  a  direction  to  the  executors  was  under-written  and 
signed  by  the  witnesses  only,  and  then  a  further  direction  to  tlie 
executors  was  under-written  and  signed  by  the  testator  only  — 
the  will  was  not  duly  executed.^^ 

A  substantial  compliance  with  the  direction  of  the  statute  is, 
however,  all  that  is  necessary,^^  as  where  the  testator's  seal  was- 
alHxed  in  the  usual  place  for  signature  above  the  witnesses'  attes- 
tation clause,  but  his  subscription  was  written  in  proximity  to  the 
signatures  of  the  witnesses  below  that  clause  ;^^  or  where,  after 

31  Matter  of  Gilnian,  38  Barb.  3G4 ;  ture  on  face  of  will.'  Held,  not  a  sub- 
Hitchcock  V.  Tiioinpson,  0  Hun,  279;  scription  at  the  end  of  will, 
revg.  Heady"s  Will,  lo  Abb.  Pr.  (X.  S.)  ;!-OIatter  of  Vooihis,  125  X.  Y.  765; 
211.  Compare  Dennett  v.  Taylor,  5  more  fully,  30  St.  Rep.  173;  Matter  of 
Redf.  5()1;  Matter  of  Collins,  "id.  20.  Williams,  2  Connoly,  579;  15  X.  Y. 
The  existence  of  unruled  blank  spaces  Supj).  828;  aiTd.,  lit  i(l.  778;  4(i  St.  Rep. 
between  the  body  of  the  will,  written  791;  :Matter  of  Carey,  14  Misc.  486; 
on  the  first  page  of  a  folded  sheet,  being  3G  X^.  Y.  Supp.  817. 
a  printed  form,  and  the  lower  part  of  •'{■i  Cohen's  Estate,  1  Tuck.  286;  Tay- 
the  third  page,  where  the  executor's  lor  v.  WardlaAV,  3  Dem.  48.  Where  the 
clause  and  attestation  clause,  partly  in  signature  of  a  testatrix,  placed  in  a 
print,  were, —  Held  not  to  require  the  blank  space  in  the  attestation  clause, 
rejection  of  the  will.  (Matter  of  Mur-  was  intended  as  her  subscription  and 
phy,  48  App.  Div.  211;  62  X.  Y.  Supp.  so  understood  by  the  witnesses,  it  is 
785.  See  contra,  McCord  v.  Louns-  sufficient.  (Matter  of  Acker,  5  Dem. 
bury,  5  Dem.  68.  19:    Matter   of   Xoon.    31    Misc.   420.) 

^-'McGiiire   v.    Kerr,    2    Bradf.    244.  But  in  Matter  of  Plaisted  (X.  Y.  Law 

See  Matter  of  Sanderson,  9  Misc.  574.  J.,  March  24,  18!»2|.  tlie  decedent  exe- 

Tn  ^Matter  of  Conway  (124  X"^.  Y.  455;  cuted  her  will  in  due  furm,  and,  subse- 

36  St.  Rep.  480),  the  will  was  written  quently,  in  extreme  illness,  sent  for  a 

upon  a  blank  form  consisting  of  a  sin-  friend  and  directed  him  to  take  memo- 

gle  half  sheet,  one  side  of  which  com-  randa  in  respect  of  a  codicil.     He  did 

menced  with  the  usual  ])rinted  formula  so,  she  wrote  her  name  thereto,  "  Eva." 

and  ended  with   the   testimonium   and  She   then   signed   her  name   two-thirds 

attestation   clauses.      The   blank   space  down    on   a  blank   page    of    legal-cap, 

intended   for  the   disposing  portion   of  leaving  space  for  an  attestation  clause, 

the  will  was  entirely  written  ui)()n.  and  and  requested  the  gentleman  to  whom 

at   the  end,  in  parentheses  and  under-  slie  had  dictated  tlie  memoranda,  and 

lined,  were  the  words  "carried  to  l)ack  a  ladv,  to  sign  their  names  below  the 

of  will.''     Upon  the  back  of  will,   just  space   for   the   attestation    clause.      In 

below   the   space   left   for   the   iiulorse-  accordance  with  her  request,  the  mem- 

ment   in    parentheses,   and    luiih-rlined,  oranda   and   the  blank    for   the  codicil 

was  the  word  "continued.'     Then  fol-  were  sent  to  her  attorney  at  Suiierior, 

lowed  bequests  of  personal  property  to  Wisconsin,  with  a  request  that  he  write 

the     testator's     sons     and    daughters  in   the  codicil    in  accordance  witli   the 

which  filled  up  the  whole  of  instrument  memoranda,  and  to  put  in  an  attesta- 

from     the     space     of     indorsement     to  tion   clause  over  the   sitrnature  of  the 

within  one  inch  of  the  bottom,  and  be-  witnesses,  probably  under  the  supposi- 

low  it  all  appeared  the  words  "  signa-  tion  that  the  document  would  be  valid. 


§  101.  The  Probate  of  Wills.  144 

due  execution  and  attestation  of  a  complete  will,  the  testator 
added  other  directions  without  attestation,  but  which  were  such 
as  niig'ht  be  rejected  without  impairing  the  mll.^^  So  where  the 
subscription  and  attestation  of  the  will  were  sufficient,  but  a  copy 
of  another  instrument,  not  testamentary  in  character,  was  annexed 
to  the  will  and  incoi*porated  into  it  bv  express  reference  in  the 
will,  it  was  held  that  the  validity  of  the  will  was  not  affected, 
although  the  annexed  instrument  was  not  subscribed.^^  A  sub- 
scription after  the  attestation  clause  meets  the  requirement  of  the 
statute.  By  so  signing,  the  testator  makes  that  clause  a  part  of 
the  a\t11.^^  It  must  not  be  understood,  however,  that  a  ^\•ill  is 
entitled  to  probate  simply  because  the  testator  intended  to  con- 
form to  the  statute.  It  is  the  intention  of  the  Legislature,  not 
that  of  the  testator,  which  controls.^'" 

§  191.  Subscription  by  mark. —  The  testator  may  make  his  mark, 
or  a  subscribing  witness  may  do  so  for  him,  if  he  cannot  write  ;^^ 
or  he  may  sign  by  the  hand  of  a  third  person.  Such  signature 
must  be  made  by  the  testator's  direction,  and  in  his  presence,  and 
the  person  whose  hand  makes  the  sig;nature  must  attest  the  will 
as  a  witness.  An  imperfect  or  indistinct  subscription  of  the  testa- 
tor's name  may  be  regarded  as  his  mark,  and  thus  constitute  a 
•compliance  with  the  requirements  of  the  statute. '^'^  When  the 
signature  of  the  testator  is  by  mark,  it  is  no  objection  that  the 
testator's  name,  and  the  words  "  his  mark,"  were  written  by 
a  witness  after  he  made  his  mark,  and  that  no  proof  was  given  of 
distinct  direction  to  him  by  the  testator.  It  is  enough  if  the 
declaration  and  the  signature  were  made  on  the  same  occasion,  and 


The    attorney    did    as    requested,    and  •""Younger  v.  Duffie,  fl4  X.  Y.  53.5: 

wrote  a  letter  of  instructions  to  have  Matter   of   Laudy,   78   Hun,   479;    148 

the   paper   executed.      She   died   before  X.  Y.  403 ;    Matter  of  Gamage,  N.  Y. 

receiving  it.     Probate  was  denied.  Law  J..  Dec.  20,  1892. 

35  Conbov    V.    Jennings,    1    Sup.    Ct.  3S  Matter  of  Andrews,  162  N.  Y.   1; 

(T.    &    O"  622.      This   case   is   distin-  30  Civ.  Proc.  Rep.  377.     See  Matter  of 

guished  in  Dennett  v.  Taylor.  5  Redf.  Hitchler,  25  ^lisc.  365. 

561.     See  also  Brady  v.  McCrosson,  5  39  Butler    v.    Benson,    1    Barb.    526; 

Redf.  431:    Matter  of  Collins,   id.   20;  Morris  v.  Kniffin,  37  Barb.  336;  Dack 

McMillen  v.  IMcMillen,   13  Wkly,  Dig.  v.  Dack,  19  Hun,  630:  Simpson's  Will, 

350,  and  cases  cited  or  referred  to  in  2   Redf.  29.     In  the  last  case,  it  was 

next  succeeding  note.  held  that  a  will  so  subscribed  might  be 

30  Tonnele    v.    Hall,    4    X.    Y.    140:  ])roved  when  only  one  subscribing  wit- 
Thompson    V.    Quiniby,    2    Bradf.    449.  ness  could  be  examined,  thus  overrul- 
Conipare  :Matter  of  "O'Xeil,   91    X.   Y.  ing  Matter  of  Walsh,  1  Tuck.  132.     As 
.516:   Dennett  v.  Taylor,  5   Redf.   561;  to  proof  of  such  testator's  "  handwrit- 
Matter  of  Xies,  13  St.  Rep.   756.     As  ing,"  see  §  202,  post. 
to  effect   of   annexing  vmsigned   testa-  *)  Hartwell    v.    McMaster,    4    Redf. 
mentary  papers  to  an  otherwise  prop-  389. 
^rlv  executed  will,  see  Maiter  of  Fults, 
42'App.  Div.  593;  59  X.  Y.  Supp.  756. 


145 


The  Pkobatk  of  Wills 


§§  102,  193. 


as  one  transaction.  Indeed,  signing  by  mark  would  be  sufficient, 
•without  any  sucli  written  nienioranduin.*^ 

§  192.  Signature  by  another  person.—  So,  too,  the  testator's  hand 
being  weak,  or  he  Ix-ing  illiterate,  a  third  person  may  guide  his 
hand  in  the  making  of  his  subscription.^^  Indeed,  it  may  be 
stated,  as  a  general  proposition,  that  any  of  the  acts  required  of 
the  testator  by  the  statute  may  be  done  by  another  person  in  his 
presence,  with  his  assent  and  apprcnal.'*^  Where,  however,  the 
evidence  leaves  in  doubt  whether  the  subscription  was  made  by 
the  decedent  alone,  or  with  the  aid  of  another,  and  there  is  noth- 
ing to  show  that  he  requested  or  desired  any  other  person  to  sub- 
scribe it  for  him,  or  to  aid  liim  in  doing  so  himself,  probate  is 
properly  refused.'*^  A  seal  is  not  sufficient  to  attest  a  vnW,  nor  is 
it  necessary. ^^ 

§  193.  Witnesses  of  subscription. —  The  will  must  he  subscribed 
by  the  testator  in  the  presence  of  each  of  at  least  two  witnesses, 
or  must  be  acknowledged  by  him  to  have  been  subscribed,  to  each 
of  such  attesting  witnesses  or  to  such  of  them  as  ivere  not  present 
at  the  making  of  the  subscription.'^^     Subscribing  witnesses  to  a 


41  Jackson  v.  Jackson,  39  N.  Y.  1.5.3: 
Robins  v.  Coryell,  27  Barb.  ooO.  And 
see  CbafTee  v.  Baptist  ilissionary  Con- 
vention, 10  Paitre,  8.5;  Hollenbeck  v. 
Van  Valkenburgh,  5  How.  Pr.  281. 

42  Campbell  v.  Logan,  2  Bradf.  90; 
Van  Hanswyck  v.  Wiese.  44  Barb.  494. 

In  Matter  of  Kearnev  (09  App.  Div. 
481;  74N.Y.Supp.  1045),  the  testator's 
physician  and  an  attorney,  witnesses 
to  his  will,  testified  that  at  testator's 
request  the  attorney  assisted  him  in 
signing  the  will,  he  being  very  weak. 
The  attorney  took  testator's  hand  in 
his  own,  and.  without  touching  the  ])en, 
guided  testator  in  writing  his  signa- 
ture. An  expert  testified,  on  compari- 
son with  two  of  testator's  normal  sig- 
natures, that  he  failed  to  see  "  a  par- 
ticle of  his  handwriting  in  the  signa- 
ture," and  that  testator  had  no  super- 
intendence, mental  or  physical,  in  th^^ 
act.  Held,  that  the  signature  was  that 
of  testator ;  the  extent  if  requested  as- 
sistance, so  long  as  it  is  assistance,  and 
not  control,  not  invalidating  it. 

43  Robins  v.  Coryell,  27  Barb.  5.57; 
Gilbert  v.  Knox,  52  N.  Y.  125 ;  Peck  v. 
Carv.  27  id.  9;  Meehan  v.  Rourke,  2 
Bradf.  385. 

44  Rollwagen  v.  Rollwagen,  3  Hun, 
121  ;  afVd.,  03  N.  Y.  504. 

45  Matter  of  Diez,  50  N.  Y.  88. 

10 


40  Matter  of  Laudv,  148  N.  Y.  403: 
Lvon  v.  Smith,  11  Barb.  124;  Carroll 
v.'  Norton,  3  Bradf.  291  ;  Tonnele  v. 
Hall,  5  X.  Y.  Leg.  Obs.  254 ;  Spaulding 
V.  Gibbons,  5  Redf.  310;  Matter  of  De 
Haas,  9  App.  Div.  501  ;  41  X.  Y.  Supp. 
696.  In  Baker  v.  Woodbridge  (66  Barb. 
261),  it  appeared  that  neither  of  the 
subscribing  witnesses  saw  the  testa- 
trix sign,  and  to  neither  of  them  did 
she  acknowledge  that  she  had  signed  it. 
and  neither  of  them  saw  her  name  u])on 
it.  One  of  the  witnesses  testified  that 
S.,  who  drew  the  will  and  called  him 
to  witness  it,  said  to  him  in  the  pres- 
ence of  the  testatrix,  holding  out  to 
him  a  paper  so  folded  that  he  did  not 
see  the  signature,  "  That  is  3Irs.  Bell's 
will."  and  requested  him  to  sign  his 
name.  The  testatrix  said  nothing  and 
did  nothing  so  far  as  he  remembered. 
The  other  witness  testified  that  S.  had 
desired  him  to  come  and  witness  Mrs. 
Bell's  will :  that  when  he  went  into 
the  room  a  paper  was  handed  to  him 
and  he  signed  it;  that  nothing  was  said 
in  I\Irs.  Bell's  presence  about  its  being 
a  will.  S.,  who  drew  the  will,  did  not 
remember  that  he  was  ])resent  when  it 
was  executed.  Held,  that  the  will  was 
not  properly  executed  and  published. 

There  is  no  exception  in  the  statu- 
tory requirement  as  to  the  execution  of 


§  193.  The  Probate  of  Wills.  146 

will  arc  required  for  the  iiurpose  of  attesting  and  identifying  the 
signature  of  the  testator;  and  in  order  to  do  this,  it  is  essential 
that  they  should  see  the  testator  ^.ubscribe  his  name,  or  that,  with 
the  signature  visible  to  them,  he  should  acknowledge  it  to  be  his.^'^ 
Hence,  it  is  not  enough  if  he  presents  the  will  already  subscribed 
by  him  to  the  Avitness,  and  acknowledges  that  he  has  executed  it 
as  such  will,  declaring  it  to  be  his  will  and  requesting  him  to  sign, 
where  at  the  same  time  the  witness  doe^  not  see  the  signature.^^ 
It  is  a  sufficient  acknowledginent  of  his  sigiiature,  if,  the  paper 
and  signature  being  before  the  witnesses  in  plain  sight,  the  testa- 
tor addresses  them  in  words  which  are  calculated  and  intended  by 
him  to  give  them  to  understand  that  the  signature  is  his,  and  it  is 
so  understood  by  them,  although  there  is  no  formal  acknowledg- 
ment by  the  testator  to  the  witnesses  that  the  signature  is  his.^^ 
Signing  the  will  in  the  presence  of  one  "VAntness,  subsequently 
acknowledging  his  signature  to  a  second,  and  later  still  to  a  third, 
is  sufficient.'"'^  But,  though  he  declare  the  instrument  to  be  his 
will,  and  request  the  witnesses  to  sign,  this  does  not  dispense,  with 
the  acknowledgment  of  his  signature  where  the  signature  was  not 
made  in  the  witnesses'  presence. ^^  The  acknowledgment  of  the 
signature,  and  the  publication  of  the  will,  by  acknowledgment, 
may  constitute  one  and  the  same  act.^^  It  is  a  fatal  objection  if 
one  of  the  witnesses  neither  saw  the  testator  subscribe,  nor  heard 


wills    in   favor   of   holographic    instni-  that  deceased  came  into  a  store  Avhere 

ments.      (Matter  of  Turell,   166   X.  Y.  two    persons    Avere,    produced    a    paper 

330;   59  N.  E.  910.)  and  said:    "  I  have  a  paper  that  I  want 

4"  Matter  of  Mackey,  110  X.  Y.  611 ;  you  to  sign."'     One  of  the  persons  took 

Matter  of  Laudy,  148  id.  403.  the  paper  and  saw  the  signature  of  the 

48  Lewis  V.  Lewis,  11  X.  Y'.  221 :  Mat-  deceased.  The  deceased  then  said: 
ter  of  Mackey.  110  id.  611:  ^Matter  "This  is  my  will,  I  want  you  to  wit- 
of  Laudy,  148  id.  403 ;  Mitchell  v.  ness  it."  Both  persons  thereupon 
Mitchell,  16  Hun.  97;  atfd.,  77  X.  Y.  signed  the  paper  as  witnesses  under 
596 ;  Matter  of  Purdy,  46  App.  Div.  the  attestation  clause.  The  deceased 
33;  61  X.  Y.  Supp.  430.  This,  in  effect,  then  took  the  paper  and  said:  "  I  de- 
overrules  Baskin  v.  Baskin,  30  X.  Y.  clare  this  to  be  my  last  will  and  testa- 
416;  Willis  v.  Mott.  id.  486:  Rudden  ment,"  and  delivered  it  to  one  of  the 
V.  ilcDonald,  1  Bradf.  352.  See  Ver-  witnesses  for  safe-keeping.  At  the 
nam  v.  Spencer,  3  id.  16;  Darling  v.  time  when  this  took  place  the  paper 
Arthur,  22  Hun,  84.  had  the  name  of  the  deceased  at  the 

49  Matter  of  Austin,  45  Hun.  1  :  !Mat-  end  thereof.  Held,  no  sufficient  signing 
ter  of  Laudy,  161  X.  Y.  429;  Matter  of  the  will  by  the  deceased  in  the  pres- 
of  Lang.  9  Misc.  521;  30  X.  Y.  Supp.  ence  of  the  witnesses,  nor  a  sufficient 
388;  Matter  of  Stockwell,  17  Misc.  acknowledgment  to  them  that  ha  had 
108;   40  X.  Y.   Supp.  734.  done  so. 

50Hovsradt  v.  Kingman,  22  X.  Y.  52  Baskin  v.  Baskin,  36  X.  Y.  416; 
372;  followed,  Matter  of  Potter,  33  St.  Matter  of  Phillips.  98  id.  267:  Mat- 
Rep.  936.  ter  of   Hunt,   42    Hun,   434:    Kinne   v. 

••■.1  Mitchell  V.  Mitchell,  10  Hun,  97;  Kinne,  Xo.  L  2  Sup.  Ct.  (T.  &  C.)  391.. 
affd.,  77  X.  Y.  596,  where  it  appeared 


147 


The  Fkobatk  ok  Wills. 


§194. 


him  acknowledge  his  signatiirc."'^"^  Where,  at  the  time  he  exhibited 
tlie  i  list  nil  I  lent  and  tolct  the  -witnesses  it  wa.s  his  will,  it  was  so 
folded  that  they  could  see  no  part  of  the  writing,  except  the 
attestation  clause,  and  ther  did  not  see  the  signature,  it  was  held 
there  was  no  projicr  acknowledgment  of  his  signature. ^^  The  in- 
tent of  the  requirement  that  a  testator's  subscription  should  be 
'^  made  in  The  j)resence  of  each  of  the  attesting  witnesses,"  or, 
etc.,  is  not  simply  that  the  testator  and  witnesses  should  be  within 
the  same  inclosure,  but  that  the  latter  should  either  actu?\lly  see 
the  former  Avritc  his  iiaiuo,  or  have  their  attention  direqtedi  to  the 
act  of  signing  Avhile  the  same  is  taking  place. ^° 

§  194.  Publication. —  The  testator,  at  the  time  of  making  such 
subscription ,  or  at  the  time  of  acJcnoiuledging  the  same,  or  both 


f>3  Rutherford  v.  Rutherford,  1  Den. 
33;  Lewis  v.  Lewis,  11  N.  Y.  220;  Mat- 
ter of  Hipcrins,  94  id.  554 ;  Jones  v. 
Jones,  42  Hun,  5G3 ;  Rumsey  v.  Gold- 
smith. 3  Dem.  494;  Matter  of  Aber- 
crombie.  24  App.  Div.  407 ;  4S  X.  Y. 
Supp.  414:  Matter  of  McDou^'all,  87 
Hun.  349 ;  34  X.  Y.  Supi).  302  :  Matter 
of  Xevins.  4  Misc.  22;  24  N.  Y.  Supp. 
838;  Matter  of  Purdv,  4G  App.  Div. 
33 ;  ni  X.  Y.  Supp.  430.  See  Matter  of 
Rustin,  45  Hun,  1. 

f'-t  Lewis  V.  Lewis,  supra  :  flatter  of 
Maekay,  110  X.  Y.  611:  disapprovin<i  a 
flirfum  in  Willis  v.  :\Iott,  30  id.  480, 
491,  that  testator  was  not  required 
to  exhibit  his  signature.  In  Mat- 
ter of  Losee  ( 13  Misc.  298;  34  X. 
Y.  Supp.  1120).  the  will  was  signed 
by  the  testatrix  in  the  presence  of  two 
witnesses,  one  of  whom  was  unable  to 
see  to  write,  and  at  lier  request  tlie 
other  witness  signed  the  name  of  both. 
It  appeared  that  the  first-named  wit- 
ness was  unable  to  see  testatrix's  sig- 
nature or  to  distinguish  whether  there 
was  ink  on  the  pen  with  which  she 
wrote,  and  on  the  hearing  could  not 
distinguish  the  writing  on  the  paper 
produced  or  identify  it.  Held,  that 
there  was  no  valid  ^-xecution  of  the  in- 
strument, as  there'  was  but  one  attest- 
ing witness.  A  statement  that  it  is  a 
will,  or  that  "  I  have  made  my  will ; 
I  want  you  to  sign  it.''  made  upon 
exhibition  of  an  apparently  blank 
paper,  is  not  an  acknowledgment  of 
a  subscription  thereto.  (Matter  of 
Eakins,  13  Misc.  557;  35  X.  Y.  Supp. 
489.) 

55  Gardiner  v.  Raines,  3  Dem,  98.  In 
Spaulding  v.   Gibbons    (5   Redf.    316), 


one  witness  testified  that  testator 
signed  in  the  presence  of  both  witnesses, 
before  they  affixed  their  signatures, 
and  declared  the  paper  to  be  his  last 
will.  The  other  witness  did  not  re- 
member whether  he  saw  testator  sign 
or  not,  but  the  evidence  showed  that 
he  was,  at  the  time,  eitlier  in  t!ie  same 
room  or  in  an  adjoining  room,  in  sucli 
a  position  that  he  could  see  the  signing 
after  his  attention  was  drawn  to  what 
was  going  cr..  Held,  that  testator  must 
be  considered  to  have  signed  in  the 
presence  of  each  subscril)ing  witness. 
In  Matter  of  Look  (20  St. "Rep.  745; 
7  X.  Y.  Supp.  298)  testatrix  signed  her 
will  in  the  presence  of  one  witness, 
and,  in  the  presence  of  both,  declared 
it  to  be  her  will,  and  they  signed  as 
witnesses,  at  her  request.  One  of  them 
testified  tliat  she  did  not  see  the  signa- 
ture of  the  testatrix  which  was  witliin 
the  field  of  her  vision  as  she  signed  as 
witness.  Held,  a  sufficient  acknowl- 
edgment of  the  subscription  to  comply 
with  the  statute.  The  statutory  for- 
malities being  observed,  the  valid  exe- 
cution of  the  will  does  not  depend  xipon 
the  correctness  of  the  vision  or  the  de- 
gree of  attention  of  the  witness  any 
more  than  upon  the  retentiveness  of 
his  memory.  See,  a  peculiar  case.  !Mat- 
ter  of  Van  Houten,  15  ^lisc.  19(>,  where 
it  was  said  that  proof  that  the  wit- 
nesses saw  the  pen  moving  over  the 
paper  and  heard  it  make  a  scratching 
noise  was  sufficient  to  show  that  the 
signature  was  made  '"n  their  presence; 
it  is  not  necessary  that  they  should  see 
tlie  mark  it  made  or  its  actual  contact 
with  the  paper. 


§  194.  The  Probate  of  Wills.  148 

—  if  subscribed  in  the  presence  of  one  and  acknowledged  after 
subscription  to  the  other  — must  declare  in.  the  presence  of  each 
ivitness  that  the  instrument  is  his  will.  The  object  of  this  pro- 
vision is  to  secure  the  testator  against  fraud  and  imposition,  and 
the  knowledge  that  the  instrument  which  the  witnesses  are  called 
upon  to  attest  is  a  will,  must  be  communicated  to  them  by  the 
testator  at  the  time  of  his  subscription  or  acknowledgment;  and 
knowdedge  derived  from  anv  other  source,  or  at  any  other  time, 
of  the  same  fact,  cannot  stand  as  a  substitute  for  the  declaration 
of  the  testator.  The  declaration  or  publication  of  the  will  must 
be  made  out  substantially  the  same  as  the  subscription  or  the 
acknowledgment  thereof. ^*^  Where  the  "sntnesses  had  been  sent 
for  to  ^^dtness  the  testator's  "\Aill,  and  went  for  that  purpose,  but 
had  no  other  infonnation  that  they  were  ^^-itnessing  his  will,  the 
publication  was  held  insufficient.^"  The  testator  must  in  some 
manner  communicate  to  the  attesting  witnesses,  at  the  time  they 
are  called  to  sign  as  witnesses,  the  infonnation  that  the  instrument 
then  present  is  of  a  testamentary  character,  and  that  he  then 
recognizes  it  as  his  ^vill,  and  intends  to  give  it  effect  as  such. 
Producing  the  will  already  subscribed,  but  folded,  so  as  to  conceal 
the  subscription,  and  acknowledging  it  as  a  "  free  \\dll  and  deed," 
are  not  enough.^* 

56  Scribner  v.  Crane,  2  Paige,  147 ;  Testator,  after  reading  the  will  and 
Gilbert  v.  Knox,  .52  N.  Y.  125,  and  signing  it  in  the  presence  of  the  wit- 
cases  infra.  "  When  the  testator  pro-  nesses,  handed  it  to  one  of  them  with 
duces  a  paper  to  which  he  has  person-  the  request  that  he  read  the  attesta- 
ally  affixed  his  signature,  requests  the  tion  clause  and  sign  it ;  direct  request 
witnesses  to  attest  it,  and  declares  it  to  was  made  to  the  other,  who  had  drawn 
be  his  last  will  and  testament,  he  does  the  will.  Held,  a  sufficient  publication 
all  that  the  law  requires.  It  is  enovigh  and  request  to  both  witnesses,  (ilat- 
that  he  verifies  the  subscription  as  au-  ter  of  Woolsey,  17  Misc.  547;  41  X.  Y. 
thentie,  without  reference  to  the  form    Supp.  263.) 

in  which  the  acknowledgment  is  made."  57  Bagley  v.  Blackman,  2  Lans.  41; 
(Per  Porter,  J.,  in  Baskin  v.  Baskin,  flatter  of  Chandler,  X.  Y.  Law  J.,  Mav 
36  X.  Y.  416.)  In  that  case,  22,1891.  In  Matter  of  Dickson  (X.  Y. 
,  after  the  testator  had  signed  his  Law  .J.,  Jan.  16,  1892),  the  will  was  in 
will,  in  the  presence  of  one  of  the  testator's  handwriting,  and  had  a  de- 
attesting  witnesses,  the  other  witness  claratory  clause  at  the  beginning,  stat- 
was  called  in  and  asked  by  the  testator  ing  it  to  be  his  will.  He  called  his 
to  sign  it.  The  witness  saw  that  the  nephew  and  niece  into  his  presence, 
testator's  signature  was  already  at-  produced  the  paper,  substantially  ac- 
tached ;  and  the  testator,  with  the  will  knowledged  his  signature  at  the  end  of 
in  his  hand,  in  the  presence  of  both  it,  and  requested  them  to  sign  as  wit- 
witnesses,  declared  it  to  be  his  last  will  nesses.  He  did  not  inform  them  that 
and  testament,  and  the  second  witness  it  was  a  will,  but  from  the  circum- 
then  subscribed  the  attestation  clause,  stances  occurring  about  that  time,  they 
which  stated  that  the  will  was  signed  inferred  that  it  was.  Probate  was  de- 
and  published   in  the  presence  of  the    nied. 

attesting  witnesses.  Held,  a  good  pub-  58  Lewis  v.  Lewis,  11  X.  Y.  220; 
lication.  See  Matter  of  Carey,  24  App.  Rutherford  v.  Rutherford,  1  Den.  33 ; 
Div.  531;  49  X.  Y.  Supp.  32.  Walsh  v.  Laffan,  2  Dem.  498;  Porteu3 


149 


The  Phohatk  of  Wills. 


§195. 


.  §  195.  The  declaration  must  be  unequivocal. — Accordingly,  when 
the  decedent,  in  response  to  questions,  stated  that  she  did  not 
know  as  she  couJd  say  that  it  was  her  last  will, —  that  it  was  the 
last  she  had  made  then,  tJie  proof  of  publication  was  held  de- 
fective.°^  It  is  not  essential  that  the  pul>lication,  any  more  than 
the  other  facts  involv<jd  in  the  execution,  should  be  made  by  ex- 
press words  of  the  testator  f^  or  on  the  same  occasion,  or  when 
both  witnesses  are  present.^^  A  substantial  compliance  with  the 
statute  is  sufficient. ^^  It  may  be  incorporated  \nth  the  request  to 
the  witnesses  to  attest  f^  and  both  may  be  made  by  means  of 
questions  put  to  the  testator  and  his  affirmative  response;*'*  and 
such  response  may  even  be  made  by  nodding  the  head.*^     Where 


V.  Holm.  4  id.  14.  In  Laraboo  v.  Bal- 
lard (1  Dein.  496),  it  appeared  that, 
after  the  scrivener  had  completed  the 
draft,  decedent  requested  him  to  sign 
decedent's  name  thereto  "  ])er  W.  K.," 
wliich  he  did.  While  engaged  in  draft- 
ing the  instninient,  the  decedent  asked 
him  whether  he  could  witness  it  with- 
out calling  any  one  e!se.  whereto  the 
scrivener  assented.  Afterward,  dece- 
dent went  into  a  store  and  asked  B., 
wlio  was  there,  to  witness  an  alteration 
in  his  will.  Decedent  and  B.  then  went 
into  the  office  where  the  scrivener  was, 
with  the  instrument.  B.  thereupon 
asked  decedent  if  he  acknoirledfied  that 
to  be  hifi  work,  to  wliich  decedent  as- 
sented. Held,  not  a  sufficient  declara- 
tion by  testator  of  the  character  of  the 
instrument.  In  Matter  of  Turrell  (28 
Misc.  100).  the  will  was  referred  to 
as  a  "  docimient."  although  the  wit- 
nesses surmised  that  they  were  wit- 
nessing a  will.  Held,  insiifficient. 
In  Matter  of  Oldham  (N.  Y.  Law  J., 
Dec.  10,  1890),  the  testatrix  neither 
directly  nor  by  implication  declared 
the  paper  to  be  a  will,  but  stated,  in  a 
jesting  way,  that  it  was  her  death 
warrant.  At  the  time,  she  did  not  pre- 
sent the  pa])er  in  a  form  by  which  her 
signature  could  be  seen  by  the  wit- 
nesses, but  lolded  it  so  as  to  conceal  it 
from  their  sight,  if  it  had  been  affixed. 
'■  Though  it  has  a  full  attestation 
clause,  it  having  been  executed  in 
^larch,  1888,  the  date  is  too  recent  to 
aid  the  pro])onent  who  seeks  its  pro- 
bate, especially  as  the  recitals  in  re- 
spect to  the  decedent's  signing  of  the 
paper,  and  the  declaration  of  its  char- 
acter are  expressly  denied  by  the  posi- 
tive statements  of  eacli  of  the  three 
witnesses,  who  only  inferred  from  the 
surroundinc  circumstances  that  it  was 


a   will,  and  not  from  anything  which 
she  stated."     Probate  denied. 

59  Kingslev  v.  Blanchard,  66  Barb. 
317. 

60  Lane  v.  Lane,  95  X.  Y.  494 ;  Nelson 
V.  McGiffert,  3  Barb.  Ch.  158.  See 
Seguine  v.  Seguine,  2  Barb.  385 ;  Reeve 
V.  Crosby,  3  Redf.  74;  Gilbert  v.  Knox, 
52  X.  Y."  125 ;  Thompson  v.  Leastedt,  3 
Hun,  395;  affd.,  62  N.  Y.  634;  Rugg  v. 
Rugg.  83  id.  592;  Dack  v.  Daek,  84 
id.  063:  :Matter  of  Pepoon,  91  id.  255; 
Matter  of  Hardenburg,  85  Hun,  580; 
33  X.  Y.  Supp.  150. 

f>i  Hoysradt  v.  Kingman,  22  X.  Y. 
372;  Willis  V.  Mott,  30  id.  480;  Xeu- 
gent  V.  Xeugent,  2  Redf.  369;  Barry 
V.  BroATO,  2  Dem.  309;  Matter  of  For- 
man,  54  Barb.  274. 

C'2  Lane  v.  Lane,  supra ;  Matter  of 
Voorhis,  125  X.  Y.  765;  36  St.  Rep. 
173.     See  §   190,  ante. 

i^Rieben  v.  Hicks,  3  Bradf.  353; 
Belding  v.  I.^ichardt,  2  Sup.  Ct.  (T.  & 
C.)  52;  Kinne  v.  Kinne,  id.  391:  Dack 
v.  Daek,  19  Hun,  630:  Matter  of  Mur- 
phy, 15  Misc.  208. 

*j-t  Tunison  v.  Tunison,  4  Bradf.  138; 
Gombault  v.  Public  Adm'r,  4  Bradf. 
226:  Whitbeck  v.  Patterson.  10  Barb. 
(i08 :  Reeve  v.  Crosby,  3  Redf.  74 :  Mat- 
ter of  Murphv,  15  Misc.  208:  37  X.  Y. 
Supp.  223;  Matter  of  Seagrist,  11  Misc. 
ISS:  1  App.  Div.  015;  ;Matter  of  ;Menge, 
13  Misc.  553;  35  XL  Y.  Supp.  493.  A 
response  by  the  testatrix,  to  whom  the 
will  was  read  in  the  jiresence  of  tlio 
subscribing  witnesses,  "  It  is  all  right,'' 
is  a  sufficient  publication.  (Matter  of 
Buel,  44  App.  Div.  4. ) 

<ir.  Belding  v.  Leichardt,  r^C>  X.  Y.  680; 
Smitli  V.  Smitli,  2  Lans.  20() :  Brown  v. 
De  Selding,  4  Sandf.  10;  Butler  v. 
Benson,  1  Barb.  526. 


§  196.  The  Probate  of  Wills.  150 

an  implied  declaration  is  relied  upon,  as  reading  the  will  alond  in 
testator's  presence,  proof  of  the  state  of  his  hearing  at  the  time 
is  proper. ^"^  The  words  of  acknowledgment  may  proceed  from 
another,  and  will  be  regarded  as  those  of  the  testator,  if  the  cir- 
cumstances show  that  he  adopted  them,  and  that  the  person  speak- 
ing them  was  acting  for  him  with  his  assent.*''  In  that  case,  the 
declaration  must  be  made  in  the  presence  and  hearing  of  both 
testator  and  the  witnesses,  so  that  the  latter  mav  know  that  the 
third  person's  act  w^s  that  of  the  testator.*^^  But  the  testator 
must  declare,  or  give  the  witnesses  in  some  form  to  understand,  at 
the  time  of  making  or  acknowledging  his  subscription,  that  the 
instrument  signed  is  his  will  ;^^  and  that  the  signature  is  genuine. 
§  196.  Sufficiency  of  proof  of  publication. —  The  execution  of  the 
will  must  be  proved  by  evidence  of  what  took  place  at  the  time 
the  will  was  signed,  and  cannot  be  proved  by  declarations  of  the 
testator,  that  he  had  made  such  a  will,  naming  the  witnesses  and 
where  the  \\dll  was  made,  etc.^^  The  testator's  declaration  made 
"on  a  subsequent  occasion  to  one  of  the  witnesses,  that  the  paper 
signed  by  him  was  his  last  will,  is  not  sufficient,"  although,  after 
the  proponents  have  made  out  a  prima  facie  case,  such  declara- 
tions may  be  introduced  as  corroborative  evidence  in  respect  to 
the  genuineness  of  the  signature,  or  the  freedom  of  the  testator 
from  undue  influence,  or  to  rebut  the  contestant's  e'V'idence  on 
these  points.^^    Testator's  antecedent  declarations  are  admissible, 

66McKinley  v.  Lamb,  64  Barb.   199.  Beers.  2  Bradf.   163;   Campbell  v.  Lo- 

And    see    Trustees    of    Auburn    Theol.  ^an,  id.  90;  Robinson  v.  Smith,  13  Abb. 

Sem.  V.  Calhoun,  62   id.   381.     A  deaf  Pr.  3.59;  Brown  v.  De  Selding.  4  Sandf. 

person  may  publish  his  will  by  answer-  10;  Grant  v.  Grant,  1  Sandf.  Ch.  235; 

ing  questions   put  to  him   in  writing.  Rutherford  v.  Rutherford,   1   Den.  33 ; 

(Gombault  v.   Public  Adm'r,  4   Bradf.  Hunt  v.  Mootrie,  3  Bradf.  322;  Moore 

226.)  V.  Moore,  2  id.  261 ;  Van  Hooser  v.  Van 

•57  Gilbert  v.  Knox,  52  N.  Y.  125;  Hooser,  1  Redf.  365;  In  re  Sheridan, 
Burk's  Will,  2  Redf.  239;  Troup  v.  id.  447;  Carle  v.  Underbill,  3  Bradf. 
Reid.  2  Dem.  471;  Smith  v.  Smith,  2  101;  Vaughan  v.  Burford.  id.  78; 
Lans.  266.  Yet,  where  the  testator  was  Trustees  of  Auburn  Theol.  Sem.  v.  Cal- 
.so  feeble  and  exhausted  that  it  is  houn,  62  Barb.  381 ;  McKinley  v.  Lamb, 
doubtful  whether  he  understood  the  64  id.  199;  Smith  v.  Smith,  2  Lans. 
declaration  of  a  third  person  in  his  266 ;  Reeve  v.  Crosby,  3  Redf.  74.  Mat- 
presence,  such  declaration  will  not  ter  of  Smith  (39  St.  Rep.  698 ;  15  N.  Y. 
iilone  be  sufficient.  (Heath  v.  Cole,  15  Supp.  425)  was  a  case  where  testator 
Hun,  100.)  See  Stein  v.  Wilzinski,  4  could  neither  read  nor  write :  the  attes- 
Redf.  441 ;  .Jones  v.  Jones,  42  Hun,  563.  tation  clause,  though  not  the  body  of 

68  Burke  v.  Nolan,  1  Dem.  436.  the  will,  was  read  to  him.     The  will 

69  For  application   of  this  principle  was  admitted  to  probate. 

in  various  peculiar  cases,  see  Remsen  7o  Johnson  v.  Hicks,  1  Lans.  150. 

V.  BrinckerholT,  26  Wend.  325;   Torry  71  Matter  of  Dale.   56   Hun,    169:    f) 

V.  Bowen,  15  Barb.  .304;  Burritt  v.  Sil-  N.  Y.  Supp.  396;  affd.,  134  N.  Y.  614, 

liman,  16  id.  198;  Nipper  v.  Groesbeck,  72  Taylor's  Will,  10  Abb.  Pr.  (N.  S.) 

22  id.  670 ;  Chaffee  v.  Baptist  Mission-  300. 
ary  Convention,  10  Paige,  85;  Ex  p. 


151  The  Puobaie  oe  Wills.  §  197. 

in  connection  AAntli  his  indefinite  declaration  at  the  time  of  the 
execution,  in  aid  of  proof  of  a  sufficient  publication.  So  the  fact 
that  testator  was  fully  apprised  of  the  testamentary  character  of 
the  instrument,  may  be  considered  in  aid  of  proof  tending  to 
establish  a  publication.^^  Hence,  while  holographic  icills  are  not 
excepted  from  the  terms  of  the  statute  prescribing  the  method  of 
publication,  in  case  of  such  a  will,  criticism  of  the  terms  and  man- 
ner of  what  is  claimed  to  be  a  sufficient  publication  need  not  be 
so  close  or  severe  as  where  the  question,  as  to  whether  the  testator 
knew  that  he  was  executing  a  will,  depends  solely  upon  the  facta 
of  publication.^'* 

§  197.  Republication. —  A  \vi]\  originally  inadequately  published 
may  bo  subsequently  republished  and  reaffirmed  by  a  codicil. 
Thus,  in  one  case,  a  married  woman  executed  in  due  form  a 
codicil,  which,  after  referring  to  and  describing  a  will  executed 
by  her  before  marriage,  contained  the  following  clause:  "  I  do 
hereby  republish,  reaffirm,  and  adopt  the  aforesaid  instniment  as 
my  present  wiU  in  like  manner  as  if  so  executed  by  me,  but  modi- 
fied pursuant  to  this  codicil,  which,  in  connection  with  an  amend- 
ment of  my  said  will,  I  now  publish  and  declare  together  as  con- 
stituting my  last  will  and  testament."  The  will  was  present  when 
the  codicil  was  executed,  and  the  attention  of  the  witnesses  was 
called  to  it,  and  the  testatrix,  at  the  time,  declared  the  instrument 


73  Matter  of  Hunt,   110  N.  Y.   278;  declaration   cannot  be   made   sufficient 

Thompson  v.  Stephens,  62  id.  634.    And  by  proof  of  a  previous  conversation  not 

see,   generally,   on   the   subject   of  due  connected  Avith  the  faction  by  the  words 

publication,  Coffin  v.   Coffin,  23  N.  Y.  of  publication  used,  yet  it  will  be  suffi- 

9 ;   Peck  v.  Gary,  27  id.  9 ;   Nexsen  v.  cient  where  they  were  so  connected  by 

Nexsen,     3   Abb.     Ct.   App.    Dec.     360;  the  very  lanpruage  of  the  testatrix  at 

Chaffee  v.  Baptist  Miss.  Con..  10  Paige,  the  time  of  execution,     lib.)     Compare 

85;    ^Matter  of  Cilman,  38  Barb.  364;  Buckliout  v.  Fisher.  4  Deni.  277,  wliere 

Gamble  v.  Gamble,  39  Barb.  373;   Doe  it  was  held,  in  a  case  of  a  holographic 

V.  Roe,  2  id.  200;   Hutchings  v.  Coch-  will,  that  in  the  absence  of  direct  testi- 

rane,    2    Bradf.    29o ;    !McDonough    v.  mony  as   to  the   fact,   and   in  case   of 

Loughlin,  20  Barb.  238;  Hollenbeck  v.  failure  of   recollection  on  the  part  of 

Van  Valkenl)urgh,    ,'>   How.    Pr.    281  ;  the  witnesses,  as  to  whether  the  will 

Hunn  V.  Case,   1   Redf.   307  ;    Heath  v.  was  signed  by  tiie  testator  before  such 

Cole,  15  Hun,  100;  Van  Hooser  v.  Van  presentation  and  declaration,  the  court 

Hooser,  1   Redf.  36.");   Von  Hoffman  v.  may  consider  the  internal  evidence  af- 

Ward,  4  id.  244.     See  §  203,  post.  forded  by  tlie  examination  of  the  ])a])er 

"•i  Matter  of  Carey,  24  .\pp.  Div.  .531;  itself,  in  determining  such  fact.  To  the 
Matter  of  Beckett, 'l03  N.  Y.  167.  In  same  effect,  :Matter  of  Cottrell,  !),") 
that  case  testatrix,  at  the  time  of  exe-  N.  Y.  329;  flatter  of  Wilcox,  37  St. 
cuting  her  will,  .simply  referred  to  it,  Rep.  462:  14  X.  Y.  Supp.  109;  Matter 
in  addressing  the  witnesses,  as  a  paper,  of  Stillman,  29  St.  Rep.  213;  9  N.  Y. 
but  at  the  same  time  connected  such  ex-  Supp.  446.  But  see  Matter  of  Turrell, 
pression  with  previous  conversations  28  ^lisc.  106,  where  the  will  was  re- 
had  with  the  witnesses  regarding  a  ferred  to  as  a  "document."  a  dedara- 
will.  Hel(t,  sufficient.  Although  it  tion  held  to  be  insufficient,  although 
maybe  that  an  imperfect  and  indefinite  the  will  was  holographic. 


§  198.  The  Pkobate  of  Wills.  152 

to  be  "  a  codicil  to  her  last  Avill  and  testamcTit,  and  a  reaffirmation 
of  the  latter."  It  was  held  that  the  execution  of  the  codicil  was  a 
republication  of  the  will,  and  that  it  and  the  codicil  together  were 
to  be  considered  as  the  Avill  of  the  testatrix.'^ 

So  where  a  will  has  been  formally  revoked  bv  a  subsequent  will, 
but  not  destroyed,  it  may  be  revived  by  the  execution  of  a 
codicil/'^  or  by  destruction  of  an  instrument  intended  only  as  a 
modification  thereof."'  But  a  will  that  is  revoked  by  a  subsequent 
one  which  is  destroyed  by  the  testator,  is  not  revived  by  his 
declaration  that  he  desires  his  first  will  to  stand,  made  to  others 
than  the  subscribing  witnesses,  where  the  persons  to  whom  such 
declaration  was  made  do  not  subscribe  as  witnesses  to  the  will.'^ 

§  198.  Attestation  by  witness. — Each  of  the  two  attesting  wit- 
nesaes,  at  leant,  must  siqn.  his  name  as  a  witness  at  the  end  ''^  of  the 
will  at  the  request  of  the  testator.  Their  signatures  may  be  made 
by  mark  f^  or  by  the  aid  of  another  f^  but  the  witness  must  sign 
"vvith  intention  to  be  such.  One  who  writes  the  name  of  another 
person  as  witness,  not  intending  to  attest  the  will  himself,  and  not 
writing  his  own  name,  cannot  be  deemed  a  witness.^^  Though  the 
statute  requires  the  witnesses  to  subscribe  at  the  end  of  the  will, 
yet  where,  by  mistake,  the  attestation  clause  and  witnesses'  signa- 
tures Avere  written  on  an  intermediate  blank  page,  the  execution 
was  sustained.*^     The  witnesses  must  sign  after  the  will  has  been 

To  Van  Cortlandt  v.  Kip,  1  Hill,  590;  same  proof  to  establish  a  republication 
BrowTi  V.  Clark,  77  X.  Y.  369;  affg.  IG  of  a  will  as  are  plainly  required  to  es- 
Hun,  559,  which  reversed  s.  c,  Proc-  tablish  its  original  publication,  and 
tor  V.  Clarke,  3  Redf.  445.  See  note  hence,  that  a  will  which  has  been  re- 
to  this  case,  1  Am.  Prob.  Rep.  517;  voked  can  be  revived  only  by  its  re- 
Masters'  Estate,  1  Civ.  Proc.  Rep.  459:  publication  in  the  presence  of  its  at- 
Matter  of  Xisbet,  5  Dem.  286 :  flatter  testing  witnesses."  See  §  230,  post.. 
of  Miller,  11  App.  Div.  337;  affd..  161  to  Matter  of  Davger,  47  Hun,  127; 
K  Y.  71:  Ccok  v.  White.  43  App.  Div.  110  X.  Y.  666.  See  §  190,  ante. 
388;  60  X.  Y.  Supp.  153;  affd.,  167  SO  Meehan  v.  Rourke.  2  Bradf.  385; 
X.  Y.  588.  :Morris  v.  Kniffin.  37  Barb.  336. 

76  Matter  of  Knapp,  51  St.  Rep.  517,  81  Campbell  v.  Logan.  2  Bradf.  90. 
23  X.  Y.  Supp.  282.  One   witness   may,    in   addition   to   his 

77  Matter  of  Johnston,  69  Hun,  157:  own  signature,  sign  the  name  of  the 
23  N.  Y.  Supp.  355.  In  Matter  of  other,  at  the  latter's  request.  (Matter 
Trost  (38  Misc.  404),  the  testator  had  of  Strong,  39  St.  Rep.  852.) 

made  two  wills,  and  later  executed  a  82  Ex  p.  Leroy,  3  Bradf.  227. 

codicil  which  was  written  on  the  back  S3  Hitchcock   v.    Thompson,    6    Hun, 

of  the  first  will.     The  codicil  did  not  279;   revg.  Heady's  Will,   15   Abb.   Pr. 

refer   to   either   will,   or  by   its   terms  fX.    S.)     211:    Matter    of    Singer,    19 

republish    either    of    them. —  he'd    in-  ^Misc.     679:     44     X.     Y.     Supp.     606. 

sufficient  as  a  republication  of  the  first  Although    the    attestation    clause     is 

will.  carried  entirely  across  the  face  of  the 

7s;Matter  of  Stickney,  161  X.  Y.  42.  will  and  separates  the  signature  of  the 

In  that  case,  the  court  said:    "  We  are  testator  from  that  of  the  witnesses,  the 

of  the  opinion  that  it  was  the  intent  of  execution     is     sufficient.       (•^latter     of 

the  Legislature  by  this  statute  to  re-  Beck,  6  App.  Div.  211:  39  X.  Y.  Supp. 

quire  the    same   formalities   and    the  810;  afTd,,  154  X.  Y.  750.) 


153 


TiiK    Pi;<)i!Aii;   ()i-    W'li.j.- 


§198. 


subscribed  bv  the  testator.*^^  The  signatures  of  the  attesting  Avit- 
nesses  need  not,  however,  innnodiately  follow  that  of  the  tcstacor; 
the  attestation  clause  niav  intervene,*^  but  nothing  more.**'  It  is 
not  essential  that  the  attesting  witnesses  should  each  subscribe  in 
the  presence  of  the  other.  As  has  already  been  observed,  the 
testator  may  sign  in  the  presence  of  one  witness,  and  afterward 
acknowledge  the  execution  to  another  witness.  Xor  is  it  neces- 
sary that  the  attesting  witnesses  sign  literally  in  the  presence  of 
the  testator.^'  Tf  they  sign  at  his  request,  although  in  an  adjoin- 
ing hall  out  of  his  siglit  (which,  according  to  the  English  cases,  is. 
not  in  his  ])resence),  it  is  sutticient,  though  their  signing  must  be 
done  at  the  time  of  the  execution  or  acknowledgment,  and  with 
the  knowledge  and  request  of  the  testator.** 

The  request  to  sign  as  witnesses  may  be  presumed,  as  where  twcK 
persons  are  called  in  to  witness  the  paper,  which  they  do,  in  the 
presence  of  the  testator,  he  at  the  same  time  subscribing  it,  and 
declaring  that  it  is  his  last  will  and  testament. ^'^    And  the  reading 


8-k  Rugg  V.  Rugg,  21  Hun,  383;  83  X. 
Y.  592.  See  Matter  of  Purdv,  46  App. 
Div.  33. 

S5  Williamson  v.  Williamson,  2  Redf. 
449. 

s<iln  :Matter  of  Hewitt  (91  X.  Y. 
261),  the  will  was  written  upon  two 
sides  of  the  paper;  the  suhserihing  wit- 
nesses signed  their  names  at  tlie  bot- 
tom of  the  first  side,  and  again  at  the 
top  of  the  second  side,  following  wliioh 
was  an  important  provision  of  the  will. 
Held,  that  the  witnesses  did  not  sign 
their  names  at  the  end  of  the  will.  In 
:\latter  of  Case  (4  Dem.  124),  the  will 
contained  disposing  cdauses  signed  by 
the  testatrix,  followed  by  an  attesta- 
tion clause,  signed  by  the  witnesses, 
and  thereafter  a  clause  nominating  an 
executor,  and  a  second  subscription  by 
the  testatrix  but  not  by  the  witnesses, 
and  it  appeared  that  the  whole  of  the 
writing  was  made  before  there  was  a 
sii:iiing  by  any  person.  Held,  that  the 
witnesses  did  not  sign  their  names  at 
the  end  of  the  instrument.  In  flatter 
of  Blair  (84  Hun.  581 ;  .32  X.  Y.  Supp. 
845;  afTd..  152  X.  Y.  645).  a  clause 
■was  added,  after  the  attestation  clause, 
just  prior  to  execution  of  the  will, 
which  was  signed  and  sealed  by  tes- 
tator after  the  testimonium  clause  and 
also  after  the  added  clause,  while  the 
witnesses  signed  only  after  the  attes- 
tation clatise.  Probate  was  refused. 
To  the  same  effect,  Matter  of  Albert, 


38  Misc.  61.  In  Matter  of  Xies  (13 
St.  Rep.  756),  testator  signed  at  the 
end  of  the  first  clause  of  the  will ; 
then  followed  a  second  clause,  ap- 
pointing an  executor,  followed  by  the 
attestation  clause,  at  the  foot  of  which 
the  witnesses  signed.  Probate  was  de- 
nied. The  presence  of  a  memorandum 
of  erasures  and  interlineations,  at  the 
end  of  the  attestation  clause,  is  not  to 
be  regarded.  (  McDonough  v.  Lough- 
lin.  20  Barb.  238.) 

^T  Ruddon  v.  McDonald,  1  Bradf. 
352;  Jackson  v.  Cliristman,  4  Wend. 
277;  Xeugent  v.  Xeugent,  2  Redf.  369; 
Herrick  v.  Snvder,  27  Misc.  462 ;  59 
X.  Y.  Supp.  229;  :\Iatter  of  Phillips, 
34  Misc.  442;  69  X.  Y.  Supp.   1011. 

88  Lyon  V.  Smith,  11  Barb.  124; 
S'paulding  v.  Gibbons,  5  Redf.  316. 

But  where  witnesses  to  a  will  signed 
it  out  of  the  presence  of  the  testatrix, 
and  thereafter  one  of  their,  brought  it 
back  and  gave  it  to  her,  and  the  testa- 
trix did  not  acknowledge  to  either  of 
them  that  it  was  her  will,  or  request 
one  of  the  witnesses  to  sign  the  same, 
the  execution  was  insuHicient  to  estab- 
lish the  will.  (:Matter  of  Kivlin's  Will. 
37  :Misc.  1S7;  74  X.  Y.  S.  937.) 

'^a  Butler  V.  Benson,  1  Barb.  526. 
And  see  Doe  v.  Roe,  2  id.  200;  Brown 
V.  De  Selding,  4  Sandf.  10;  Hutchings 
V.  Cochrane.  2  Bradf.  295.  Compare 
^Matter  of  Kauze.  X.  Y.  Law  J..  A])ril 
21,  1893.     In  Brady  v.  McCrosson   (5 


^.5*  199,  200.  The  Pkobate  of  Wills.  154 

of  the  attestation  clause  in  the  testator's  presence,  subsequently 
to  the  witnesses  signing,  stating  that  they  signed  at  his  request, 
without  objection  from  him,  may  be  regarded  as  an  adoption  of  a 
request  to  that  effect.^*'  A  request  to  only  one  witness  to  sign  is 
not  enough;  at  least  without  constructive  request  to  the  other.^^ 
Where  there  are  three  witnesses,  at  least  two  of  them  must  act 
in  compliance  with  the  statute. ^^  But  it  should  be  obser^'ed  that, 
although  the  statute  declares  that  each  witness  must  sign  at  the 
testator's  request,  it  does  not  prescribe  the  manner  and  form  in 
which  the  request  must  be  made.  Xo  precise  form  of  words, 
addressed  to  each  of  the  witnesses  at  the  very  time  of  the  attesta- 
tion, is  required.  Any  communication  importing  such  request, 
addressed  to  one  of  the  %vitnesses,  in  the  presence  of  the  other, 
and  which,  by  a  just  construction  of  all  the  circumstances,  is 
intended  for  both,  is  sufficient. ^^ 

§  199.  Sequence  of  acts  of  execution,  etc. —  The  order  in  which 
the  formal  acts  of  execution  and  publication  prescribed  by  the 
statute  should  be  done,  is  not  imperative,  except  that  the  attesta- 
tion by  the  signing  of  the  witnesses  must  be  after  the  testator's 
execution.^'*  If  the  testator  subscribes  after  the  witnesses  sign, 
he  must  subsequently  acknowledge  his  subscription  in  their 
presence. 

§  200.  Witnesses'  additions. —  The  validity  of  the  will  is  not 
affected  bv  the  omission  of  mtnesses  to  affix  their  residences  to 


Kedf.  431),  the  decedent  requested  A.  mission,  is  sufficient.  (Matter  of  Mc- 
to  ask  a  scrivener  to  come  and  draw  Graw,  9  App.  Div.  372;  41  N.  Y.  Supp. 
liis  will,  at  the  same  time  stating  that  481 ;  Matter  of  Nelson.  141  N.  Y.  1.52; 
he  wished  A.  to  be  a  witness.  On  a  56  St.  Rep.  678.)  Not  so.  however, 
subsequent  day, —  that  of  the  execu-  where  he  is  shown  to  have  been  under 
tion, —  A.  and  another  signed  as  sub-  the  influence  of  opiates  at  the  time, 
scribing  witnesses  in  decedent's  pres-  (Matter  of  Lyman,  14  Misc.  352;  36 
ence,  after  the  will  had  been  read  in    N.  Y.  Supp.  117.) 

their   presence,   nothing  further   being        94  Jackson  v.  Jackson,  39  N.  Y.  153; 
said  to  A.  about  signing,  but  the  other   Rugg  v.  Rugg,  21  Hun,  383. 
witness    being    duly    requested.      Held        95  Sisters    of    St.    Vincent,    etc.    v. 
a  sufficient  request  to  A.  Kelly,  67  N.  Y.  400 ;  Lvman  v.  Phillips, 

9"  Stewart's  \Yill,  2  Redf.  77.  And  3  Dem.  459:  Matter' of  Phillips,  98 
see  Smith  v.  Smith,  40  How.  Pr.  318.        N.  Y.  267.  Where  a  will  was  subscribed 

91  Rutherford  v.  Rutherford,  1  Den.  by  the  testatrix  in  the  presence  of  the 
33.  witnesses,  and  was  declared  by  her  to 

92  Lyon  V.  Smith,  11  Barb.  124;  Car-  be  her  will,  and  they  subsequently 
roll  V.  Norton,  3  Bradf.  291;  Hoysradt  signed  in  her  presence  and  at  her  re- 
v.  Kingman,  22  N.  Y.  372.  quest,  although  the  declaration  and  re- 

93  Coffin  V.  Coffin,  23  N.  Y.  9 ;  Peck  quest  were  made  before  testatrix 
V.  Cary,  27  id.  9 ;  Gilbert  v.  Knox,  52  signed.  Held,  that  the  will  was  prop- 
id.  12.5.  Thus  a  request  to  witnesses  erly  executed.  (INIatter  of  Williams,  2 
to  sign  a  will  made  by  one  superin-  Connoly,  579;  aflfd.,  19  N.  Y.  Supp. 
tending  its  execution  in  the  hearing  of    778.) 

the  testator  and  with  his  silent  per- 


151 


The  Pkubatk  of  Wu.ls. 


§  201, 


tlioir  signatures,  as  rcqiiircHl  ])y  the  statute,'**'  or  liv  the  omission 
of  any  person  who  signs  the  testator's  name  by  his  direction,  to 
"write  his  own  name  as  a  witness;  but  the  statute  imposes  a  penalty 
for  omission  so  to  do.''*' 

^  201,  Proof  of  observance  of  requisite  formalities. —  It  is  not 
■essentiul  that  each  subscribing  witnesis  shouhl  Ijc  abh-  to  testify 
that  all  the  formalities  required  by  law  were  complied  w^ith."* 
Where  the  witnesses  are  dead,  or,  from  lapse  of  time,  do  not  re- 
member the  circumstances  attending  the  attestation,  if  there  are 
no  circimistances  of  suspicion,  and  all  the  evidence  then  existing 
has  been  produced,  a  proper  execution  of  the  will  may  be  pre- 
sumed, particularly  where  the  attestation  clause  is  full,**^  and  even 
though  there  be  no  attestation  clause  at  all.^  Indeed,  a  will  may 
be  admitted  to  probate  (both  the  \vitnesses  being  dead)  notwith- 
standing proof  of  declarations  by  one  of  them  to  the  effect  that 


96  2  R.  S.  63,  §  41;  Matter  of  Phil- 
lips, 98  X.  Y.  2(57. 

ST  See  Dodge  v.  Cornelius,  168  N.  Y. 
242. 

9S  Jauneev  v.  Thome,  2  Barb.  Ch.  40  ; 
Weir  V.  Fitzgerald,  2  Bradf.  42?  New- 
Tiouse  V.  Godwin,  17  Barb.  2.'J6;  Matter 
of  Graham.  30  St.  Rep.  202;  9  N.  Y. 
Supp.  122:  Matter  of  Hardenburg,  So 
Hun,  580;  33  N.  Y.  Supp.  150,  and 
<?ase9  infra.  Evidence  as  to  the  publi- 
cation and  other  formalities  of  execu- 
tion by  illiterate  testatrix  was  consid- 
ered, sustaining  probate,  in  Matter  of 
Voorhis,  27  St.  Rep.  368;  7  N.  Y.  Supp. 
596;  motion  for  reargument  denied  in 
9  id.  201;  30  St.  Rep.  620;  affd..  125 
N.  Y.  765 ;  and  in  Matter  of  Bedell,  32 
St.  Rep.  1022. 

Oil  Butler  v.  Benson,  1  Barb.  526; 
Matter  of  Pepoon.  01  N.  Y.  255;  Mat- 
ter of  Sears,  33  Misc.  141;  68  N.  Y. 
Supp.  363;  Matter  of  Brissell,  16  App. 
Div.  137;  45  N.  Y.  Supp.  122.  To  the 
same  effect,  see  Clieency  v.  Arnold,  18 
Barb.  434;  Nelson  v.  McCIiffcrt.  3  Barb. 
Ch.  158;  Ilunn  v.  Case,  1  Rcdf.  .307; 
Van  Hooser  v.  Van  Hooser,  id.  365 ; 
IMoore  V.  Griswold,  id.  388.  And  see 
Ivawrence  v.  Norton.  45  Barb.  448 ; 
Rider  v.  Legg,  51  Barb.  260;  Matter  of 
Kellum,  52  N.  Y.  517;  Sarvent  v.  Hes- 
<lra.  5  Redf.  47;  Matter  of  Frey,  26  St. 
Rep.  425;  7  N.  Y.  Supp.  330;*  Matter 
of  Sanderson,  9  Misc.  574;.  30  N.  Y. 
Supp.  848;  Matter  of  Klett.  3  Misc. 
:385;  24  N.  Y.  Supp.  721;  Matter  of 
De  Haas,  19  App.  Div.  266;  46  N.  Y. 
Supp.  189. 


"If  the  recollection  of  botb  wit 
nesses  fail,  the  will  may  be  admitted  on 
testimony  of  others  who  can  recall  the 
facts,  and  even  by  the  recitals  in  a 
full  attestation  clause,  where  there  has 
been  a  considerable  lapse  of  time  be- 
tween the  date  of  tbe  instrument  and 
the  examination  of  the  witnesses.  And 
Avliere  both  witnesses  are  dead,  and  n<i 
living  person  can  testify  to  the  facts 
that  took  place  at  the  execution  of  the 
will,  proof  of  the  handwriting  of  the 
signatures  of  the  testator  and  tbe  wit- 
nesses, with  the  recitals  in  a  full  at- 
testation clause,  will  suflice.  The  law 
is  thus  liberal  tliat  tlie  intentions  of  a 
testator  may  not  be  frustrated  by  the 
accident  of  death  or  the  infirmities  of 
memory,  when,  for  want  of  l>etter 
pi  oof,  the  court  is  satisfied  that  tiie 
paper  was  executed  in  good  faitli  as  a 
testamentarv  instrument."  (Per  Ran- 
som, S.,  in  Matter  of  Wilt.  N.  Y.  Law 
J..  Nov.  25,  1891.) 

1  ^Matter  of  Briggs.  47  App.  Div.  47  ; 
62  N.  Y.  Supp.  294.  In  tliat  case  the 
will  offered  for  probate  was  wholly  in 
the  testator's  handwriting  and  con- 
tained no  attestation  clause;  tlie  sig- 
natures of  the  testator,  and  of  the  sub- 
scribing witnesses,  who  were  dead,  were 
proved,  as  was  the  fact  that  tiie  will 
was  found  among  testator's  papers, 
and  a  notarv,  a  friend  of  the  testator, 
testified  that  in  1890  the  latter 
brought  tlie  paper  to  the  ofiice  of  the 
witness,  stated  it  was  his  will,  and 
asked  the  witness  to  "  freshen  it  up." 
since  it  was  made  so  long  before  that  it 


§  202.  Tkk  Pkobate  of  Wills,  15(>- 

the  will  was  a  forgery,  and  that  he  had  fabricated  it.^  But  where 
the  will  was  only  recently  executed,  the  presumption  is  not  so 
strong,  and  in  one  case,  where  not  more  than  three  months  had 
intervened  between  the  execution  of  the  will  and  the  application 
for  probate,  and  neither  of  the  witnesses  could  remember  any 
testamentary  declaration,  it  was  held  that  due  execution  of  the 
w^ll  could  not  be  presumed,  and  probate  was  refused.^ 

§  202.  Will  signed  by  mark. —  Some  difficulty  has  been  en- 
countered ill  applying  to  cases  of  wills  signed  by  a  mark,  the  pro- 
vision of  the  statute  that  in  case  of  the  death,  absence,  or  dis- 
ability of  one  or  all  the  subscribing  witnesses,  "  the  will  may 
nevertheless  be  established  upon  proof  of  the  handwriting  of  the 
testator  and  of  the  subscribing  witnesses,  and  also  of  such  cir- 
cumstances as  would  be  sufficient,"  ^  and  upon  this  question  the 
decisions  of  the  different  Surrogates'  Courts  are  not  in  harmony. 
It  has  now  been  decided,  however,  by  the  appellate  court,  that 
a  will  signed  by  a  mark  may  be  admitted  to  probate  upon  proof 
of  the  formal  requisites  by  one  witness,  the  other  being  dead.^ 

might   be   supposed   that  a   later   will  statute  requires  the  testator  to  either 

existed :   told  the  witness  the  eircum-  sign     in     the     witness's    presence,     or 

stances  of  its  execution,  which   corre-  acknowledge     his     signature,     and     to 

sponded   with   the   legal    requirements,  prove  the  will  the  witness  must  testify 

desired  the  witness  to  sign  it  as  wit-  to  either  one  or  the  other  of  such  requi- 

ness,  or  take  the  testator's  acknowledg-  sites,  either  of  which  would  be  proof 

ment,    whereupon    an    acknowledgment  of    the    handwriting    of    the    deceased; 

was  drawn  by  witness  which  the  testa-  that,  hence,  when  the  statute  prescribes 

tor  signed  and  swore  to  before  him, —  proof  must  be  made  of  tlie  lumdwriting 

Held,  that  the  proof  of  execution  was  of  the  testator,  some  further  evidence, 

sufficient.  or  evidence  of  further  witnesses,  is  re- 

2  Matter  of  Hesdra,  119  X.  Y.  015;  quired.  If  the  section  cited  referred 
28  St.  Eep.  810.  In  flatter  of  Kane  only  to  the  cases  where  some  attesting 
(2  Connoly,  249),  a  will  containing  a  witness  survived  or  could  be  produced, 
full  attestation  clause  was  admitted  to  there  would  be  great  force  in  this  ob- 
probate,  notwithstanding  testimony  of  jection.  But  the  provision  of  the  Code 
surviving  subscribing  witness  that  he  is  general,  and  applies  to  cases  where 
signed  before  testatrix.  See  flatter  of  the  testimony  of  no  attesting  witness 
Menge,  13  ilisc.  553;  35  X.  Y.  Supp.  can  be  obtained.  We  think  that  we  are 
493.  not  warranted   in   limiting  the   provi- 

3  Wilson  V.  Hetterick,  2  Bradf.  427.  sions  of  this  section  to  the  proof  of 
■*  Co.  Civ.  Proc,  §  2020.  handwriting  by  others  than  the  attest- 
5  Matter  of  Wilson,  76  Hun,  1  ;    27    ing  witnesses.   It  is  possible  to  imagine 

N.  Y.  Supp.  957,  overruling  flatter  of  cases  where  our  construction  would 
Walsh,  1  Tuck.  132,  and  Matter  of  Rey-  perhaps  render  fraud  more  easy,  but 
nolds,  4  Dem.  08.  and  approving  Mat-  such  a  danger  is  more  imaginary  than 
ter  of  Dockstader,  0  id.  100;  ^Matter  real.  On  the  other  hand,  to  uphold  the 
of  Hyland,  27  X.  Y.  Supp.  901 ;  Matter  rule  laid  down  by  the  surrogate  will 
of  Kane,  20  id.  123.  See  also  flatter  cause  many  properly  executed  wills  to 
of  Murphy,  15  Misc.  208;  37  X.  Y.  fail  without  any  fault  or  neglect  on 
Supp.  223.  In  the  Wilson  case  the  testator's  part.  The  current  of 
(supra)  the  court  said:  "The  only  practice  and  authority  being  against 
objection  to  the  sufficiency  of  proof  that  rule,  we  think  that  it  should  not 
by  a  single  surviving  attesting  wit-  be  upheld."' 
ness     is,     that     in     every     case     the        In  the  absence  of  evidence  that  tes- 


157  The  PuoiiAii.  <.i    Wii.i.n.  §203. 

It  is  obvious  that  "  the  circumstances  which  would  be  sufficient 
to  prove  the  will/'  including  the  making-  of  the  mark,  are  prov- 
able by  any  persons  who  were  present  at  the  time  of  the  execu- 
tion, and  this  has  been  held  to  be  sufficient.'^  But  where  no  j)er- 
sons,  other  than  the  witnesses,  were  present,  or  if  present,  are  not 
producible,  and  only  one  of  the  su])S('ril)ing  witnesses  is  alive  or 
})roducible,  then  (as  the  testator  had  no  handwTiting),  ''  tlie  cir- 
cumstances," except  as  proved  by  the  surviving  witness,  may  be 
difficult  to  discover.  The  recitals  of  a  full  attestation  clause  con- 
stitute a  prime  factor  in  the  proof  of  the  circumstances  they 
relate;^  the  books  of  the  deceased  subscribing  witness  showing  a 
receipt  of  money  for  drawing  the  will,  the  fact  that  the  will,  on 
its  face,  is  a  natural  one,  that  it  is  intelligently  drawn  and  couched 
in  the  language  of  the  law  appropriate  to  such  documents,  all  aid 
to  prove  the  factum,  and,  taken  in  connection  with  the  unim- 
jDeached  testimony  of  the  surviving  witness,  should  be  ''  sufficient 
to  prove  the  will."  ® 

§  203.  Recitals  in  attestation  clause  as  proof. —  The  attestation 
clause,  so  called,  under  which  the  witnesses  sign,  if  it  recites  fully 
the  observance  of  the  several  formalities  of  signing,  publication, 
request,  and  witnessing,  may  be,  and  in  some  cases  is,  an  essential 
factor  in  the  proponent's  proof  —  that  is,  it  may,  by  the  prosuni])- 
tion  it  raises,  supply  the  want  of  testimony  by  a  subscribing  wit- 
ness who  has  since  died,  or  who  is  out  of  the  jurisdiction,  or  after 
a  lapse  of  time,  it  may  supply  the  \\'itness's  want  of  memory  of 
the  transaction.^  Even  after  the  lapse  of  a  period  of  less  than 
four  niiiuths  from  tlie  execution  of  the  will,  probate  has  been 
granted  on  the  recitals  in  the  attestation  clause,  when  one  of  the 
witnesses  could  not  be  produced,  and  the  other  was  not  positive 
whether  or  not  testator  signed  before  the  ^^atnesses  signed.^**  In 
the  absence  of  an  attestation  clause  there  is  never  a  presumption 

tator  actually  made  the  mark  offered  requisite     fdrmalities    were    observed. 

as  the  sifjnatiire  to  the  will,  one  wit-  was  suflicient  proof, 

ness   having    died  and  the   other    fwt  0  Brown  v.  Clark.  77  X.  Y.  SOD;  Mat- 

having   seen    the    mark    made, —  Held,  ter  of  Klett.   .3  ]Misc.   .38.5;   flatter  of 

that  probate  must  be  denied.     (Matter  Carev,  14  id.  4S(i :  .3(1  X.  Y.  Siipp.  817: 

of  Porter,  1  :\Iisc.  202;  22  X.  Y.  Supp.  affd.!    24    App.    Div.    .531:    Matter    of 

10G2.)  Schweiirert.    17    Miso.    18(5:    40    X.    Y. 

"Simpson's  Will.  2  Redf.  29.  Supp.  il7!):    Matter  of  Menjje.   13  Misc. 

7  See  §  203.  post.  .5;53 ;    35    X.   Y.    Supp.    403.   and   cases 

sin  :Matter  of   Dockstader   (6   Dem.  infra. 
100;    19  St.  Rep.  245),  the  testimony  i">  Matter  of  Harkins,  X.  Y.  Law  J., 
of   a   sole   surviving   witness   that   she  May  20.  1892.    Compare  Matter  of  Old- 
signed   the   testatrix's   name   and   saw  ham.  X.  Y.  Law  J.,  Dec.  10,  1890;  ante, 
ter  make  her  mark,  and  that  the  other  §   194.  note  58. 


§  203. 


The  Probate  of  Wills. 


158 


of  due  execution,  publication,  etc.  ;^^  on  the  other  hand  the  want 
of  such  clause  creates  no  presumption  against  the  fact  of  due 
execution. ^^  Standing  alone,  it  can  hardly  be  said  to  be  evidence 
of  the  truth  of  its  recitals  ;^^  in  connection  with  oral  testimony,, 
weight  will  be  given  it,  according  to  the  circumstances  of  the 
case.^"*  But  it  is  settled  that,  notwithstanding  a  lapse  of  tjime  — 
say  a  year  after  its  execution  —  any  presumption  in  favor, of  the 
truth  of  the  recitals  is  destroyed  by  the  testimony  of  the  witnesses 
themselves  on  the  trial,  in  contradiction  thereof,^^  and  an  untrue 
recital  materially  affects  its  value. ^^  Where  there  is  a  full  and 
complete  attestation  clause,  properly  signed,  the  will  may  be  ad- 
mitted, even  against  the  direct  testimony  of  the  sole  surviving- 
witness  ;^'  but  where,  for  example,  the  publication  of  the  will  was 


11  Dochvorth  v.  Crow,  1  Dem.  256. 

12  Leavcraft  v.  Simmons,  3  Bradf.  35. 
See  Chaiffee  v.  Baptist  Miss.  Conv.,  10 
Paige,  85 ; .  Matter  of  Burk,  2  Redf . 
239;  Matter  of  Crane,  68  App.  Div. 
355 ;  74  N.  Y.  Supp.  88. 

13  Matter  of  Look,  26  St.  Rep.  745; 
7  N.  Y.  Supp.  298;  Matter  of  Delprat, 
27  Misc.  355. 

14  See,  <,'enerally,  Morris  v.  Porter.  52 
How.  Pr.  1 ;  Hunn  v.  Case,  1  Redf.  307 ; 
Van  Hooser  v.  Van  Hooser,  id.  S65. 

15  Woolley  V.  Woolley,  95  N.  Y.  231 ; 
Matter  of  Higgins,  94  id.  554;  Burke 
V.  Nolan,  1  Dem.  436 ;  Rumsey  v.  Gold- 
smith, 3  id.  494;  Matter  of  Dale,  56 
Hun,  169;  afTd..  134  N.  Y.  614; 
Rutherford  v.  Rutherford.  1  Den.  33; 
Matter  of  Gibhardi,  N.  Y.  Law  J., 
Nov.  14.  1890.  See  contra.  Matter  of 
Van  Houten,   15  Misc.    196. 

i«5  Matter  of  Turrell,  28  Misc.  106: 
59  N.  Y.  Supp.  780. 

17  Matter  of  Bernsee,  141  N.  Y.  389; 
57  St.  Rep.  601.  In  Matter  of  Cottrell 
(95  X.  Y.  329),  there  was  an  attesta- 
tion clause  in  due  form,  signed  by  a 
man  and  wife  with  whom  the  testator 
had  boarded.  Both  witnesses  testified 
that  none  of  the  formalities  required 
by  law  were  complied  with  in  their 
presence,  and  they  denied  that  either 
was  present  at  the  execution  or  signed 
the  attestation  clause.  Yet  the  will 
was  sustained,  it  being  shown  that  both 
the  will  and  the  signature  at  its  end 
were  in  the  handwriting  of  the  testa- 
tor, that  during  his  sickness  he  had 
said  that  his  will,  which  he  described 
as  executed  with  the  two  witnesses  as 
present,  was  either  among  liis  papers 
or  in  the  hands  of  his  executor,  and 


it  was,  in  fact,  found  among  his  papers. 
Though  the  will  was  in  his  own  hand- 
writing, it  was  proven  that  it  had  been 
more  or  less  copied  from  a  previous 
will.  It  was  also  shown  to  the  satis- 
faction of  the  court,  by  the  opinions  of 
experts  who  had  made  a  comparison  of 
the  signatures  of  the  witnesses  to  the 
attestation  clause,  Avith  others  admit- 
ted to  be  theirs,  that  they  were  identi- 
cal. The  court  said:  "It  was  always 
considered  to  afford  a  strong  presump- 
tion of  compliance  with  the  require- 
ments of  the  statute  in  relation  to  the 
execution  of  wills,  that  they  had  been 
conducted  under  the  supervision  of  ex- 
perienced persons,  familiar  not  only 
with  the  forms  required  by  law,  but 
also  with  the  importance  of  a  strict 
adlierence  thereto." 

In  Orscr  v.  Orser  (24  N.  Y.  51).  a 
will  was  attested  by  two  witnesses,  one 
of  whom  was  dead,  and  the  other  testi- 
fied that  the  will  was  not  signed,  or 
the  signature  thereto  acknowledged  in 
his  presence,  and  that  it  was  not  de- 
clared by  the  testator  to  be  his  will. 
The  attestation  clause  recited  a  perfect 
compliance  with  the  provisions  of  the- 
statute :  and  the  signatures  of  the  tes- 
tator and  the  deceased  witness  were 
shown  to  be  genuine.  The  deceased 
witness  Avas  in  the  habit  of  drawing 
wills,  and  was  familiar  with  the  requi- 
sites to  due  execution,  and  the  certifi- 
cate or  attestation  clause  was  in  his 
handwriting.  On  the  other  hand,  the 
witness  who  was  sworn  had  never  been 
called  upon  to  witness  a  will,  and  kncAV 
nothing  of  the  formalities  required. 
Held,  sufficient  to  sustain  a  verdict 
that  the  will  was  dulv  executed.     In 


159 


TiiK   Pkobatk   ok   Wills, 


§  204. 


not  recited,  though  the  will  was  holographic,  and  the  only  sub- 
scribing witness  who  was  called  to  testify  could  not  recollc<'t  that 
anything  was  said  by  the  testator  b}^  which  witness  could  infer 
that  the  paper  was  a  will,  though  many  years  had  elapsed,  probate 
was  denied.^**  In  another  case,  however,  where  tlie  attestation 
clause  did  not  state  that  the  witnesses  signed  at  the  request  of  the 
testator,  and  the  surviving  witness  testified  that  he  signed  at  the 
re(iuest  of  the  other  (deceased)  witness,  and  not  at  that  of  testator, 
though  in  his  presence,  and  it  apjieared  that  both  the  testator  and 
the  deceased  witness  who  drew  the  will  were  experienced  lawyers^ 
it  was  hehl  that  the  in-esuniption  was  in  favor  of  the  due  obs<-rv- 
ance  of  all  the  formalities  and  that  probate  was  rightly  granted.^* 

5<  204.  Weight  of  evidence  of  subscribing  witnesses. —  The  testi- 
mony of  the  subscribing  witnesses  has  no  eontr<^)lling  effect,  and 
may  be  rebutted  by  other  evidence,  either  direct  or  circumstantial; 
although,  on  account  of  their  direct  participation  in  the  trans- 
action, their  testimony  has  great  weight.^^  Indeed  they  may  be 
contradicted,    and   the  will   sustained   even   in   opposition   to   the 


Matter  of  Pepoon  (91  N.  Y.  2.5.5),  the 
witnesses  (the  attestatifm  clause  being 
in  due  form,  and  the  will  executed 
more  than  fourteen  years  before  the 
death  of  the  testatrix)  testified  in  sub- 
stance that  they  had  not  a  clear  recol- 
lection of  wliat  occurred  at  the  time 
of  the  execiition;  that  they  nuist  liave 
read  or  heard  read  and  understood  tlic 
purport  of  the  attestation  clause,  as 
they  never  signed  any  document  with- 
out knowing  its  contents,  and  that  they 
would  not  have  signed  if  the  facts 
stated  in  said  clause  had  not  occurred. 
One  of  them  also  testified  that  the  sig- 
natures of  the  testatrix  and  two  wit 
nesses  were  made  in  tlie  presence  of 
each  other,  and  that  he  recollected  that 
said  clause  was  read  or  that  he  heard 
it  read.  It  was  held  that  the  evidence 
justified  the  probate  of  the  will. 

In  Peebles  v.  Case  (2  Pradf.  226), 
two  wills,  bearing  the  same  date,  and 
purporting  to  be  attested  by  the  same 
witnesses,  were  pronoundcd.  The  wit- 
nesses testified  to  the  execution  of  one, 
and  disclaimed  all  knowledge  of  the 
other;  and  yet,  upon  proof  of  their 
handwriting,  and  tliat  of  the  testator, 
and  i)roofs  by  memoranda  of  the  testa- 
tor, and  otiierwisc,  it  was  held  that  the 
latter  was  established  as  the  will.  See 
Lane  v.  Lane.  0.5  N.  Y.  494:  Taylor  v. 
Brodhead,  5  Eedf.  624 ;  Milligan  v.  Al- 


len, 18  Week.  Dig.  485;  Matter  of 
Rounds,  7  St.  Rep.  730 ;  Rolla  v. 
Wright,  2  Dem.  482;  Matter  of  Kane, 
2  Connoly,  249. 

18  Matter  of  Pennevet.  N.  Y.  Law  J., 
Feb.  2:i,   1893. 

19  Matter  of  Nelson,  141  X.  Y.  1.52; 
56  St.  Rep.  678. 

^i»  Orser  v.  Orser,  24  X.  Y.  51.  The 
testimony  of  persons  who  were  acci- 
dentallj'  present  at  the  execution  of 
a  will  is  not  entitled  to  the  same 
weight  as  that  of  the  subscribing 
witnesses.  (Matter  of  Higgins,  94 
X.  Y.  554;  Humphreys*  Estate,  1  Tuck. 
142.)  Such  third  jjcrsons  are  com- 
petent to  corroborate  the  testimony 
of  one  of  the  subscribing  witnesses. 
(Matter  of  Bernsee,  45  St.  Hep.  11  :  17 
X.  Y.  Supp.  669. )  Failure  to  call  such 
witness  on  the  part  of  the  proponents 
Avdien  the  subscribing  witnesses  contra- 
dicted each  otiier  in  almost  every  par- 
ticular,—  Held,  to  discredit  the  sub- 
scribing witness  whose  testimony  pro- 
])onents  relied  on.  and  to  strengthen 
the  presumption  that  the  testimony  of 
the  other  subscribing  witness  was  true. 
(Ib.)^  See  Matter'of  Fitzgerald.  .33 
^risc.  325,  where  probate  was  granted 
upon  the  testimony  of  a  third  person 
(legatee)  in  ojiposition  to  both  sub- 
scribing witnesses. 


§  204.  The  Pkobate  of  Wills.  IGO 

positive  testimony  of  one  or  more  of  the  subscribing  witnesses, 
who,  either  mistakenly  or  corruptly,  swear  that  the  fonnalities 
required  by  the  statute  were  not  complied  with,  if,  from  other 
testimony  in  the  case,  the  court  or  jury  is  satisfied  that  the  con- 
trary was  the  fact.^^  If  the  attesting  witnesses  contradict  each 
other  as  to  the  formalities  of  execution,  the  surrogate  is  not, 
therefore,  bound  to  pronounce  against  the  validity  of  the  will,  but 
may  give  credence  to  the  affirmative  rather  than  the  negative 
testimony. ^^  The  positive  recollection  of  one  such  witness  will 
not  be  overcome  by  the  nonrecollection  of  the  other.^^  Proof  of 
the  handwriting  of  the  testator,  and  of  the  subscribing  witnesses, 
will  justify  a  decree  of  probate,  even  against  the  j)ositive  testi- 
mony of  both  the  witnesses  that  they  had  never  acted  as  such.^"* 
And,  in  such  a  case,  other  things  being  equal,  the  testimony  of 
la\\'j'ers  will  outweigh  that  of  laymen."'' 

21  Jauncey  v.  Thorne,  2  Barb.  Ch.  40;  Matter  of  Graham,  30  St.  Eep.  292; 
Chaffee  v.  Baptist  ;Missionarv  Conven-  Whitfield  v.  Whitfield,  19  Week.  Dig. 
tion,  10  Paige,  8.5;  Peebles  v.  Case,  2  380;  Ruag  v.  Paigg.  83  X.  Y.  592. 
Bradf .  22G ;  Jackson  v.  Christman,  4  24  Matter  of  Cottrell,  95  N.  Y.  329. 
Wend.  277;  Orser  v.  Orser,  24  X.  Y.  2.5  Huin])hrevs"  Estate,  1  Tuck.  142; 
51;  Kinne  v.  Kinne,  2  Sup.  Ct.  (T.  &  Xeiheisel  v.  foerge,  4  Redf.  328;  Mat- 
C.)  391;  Rugg  V.  Rugg,  83  X.  Y.  592;  ter  of  McKenna,  10  St.  Rep.  971;  Mat- 
Theological  Seminary  v.  Calhoun,  25  ter  of  Merriain,  42  id.  019;  10  X.  Y. 
id-  422;  Peck  v.  Gary.  27  id.  9:  Supp.  738:  Matter  of  Snelling,  44  St. 
Reeye  v.  Crosby,  3  Redf .' 74 ;  Matter  of  Rep.  477;  17  X.  Y.  Supp.  083. 
Fitzgerald,  33  Misc.  325;  08  X^.  Y.  A  will  containing  a  full  attestation 
Supp.  032;  Matter  of  Stoek^vell,  17  clause  subscribed  by  three  witnesses, 
Misc.  108;  40  X.  Y^  Supp.  734.  — admitted  to  probate  upon  the  testi- 

As  to  uncertainty  or  conflict  in  wit-  mony  of  one  of  them,  an  attorney-at- 

Tiess's  testimony  generally,  see  ^Matter  law,   who  drew  the  will,   showing  full 

of  Forman.  54  Barb.  274:  McKinley  v.  formal     execution     thereof,     notwith- 

Lamb.  56  id.  284;   Merchant's  Estate,  standing    the  testimony  of    the   other 

1  Tuck.  151.  two    witnesses,  neither    of    whom  was 

22  Theo.  Seminary  y.  Calhoun,  25  X.  shown  to  know  the  essential  elements 
Y.  422.  And  see,  as  to  the  effect  of  of  a  yalid  execution  of  a  will,  to  the 
conflict  or  uncertainty  in  witnesses'  effect  that  there  had  been  no  publica- 
testimony    as    to    publication,    Matter  tion.     (Egan  v.  Pease,  4  Dem.  301.) 

of  Forman,  54  Barb.  274;  Xewton's  Es-  In  Matter  of  Kummer  fX.  Y.  Law  J., 
tate,  1  Tuck.  349;  Lawrence's  Will,  id.  Apr.  30,  1892),  each  of  the  subscrib- 
243 ;  Hopper's  Estate,  id.  378 ;  Mer-  ing  witnesses  testified  with  positive- 
chant's  Estate,  id.  151 ;  flatter  of  Bo-  ness  that  they  signed  the  will  before 
gert,  6  Ciy.  Proc.  Rep.  128:  ^Matter  of  the  testatrix  made  her  signature;  but 
Look,  20  St.  Rep.  745:  7  X.  Y.  Supp.  the  notary  who  dre^y  and  superin- 
298.  But  due  execution  and  publication  tended  the  execution  testified  that  the 
cannot  be  established  by  the  testimony  signing  by  testatrix  was  first ;  that  he 
of  one  of  the  subscribing  witnesses  had  been  a  notary  for  fifteen  years,  and 
against  that  of  the  other,  where  there  durinsj  that  time  had  drawn  and  super- 
is  no  attestation  clause  and  the  testi-  intended  the  execution  of  at  least  a 
mony  of  such  witness  is  discredited  by  dozen  wills  and  knew  what  was  requi- 
contrary  statements  made  about  the  site  for  a  valid  execution.  The  mother- 
time  of  the  alletred  execution.  (Matter  in-law  of  the  residuary  legatee,  a 
of  Barber,  92  Hun,  489;  37  X'.  Y.  Supp.  stranger  to  decedent  in  blood,  also  tes- 
235.)  tified  that  the  signing  by  the  testatrix 

23  Morris  v.  Porter,  52  How.  Pr.  1 ;  preceded   that   of  the  witnesses.    "  As 


161  The  Pkobate  of  Wills.  §  205. 

SUBDIVISION  3. 
testatob's  knowledge  of  contents  of  the  will. 

§  205.  Object  of  statutory  requirement. —  As  already  stated,^  the 
object  of  the  statiitorv  ro([uireinent  that  the  testator  declare  in 
the  presence  of  each  witness  that  the  instrument  is  his  will,  is  to 
secnre  him  against  being  fraudulently  induced  to  execute  a  Anil, 
while  he  is  under  the  belief  that  he  is  signing  some  other  than  a 
testamentary  paper.  His  knowledge  that  he  is  executing  such  a 
paper  will  be  sometimes  inferred  from  the  fact  of  its  publication 
and  the  circumstances  attending  the  ceremony  of  execution;  the 
fact  that  the  paper  was  in  testator's  oaati  handwriting  goes  far 
toward  creating  a  presumption  of  such  knowledge;  but  an  issue 
in  a  probate  case  may  be,  whether,  notwithstanding  the  obser\'ance 
-of  all  the  fonnalities  of  execution  and  publication,  the  testator  had 
a  competent  knowledge  of  the  contents  of  the  paper.  For  the 
will  offered  for  probate  must  be  fhe  will  of  the  testator,  and  of 
no  one  else;  it  cannot  be  said  to  be  his  will,  if  he  was  ignorant  of 
its  contents.  Something  more  needs  to  be  said,  on  this  subject,  in 
amplification  of  the  observations  already  made  under  the  head  of 
puhlication  of  ivill. 

A  testator  who  executes  a  will  without  knowing  and  compre- 
hending its  contents,  cannot  be  said  to  be  capable.  It  has  been 
said  by  an  eminent  judge,  in  one  case,  that  a  testator  may,  if  he 
likes,  authorize  another  person  to  make  a  will  for  him,  and  may 
say:  '*  I  do  not  know  what  you  have  put  doAm,  but  I  am  quite 
ready  to  execute  it."  ""  But  this  doctrine  has  been  declared,  by 
another  equally  eminent  judge,  to  be  at  variance  \\\\\\  one  of  the 
first  principles  of  testamentary  law."^  The  testator's  knowledge 
of  the  contents  of  the  will  forms  a  part  of  the  proposition  that  a 
vnW  was  made,  and  stands  upon  a  like  footing  with  general  testa- 
mentary capacity.""^     That  the  testator  did  know  and  approve  of 

the  two  subscribinji  witnesses  were  lay-  Cresswell,   CunlitTe  v.   Cross,  3   Sw.   & 

men,   and  not  informed   in   respect   to  Tr.  38. )     The  same  rule  was  adopted  in 

what  was  essential  for  the  execution  of  Middlohurst  v.  Jolinson,  30  L.  J.  P.  M. 

legal  papers,  I  believe  tliat  their  mem-  &  A.  14. 

orv  must  be  at  fault.     The  will  is  ad-  2S  Per  Sir  J.  Wilde,  Hastilow  v.  Sto- 

mitted."     (Per  Pvansom,  S.)  bio.  L.  R..  1  P.  &  D.  G4. 

20  See  §  194,  OH^e.  29  To    make    a    will    valid,    testator 

2"  And  aceordingly  it  was  hold  that  must  know  the  contents  before  execu- 

a  plea  was  bad  which   alleged  tliat  a  tion.  and    tliat    fact    must    be    shown, 

codicil  was  not  in  conformity  with  the  Subsequent    ratification    is    not    sufli- 

testator's  instructions,  and  that  he  was  cient.     (Matter  of  White,   15  St.  Rep. 

ignorant  of  its  contents.     (Per  Sir  C.  753.) 
11 


206. 


The  Pkobate  of  Wills. 


162 


the  contents  of  the  alleged  will  is,  therefore,  part  of  the  burden 
of  proof  assumed  by  every  one  who  propounds  it  as  a  will. 

§  206.  Presumption  of  knowledge  of  contents. —  A  very  strong 
presumption  of  the  testator's  knowledge  and  approval  of  the  con- 
tents of  the  w'ill  arises  from  the  fact  that  he  read  it,  and  then 
formally  executed  it.  Indeed,  it  has  been  claimed  that  such  read- 
ing is  conclusive  on  the  question  of  a  competent  testator's  knowl- 
edge. In  one  case  ^^  the  court  charged  the  jury  that,  if  they  were 
satisfied  that  the  testator  read  the  contents  of  the  will,  they  were 
bound  to  find  that  he  knew  and  approved  them.  But  it  cannot  be^ 
said  that  there  is  any  rigid  rule  by  which,  when  you  are  once 
satisfied  that  a  competent  testator  has  had  his  will  read  over  to 
him,  and  has  thereupon  executed  it,  all  further  inquiry  is  shut 
out.^^  Unquestionably  there  is  danger  in  holding  a  rule  that  any 
man  of  sound  mind,  who  has  put  his  hand  to  an  instrument,  after 
having  had  that  instrument  read  over  to  him,  can  have  meant 
otherwise  than  w^hat  he  said;  nevertheless,  the  circumstances  of 
the  case  may  be  such,  that  the  court  or  jury  should  be  satisfied 


30  Lord  Penzance,  in  Atter  v.  Atkin- 
son (L.  R.  1  P.  &  D.  664,  670),  said:  "If, 
being  of  sound  mind  and  capacity,  the 
testatrix  read  this  residuary  clause,  the 
fact  that  she  afterward  put  her  sioma- 
ture  to  it,  is  conclusive  to  show  that 
she  knew  and  approved  of  its  contents. 
Reflect  upon  the  contrary  proposition. 
Suppose  that  a  long  will,  with  a  num- 
ber of  complicated  arrangements,  is 
read  to  a  competent  testator,  and  is 
executed  by  him  :  if  we  were  permitted, 
some  time  after  his  death,  to  enter  into 
a  discussion  as  to  how  far  he  under- 
stood and  appreciated  the  bearings  of 
all  the  different  parts  of  the  will,  we 
should  upset  half  the  wills  in  the  coun- 
try. Once  get  the  facts  admitted  or 
proved,  that  a  testator  is  capable,  that 
there  is  no  fraud,  that  the  will  was 
read  over  to  him,  and  that  he  put  his 
hand  to  it,  and  the  question  whether  he 
knew  and  approved  of  the  contents  is 
answered."' 

81  Fulton  V.  Andrew,  L.  R.  7  H.  L. 
43S:  1.5  Moak,  67.  In  that  case  Lord 
Hatherly  said:  "  Xo  doubt  those  cir- 
cumstances aflford  very  grave  and 
strong  presumption  that  the  will  has 
been  duly  and  properly  executed  by  the 
testator;  still  circumstances  may  exist 
which  may  require  that  something 
further  shall  be  done  in  the  matter 
than  the  mere  establishment  of  the  fact 


of  the  testator  having  been  a  person  of 
sound  mind  and  memory,  and  also 
having  had  read  over  to  him  that 
which  had  been  prepared  for  him  and 
which  he  executed  as  his  will.  It  is  im- 
possible, as  it  appears  to  me,  in  the 
case  where  the  ingredient  of  fraud  en- 
ters, to  lay  down  any  clear  and  unyield- 
ing rule  like  this.  One  is  strongly  im- 
pressed ^vith  the  consideration  that, 
according  to  the  natural  habits  and 
conduct  of  men  in  general,  if  a  man 
signs  any  instrument,  he  being  compe- 
tent to  vmderstand  that  instrument, 
and  having  had  it  read  over  to  him, 
there  is  a  very  strong  presumption 
that  it  has  been  duly  executed,  and  that 
very  strong  evidence  is  required  in  op- 
position to  it  in  order  to  set  aside  any 
instrument  so  executed."'  It  was  ac- 
cordingly held,  that  though  the  jury 
found,  on  the  trial  of  separate  issues, 
1st,  that  the  testator  was  of  sound 
mind,  etc. ;  2d,  that  he  knew  and  ap- 
proved of  the  contents  of  the  will ;  yet 
having  found  for  the  contestant,  on 
the  issue,  whether  he  knew  and  ap- 
proved of  the  residuary  clause,  the  pro- 
ponents were  not  entitled  to  a  probate 
of  the  tohole  will.  It  should  be  added 
that,  in  this  ease,  the  circumstances  in- 
dicated fraud  oh  the  part  of  the  benefi- 
ciaries under  the  residuary  clause. 


163 


The  Pkobate  of  Will 


§207. 


that  it  was  not  only  read  over  to  him,  Imt  that  it  was  read  over  iu 
such  a  manner  that  the  discrei)ancy  between  the  instructions 
and  the  will  was  })roimlit  l)eforo  the  consideration  of  the  testator.^^ 
S  207.  In  case  of  impaired  faculties. —  Whatever  may  he  the  rule 
in  the  case  of  a  jx-rfcctly  cuniixtciit  and  capalde  testator,  the 
])rin('iple  is  clear  and  well  settled,  that  when  a  case  presents  any 
circiiinstances  naturally  calculated  to  excite  suspicion  —  such  as 
imj)airiiieiit  of  the  sense  of  sight  or  hearing,  the  physical  prostra- 
tion or  mental  weakness  of  the  testator,  or  the  beneficial  interest 
of  the  person  who  prepared  the  Avill  —  the  court  may,  and  it  is 
his  duty  to,  require  the  proponents  to  show  affirmatively,  as  a  con- 
dition of  probate,  that  the  testator  had  an  intelligent  knowledge 
of  the  contents  of  the  will."^  Thus,  a  testator  who  was  deaf  and 
dumb,^"*  or  was  blind,^^  or  was  unable  to  read  or  Avrite,^*"'  or  was 
illiterate,^^  or  was  enfeebled  by  old  age,  sickness,'"'®  intemperance, 
and  the  like  causes,  must  be  showni  not  onlv  to  have  read,  or  heard 


32Prr>batP  cannot  ho  sustained  if  it 
docs  not  appear  that  the  testator  had 
any  opportunity  to  learn  the  contents 
of  the  instrument  before  its  execution. 
(Matter  of  Hatten.  10  St.  Rep.  19.) 
See  Rundell  v.  Downing.  5  St.  Rep. 
2.5.3:  Hajran  v.  Yates.  1  Deni.  584: 
Rolhvafren  v.  Rollwacren.  r>  Sup.  Ct. 
(T.  &  C.)  402:  affd..  0.3  X.  Y.  .504. 
But  it  is  not  absolutely  essential  to 
the  validity  of  a  will  that  it  should 
be  read  I)y  or  to  testator  previous  to 
its  execution  by  him.  (Will  of 
Crumb.  0  Dem.  478.)  To  the  same 
eflFect.  see  Matter  of  Sheldon.  40  St. 
Rep.  Sfifl:  10  X.  Y.  Supp.  454:  Mat- 
ter of  Smith.  5.3  St.  Rep.  058:  24  X. 
Y.  Supp.  028:  Matter  of  Seagrist.  11 
:\risc.  188:  affd..  1  App.  Div.  015: 
15.3  X'.  Y.  082:  Matter  of  Hall.  5 
Misc.  401. 

^Vhere  a  testator  could  read  writing 
and  was  capable  of  transacting  busi- 
ness, his  kn..\vicdge  of  the  contents  of 
the  will  may  l)e  inferred,  even  though 
it  was  not  read  to  him.  (Matter  of 
:vretcalf.  10  Misc.  180:  38  X.  Y.  Supp. 
1131.)  In  the  absence  of  circum- 
stances showing  want  of  good  faith, 
knowledge  of  the  testator  as  to  the 
contents  of  the  will  is  sufficiently 
shown  by  testimony  of  the  drauglits- 
man  as  to  the  instructions  received 
from  the  testator  and  that  he  followed 
them.      (Matter   of   Seagrist.   si//>/a.) 

S3  Barry  v.  Boyle,  1  Sup.  Ct.  (T.  & 
(".)  422:  Townsend  v.  Bogart.  5  Redf. 
S3;    Hyatt    V.    Lunnin,    1    Deiu.    14; 


Cooper  V.  Benedict.  3  id.  130:  Heath 
v.  Cole,  15  Hun.  100:  .Jones  v.  .Tones, 
42  id.  563;  Matter  of  Green,  07  id. 
527.^  In  [Matter  of  Sampson  (X".  Y.  L. 
•T.,  .Tune  7,  1801.  X.  Y.  Surr.  Ct.) . 
the  court  said :  "  \Yith  the  advanced 
age  of  the  wife,  her  debilitated  con- 
dition for  years,  her  inability  to 
plainly  express  her  thoughts  in  speech, 
and  the  fact  that  the  instructions  in 
respect  to  its  provisions  had  come 
from  the  husband,  mere  jiroof  of 
formal  execution  was  not  suflicient  to 
admit  the  instrument  to  probate.  It 
was  incumbent  upon  the  proponent  to 
prove,  to  the  satisfaction  of  the  court, 
that  she  understood  the  provisions  of 
the  instrument,  and  that  they  expres- 
sed her  wishes  at  the  time  of  its 
execution." 

34  Matter  of  Perego.  05  Hun.  478: 
20  X".  Y.  Supp.  3!14 :  Matter  of  Brom- 
mer,  78  Hun.  Oil  :  28  X'.  Y.  Supp.  907. 

35  Fincham  v.  Edwards,  3  Curt.  63; 
Hemphill  v.  Hemphill,  2  Dev.  (X.  C.) 
291:  -1  Am.  Dec.  331:  \Veir  v.  Fitz- 
gerald. 2  Bradf.  42 :  Mowrv  v.  Silber, 
id.  133:  Matter  of  Clansman.  9  St. 
Rep.    182. 

3t!Van  Pelt  v.  Yan  Pelt.  30 
134:  Matter  of  Smith,  39  St. 
098:    15  X.  Y.   Supp.  425. 

37  Chaffee  v.  Baptist  Miss.  Conv.,  10 
Paige.  85 ;  Matter  of  Murphy.  15 
Misc.  208 :   37  X.  Y.  Supp.  223.  " 

38  Matter  of  De  Castro,  32  Misc. 
193:  06  X.  Y.  Supp.  239. 


Barb. 
Rep. 


§§  208,  209.  The  Pkobate  of  Wills.  1G4 

read,  the  contents  of  the  will,  hut  he  must  be  showTi  to  have  com- 
prehended their  meaning.  In  all  such  cases  large  latitude  wall 
be  allowed  in  the  admission  of  any  evidence  tending  to  show  that 
the  testator  had  full  knowledge  of  the  contents  of  the  ^viW^ 

subdivisio:n:  4. 

TESTAMENTARY    CAPACITY. 

§  208.  Testamentary  age. —  To  entitle  a  wall  to  be  admitted  to 
probate,  it  must  appear  that  the  testator,  at  the  time  of  executing 
the  will,  was  of  an  age  competent  to  execute  it,  and  of  sound 
mind  and  memorv.'*^  It  should  appear  that  the  testator,  if  a  male, 
was,  at  the  time  of  executing  the  will,  if  it  relates  to  pei*sonal 
property  only,  of  the  age  of  eighteen  years  or  upward,  and  of 
the  age  of  sixteen  years  or  upward  if  a  female;'*^  and  if  relating 
to  real  property,  of  lawful  age,  viz.,  twenty-one  years.^^  Courts 
will  always  examine  the  circumstances  attending  the  execution  of 
a  minor's  wall  with  more  than  usual  care  to  see  that  it  really 
represents  the  deliberate  and  intelligent  wash  of  the  testator,  and, 
if  this  is  doubtful,  will  refuse  probate.*^ 

§  209.  Citizenship. —  It  is  commonly  averred,  in  the  petition  for 
the  proof  of  a  will,  that  the  testator  was  a  citizen  of  the  United 
States;  but  this  is  not  necessary.  The  testator's  citizenship  does 
not  affect  his  power  to  dispose  by  will,  but  only  his  right  to  hold 
real  property  in  this  State.     One  who  is  civilly  dead,  e.  g.,  a  con- 


39  Lake  v.  Ranney,  33  Barb.  49;  child  was  born,  at  whose  birth  he  at- 
Matter  of  Carver,  23  N.  Y.  Supp.  753.  tended,  unless  sustained  by  proof  of 
Where  it  appeared  that  testator,  at  its  truth.  But  the  mother  of  the  tes- 
the  execution  of  the  will,  was  weak,  tator  is  a  competent  witness  to  prove 
stupid,  and  at  times  delirious,  and  did  the  time  of  his  birth.  (Matter  of 
not  understand  the  will  when  read  to  Paifje,  G2   Barb.  476.) 

him,      and      the      physician      testified        42  2  R.  S.  56,   §    1  ;   L.   1867,  c.  782, 

against  his  mental  capacity  to  under-  §    3.     Before   the  Revised   Statutes,   a 

stand  it,  the  question  as  to  the  execu-  married  woman  could  make  a  will  of 

tion  should  go  to   a  jury  before  pro-  her    separate    personal    estate,    which 

bate.      (Matter  of  Totten.  21   St.  Rep.  would   l)e  valid   in  a  court  of  equity: 

050.)      See  Matter  of  Anderson,  18  id.  but    those    statutes    took     away    the 

517.  right.     By  the  Married  Woman's  Act 

40  2  R.  S.  .56,  60,  §§  1,  21;  L.  1867.  of  1849,  the  right  was  restored,  and 
c.   782,  §§  3,  4.  in     1867    the    Revised    Statutes    were 

41  2  R.  S.  GO,  §  21 ;  L.  1867,  c.  782,  amended  so  as  to  express  the  same 
§  4.  The  policy  of  this  statute  is  ex-  rule.  (Moehring  v.  Thayer,  How.  App. 
plained  in  Townsend  v.  Bogart  (5  Cas.  502;  Wadhams  v.  American  Home 
Redf.  93).  The  nonage  of  the  testa-  Miss.  Society,  12  N.  Y.  415.)  But  a 
tor  cannot  be  shown  by  declarations  married  woman,  who  is  a  minor,  has 
of  the  testator  as  to  his  age,  nor  by  a  no  more  power  than  if  she  were  single, 
memorandum  in  the  handwriting  of  a  to  devise  her  real  estate.  (Zimmer- 
physician  and  surgeon,  in  an  account-  man  v.  Schoenfeldt,  3  Hun,  692.) 
book   kept   by   him,    of   the   time   the        43  Seiter  v.  Straub,  1  Dem.  204. 


165  The  Pi^ouatk  of  Wills.  §  210. 

vict,  may  still  make  a  valid  will."*"*  In  the  case  of  the  will  of  a 
Tionresident  of  the  State,  the  fact  of  the  testator's  residence,  either 
at  tlie  time  of  making  the  will  or  at  his  decease,  may  become 
material. ^^ 

^  210.  Mental  capacity.—  The  statute  relative  to  wnlls  of  real 
property  declares  that  all  "  persons,  except  idiots,  persons  of  un- 
sound mind,  and  infants,"  may  devise  their  real  estate.'*"  The 
statute  relative  to  wills  of  personal  property  declares  that  per- 
sons of  certain  ages  or  upward,  "  of  sound  mind  and  memory," 
and  no  others,  may  bequeath  personal  estate.'*^  Xo  difference  of 
principle  is  intended  by  this  difference  of  language.  The  general 
j)rinci])le  applicable  to  both  classes  of  cases,  as  deduced  from  the 
authorities  to  which  we  shall  presently  refer  in  more  detail,  is 
that,  to  be  of  sound  mind  and  menujry  within  the  intent  of  cither 
of  these  statutes,  the  testator  must,  at  the  time  of  executing  the 
will,  have  had  sufficient  capacity  to  comprehend  the  conditions  of 
his  property,  aiul  his  relations  tow^ard  the  persons  Avho  are,  or 
might  be,  the  objects  of  his  bounty,  and  the  scope  and  bearing  of 
the  provisions  of  his  will.'*^  Mere  imbecility,  old  age,  or  weak- 
ness of  mind  and  body  does  not  incapacitate,  if  there  be  sufficient 
understanding  to  satisfy  the  foregoing  rule.^^  According  to  the 
doctrine  of  Stewart  v.  Lispenard,^^  the  test  of  testamentary 
ca]iacity  in  each  case  is,  liad  the  testator  capacity  to  make  any 
will?  and  that  reference  cannot  be  had  to  the  nature  of  the  will 
and    the    claims    on    the    testator's    benefactions,    to    determine 


44  Stophani   v.   Lent,   .30   Misc.   346;  Ilun.  4(52;   20  N.  Y.  Supp.  404:   M.at- 
C3  N.  Y.   Supp.  471.  tor  of  Flansburcrh.  82  Hun.  40:   31  N. 

45  See  ante.  §   1.52.  Y.   Supp.    177:    Matter   of   Seaprist.   1 

46  2  R.   S.  ,56.    §   1;   L.    1807,  c.   782,  App.   Div.    615;    37   N.   Y.   Supp.   496; 
§  3:   L.  1896.  c.  547.  153   N.   Y.   682;   Matter   of   Oarev.    14 

47  2  R.  S.  60.  §  21:  L.  1867.  c.  782,  Miso.  486:   36  N.  Y.  Supp.  817:"Mat- 
§  4.  tor   of   Tredale.   53   App.    Div.    45:    65 

4SThis  is  the  rule  established  in  N.  Y.  Supp.  533. 
ndafic'd  V.  Parish  (25  N.  Y.  9.  as  ex-  49  Horn  v.  Pullman,  72  N.  Y.  269; 
plained  in  1  Rodf.  204) .  and  reiterated  Cornwell  v.  Riker,  2  Deni.  354:  Mat- 
in Van  Guyslintr  v.  Van  Kuren  (35  ter  of  Weil.  5  St.  Rep.  303:  Matter 
X.  Y.  70),  and  Tyler  v.  Gardiner  (35  of  Gross,  14  id.  429;  Matter  of  Met- 
id.  559),  niodifvin<]r  to  some  extent  the  oalf,  10  Misc.  ISO:  38  N.  Y.  Supp. 
doctrine  laid  down  in  Stewart  v.  Lis-  1131;  Matter  of  Halbert,  15  Misc. 
penard  (20  Wom\.  255),  and  other  308;  37  N.  Y.  Supp.  757;  Matter  of 
l>rior  cases.  (Kinne  v.  .Johnson,  60  Seajjrist,  1  App.  Div.  015;  153  X.  Y. 
I'.arb.  00.)  The  doctrine  of  the  prin-  082:  :\ratter  of  IMcGraw.  0  id.  372:  41 
cipal  case  is  discussed  in  Sheldon  v.  X.  Y.  .Supp.  481  :  Matter  of  Pike.  S3 
Dow,  1  Dom.  503,  and  approved  in  Hun.  327:  31  X.  Y.  Sup]i.  0S9 :  ^Mat- 
Matter  of  .lohnson.  7  Misc.  220:  27  ter  of  Harris.  19  Misc.  388;  44  X.  Y. 
X.  Y.  Supp.  049;  Matter  of  Lewis.  81  Supp.  341;  Matter  of  Dixon.  42  App. 
Hun,  213:  30  X.  Y.  Supp.  075;  Mat-  Div.  481:  59  X.  Y.  Supp.  421. 
ter  of  Townsend.  75  Hun.  593 ;  27  N.  50  26  Wend.  255. 
Y.   Supp.   003;    Matter  of  Skaats,   74 


§  211.  .     The  Probate  of  Wills.  166 

whether  he  had  a  sufficient  degree  of  intelligence  to  make  a  will 
Vv'ith  reference  to  the  complexity  of  those  circumstances.  By  the 
rule  now  settled,  reference  may  be  had  to  the  nature  of  the  par- 
ticular case,  and  the  question  is,  whether  the  testator  had  sufficient 
intelligence  to  be  capable  of  acting  ^vith  sense  and  judgment  in 
leference  thereto.^^  Hence,  where  it  appeared  that  at  the  time 
the  will  was  executed,  the  testator  was  suffering  from  a  mental 
disease,  which  resulted  shortly  thereafter  in  a  total  loss  of 
mentality,  the  mere  fact  of  such  disease  was  declared  to  be  imma- 
terial, the  question  being  whether,  at  the  time  of  executing*  the 
will,  the  disorder  had  so  far  progressed  as  to  seriously  impair  his 
faculties  and  prevent  an  intelligent  disposition  of  his  property."^ 

Jj  211.  Insane  delusions. —  The  doctrine  that  any  insane  delusion 
incapacitates  from  making  a  will  has  commanded  the  assent  of 
some  high  authorities.  But  the  weight  of  authority  and  the  bet- 
ter opinion  accord  with  the  rule  settled  in  this  State,  by  which 
mental  capacity  is  measured  in  this,  as  in  every  other  legal  aspect, 
by  its  relation  to  the  act.  Hence,  a  person  having  any  insane 
delusion  relating  either  to  the  property,  to  the  persons  concerned, 
or  to  the  provisions  of  the  will,  is  incapable ;  while  delusions  which 
in  no  way  relate  to  these  do  not,  as  matter  of  law,  incapacitate, 
for  they  involve  no  more  likelihood  of  actual  incapacity  than  many 
other  latent  causes.^^  A  person  may  have  an  insane  belief  or 
delusion  as  to  one  or  more  subjects,  and  not  as  to  others.  The 
question,  in  respect  to  the  testamentary  capacity,  in  the  abstract, 
is,  had  the  testator,  at  the  time,  a  sufficiently  sound  mind  to  make 
a  will ;  but  practically,  in  most  cases,  the  question  is,  had  the 
testator  a  sufficiently  sound  mind  to  make  the  will  in  question. 
There  is  but  one  standard  of  testamentary  capacity  known  to  the 
law  of  this  State,  and  that  is  embraced  in  the  inquiry,  was  the 


51  So  far  as  they  followed  Stewart  person  is  forgetful,  and.  at  times, 
V.  Lispenard,  the  follo\\nng  cases  must  labors  under  slight  delusions,  does  not 
be  considered  overruled  by  more  recent  per  se  establish  want  of  testamentary 
ones:  Blanchard  v.  Nestle,  3  Den.  .37 :  capacity.  (Children's  Aid  Society  v. 
Person  V.  Warren,  14  Barb.  488:  New-  Loveridge.  70  N.  Y.  387:  ^Matter  of 
house  A'.  Godwin,  17  id.  236;  Oster-  Vedder,  6  Dem.  02;  Cornwall  v.  Riker, 
hout  V.  Shoemaker,  3  Den.  37,  note:  2  id.  3.54;  ]Matter  of  Wi'liams,  40  St. 
Petrie  v.  Shoemaker,  24  Wend.  8.5.  Rep.  356 :  2  Connolv.  57r> ;  15  N.  Y. 
Compare  Clarke  v.  Sawver.  2  N.  Y.  Supp.  828;  affd.,  4G\St.  Rep.  791:  19 
498:  Cornwell  v.  Riker. '2  Dem.  354;  N.  Y.  Supp.  778:  :\ratter  of  Hopkins, 
Potter  V.  McAlpine,.3  id.  108.  6  St.  Rep.  300:  Matter  of  Bucklev,  16 

52  Matter  of  Lawrence.  48  App.  Div.  id.  983 ;  Coit  v.  Patchen,  77  N.  Y. 
83:  62  N.  Y.  Supp.  673;  Hoey  v.  533:  Matter  of  Folts.  71  Hun,  492; 
Hoey,  53  App.  Div.  208.  24  N.  Y.  Supp.  1052;  Matter  of  Rich- 

53  See  Bonard"s  Will,  16  Abb.  Pr.  ardson.  51  App.  Div.  637;  64  N.  Y. 
(N.   S.)    128.     The  fact  that  an  aged  Supp.  944.) 


167 


The  Pkobatk  ok   Wills. 


g:.M 


decedent  compos  mentis,  or  non  compos  menlis,  as  those  terms  are 
settled  in  the  hiw,  at  the  time  of  the  exwmtion  of  the  instru- 
ment.^"' A  man's  ability  to  transact  his  ordiiiai-v  business  witji 
judgment  and  discretion  is  very  strong,  if  not  conclusive,  evi- 
dence of  testamentary  caj^acity.^^  A  monomaniac  may  make  a 
perfectly  valid  will,  if  the  delusion  which  affects  the  general 
soundness  of  his  mind  has  no  relation  to  the  subject  or  object  of 
the  will,  or  the  persons  who  would  otherwise  be  likely,  ordinarily, 
to  be  the  recipients  of  his  bounty;  or  where  the  provisions  of  the 
will  are  entirely  unconnected  with,  and  uninfluenced  by,  the  par- 
ticular delusions;  on  the  other  hand,  if  the  will  is  the  result  of 
that  particular  delusion  which  has  seized  his  mind,  and  controls 
its  operations,  it  is  no  will.'^^  Thus  probate  Avas  refused  -where  the 
will  gave  all  the  property  to  the  testator's  widow,  to  the  exclusion 
of  his  children,  on  the  ground  that  he  was  a  monomaniac  on  the 
subject  of  his  children,  that  he  had  the  insane  delusion  that  they 
Avere  his  enemies  and  were  combined  against  him  to  rob  him  of 


54  White  V.  Ross,  48  St.  Rop.  50n. 

55  Matter  of  Birdsall.  34  St.  Rep. 
C2();  13  N.  Y.  Supp.  421.  A  person 
having  capacity  suflicient  to  acquire  a 
large  fortune  by  personal  industry 
and  intelligence,  who  successfully  con- 
ducts a  large  business,  whose  business 
correspondence  shows  a  clear  compre- 
hension of  the  subjects  upon  which  he 
writes,  and  who  is  pronounced  by  his 
Intimate  friends  of  sound  mind,  and 
of  more  than  ordinary  intelligence 
and  firnmess,  will  not  be  considered 
as  incompetent  to  make  a  will  simply 
because  lie  exhibits  eccentricities  of 
character  in  regard  to  liimself,  is  sub- 
ject to  fits  of  melancholy  in  regard  to 
his  liealth,  even  amounting  to  hypo- 
chondria. (Brick  V.  Brick,  OCi  N.  Y. 
144.)  See  Dobie  v.  Armstrong,  1(50 
id.  084. 

Confirmed  drunkanls. —  The  prin- 
ciples of  law  applicable  to  the  avoid- 
ance of  wills  by  reason  of  the  drunk- 
enness of  testators  were  exhaustively 
considered  in  Peck  v.  Cary  ('27  N.  Y. 
9).  The  testator  in  that  case  was  a 
young  man,  a  confirmed  drunkard, 
who  had  more  than  once  attempted 
suicide:  "It  is  not  the  law  that  dis- 
sipated men  cannot  make  a  contract 
or  execute  a  will,  nor  that  one  who  is 
in  tlie  liabit  of  excessive  indulgence  in 
strong  drink  must  be  wholly  free 
from  its  inllucnce  when  performing 
such  acts.     If  fixed  mental  disease  has 


supervened  upon  intemperate  habits, 
the  man  is  incompetent  and  irre- 
sponsible for  his  acts.  If  he  is  so 
excited  by  present  intoxication  as  not 
to  be  master  of  himself,  his  lejal  act-; 
are  void  though  he  may  be  responsible 
for  his  crimes"  (per  Denio.  C.  J.). 
To  the  same  effect  is  the  language  of 
Judge  Earle,  in  Van  Wvck  v.  Brasher 
(SI  X.  Y.  260),  who  says:  "A  drunk- 
ard is  not  incompetent  like  an  'diot 
or  like  one  generally  insane  He  is 
simply  incompetent  upon  proof  that, 
at  the  time  of  the  act,  his  understand- 
ing was  clouded  or  his  reason  de- 
throned by  actual  intoxication."  See 
^lattoi-  of  Fenton.  X.  Y.  Law  .1..  June 
22,  1893;  :\Iatter  of  Peck.  42  St.  Rep. 
898 ;  Matter  of  Reed,  2  Connolv.  403 : 
Matter  of  Halbert,  15  iMise.  308:  37 
X.  Y.  Supp.  7o7 ;  Matter  of  ^Voolsey, 
17  Misc.  547:  41  N.  Y.  Supp.  263: 
flatter  of  Johnson.  7  Misc.  220 :  27 
X.  Y.  Supp.  649. 

5fi  Lathrop  \.  American  Boaril,  t)7 
Barb.  590;  Stanton  v.  Wctherwax.  16 
id.  263;  Seamen's  Friend  Societv  v. 
Hopper,  33  X.  Y.  624;  Burdin  v.  Wil- 
liamson, 5  Hun,  560:  Miller  v.  White, 
5  Redf.  320 :  Matter  of  Ziegler,  47  St. 
Rep.  491:  Matter  of  Cannon,  2  Misc. 
329;  21  X.  Y.  Supp.  960:  Matter  of 
Iredale,  53  App.  Div.  45:  65  X.  Y. 
Supp.  533;  :\Iatter  of  Lapham.  19 
Misc.  71;  44  X.  Y.  Supp.  90. 


§211. 


TiiK   Pkobatk  of  Wills. 


168 


his  property,  leading  him  to  disown  them  as  his  chiklren  and  to 
disinherit  them  from  any  sliare  in  his  property,  which  they  had 
assisted  him  in  accumulating;  and  that  such  tendency  and  delusion 
were  aggravated  by  the  undue  influence  of  the  stepmother  of  his 
children,  although  the  surrogate  found  that  he  was  rational  and 
competent  to  transact  business  upon  other  subjects.^^  Wherever 
it  appears  from  the  evidence  that  the  will  was  unnatural  in  its 
provisions  and  inconsistent  with  the  duties  and  obligation  of  the 
testator  to  his  family,  the  burden  is  imposed  upon  the  proponent 
of  giving  some  reasonable  explanation  of  its  unnatural  character, 
or  at  least  of  showing  that  it  was  not  the  result  of  mental  defect, 
obliquity,  or  jierversion.^^  But  a  man's  right  to  dispose  of  his 
estate  depends  neither  upon  the  justice  of  his  prejudices  nor  the 
soundness  of  his  reasoning.  Thus  where  a  testator  in  making 
provision  for  his  daughter  believed  her  to  be  insane,  it  is  not 
sufficient  to  show  merely  that  his  belief  was  unfounded;  it  must 
have  been  an  insane  belief  —  a  delusion. ^^ 


57  Matter  of  Dornian,  5  Dem.  112. 
To  the  same  effect,  see  Esterbrook  a\ 
Gardner  ( 2  Dem.  543 ) ,  where  pro- 
bate of  a  codicil  was  refused  of  a 
woman  of  advanced  years  and  feeble 
health  by  which  she  di.-inherited  her 
daughter,  with  whom  she  was  living 
liappily.  in  the  absence  of  proof  as  to 
condition  of  testatrix's  mind.  But 
probate  will  not  be  refused  on  such 
considerations  as  that  the  will  is 
mean,  unjust,  and  inequitable ;  or  that 
it, withholds  the  absolute  ownership  of 
decedent's  property  from  his  own 
children,  or  makes  unequal  provisions 
for  them ;  or  that  public  sentiment 
and  the  moral  sense  of  the  community 
condemn  the  instrument  and  its  author. 

(Potter  V.  McAlpine,  3  Dem.  108; 
Matter  of  Finn,  1  Misc.  280 :  22  N.  Y. 
.Supp.  106G.)  Compare  Matter  of  Shaw, 
2  Redf.  107;  Lathrop  v.  Borden,  5 
Hun,  5G0 ;  Stanton  v.  Wetherwax,  16 
Barb.  259 ;  '  Seamen's  Friend  Society 
V.  Hopper,  33  K  Y.  619;  Riggs  v. 
American  Tract  Society,  05  id.  503 ; 
Morse  v.  Scott,  4  Dem.  507 :  Matter 
of  McCue,  14  Week.  Dig.  501:  Bull  v. 
Wheeler,  5  Dem.  123;  Matter  of  Weil, 
16  St.  Rep.  1:  Matter  of  Fricke,  47 
id.  10:   19  N.  Y.  Supp.  315. 

58  Matter  of  Budlong.  54  Hun,  131; 
18  Civ.  Pro.  18;  affd.,  126  X.  Y. 
423.  See  Matter  of  White,  121  N. 
Y.  406.  Testamentary  capacity  in 
a  case  in  which  testator  changed 
his     will,     which    gave     absolute     be- 


quests, by  a  codicil  which  gave  life 
interests,  only,  to  his  children,  was 
sustained  in  Matter  of  Dates,  35  St. 
Rep,  338:  12  X.  Y.  Supp.  205.  In 
Matter  of  Hamersley  (Dailv  Reg.> 
Jan.  8,  1886),  a  will  was  adm'itted  to 
probate,  where  the  testator's  nearest 
relatives,  beside  his  wife,  were  uncles 
and  aunts  and  the  children  and  grand- 
children, of  uncles  and  aunts  de- 
ceased, and  the  will  gave  his  wife  his 
entire  estate  with  a  power,  exercisable 
in  a  certain  contingency,  of  making  a 
testamentary  disposition  of  the  prin- 
cipal for  general  purposes  of  charitv. 
5<JHovt  V.  Hovt,  9  St.  Rep.  731; 
Matter  of  O'Dea,"  84  Hun,  591 ;  33  N. 
Y.  Supp.  463;  Matter  of  Suvdam,  84 
Hun,  514;  32  N.  Y.  Supp.  449; 
affd.,  152  X.  Y.  639;  Matter  of 
Bedlow,  67  Hun,  408.  In  Matter  of 
Gannon  (2  Misc.  329;  21  X.  Y.  Supp. 
960)  the  will  was  set  aside,  notwith- 
standing the  jury  found  that  testator 
had  testamentary  capacity,  because 
they  also  found  he  had  a  delusion  as 
to  the  fidelity  of  his  wife,  whom  he 
deprived  of  any  portion  of  his  prop- 
erty. But  in  Matter  of  Smith  (53  St. 
Rep.  658),  probate  was  granted  not- 
\\ithstanding  testator's  erroneous  be- 
lief that  the  contestant  was  not  his 
son.  In  that  case  it  was  said  that,  to 
constitute  a  delusion  there  must  be  a 
belief  in  the  existence,  as  a  fact,  of 
something  which  does  not  exist:  such 
belief   must   be   without   basis   for   its. 


160  TiiK  Vin)UATi-:  OF  Wills.  §  212. 

§  212.  Burden  of  proof  as  to  mental  capacity. —  A  prima  facie 
case  being  laatlc  out,  probate  will  be  granted,  unless  a  contestaut^ 
either  by  the  cross-examination  of  the  subscribing  witnesses  them- 
selves, or  by  other  witnesses,  successfully  impeaches  the  pro- 
ponent's witnesses.  The  proponent  is  bound  to  show  general 
competency  to  perform  ordinary  business  transactions,  and  hav- 
ing done  this,  the  burden  is  shifted  from  the  proponent;  and  the 
contestant  must  show  that  at  the  time  of  the  execution  of  the  will 
the  testator  labored  under  a  delusion,  aberration,  or  weakness  of 
mind  f^  or  that  the  will  was  obtained  by  undue  influence.''^  But 
w^here  the  testator  could  neither  read,  write,  nor  speak,  or  was  a 
feeble  and  aged  person,  or  had  previously  been  adjudged  incom- 
petent,^^ there  should  be  not  only  proof  of  the  factum  of  the  will, 
but  also  that  the  mind  of  the  testator  accompanied  the  act;  that 
he  knew^  and  understood  the  contents  of  the  instrument  and  that  it 
expressed  his  Avill.^^ 

There  is  an  apparent  inconsistency  and  want  of  reasonableness 
in  requiring  the  proponent  to  prove  as  a  fact  wdiat  the  law  has 
invariably  declared  to  be  presumed  and  as  of  course.  It  has  never 
been  doubted,  as  the  law  of  England  and  of  this  country,  that 
"  every  person  is  presumed  to  be  of  perfect  mind  and  memory, 
unless  the  contrary  be  proved;"**^  and  yet  the  law  requires  evi- 
dence of  the  fact  as  requisite  to  the  probate  of  the  person's  will. 
It  is  true  that  the  subscribing  witnesses,  though  not  experts,  are 
allowed  to  satisfy  this  requirement  of  the  law.  by  expressing- 
naked  opinions  as  to  the  testator's  mental  capacity,  and  are  not 
required  to  state  any  facts  upon  which  they  base  their  opinions  — 

support,    sprinjiinp   up    witliout    cause  .Tones   v.   Jones,   4.3    St.    Rep.    434;    17 

in  the   iniatrination   of   the  person   en-  X.  Y.  Supp.  905. 

tertaininjj  it,  and  become  so  firmly  im-  "l  ^larvin    v.    Marvin,    3    Abb.    Ct. 

planted   in  the  mind   as  to  withstand  App.  Dec.   192:   4  Keyes,  9. 

such  evidence  and  argument  as  would  '''-  Afatter    of    Widmayer,    34    ^lisc. 

convince     reasonable     persons     of     its  439;  fi9  X.  Y.  Supp.   1014. 

falsity.      See    ^Matter    of    Lapham.    19  6?Rollwagen  v.  Kollwapen.  63  X.  Y'. 

Misc.    71;    44   X.   Y.    Supp.    90.      It   is  504:    Matter   of   O'Dea.   84   Hun,   591; 

proper  in  order  to  account  for  an  al-  33  17.  Y.  Supp.  403 :  Matter  of  Barbi- 

lejred    prejudice   ajjainst    his    children,  neau,   27   Misc.   417:    59   X.   Y.   Supp. 

which    they    claim    constituted    a    de-  375.      Burden   of    proof   that   the   tes- 

lusion,  to  show  that,  just  previous  to  tator  understood  the  nature  of  his  act 

the  execution  of  the  will,  the  children  is    upon   the    proponent.       (Rundell    v. 

attem])ted  to  have  testator  declared  a  Downing.  5  St.  Rep.  253.)      See  §  205, 

lunatic,  and  that  the  jury  found  him  ante. 

sane:   but  the  record  of  sucli   j)r()ceed-  64  Swinb.  45,  pt.  2,  §  3,  pi.  4.     And 

ings  is  incompetent  to  show  his  testa-  see     Ean    v.     Snyder,    40     Barb.     230; 

mentary  capacitv.     (Matter  of  Spring-  Brown   v.   Torrev,   24   id.   583:    Matter 

stead,  28  St.  Rep.  186;  8  X.  Y.  Supp.  of    Lai)ham,    19*  Misc.    71:    44    X.    Y. 

596.)  Supp.   90:   Matter  of  Dwver,  29  Misc. 

fio  Allen   v.   Public   Adm'r,    1    Bradf.  382;  01  X.  Y.  Supp.  003.' 
378:   Ramsdell  v.  Viele,   0   Dem.   244; 


§  213.  The  Probate  of  Wills.  170 

which  cannot,  of  course,  be  considered  of  any  value  as  evidence  — 
and,  therefore,  no  hardship  is  imposed  upon  the  proponent  of  the 
■vvilh  A  reasonable  explanation  of  this  anomalous  requirement, 
as  given  by  a  legal  writer,*'^  is  that,  by  requiring  the  proponent 
to  ask  the  opinion  of  the  subscribing  witnesses  upon  the  point  of 
testamentary  capacity,  or  apparent  capacity,  the  object  is  not  to 
prove  the  fact,  but  to  give  the  contestants  an  opportunity  of  cross- 
examining  these  confidential  witnesses  in  the  first  instance,  in  order 
to  become  apprised  of  what  passed  at  the  execution  of  the  wall ;  and 
the  law  will  not,  therefore,  compel  the  contestants  to  make  the  sub- 
scribing witnesses  their  own,  by  recalling  them  upon  any  point  in- 
volved in  the  entire  issue,  and  thereby  lose  the  advantage  of  cross- 
examination.  This  explanation,  in  which  we  concur,  will  not  in 
any  way  affect  the  question  of  burden  of  proof,  or  entitle  the  con- 
testant to  claim  the  right  to  go  forward  watli  his  case,  and  thus 
give  him  the  advantage  of  closing  the  proof  and  argument.  It 
may  be  said,  therefore,  that  so  strong  is  the  presumption  of 
sanity,  that  the  only  burden  on  the  proponent  is  to  produce  the 
subscribing  witnesses,  when  required  to  do  so,  and  obtain  their 
general  opinion  as  to  the  mental  capacity  of  the  testator  at  the 
time  of  the  execution  of  the  wull.  Not  more  than  this  is  re- 
quired, even  in  a  case  where  it  appears  that  there  had  been, 
formerly,  a  want  of  testamentary  capacity.^" 

§213.  Opinions  as  evidence  of  mental  capacity. —  The  ordinary 

rule,  as  it  is  generally  laid  down,  is  that  a  witness  cannot  give  his 
conclusions  from  facts,  but  must  state  the  facts,  leaving  the  in- 
ferences to  be  drawn  by  the  court  or  jury.  But  it  has  been  re- 
marked that  there  are  few  statements  of  fact  that  are  not  con- 
clusions of  fact;  and  that  the  true  line  of  distinction  is,  that  an 
inference  necessarily  involving  certain  facts  may  be  stated  with- 
es Redfield's  American  Cases  upon  years  after  making  his  will,  although 
Wills.  31,  note.  it    was    not    conclusive    upon    his    in- 

66  Brown  v.  Torrey,  24  Barb.  583 ;  sanity  at  the  time  of  making  the  ^yill, 
Potter  V.  McAlpine.  3  Dem.  108.  And  yet  threw  the  burden  of  proof  upon 
see  Ean  v.  Snyder,  46  Barb.  230.  But  the  proponents.  See  also  Matter  of 
compare  Jackson  v.  Van  Dusen  (5  Widmayer,  34  Misc.  439;  Gombault  v. 
Johns.  144),  where  it  was  held,  that  Public  Adnrr,  4  Bradf.  22G.  The  sur- 
after  a  general  derangement  has  been  rogate  will  exact  from  proponent  only 
shown,  the  other  side  must  show  that  slight  evidence  of  testator's  mental 
the  party  was  sane  at  the  very  time  capacity,  and  at  the  end  of  contest- 
the  act  was  performed ;.  and  flatter  ant's  proof,  further  evidence,  though 
of  Tayior  (1  Edm.  375),  where  it  was  not  strictly  in  rebuttal,  may  be  fur- 
held  that  the  fact  that  the  testator,  nished  by  the  proponent,  in  the  dis- 
two  years  before  making  his  will,  was  cretion  of  the  court.  (Hoyt  v.  Jaek- 
adjudgod  insane,  and  that  he  was  in-  son,  2  Dem.  443.) 
sane   at   the   time   of   his   death,    two 


171  TiiK  Phohatic  of  Witxs.  §213. 

out  the  fact, —  tlie  inference  being  an  equivalent  to  a  specifica- 
tion of  the  facts;  but  Avhen  the  facts  are  not  necessarily  involved 
in  tlu!  inference,  as  where  the  inference  may  be  sustained  upon 
any  of  several  distinct  phases  of  fact,  none  of  which  it  necessarily 
involves,  then  the  facts  must  be  stated.*'"  At  any  rate,  there  are 
certain  well-recognized  exceptions  to  the  rule  above  mentioned. 
Thus,  experts  may  give  their  opinions  upon  questions  of  trade, 
skill,  or  science,  from  the  facts  proven  or  the  circumstances  noted 
by  themselves;*'**  ami  in  respect  to  the  question  of  sanity,  the 
opinions  not  only  of  nicdical  experts,  but  of  nonprofessional  wit- 
nesses, are  in  some  cases  competent.^''  To  ]n*ov{'  capacity  or  in- 
capacity of  a  testator,  it  is  competent  to  prove  either  his  acts  and 
declarations,  showing  his  mental  condition,  or  the  ojiinions  of  wit- 
nesses upon  the  question.  Evidence  of  what  his  mental  condition 
was,  both  previously  and  subsequently  to  the  testamentary  act,  is 
admissible  as  tin-owing  light  upon  the  question  of  capacity  at  the 
time.'^*^ 

In  respect  to  the  com])eten('y  and  weight  of  the  opinions  of 
witnesses,  there  are  three  classes  to  be  considered:  1.  Medical 
experts;  who  are  specially  capable  of  forming  an  opinion  by 
reason  of  their  professional  acquaintance  with  mental  disorders. 
2.  The  subscribing  witnesses  to  the  will;  who,  though  they  be  not 
experts,  are,  by  reason  of  their  essential  connection  with  the 
testamentary  act,  allowed  to  express  their  convictions  as  to  the 


CT^Yharton  on  Ev.    (2d  ed.).§§436,  455:    affd..    88    X.   Y.    357),   the   con- 

507.  510;  Abb.  Trial  Ev.  IKi.  testant    offered    in    evidence    a    diary 

««  Hewlett  V.  Wood,  55  N.  Y.  634.  kept    by   the    testatrix    in    whicli,    be- 

60  Fagnan  v.  Knox,  40  N.  Y.  Siipr.  sides  a  statement  of  facts  and  events, 

41.   53 ;    Clapp  v.   Fullerton,  34  N.   Y.  there    were    expressions    of    lier    senti- 

190.  nients  toward  her   sister,  the  contest- 

"0  Matter  of  Conistock.  20   St.   Rep.  ant,  and  of  lier  interest   in,  and  fond- 

202;    7    N.   Y.    Supp.    334;    Matter    of  ness    for,    the    chief   beneficiary    under 

lirunor,   21   App.   Div.   259.     Repeated  her  will.     Held,  that  as  to  these  latter 

statcn'ients  of  testamentary  intentions,  expressions,     the     memoranda     of     tlie 

made     to     ac<iuaintances,     may     have  diary  were  admissible   as   l)carinjr   np- 

Avei^ht    in    ascertaiiiing    whetlier    the  on  the  probability  of  decedent  makini; 

■wiii  accorded  with  liis  mind.      (O'Xeil  such  a  will  as  the  one  propounded,  if 

V.   Murray,   4  Rradf.   311.)      See  Mat-  in  her  sound  mind;  but  tluit  all  state- 

ter  of  Soden.  38  Misc.  25;    Matter  of  ments    of    facts   tending    to    sliow    tlie 

"Wilde,    id.    149.     The   subject    is   fully  conduct    of    the    decedent,    the    bene- 

■discussed   in   Wood  v.   Bishop.   1    Dcm.  liciary,  or  the  contestant,  unless  nuide 

512.     The  general  rule  undoubtedly  is.  at  tlie  time,  and  fcniiiing  part   of  tlie 

that   the  declarations  of  the   testator,  transaction    of    the    execution    of    the 

if  made  near  the  time  of  making  the  will,  were  not  competent.     See  La  ]?au 

Avill,    are    comi)ctcnt,    on    the    issue    of  v.  \'anderbilt,  o  Redf.  384:   Matter  of 

mental  capacity,  as  a  part  of  the  res  Rapplee.   (i(i    Ilun.   558;    affd..    141    X. 

<)rsta\  for  the  purpose  of  showing  the  Y.  553;   and  also  the  statement  of  the 

state  of  the  testator's  mind.      (]\Iatter  principle  and  illustrations  of  the  rule, 

of  Green.  67  Hun.  527;  20  X.  Y.  Supp.  in  Abbott's  Trial  Ev.   115  ct  scq. 
538.)      In  Marx  v.  McGlvnn   (4  Redf. 


§§  214:,  215.  The  Probate  of  Wills.  172 

testator's  caiDaeity.  3.  Nonprofessional  witnesses  who  did  not 
attest  the  will.  It  is  not  within  our  province  to  treat  of  the  per- 
missible methods  of  presenting  the  testimony  of  medical  experts.^^ 

§  214,  Opinions  of  subscribing  witnesses. —  The  subscribing  wit- 
nesses to  the  will  constitute  an  exception  to  the  rule  that  non- 
professional witnesses  can  be  questioned  only  as  to  the  facts  and 
circumstances  wathin  their  personal  knowledge,  and  are  not 
allowed  to  give  their  opinions  upon,  or  inferences  from,  thos?  facts. 
They  are  present  at  the  very  act  of  execution,  and  their  opinions 
on  the  general  question  of  testamentary  capacity  are  admitted 
ex  necessitate.  It  is  the  policy  of  the  law  to  provide  all  possible 
safeguards  for  the  protection  of  the  heir  as  well  as  the  testator. 
Xo  light  is  excluded  in  reference  to  the  res  gestw  which  can  be 
furnished  by  the  immediate  actors.  The  subscribing  witnesses 
may  be  required  to  state  not  only  such  facts  as  they  remember^ 
but  their  own  convictions  as  to  the  testator's  mental  state;  for  it 
may  well  happen, that  on  so  vital  a  point  they  may  retain  a  clear 
recollection  of  the  general  results,  long  after  the  particular  cir- 
cumstances are  effaced  by  lapse  of  time  or  obscured  by  failing 
memory.'^"  They  are  to  be  looked  to  as  the  most  trustworthy 
source  of  information  in  regard  to  the  then  condition  of  the  tes- 
tator, and  whether  or  not  the  act  was  free,  voluntary,  and  unre- 
strained.'^ It  does  not  follow,  how^ever,  that  a  lay  witness,  al- 
though a  subscribing  witness,  may  testify  that,  in  his  judgment, 
the  testator  had  not  sufficient  mind  to  give  the  specific  directions 
with  reference  to  a  testamentary  disposition  of  his  property.'^ 

§  215.  Opinions  of  lay  witnesses. —  An  ordinary  nonprofessional 
witness  cannot  be  asked  the  broad  question,  whether  he  con- 
sidered the  testator  non  compos  mentis,  or,  which  is  the  same 


"1  See    generally,    on    this    subject,  they  are  quite  confident  that  the  Events 

Matter  of  Snellin'g,  136  N.  Y.  515.  related  by  the  witnesses  present  could 

72Clapp  V.  Fullerton.  34  N.  Y.  190;  not  have  occurred.  (Matter  of  Connor, 
Hewlett  V.  Wood,  55  id.  635;  Dumond  27  St.  Rep.  905;  afl"d..  124  N.  Y.  663; 
V.  Kiff.  7  Lans.  465:  Matter  of  Peck,  :\rattcr  of  Kearnev,  69  App.  Div.  481; 
42  St.  Rep.  898;  17  N.  Y.  Supp.  248;  74  X.  Y.  Supp.  1045;  Matter  of  Phil- 
Matter  of  Potter,  17  App.  Div.  267:  lips,  34  Misc.  442;  62  N.  Y.  Supp. 
45  X.  Y.  Supp.  563;  revd.  on  other  1011;  Matter  of  Seasrist,  1  App.  Div. 
points,  161  N.  Y.  84.  615;    37  N.   Y.   Supp.   496:    affd..   153 

73  Matter  of   Comstock.  26   St.   Rep.  X.  Y.  682 ;  Matter  of  Connor.  29  Misc. 

292 ;  7  X.  Y.  Supp.  334.    The  testimony  391;    61  N.  Y.   Supp.   910:    Matter  of 

of  unimpeached  witnesses  as  to  testa-  Conaty,  26  Misc.  104;  56  X.  Y.  Supp. 

tor's  condition   and  capacity,  and  the  854.)      See   Dobie   v.    Armstrong,    160 

circumstances  attending  the  execution  X.  Y.  584. 

of  his  will,  are  not  to  be  overcome  be-  T4  Matter  of  McCarthy,  55  Hun,  7  ; 

cause  physicians  who  were  not  present  28   St.  Rep.   342. 
te.-.tify  from  anterior  observations  that 


lin  The  Pkobatk  oi-  Wills.  §215. 

thing,  incapable  of  managing  his  affairs.""  Except  in  matters  of 
s^^eience,  art,  skill,  trade,  navigation,  value,  and  other  similar  in- 
([iiirios,  witnesses  are  confined  in  their  statements  to  facts  observed 
and  known  by  them,  as  distinguished  from  their  opinions  and 
conclusions.^*'  Where,  however,  the  alleged  imbecility  is  attrib- 
uted to  old  age,  idiocy,  or  intoxication,  these  being  causes  which 
indicate  themselves  in  outward  appearances,  in  motions,  gestures, 
tones  of  voice,  and  expression  of  the  eye  and  face,  the  opinion  of 
the  witness  who  has  testified  to  these  facts  is  admissible.  These 
causes  show  themselves  by  indications  which  are  equally  patent 
to  all;  any  man  of  sound  judgment  and  experience  in  life  is  com- 
petent to  observe  these  indications,  and  to  draw  just  inferences 
from  them.  Thus  the  witness  may  testify  that  "  he  thought  "  the 
person  was  growing  childlike,  or,  "  as  he  took  it,"  light-headed."^ 
And  it  seems  that  the  same  rule  applies  in  cases  of  insanity, 
strictly  so  called,  if  the  derangement  of  the  mind  is  general,  for, 
in  such  cases,  scientific  knowledge  is  rarely  necessary  to  enable 
persons  having  opportunities  for  personal  observation  to  judge  of 
its  existence.'*  When  a  layman  is  thus  examined  as  to  facts 
within  his  owm  knowledge  and  observation,  tending  to  show  the 
soundness  or  unsoundness  of  a  mind  alleged  to  be  diseased,  he 
may  characterize  as  rational  or  irrational  the  acts  and  declarations 
to  wliicli  he  testifies.™  But  he  cannot  be  asked  what  construction 
he  placed  upon  certain  motions  of  the  decedent,  or  the  meaning 
of  certain  sounds  uttered  by  him.*'^ 

It  is  not  within  the  scope  of  this  volimie  to  illustrate  the  fore- 
going general  principles  by  discussing  the  numerous  cases  upon 
which  thev  are  founded.     We  shall  do  no  more  here  than  refer  in 


'5  Dewitt  V.  Barley,  !)  N.  Y.  ^71,  us  IloUwaj^en   v.  Rollwagen,  3  lluii,    121; 

modified  on  a  further  decision  given  in  afTd.,  63  X.  Y.  504. 

17    N.   Y.    340:    Hewlett   v.   Wood,   55  77  Dewitt  v.   Barley,    17    X.   Y.   340, 

X.  Y.  G35:  Matter  of  Arnold,  14  Hun,  350. 

525;     Goodell   v.   Harrington,   3     Sup.  78  lb.     And  see  Abb.  Trial   Ev.  235. 

€t.   (T.  &  C.)    345:    Bell   v.  :\[e:Master,  79  Clapp  v.  Fullerton.  34  X.  Y.  190; 

29  Hun,  273:  Matter  of  McCarthy.  48  Howell  v.  Taylor,  11  Hun,  214:  Matter 

St.  Rep.  315;   20  X.  Y.  Supp.  581.  of    Saddlemife.     22    Week.    Dig.     411: 

Opinions    of   witnesses   that   certain  I^dwith  v.  Claffey,  IS  App.  Div.   115. 

acts   of    testator,   described    by   them.  In  Sisson  v.  Conger  (1   Sup.  Ct.    [T.  & 

were  irrational,  are  no  evidence  of  un-  C]  5(!4),  a  stricter  rule  was  laid  down, 

soundness  of  mind :   but  facts  must  be  but    the    only    authority    cited    was    a 

given  from  which  it  may  be  judicially  criminal  case,  and   the  distinction  be- 

determined    that    the    unsoundness    of  tween  cases  of  that  class  and  cases  of 

mind  exists,  before  the  legal  presump-  wills  and  deeds  was  not  noticed.     Com- 

tion  of  sanity  can  be  overcome.     (IMat-  pare  O'Brien  v.  People,  315  X.  Y.  270: 

ter  of  Rapplee.  60  Hun,  558;  21  X.  Y.  3  Abb.  Br.  (X.  S. )    368;  afTg.  48  Barb. 

Supp.  801:  aflFd..  141  N.  Y.  553.)  274:   Matter  of  Rapplee.  supra. 

76Matt«r    of   Ross,    87    X.    Y.    514:  SORollwacen   v.    Rollwagen,    3   Hun. 

121 :  affd.,  63  X.  Y.  504. 


§  215.                         The  Pkobate  of  Wills.  174 

a  note  to  some  cases  in  this  State,  in  which  the  rnle  of  law  as  to 
testamentary  capacity  was  discnssed  and  applied  to  particular 
facts.^' 

81  IncapacHy,  generally.  Alston  v.  Root,  62  Barb.  250;  Matter  of  Stew- 
Jones,  17  Barb.  27G;  Burger  v.  Hill,  1  art,  .39  St.  Rep.  801;  Matter  of  Folts, 
Bradf.  .3150;  Bleeeker  v.  Lynch,  id.  458;  71  Hun,  492;  24  N.  Y.  Supp.  1052; 
Meehan  v.  Rourke,  2  id.  385;  Roll-  Cheney  v.  Price,  90  Hun,  238;  37  N. 
wagen  v.  Rolhvagen,  63  N.  Y.  504;  Y.  Supp.  117;  Matter  of  Lang,  9  Misc. 
Tyler  v.  Gardiner.  35  id.  559;  Chil-  521;  30  N.  Y.  Supp.  388;  Matter  of 
dren's  Aid  Soc.  v.  Loveridge,  70  id.  Mabie,  5  Misc.  179;  24  N.  Y.  Supp. 
387;   Brick  v.  Brick,  06  id.  144;   Cud-  855. 

ney  v.  Cudney,  68  id.  148 ;  McLaughlin  Illness     and     stupor.      McGuire     v. 

V.  McDevitt,  63  id.  213;  Mairs  v.  Free-  Kerr,  2  Bradf.  244;  Meehan  v.  Rourke, 

man,  3  Redf.   181.  id.  385. 

Old  age,  hut  unimpaired  faritUies.  Illness  and  undue  influence.  Clarke- 
Van  Alst  v.  Hunter,  5  Johns.  Ch.  148;  V.  Sawyer,  2  N.  Y.  498;  Matter  of 
Butler  V.  Benson.  1  Barb.  526;  Moore  Welsh,  1  Redf.  238;  McSorley  v.  Mc- 
V.  Moore,  2  Bradf.  261;  Maverick  v.  Sorley,  2  Bradf.  188;  Brush  v.  Hoi- 
Reynolds,  id.  360;  Leaycraft  V.  Sim-  land,  3  id.  461:  Darley  v.  Darley,  id. 
mons,  id.  35;  Creely  v.  Ostrander,  id.  481;  Matter  of  Barbineau,  27  Misc. 
107;  \Yightman  v.  Stoddard,  id.  393;  417;  59  N.  Y.  Supp.  375;  Matter  of 
Bleeeker  v.  Lvnch,  1  id.  458;  Carroll  Gihon,  60  id.  65;  Matter  of  Nolte,  10 
V.  Norton,  3  id.  291;  Clarke  v.  Davis,  Misc.  608;  32  N.  Y.  Supp.  226. 
1  Redf.  249;  IMairs  v.  Freeman.  3  id.  Weakness  and.  undue  inflttence. 
181;  Matter  of  Hurlbut,  26  Misc.  461.;  Mowry  v.  Silber,  2  Bradf.  133;  Nex- 
57  N.  Y.  Supp.  648.  sen  v.   Xexsen,   3   Abb.   Ct.   App.   Dec. 

—  and  impaired  pou-ers.  Moore  v.  360  ;  2  Keyes,  229 ;  Matter  of  Ehminne,. 
Moore,  2  Bradf.  261;  Pilling  v.  Pill-  30  Misc.  '21;  62  X.  Y.  Supp.  1006; 
ing,  45  Barb.  86;  Carroll  v.  Norton.  3  Matter  of  Wilde,  38  Misc.  149. 
Bradf.  291;  Lee  v.  Dill,  11  Abb.  Pr.  Intemperance  and  undue  influence. 
214;  Rolhvagen  v.  Rolhvagen,  63  N.  Y.  O'Neil  v.  Murray.  4  Bradf.  311 ;  Hagart 
504;  Children's  Aid  Soc.  v.  Loveridge,  v.  Sone,  68  App.  Div.  60;  74  N.  Y. 
70  N.  Y.  387;  Matter  of  Moon,  28  St.  Supp.  109:  :\latter  of  Hewitt,  31  Misc. 
Rep.  205;  Matter  of  Coop,  24  id.  417;  81;  64  N.  Y.  Supp.  571;  Matter  of 
Paine  v.  Aldrich,  38  id.  402;  Dunham  Jones,  5  Misc.  199:  Matter  of  Rinte- 
V.  Dunliam,  63  App.  Div.  264;  71  N.  Y.  len,  37  id.  462;  75  N.  Y.  Supp.  935. 
Supp.  330;  flatter  of  Drake,  45  App.  S'^ickness  and  habits  of  intemperance. 
Div.  206;  60  N.  Y.  Supp.  1020;  Mat-  McSorley  v.  McSorlev,  2  Bradf.  188; 
ter  of  Ehminne,  30  Misc.  21;  62  N.  Allen  V.  Public  Adm'r.  1  id.  378; 
Y.  Supp.  1006;  Matter  of  Dixon,  42  Vreeland  v.  McClelland,  id.  393;  Brush 
App.  Div.  481;  59  N.  Y.  Supp.  421;  v.  Holland.  3  id.  461;  Gardner  v.  Gard- 
Matter  of  Wheeler,  56  St.  Rep.  709;  ner,  22  Wend.  526;  Burritt  v.  Silli- 
5  Misc.  279;  Matter  of  McCarthy,  48  man,  16  Barb.  198;  Ex  p.  Patterson, 
St.  Rep.  315;  Matter  of  Snellinc.  136  4  How.  Pr.  34;  :Matter  of  Tracy.  3  St. 
N.  Y.  515;  49  St.  Rep.  695;  Matter  of  Rep.  239;  Matter  of  Reed.  2  Connolv, 
O'Dea,  84  Hun,  591;  33  N.  Y.  Supp.  403;  20  N.  Y.  Supp.  91;  Matter  of 
463.  Peck.    42    St.    Rep.    898;    Matter    of 

—  and  paralysis.  Matter  of  Iredale,  Sutherland,  28  Misc.  424;  59  N.  Y.. 
53  App.  Div.  45 ;  65  N.  Y.  Supp.  533 ;  Supp.  989. 

Matter   of   Cruger,   36   Misc.    477;    73  Intoxication  at  time  of  execution  of 

N.  Y.  Supp.  812;  Matter  of  Dixon.  42  tcill.      Peck  v.   Gary,  27   N.  Y.   9;    38 

App.  Div.  481;  59  N.  Y.  Supp.  421.  Barb.  77;  Julke  v.  Adam,  1  Redf.  454. 

—  and  deafness.  Gombault  v.  Pub-  Delirium  tremens  and  delusions. 
lie  Adm'r,  4  Bradf.  226;  Mowry  v.  Waters  v.  Cullen.  2  Bradf.  354.  See 
Silber,  2  id.  133.  Brown  v.  Torrey,  24  Barb.  583. 

— •  and  blindness.  Weir  v.  Fitzger-  Heart  disease  and  delusions.  Mat- 
aid,  2  Bradf.  42.  ter  of  Richardson.  51   App.  Div.  637; 

Loss  of  memory.    Bleeeker  v.  Lynch,  64  N.  Y.  Supp.  944. 
1    Bradf.   458;    Creely  v.   Ostrander,   3  Delusions,  monomania,  and  specula- 
id.   107:   Weir  v.  Fitzgerald,  2  id.  42;  tire   belief   in    witchcraft,    mesmerism.^ 
Mowry  v.  Silber,  id.   133;  Reynolds  v.  spiritualism,  and  absurd   ideas  gener- 


175  The  Pkobate  of  Wills.  §  216. 


SUBDTVTSTOX  5. 

FRAUD  AND  UNDUE   INFLUENCE. 

^  216.  Distinguished  from  testamentary  incapacity. —  A  man's  in- 
tellect luav  not  lie  so  weak  as  to  reiiiler  liiiu  iiicajjalile  of  making" 
a  will,  yet  it  may  l)o  in  so  feeble  a  state  as  to  make  liim  an  easy 
victim  of  the  im])roper  influences  of  nnprineipled  and  desiirninj^- 
persons.  The  finding-  that  tlie  testator  had  capacity  to  make  a  will 
is  not  inconsistent  -with  the  findinjO'  that  the  same  was  made  under 
restraint  or  nndne  inflnence.^"  Undne  influence  must  be  an  in- 
fluence exercised  by  coercion,  imposition,  or  fraud,  and  not  such 
as  arises  from  gratitude,  afi'ection,  or  esteem  f^  and  its  exertion 
upon  the  very  act  must  be  proved,  by  the  party  alleging  it.^'* 


ally.      Thompson  v.  Quiniby,  2  Bradf.  r^'^  id.  208:   :Matter  of  Soden,  38  :Misc. 

449:    as    Tlionii)son    v.    Thompson,    21  25. 

Barb.     107;      Amer.    Seamen's    Friend  Tempnrarif  periods  of  irrational  ac- 

Soc.  V.  Hopper,  33  N.  Y.  619;  43  Barb.  tion.     :Matter  of  Davis.  91   Hun.  209; 

625;    Gamble  v.   Gamble,    39   id.   373;  39  X.  Y.  Snpp.  344;  Matter  of  Buchan, 

Clarke  V.  Davis,  1  Redf.  249;   Stanton  16   Misc.   204:    38   N.   Y.   Supp.    1124: 

V.  Wethorwax,   16  Barb.  259:   La   Bau  Matter  of  Cornelius,  23  Misc.  434;   51 

V.  Vanderbilt,  3  Kedf.   384;   Children's  X.  Y.  Supp.  877. 

Aid  Soc.   V.   Loveridffc,  70  X.  Y.   387;  Lunacy.      flatter    of    Coe,    47    App. 

Bonard's    Will,    16   Abb.    (X.    S.)     128:  Div.  177:  62  X.  Y.  Supp.  376. 

Lathrop  v.   liorden,  5  Hun,  560;    Fow-  Imbecility   and    idiocy.       Stewart   v. 

ler  v.  Ramsdell,  4  Alb.  L.  J.  94;  Mat-  Lispenard,   26   Wend.   255;    Blanehard 

ter  of  Keeler,  12  St.  Rep.  148;  :Matter  v.  Xestlo,   3  Den.   37;   Person  v.  War- 

of  Liney,  34  id.  700;   Matter  of  Zie.s;-  ren,   14  Barb.  488;   Xewhouse  v.  God- 

ler,   47   id.   491;    IMatter  of  Brush.   .35  win,   17  id.  236;   Petrie  v.   Shoemaker. 

Misc.  689;  72  X.  Y.  Supp.  421;  Matter  24    Wend.    85;    Pillinj,'    v.    Piilin.ir.    4.-) 

of  Robe,  22  Misc.  415;  50  X.  Y.  Sui)p.  Barb.  86;  Van  Pelt  v.  Van  Beit.  30  id. 

392.  134;    Crolius  v.    Stark,    64    id.    112;    7 

Eccentricity.      Matter    df    .(o\irneav,  Lans.  311;  Bleecker  v.  Lvnch.  1  Bradf. 

15  App.  Div.  567;  44  N.  Y.  Supp.  548;  458;  Davis  v.  Culver,  13  "llow.  Pr.  62; 

affd.,  162  X.  Y.  611.  Matter  of  :\Iillcr.  36  Misc.  310:   73  X. 

General    insanity,    moroscness,    mel-  Y.  Supp.  508;  ^Matter  of  Loewcnstine, 

ancholy,  nervousness,  gloomy,  solitary  2  Misc.  323;  21  X.  Y.  Supp.  931. 

hahits,   violence,   and   apprehension    of  Suicide     as     evidence     of     insanity, 

being  murdered  and  deprived  of  prop-  flatter   of   Card,   28   St.    Rep.    528;    8 

erty.      Morrison    v.    Smith,    3    Bradf.  X.  Y.  Supp.  297. 

209 ;  Matter  of  Forman,  54  Barb.  274 ;  ^~  Reynolds  v.   Root,   62   Barb.   250 : 

Matter  of  Elv.  16  Misc.  228;  39  X.  Y.  ^Marvin    v.    Marvin,    3    Abb.    Ct.    App. 

Supp.     177;   'Matter    of    :McKean,    31  Dec.  192:   4  Keyes.  9. 

Misc.  703;   66  X.  Y.  Supp.  44;  Matter  S"?  :Matter    of    McGraw,    9   App.    Div. 

of  Murphy,  41  App.  Div.  153;  58  X.  Y.  372;    41    X.  Y.   Supp.    481:    Matter   of 

Supp.  450.  Read,    17   :Misc.    195;   40   X.   Y.   Sujip. 

Feebleness     and    previous    insanitif.  974:    flatter  of  Otis,   1   Misc.  258;    22 

Matter  of  Rounds,  25  Misc.  101:  Mat-  X.  Y.  Supp.  1060;  Matter  of  Johnson, 

ter    of     Widmayer,     34    id.     439;     69  7  Misc.  220:  27  X.  Y.  Supp.  649;  Do- 

X.  Y.  Supp.   1014;  Matter  of  Coe.  47  henv  v.   Lacv.   42   App.    Div.   218:    59 

App.  Div.   177;   62  X.  Y.   Supp.  376;  N.  Y.  Supp.  724;  affd.,  168  X^.  Y.  213. 

Matter  of  Evans,  37  Misc.  337:   75  X.  H4  Matter  of  Murpliy.  41   App.    Div. 

Y.   Supp.  491.  153:    58   X.  Y.  Supp.   450;    ^Matter  of 

Incipient   paresis.      ;Matter    of   Law-  Pike,  Ti3    Hun,    327:    31    X.    Y.    Supp. 

rence,  48  App.  Div.  83;  Hoey  v.  Hoey,  089;    Matter  of   Read,   supra;  Matter 


^217. 


The  Probate  of  Wills. 


176 


§  217.  Presumptions  of  fraud,  etc. —  It  is  the  duty  of  the  pro- 
ponent to  satisfy  the  conscience  of  the  court,  and  where  there  are 
circumstances  of  suspicion,  as  where  the  will  was  drawn  up  by  a 
devisee,^""  or  by  a  person  standing  in  a  confidential  relation,  as  a 


of  ^McGraw,  supra  ;  flatter  of  Mabie,  o 
Misc.  179;  24  N.  Y.  Supp.  855;  Matter 
of  Wheeler,  56  St.  Rep.  709;  Matter 
of  Hurlbut,  48  App.  Div.  91. 

S5  Lake  v.  Rannev,  33  Barb.  49 ; 
Vreeland  v.  McClelland,  1  Bradf.  393 : 
[Mowrv  V.  Silber,  2  id.  133 ;  Lansing 
V  Russell,  13  Barb.  510;  Cotfin  v.  Cof- 
fin, 23  N.  Y.  9.  And  see  Children's 
Aid  Soc.  V.  Loveridge,  70  id.  387; 
Whelplev  v.  Loder,  1  Dem.  368. 

In  Sears  v.  Schafer  (6  N.  Y.  268),  it 
is  said  tliat  in  some  cases  undue  influ- 
ence will  be  inferred  from  the  nature 
of  the  transaction,  and  the  exercise  of 
occasional  or  habitual  influence,  citing 
several  authorities.  And  in  Tyler  v. 
Gardiner  (35  X.  Y.  559),  it  is  stated 
that  when  the  beneficiary  is  the  active 
agent  in  procuring  the  execution,  by 
one  in  extremis,  of  an  instrument  dis- 
turbing dispositions  previously  settled, 
and  where  the  transaction  is  sur- 
rounded by  the  visual  indicia  of  undue 
influence,  he  is  called  upon  to  show 
that  tlie  inducements  which  profess- 
edly led  to  the  cliange  were  not  un- 
founded and  illusory.  In  that  case. 
Judge  Porter  says :  "  It  is  no  suffi- 
cient answer  to  the  presumption  of 
undue  influence,  which  results  from 
the  undisputed  facts,  that  the  testa- 
trix was  aware  of  the  contents  of  the 
instrument  and  assented  to  its  provi- 
sions. This  was  the  precise  purpose 
which  the  vmdue  influence  was  em- 
ployed to  accomplish;"  and  he  quotes, 
with  approbation,  the  language  of 
Lord  Eldon  (14  Yes.  299),  as  follows: 
''The  question  is  not  whether  she  knew 
what  she  was  doing,  had  done,  or  pro- 
posed to  do,  but  how  the  intention  was 
jiroduced." 

Where  it  appears  that  the  testatrix 
was  in  extremis  and  unable  to  speak 
at  the  time  of  the  execution  of  the 
Avill;  that  the  principal  beneficiary 
acted  as  interpreter  and  made  sugges- 
tions as  to  the  dispositions  to  be  made, 
which  were  answered  by  a  nod,  and 
that  on  an  application  for  immediate 
probate  one  of  the  legatees  was  per- 
sonated by  a  stranger  and  the  names 
of  infant  legatees  suppressed,  th^  facts 
raise  such  a  suspicion  of  fraud  as  to 
require  refusal  of  probate.     (Matter  of 


Graf,  10  Misc.  293:  31  X.  Y.  Supp. 
682. )  In  Nesbitt  v.  Lockman  ( 34  X.  Y. 
167),  the  general  rule  was  laid  down 
that  "  where  persons  .standing  in  a 
confidential  relation  make  bargains 
with  or  receive  benefits  from  the  per- 
son for  whom  they  were  counsel,  at- 
torney, agent,  or  trustee,  the  transac- 
tion is  scrutinized  with  the  extremest 
vigilance,  and  regarded  with  the  ut- 
most jealousy.  The  clearest  evidence 
is  required  that  there  was  no  fraud, 
influence,  or  mistake ;  that  the  trans- 
action was  perfectly  understood  by  the 
weaker  party,  and  usually  evidence  is 
required  that  a  third  and  disinterested 
person  advised  such  party  as  to  his 
rights.  The  presumption  is  against 
the  propriety  of  the  transaction,  and 
the  onus  of  establishing  the  gift  or 
bargain  to  have  been  fair,  voluntary, 
and  well  understood,  rests  upon  the 
party  claiming,  and  this  in  addition  to 
the  evidence  to  be  derived  from  the 
execution  of  the  instrument  conveying 
or  assigning  the  property.  S.  P., 
Kinne  v.  Johnson,  60  Barb.  69; 
Wade  V.  Holbrook,  2  Redf.  378;  Mc- 
Laughlin's Will,  id.  504:  Brick  v. 
Brick,  66  X*.  Y.  144;  Horn  v.  Pullman, 
72  id.  269 :  Demmert  v.  Schnell,  4 
Redf.  409;  Baker's  Will,  2  id.  179: 
Legg  V.  Myer,  5  id.  628 ;  Dickie  v. 
Van  Vleck,"id.  284;  Matter  of  Brush, 
35  Misc.  689;  72  X.  Y.  Supp.  421; 
Matter  of  Manhardt,  17  App.  Div.  1; 
44  X.  Y.  Supp.  836;  Snook  v.  Sulli- 
van, 53  App.  Div.  602 :  66  X.  Y.  Supp. 
24;  affd.,  167  N.  Y.  536. 

In  Post  V.  Mason  (91  X^.  Y.  539), 
the  testator  had  full  testamentary  ca- 
pacity, and  the  will  contained  a  legacy 
to  the  draughtsman,  an  attorney,  who, 
at  the  time  of  the  execution  of  the 
will,  and  for  a  long  time  previous,  had 
been  the  counsel  of  the  testator:  — 
Held,  that  this  alone  did  not  raise  a 
presumption,  in  aid  of  one  seeking  to 
overthrow  the  will,  that  the  influence 
of  the  attorney  was  unduly  exercised, 
nor  did  it,  in  the  absence  of  evidence, 
warrant  a  presumption  that  the  inten- 
tion of  the  testator  was  improperly, 
much  less  fraudulently,  controlled ; 
that  it  was  for  the  plaintiff,  therefore, 
in  an  action  brought  to  set  aside  the 


TiiK  rii(HJA'iK  OF  Wills. 


§217. 


family  physician,®'^'  or  a  clergyman,^"  or  a  guardian  of  the  tes- 
tator ;****  or  where  the  testator  was  blind,*^  or  was  unable  to  read 
or  write,  and  was  weak  in  body  and  mind,  and  susceptible  to  undue 
influence,''*^  and  the  will  was  in  it  in  harmony  with  his  previously 
expressed  intentions,^^  the  ordinary  presumption  flowing  from  the 
fact  of  formal  execution  does  not  obtain,  and  the  proponents  must 
give  affirmative  evidence  that  the  testator  knew  its  contents,  and 
that  it  expressed  his  real  intentions;^"  but  any  evidence  is  suffi- 
cient for  this  purpose  which  shows  that  the  testator  had  full 
knowledge  of  the  contents  of  the  will,  and  executed  it  freely,  and 
without  undue  influence,  and  large  latitude  mil  be  allowed  in  the 
admission  of  any  such  evidence.  But  tlie  law  looks  with  a  very 
jealous  eye  upon  any  one  who,  standing  in  a  relation  of  confidence 
and  influence  with  the  testator,  superintends  or  in  any  way  influ- 
ences the  testator's  disposition  of  ])roperty,  especially  if  such  dis- 
position is  to  his  personal  advantage.  The  presumption  is  against 
the  instrument. ^^  But  old  age  of  a  testator  is  not  alone  sufficient 
ground  for  presuming  imposition. ^^  Secrecy  and  contrivance  may 
be  a  badge  of  fraud  in  the  execution  of  a  will  when  they  indicate 
coercion,  persuasion,  etc.,  of  other  persons,  which  influenced  the 
testator.      But  when  thev  can  be  clearly  traced  to  the  wishes  of 


■svill,  to  give  some  other  evidence  tend- 
ing to  siiow  fraud  or  undue  intluenee. 

y.  P.,  Matter  of  Murpliy.  48  App. 
Div.  211;  02  N.  Y.  Supp.  785. 

Undue  influence  will  not  be  pre- 
sumed from  the  mere  fact  that  an  ap- 
parent relation  of  viaster  and  serva7it 
existed  between  the  legatee  and  testa- 
trix, where  it  appears  that  they  were 
relatives,  sustaining  close  and  friendly 
relati(ms  to  each  other  and  tliat  testa- 
trix performed  the  services  voluntarily 
and  without  salary,  (flatter  of  ^Mur- 
phy,  15  Misc.  208;  .37  N.  Y.  Supp. 
223.)  See  Matter  of  Hurlbut.  48  App. 
Div.  91. 

SGCrispell  V.  Dubois,  4  Barb.  39.3. 

87  Matter  of  Welsh,  1  Kedf.  238; 
Marx  V.  McGlynn,  4  id.  455 :  88  X.  Y. 
357  ;  Van  Kleeck  v.  Phipps.  4  Redf.  99; 
]\lattcr  of  ^Monroe,  2  Connoly,  395. 

•"^^  Limburger  v.  Kauch,  2  Abb.  Pr. 
<X.  S.)    279. 

89  \Yeir  V.  Fitzgerald,  2  Bradf.  42. 

90  Van  Pelt  v.  Van  Pelt.  30  Barb. 
134;  Rollwagen  v.  Kollwatien,  03  X. 
Y.  504:  Matter  of  Bedlow.  67  Hun, 
408;  22  N.  Y.  Supp.  290. 

91  Lee  V.  Dill.  11  Abb.  Pr.  214; 
Mowrv  V.  Silber,  2  Bradf.  133;  Matter 

12 


of  Xolte,  10  Misc.  008;  32  X.  Y.  Supp. 
220.  But  the  mere  fact  of  a  sudden 
change  of  testamentary  intention  is 
not  sufficient.  (Matter  of  Green,  07 
liun,  527;  20  N.  Y.  Supp.  538;  Matter 
of  Wheeler,  50  St.  Hep.  709.) 

92  Lake  v.  Ranney.  33  Barb.  49;  Del- 
afield  v.  Parish,  25  X.  Y.  9;  Hayes  v. 
Kerr,  19  App.  Div.  91;  45  X.  Y.  Supp. 
]{)50.  and  cases  above  cited. 

'•'-Matter  of  Welsh,  1  Redf.  238; 
Leaycraft  v.  Simmons,  3  Bradf.  35; 
(lark  V.  Fisher,  1  Paige,  171:  ^Matter 
of  Paige,  02  Barb.  470:  \'oorhees  v. 
Voorhees,  39  X.  Y.  403:  Allen  v.  Pub- 
lic Adm'r,  1  Bradf.  378;  Bleecker  v. 
Lvnch,  id.  458;  O'Xeil  v.  Murrav.  4 
id.  311:  Lee  v.  Dill.  11  Abb.  Pr.  214. 
In  Tilby  v.  Tilby  (2  Dem.  514),  a  will 
to  a  supi^osed  wife  was  refused  pro- 
bate by  reason  of  the  fraud  of  the  ben- 
eficiary in  concealing  the  tact  that  slu- 
had  a  former  husl)and  living,  her  mar- 
riage with  testator  being,  therefore, 
void. 

94  Butler  V.  Benson.  1  Barb.  520 : 
:Matter  of  Williams,  40  St.  Rep.  791: 
19  N.  Y.  Supp.  778;  Matter  of  Otis, 
1  Misc.  258;   22  X.  Y.  Supp.  1000. 


§218.  The  Pkobate  of  Wills.  ITS- 

the  testator  himself,  they  cannot  be  received  as  having  any  tend- 
ency to  impeach  his  testament. ^^ 

§  218.  Partiality  and  injustice. —  Mere  inofficiousness  or  injus- 
tice in  the  provisions  of  a  will  does  not  raise  an  inference  of  un- 
soundness of  mind,  or  of  undue  influence.  Although  the  char- 
acter of  the  provisions  of  the  will  may  be  considered  in  connec- 
tion with  the  other  evidence  in  trying  the  question  of  undue  influ- 
ence, it  is  not  in  itself  evidence  of  such  influence.  However 
partial  or  unjust  a  testator  may  seem  to  have  been  in  his  testa- 
mentary dispositions,  if  the  instrument  propounded  was  clearly 
his  will,  effect  must  be  given  to  it.^^  When  it  is  said  that  there 
must  be  affirmative  e^^dence  that  the  person  having  the  motive 
and  opportunity  to  exercise  undue  influence,  did  so,  it  is  not  to  be 
understood  that  there  must  be  direct  evidence  of  such  undue  influ- 
ence. Undue  influence  is  not  often  the  subject  of  direct  proof. 
It  can  be  shown  by  all  the  facts  and  circumstances  surrounding 
the  testator,  the  nature  of  the  will,  his  family  relations,  the  con- 
dition of  his  health  and  his  mind,  dependence  upon,  and  subjec- 
tion to  the  control  of,  the  person  supposed  to  have  wielded  the 
influence,  the  opportunity  and  disposition  of  the  person  to  wield 
it,  and  the  acts  and  declarations  of  such  person  at  the  time  of 
execution.''^      Hence,  a  discrimination  against  a  son  whose  char- 


95  Coffin  V.    Coffin,   23   N.   Y.   9.      In  97  Per    Rapallo,    J.,     Rollwagen     v. 

Matterof  Lowman  (1  Misc.  43;   22  KY.  Rollwagen.    63    N.    Y.    .504.      See   also 

Supp.  10.5.5).  the  only  evidence  to  im-  Sears   v.    Sliafer,    6   id.    268:    Tyler  v. 

peach  the  will  was  that  before  its  exe-  Gardiner,   35   id.   559;    McLanffhlin   v. 

cution  one  of  the  executors  and  lega-  ^IcDevitt,     63     id.    213;     Reynolds    v. 

tees,  who  was  a  nephew  and  a  physi-  Root,  62  Barb.  253:  Matter  of  Wheeler, 

cian,    administered  to   testator  proper  56  St.  Rep.  709:    Forman  v.   Smith.  7 

quantities   of    morphine  to   allay   pain  Lans.   443 ;    Fagan   v.   Diigan.   2   Redf. 

caused  by  rheumatism  in  his  legs;  and  341;  Deas  v.  \Yandell.  3   Sup.  Ct.    (T. 

that  deceased,  who  never  married,  of-  &    C.)     128;    Demmert    v.    Schnell.    4 

ten  visited  such  nephew  and  left  to  his  Redf.    409.      But    where    there    are    a 

management     some     of     his     business,  number  of  heirs,  legatees,  and  next  of 

Held,  insufficient  to  justify  the  setting  kin,    the   declarations   of  one   of   them 

aside  of  the  probate.           '  are    not    competent     (Matter    of    Ken- 

96Cudney  v.  Cudney,  68  K  Y.  148;  nedy.  167  N.  Y.  163:  Matter  of  Camp- 
La  Ban  v!!  Vanderbiit.  3  Redf.  384:  bell,  67  App.  Div.  418) ,  unless  there  is 
Marx  v.  McGhTin,  4  id.  455 :  Phillips  proof  of  a  conspiracy,  since  one  ten- 
X.  Chater,  1  Dem.  533 :  Hagan  v.  ant  in  common  cannot  admit  away  the 
Yates,  id.  584:  flatter  of  Bedlow,  67  rights  of  his  cotenant  and  a  will  can- 
Hun.  408:  22  X.  Y.  Supp.  290:  Matter  not  be  admitted  as  to  one  and  rejected 
of  Harris,  19  Misc.  388:  44  X.  T.  as  to  the  other.  Xor  are  the  declara- 
Supp.  341 ;  Dobie  v.  Armstrong,  160  X.  tions  of  the  testator  competent  to 
Y.  584 ;  55  X.  E.  Rep.  302 ;  Matter  of  prove  the  facts  of  fraud  and  undue  in- 
Woodward.  52  App.  Div.  494:  65  X.  Y.  tluence.  (Jackson  v.  Kniffen..,2  Johns. 
Supp.  405 :  Matter  of  Hurlbut.  48  App.  31:  Waterman  v.  Whitney.  11  X.  Y. 
Div.  91;  62  X.  Y.  Supp.  698:  Matter  157;  Matter  of  Metcalf.  16  Misc.  180; 
of  Connor,  29  Misc.  391;  61  X.  Y.  38  X.  Y.  Supp.  1131;  Matter  of  Pal- 
Supp.  910,  and  cases  cited  infra.  mateer,  78  Hun,  43;   28  X.  Y.  Supp. 


179  TiiK  Pkohatr  of  Wills.  §  iM'.). 

acter  and  omirsc  of  conduct  had  displeased  the  testator  for  .some 
years,  though  it  may  betoken  a  lack  of  affection  and  a  senijo  of 
justice,  is  not  incompatible  witli  mental  soundness.  And  so,  a 
discrimination  in  favor  of  a  son,  as  against  other  children,  to 
whom  the  testator  bequeathed  the  greater  part  of  his  estate,  is 
not  of  itself  proof  of  mental  unsoundness,  although  the  motive 
in  making  such  a  disposition  may  have  been  the  gratification  of  an 
inordinate  ambition  tr»  ppr])etuate  the  success  of  a  particular  busi- 
ness enterprise,  in  which  he  had  himself  acquired  a  wide  notoriety 
and  a  large  fortune,  by  coniiding  it  to  the  possession  and  control 
of  a  single  individual  bearing  his  name.^^  What  the  law  terms 
undue  influence  must  be  such  as  overpowers  the  will  of  a  testator, 
and  subjects  it  to  the  will  and  control  of  another;  it  is  not  estab- 
lished by  proof  simply  tending  to  show  that  the  testator,  act- 
ing from  motives  of  affection  or  gratitude,  gave  his  property  to 
strangers  to  his  blood. °^ 

g  219.  Opportunity  and  interest. —  Undue  influence  ^dll  not  be 
inferred  from  opjxvi-tuuity  and   interes,t,^  or  from   the  fact   that 

10G2.)      In   Hagan  v.   Yates    (1    Dom.  man    in   no   way    related    to   her.    ')ut 

584),  the  contestants,  for  the  support  upon  the   ground  that   he  had  at  the 

of  their  allegations  of  undue  influence  risk   of   his   own   life   saved   her   from 

exercised  upon  decedent   in  respect  to  accidental   drowning,   she   leaving  sur- 

liis   will,   relied   almost   entirely   upon  viving    a     sister,     a     niece     and    two 

the    facts    that    proponent,    decedent's  nephews. — ■  Held   not   sufficient   ground 

second    wife,    had    opportunity    to    in-  for  refusing  probate  of  her  wil.    (Mat- 

fluenee  him,  and  that  the  will,  while  ter  of  Cleveland,  28  Misc.  369:    .50  X. 

it  made  munificent  provision  for  her,  Y.   Supp.  08.5.) 

was  both  ungenerous  and  unjust  to  the  1  Seguine  v.  Seguine,  4  Abb.  Ct.  App. 
family  of  his  first  wife.  Held,  no  Dec.  101  :  Kinne  v.  .Tohnson.  GO  Barb, 
proof.  But  where,  in  addition  to  op-  GO;  Van  Hanswyck  v.  Wiese.  44  id. 
))ortunity  and  interest,  it  was  shown  404;  Clarke  v.  Davis.  1  Rodf.  -240: 
that  the  party  in  whose  favor  the  will  Turhune  v.  Brookfield.  id.  220:  .Tulke 
was  made  had  refused  to  allow  the  one  v.  Adam,  id.  454:  Xewhouse  v.  God- 
disinherited  to  have  private  inter-  win,  17  Barb.  23G ;  Cudnev  v.  Cudnev, 
views  with  the  testatrix,  this  was  GS  X.  Y.  148;  QofTin  v.  Coflin,  23  id. 
held  sufficient  to  set  aside  the  will.  0;  Matter  of  ^lartin.  21  Week.  Dig. 
(Marvin  v.  Marvin,  3  Abb.  Ct.  App.  1;  Matter  of  Smith,  3  St.  Rep.  137: 
Dec.  102:  4  Keves.  0.)  And  see  Matter  of  Clausmann,  9  id.  182 :  Mat- 
Bristed  V.  Weeks.  5  Rcdf.  520;  Xexsen  ter  of  Hatten,  10  id.  10:  :Matter  of 
V.  Xexsen,  3  Abb.  Ct.  App.  Dec.  3(50.  Phalen.    47    id.    44;    19    X^    Y.    Supp. 

nsLa    Ban    v.    Vanderbilt.    3    Redf.  358;    Doheny    v.    Lacy.    42    App.    Div, 

384,   and  cases  cited:    Matter  of  Bnn-  218;    59   X". "  Y.    Supp!   724;    affd..    IGS 

ner.  33  Misc.  9;  G7  X.  Y.  Supp.   1117.  X.  Y.  213;  Matter  of  Seagrist.  1  App. 

See,  to  same  effect,  Bicknell  v.   Bick-  Div.  615;  aflfd.,  153  X,  Y.  682;  ^klatter 

nell.  2  Sup.  Ct.   (T.  &  C.)   96;  Deas  v.  of  Keefe,  47  App.  Div.  214;   62  X.  Y. 

Wandell.  3  id.  128;  McLaughlin  V.  Mc-  Supp.    124    (revd.,    on    other    ground-;, 

Dcvitt.  63  X.  Y.  213.  164  X".  Y.  352)  ;   Matter  of  Gihon.  44 

J»9:Nratter  of  SnelHng,  136  X.  Y.  515;  App.   Div.   621:   affd..    1G3   X.  V.   505; 

Matter  of  Williams,  46  St.  Rep.  701;  :\ratter  of  IXfurphv.  41   App.  Div.   153: 

19  X.  Y.  Supp.  778:  Matter  of  Bolles.  58  X.  Y.  Supp.  450;  Matter  of  Spratt. 

37    :Misc.    562;    75   X.   Y.    Supp.    1062.  4   App.   Div.    1;    Matter   of   Bolles.   37 

The    selection   by   a    testatrix    as    the  ^[isc.  562:    75  X.  Y.   Supp.   1062. 
principal   object   of   her   bounty,   of   a        Where,    however,    interest    and    op- 


§  219.  The  Probate  of  Wills.  180 

testator  was  weak  and  easily  influenced."  While  it  may  be  in- 
ferred from  circumstances,  the  circumstances  must  be  such  as  to 
lead  justly  to  the  inference  that  undue  influence  was  employed, 
and  that  the  will  did  not  express  the  real  wishes  of  the  testator.^ 
It  is  said  that  one  has  a  right  by  fair  argument  or  persuasion,  to 
induce  another  to  make  a  ^^^ll  and  even  to  make  it  in  his  own 
favor.^  Influence  exerted  only  to  give  eifect  to  the  testator's 
previously  declared  intention  of  ju-oducing  equality  between 
brothers  or  their  families  in  the  distribution  of  the  estate,  is  not 


port  unity  are  shown  and  testimony  is  the  mind  at  the  time  of  the  execution 

adduced  tending  to  show  a  disposition  of  the  will.     (Fagan  v.  Dugan,  2  Redl. 

to  use  undue  influence,  the   burden   is  341.)        It  is  only  where   the  relation 

cast  upon  the  person  charged  with  ex-  between  the  parties  is  one  of  depend- 

ercising  it  to  show  freedom  therefrom  ence  on  the  one  hand  and  control  on 

in   the   dispositions   of   property  made  the  other  that  the  presumption  of  un- 

in   the    will.      (Matter   of    Wheeler,   5  due  influence  will  arise.     Merely  con- 

Misc.   279.)      In  Matter  of  Jones    (N.  fidential     and     aff"ectionate     relations 

Y.    Law   J.,   Aug.    4,    1890),    the    con-  have  no  such  effect.     (Tucker  v.  Tucker, 

testant  claimed  that,  the  fact  of  illicit  45  St.  Rep.  458;   18  K  Y.  Supp.  629.) 

sexual   relations  existing  between  the  In   Matter   of   Cline    (N.   Y.    Law   J., 

testatrix  and  a  person  who  concededly  Jan.  30,  1890),  testatrix  was  a  feeble 

influenced   her    in   the   scheme    of   the  old  woman,  more  than  eighty  years  of 

will,  though  the  latter  derived  no  bene-  age,   and  entirely  dependent  upon  the 

fit   under   it,   raised  a  presumption  of  adopted    brother    of    the    sole    legatee, 

undue    influence,    and    cited    Dean    v.  who  was  a  stranger  to  her  blood,  and 

Negley,  45  Pa.  St.  312.     But  Ransom,  who  was  practically  unknown  to  her, 

S.,  held  that  the  doctrine  of  that  case  although    nearly    forty    years    liefore, 

had  never  been  accepted  in  this  State,  she  had  known  the  legatee  as  a  child. 

"  Where   a  testator  makes  a  mistress  Probate  was  denied, 
the  beneficiary  of  his  bounty  when  he        •*  Blanchard    v.    Xestle.    3    Den.    37. 

has  a  wife  living,  it  only  suggests  the  Even    the   earnest   persuasions   of   the 

necessity    of    the    closest    scrutiny    in  interested    and    self-seeking    will    not 

reference    to    the    facts    attending   the  necessarily  vitiate  a   testamentary  in- 

execution  and  preparation  of  the  will,  strument    by    which    they    are    largely 

but    it   does    not    raise    a    presumption  benefited,   if   it   appears   that   the   tes- 

which  shifts  the  burden  of  proof  upon  tator,    in    selecting    them    as    the    re- 

the  proponent.     In  this  case  no  .such  cipients   of   his   bounty,   has   acted   on 

state   of   facts   exists,   for   the   person  his    own    judgment,    and    not    merely 

with  whom  it  is  said  the  decedent  held  '^iven    expression   to   the    purposes    of 

the    meretricious    relation,    is    not    a  others,  by  whose  will  his  own  has  been 

beneficiarv  imder  the  will."'  subdued.      (Seiter   v.    Straub,    1    Dem. 

2  Matter  of  Bedlow,  07  Hun,  408  •  22  2G4.)  See  Tucker  v.  Field,  5  Redf. 
X.  Y.  Supp.  290.  139:  Merrill  v.  Rolston,  id.  220:  Tuni- 

3  Brick  V.  Brick,  GG  X.  Y.  144;  son  v.  Tunison,  4  Bradf.  138:  Matter 
Baker's  Will,  2  Redf.  179:  Colhounv.  of  Huestis,  23  Week.  Dii;.  224;  Matter 
Jones,  id.  34;  Matter  of  Drake,  45  of  Cruger.  36  Misc.  272:  Matter  of 
App.  Div.  206;  60  X.  Y.  Supp.  1020.  Seagrist,  1  App.  Div.  615:  37  X.  Y. 
It  is  not  necessary  that  the  precise  Supp.  496;  affd..  153  X.  Y.  682; 
mode  of  committing  the  fraud  should  flatter  of  Spratt,  •!  App.  Div.  1 ; 
be  proved.  (McLaughlin  v.  McDevitt,  38  X.  Y.  Supp.  329:  Matter  of  Hal- 
63  X.  Y.  213.)  To  prove  undue  in-  bert,  15  Misc.  308:  37  X.  Y.  Supp. 
fluence  by  duress  or  threats  it  is  not  757:  Matter  of  D\\yer.  29  Misc.  382; 
necessary  to  show  that  the  duress  was  61  X.  Y.  Supp.  903:  Matter  of  McGill, 
visible  or  physically  exercised  at  the  26  ]\Iisc.  102:  56  X.  Y.  Supp.  856; 
moment  of  the  execution.  It  is  enough  ^Matter  of  -Tourneay.  80  Hun,  315:  30 
that  the  duress  existed  shortly  before  X.  Y.  Supp.  SO:  ]\iatter  of  Bonner,  33 
and  continued  in  its  domination  over  ^lisc.  9;  67  X.  Y.  Supp.  1117. 


181                                             TlIK     I^KoIiATK     OK    WiLT.S.  §  1^  1  i). 

iindiio."'  Tlio  iniliienco  exercised  must  ainoimt  to  tiionil  coercion, 
Avliicli  rcstraiiKMl  independent  action  and  destroyed  free  agency; 
or  the  ini])ortunity  must  have  been  such  as  the  testator  was  un- 
able to  resist,  and  constrained  him  to  do  that  which  was  against 
his  free  will  and  desire," 

Some  of  the  eases  .illustrative  of  the  foregoing  general   ])rin- 
ciples  are  eollected  in  a  note." 

f'Tiaidiiipr    v.    Gardiner,    34    X.    Y.  520;   Matter  of  Briinor,  21   App.  Div. 

1")-):    Wait    V.    Breeze.    18    Hun.    403;  259;   Matter  of  (Jihon.  (iO  X.  V.  Siipp. 

Matter  of  (lark.  40  id.  233;    Ewen  v.  05;   Matter  of  Stapieton,  71  A]>]>.  Div. 

Pcrrine.  5   Redf.   040.  1 ;  75  X.  Y.  Snpp.  057. 

6  Children's    Aid    Soe.    v.    Loveridge,  — hy  child  ami   Icf/atee.      Leaycraft 

70  X.  Y.   387:   Briek  v.   Briek,  00  id.  v.    Simmons,   3    Bradf.   35;    Mowry   v. 

144;    Rollwajien   v.    Rollwajren,   03    id.  Silber,  2  id.  133;  Bleeeker  v.  Lvneli.  1 

504:    Matter    of    Martin.    !18    id.    103:  id.    458;    Mairs    v.    Freeman.    3    Redf. 

IVfatter  of  Burke,  2  Redf.  239:  Wade  v.  181 ;  Cudnev  v.  Cudnev.  08  X.  Y.  148; 

ITolhrook,   id.  378;   ^lavx  v.  :MeGlvnn,  Tueker  v.  Field,  5   Redf.   139;    :\[atter 

88   X.   Y.   357;    Post  v.  :\rason.   91    id.  of  Buoklev,  10  St.  Rep.  983:   Banta  v. 

5.39;  Rider  v.  :\riller.  80  id.  507:   INIat-  Willets.  0  Deni.  84:  Figueira  v.  Taafe, 

ter  of  Gross.  7   St.   Rep.    739;    Matter  id.   10(i:  Peck  v.  Belden,  id.  299:  :^Iat- 

of  Snellinjr.   130  X.  Y.  515.  ler  of  Mondorf.  110  X.  Y.  450:  :Matter 

"Illustrations      of      the      principles  of  Bernsee.  45  St.  Rep.   11:   Matter  of 

stated  in  the  text  may  be  found  in  the  Bedell,  .32  id.   1022:   Ledwith   v.  f'haf- 

following  cases.    Doubtless  many  other  fey,  18  App.  Div.  115;  45  X.  Y.  Supp, 

cases  might  be  added:  012. 

Umiuc    influence,    qcncral    principle.  —  &;/   hrofher  or  sii^ter  and  leqatee. 

Matter  of  Bedlow.  07  ITun.  408:   Mat-  flatter  of  Green.  20  X".  Y.  Supp.'  538; 

ter  of  Green.  07  id.  527:   Wightman  v.  flatter  of  ]\Ianton.  32  App.  Div.  020; 

Stoddard,    3    Bradf.    393;    Delafield   v.  52  X.  Y.  Supp.  511:  [Matter  of  Skaats, 

Parish.  25  X\  Y.  9:   Sherman's  Appeal.  74  Hun,  402:   20  X.  Y.  Supp.  494. 

10  Abl).  Pr.  397.  note:  Julke  v.  Adams,  — hi/  phiisician.     Crispell  v.  Dubois, 

1   Redf.  454;   C'arke  v.  Davis,  id.  249;  4  Barb.  393:  Collioun  v.  Jones,  2  Redf. 

Turhune    v.    Brookficld.    id.    220:    Yan  34;  INIatter  of  Lowman.  1  Misc.  43:22 

Hanswyck    v.    Wiese,    44    Barb.    494;  X.  Y.   Supp.   1055;   [Matter  of  Cornell, 

S^guine   v.    Se<ruine,    4   Abb.    Ct.   App.  43  App.  Div.  241:  00  X^.  Y.  Supp.  53; 

Dec.  191:   Gardiner  v.  Gardiner.  34  X^.  affd..  103  X.  Y.  008:  Matter  of  Keefe, 

Y.  155;  Tyler  v.  Gardiner,  35  id.  559;  27  Misc.  018;   59  X.  Y.  Supp.  490. 

Rollwagen  v.   Rollwagen.  3  Hun.   121;  — by   grandson,   a   leqatce.     Carroll 

03  X.  Y.  504:    [Matter  of  Westurn.  00  v.    Xorton,    3   Bradf.    291:     Matter  of 

Hun.  298:  14  X.  Y.  Supp.  753:  [Matter  Yan  Houten,   17  Misc.   445:    41    X.   Y. 

of   Portingall.   39   St.   Rep.    903:    [Mat-  Supp.  250. 

ter  of  Connor.   27   id.   905;    Matter   of  — hi/   niece   or  nepheir   ami   lecjatee. 

De  Bauin.  32  id.  279 ;  Ross  v.  Gleason,  Matter  of  Hedges.  57  App.  Div.  48 :  07 

20  id.  501.  X.     Y.      Supp.      1028:      Cliambers     v. 

—  hif    u-ife.      Brush    v.    Holland.     1  Chambers.  01  App.  Div.  299:  70  X.  Y. 
Bradf.  401  ;   Tunison  v.  Tunison.  4  id.  Supp.  483. 

138:  Delafield  v.  Parish,  25  X.  Y.  9;  — hi/  son-in-lmr  end  Icqalcc.  Mat- 
Gardiner  V.  Gardiner,  34  id.  155:  ter  of  Journeav.  15  App.  Div.  507:  44 
Tyler  v.  Gardiner.  35  id.  559;  Brick  X.  Y.  Supp.  548;  afTd..  102  X.  Y.  Oil. 
V.  Brick,  00  id.  144:  Sliields  v.  In-  — hi/  husines/i  manager.  [Matter  of 
gram,  5  Redf.  340;  [Vfatter  of  Clark,  Clark,' 5  [Misc.  08:  Haves  v.  Kerr.  19 
40  Hun.  233;  Matter  of  Thorne.  20  App.  Div.  91;  45  X.  Y".  Supp.  1050. 
St.  Rep.  240;  flatter  of  Birdsall.  34  —hi/  paramour.  Matter  of  Rand, 
id.  020;  IMatter  of  Lvddv.  24  id.  007:  28  Misc.  405:  .59  X.  Y.  Supp.  1082; 
]Matter  of  Filers,  29  id.  58:  [Matter  of  Matter  of  Westerman,  29  Misc.  409; 
Nolte.  10  [Misc.  008;  32  X.  Y.  Supp.  01  X.  Y.  Supp.  1005;  [Matter  of  Evans, 
220.  37  Misc.  337:   75  X.  Y.  Supp.  491. 

—  hi/     hushand.       Baker's     Will.     2  — -hi/  hoiiftekeeper.     [Matter  of  Ham- 
Jledf.  i79;  Ross'  Will,  20  X.  Y.  Supp.  ilton,  29  Misc.  724:  02  X.  Y.  Supp.  820. 


§  220.  The  Probate  of  "Wills.  182 

SUBDIVISION  6. 

MISTAKES   WHICH   INVALIDATE   A   WILL. 

§220.  Inquiry  as  to  testamentary  intention. — An  objection  that 
the  document  propounded  as  a  will,  or  any  part  of  it,  does  not 
conform  to  the  real  wishes  and  intention  of  the  decedent,  goes  to 
the  foundation  of  the  instrument  itself.  If  such  an  objection  is 
sustained,  it  is  tantamount  to  a  decision  that  the  instrument,  or  a 
particular  clause  of  it,  is  not  the  will  of  the  decedent.  Conform- 
ity with  the  testator's  intention  is  a  part  of  the  factum  of  the 

—  hy  executor  and  legatee.  Vree-  —  hy  clergyman,  whose  church  was 
land  V.  McClelland,  1  Bradf.  393;  a  beneficiary.  Langton's  Estate,  1 
Booth  V.  Kitchen,  3  Redf.  52;  Matter  Tuck.  301:  Merrill  v.  Rolston,  5  Redf. 
of  Carver,  3  Misc.  567 :  23  N.  Y.  Supp.  220;  Matter  of  Monroe,  2  Connoly, 
753;    Matter  of   Sutherland,   28   Misc.  395. 

424 ;    59   N.  Y.   Supp.   989 ;    Matter  of  —  by     father     of     infant      legatee. 

Fox,  9  Misc.  661 ;  30  N.  Y.  Supp.  835.  O'Neil     v.     Murray.     4     Bradf.     311; 

—  by  leqal  adviser  and  legatee.  Burke's  Will,  2  Redf.  239 ;  Hazard  v. 
Wilson  V.  Moran,  3  Bradf.   172;   Mat-  Hazard,  5  Sup.  Ct.   (T.  &  C.)   79. 

ter  of  Edson,  70  Hun,  122;   24  N.  Y.  — ■  by    a    legatee    not    next    of    kin. 

Supp.  71;  Matter  of  Murphy,  48  App.  Weir     v.     Fitzsjerald,     2     Bradf.     42; 

Div.   211;    62  N.  Y.  Supp.  785;   Clark  Hutchings  v.   Cochrane,   id.    295.      See 

V.  Schell,  84  Hun,  28;  31  N.  Y.  Supp.  Lansing  v.  Russell,  13  Barb.  510:  Mat- 

1053;  Matter  of  Suydam,  84  Hun,  514;  ter  of  Buckley,  16  St.  Rep.  983:  Mat- 

32  y.  Y.  Supp.  449;    aflfd.,   152  N.  Y.  ter   of   Pike,   83    Hun.   327;    31    N.   Y. 

639:    Matter   of   Read,    17   Misc.    195;  Supp.   689:    Clark   v.    Schell,   84   Hun, 

40  X.  Y.  Supp.  974;  Matter  of  Smith,  28;  31  N.  Y.  Supp.  1053. 

36  Misc.   128;   Matter  of  Rintelen,  37  — by  nurse.     Xeiheisel  v.  Toerge,  4 

id.  462;   75  K  Y.  Supp.  935.  Redf.   328;    Matter  of  King,  29  Misc. 

—  by  spiritual  adviser.  In  re  268:  Matter  of  Lacy,  35  id.  581;  71 
Welsh,' 1  Redf.  238;  McGuire  v.  Kerr,  N.  Y.   Supp.   1129. 

2    Bradf.    244;    Marx    v.    McGlynn,    4        Undue  infiitenee  to  induce  charitable 

Redf.   445;    88   N.   Y.    357;    Merrill   y.  bequests.       Wishtman   v.    Stoddard,    3 

Rolston,  5  Redf.  220:   Matter  of  Hoi-  Bradf.  393:   McLausrhlin  v.  McDevitt, 

lohan.  24  St.  Rep.  449;  5  N.  Y.  Supp.  63  N.  Y.  213;   Burritt  v.  Silliman.  16 

342.  Barb.  198:  IMarx  v.  McGlynn.  4  Redf. 

—  by  draughtsman  of  icill,  whose  icife  455  ;  88  X.  Y.  357  :  Matter  of  Monroe, 
or  children  are  legatees.  Lake  v.  Ran-  2  Connoly,  395:  Matter  of  Shannon, 
ney,  33  Barb.  49.  See  Coffin  v.  Coffin,  11  App.  Div.  581;  42  N.  Y.  Supp.  670: 
23"  N.  Y.  9;  Burke's  Will.  2  Redf.  239;  Matter  of  Johnson,  28  Misc.  363:  59 
Reeve  y.   Crosby,  3  id.   74;   Matter  of  X.  Y.  Supp.  906. 

Sheldon.  40   St.   Rep.   369;   Matter  of        Tncapaciti/     and     undue     influence. 

Miller,  36  Misc.  310;   73  X.  Y.  Supp.  Allen  v.  Public  Adm'r,   1  Bradf.  378; 

508.  Hutchings    v.     Cochrane,    2     id.    295; 

—  by  guardian  over  minor  ward.  Thompson  v.  Quimby,  id.  449;  Bristed 
Limberger  y.   Ranch.   2   Abb.   Pr.    (X.  v.  Weeks.  5  Redf.  529. 

S. )  279;  Matter  of  Bosch,  X.  Y.  Daily  Age  and  undue  influence.  Butler  v. 
Reg.,  July  12,  1883;  Matter  of  Car-  Benson,  1  Barb.  526:  Matter  of  Ro- 
land, 15  Misc.  355;  37  X.  Y.  Supp.  maine.  6  X.  Y.  Leg.  Obs.  156;  Weir  v. 
922.  Fitzgerald.   2   Bradf.   42:    Maverick   v. 

—  by  guardian,  a  draughtsman  and  Reynolds,  id.  360;  Creely  v.  Ostrander, 
beneficiary.  Matter  of  Paige.  62  Barb.  3  id.  107:  Matter  of  Soule.  1  Connoly, 
476;   Bristed  y.  Weeks,  5  Redf.  529.  18:     Matter    of    Bartholick.    id.    373: 

—  by  parent  over  minor.  Xutting  flatter  of  Kahn.  id.  510:  'Matter  of 
V.  Pell.  11  App.  Diy.  55;  42  X.  Y.  Johnson,  id.  518 :  Matter  of  ATcCavf^v, 
Supp.  987.  20  X.  Y.  Supp.  581;  48  St.  Rep.  315; 


183  THK    rj{OI!ATK    OF    WlI.LS.  §  220. 

"vvill."  The  Surrogate's  Court  has  power,  therefore,  to  determine, 
upon  a  prohate  proceeding-,  whether  the  instrument  is,  in  all  its 
parts,  according  to  the  real  Anshes  and  intenti(jn  of  the  decedent. 
This  power  is  distinct  from  the  power  to  expound  the  meaning 
and  effect  of  wills,  as  to  wliicli  we  shall  speak  more  fully  on  a 
subsequent  page. 

Where,  therefore,  by  reason  of  physical  prostration,  or  impair- 
ment of  the  faculties,  or  weakness  of  capacity,  or  other  circmn- 
stances,  a  doubt  is  raised  whether  the  will  propounded  is  according 
to  the  real  testamentary  intentions  of  the  testator,  it  becomes 
competent,  and  even  necessary,  to  inquire  how  far,  in  fact,  the 
will  conforms  to  the  real  wishes  of  the  deceased.  The  testator 
may  have  had  capacity  to  make  a  \v\l\,  and  may  have  intended  a 
testamentary  disposition  of  his  property,  but  by  a  mistake  of  the 
lawyer  who  drew  it,  or  of  the  scrivener  who  engrossed  it,  the 
document,  as  propounded,  may  contain  a  provision  contrary  to 
the  real  intention  of  the  testator.  In  such  cases  it  is  competent 
to  receive  proof  of  the  instructions  given  by  the  deceased,  his 
declarations,  the  position  of  his  estate,  his  previous  testamentarv' 
intentions,  the  condition  of  his  family  relations,  the  state  of  his 
affections,  and  a  variety  of  other  facts  bearing  upon  the  ascertain- 
ment of  the  fact  whether  the  particular  instrument  conformed  to 
the  real  intentions  of  the  deceased.  This  is  not  admitting  parol 
testimony  to  vary  the  wilf,  hut  to  ascertain  whether  it  is  really 
ihe  IV ill  of  the  decedent.'"*  And  parol  evidence  is  always  admissi- 
ble to  impeach  the  validity  of  a  will,  or  any  part  of  it,  though 
never  to  contradict,  vary,  or  control  the  words  of  a  will,  except  in 
certain  cases  to  explain  the  meaning  of  the  words  used  by  the 

Matter  of  Bishop,  31   id.  314;    INIatter  Scguine  v.    Seguino,    4   Abb.    C't.    App. 

of  Stewart,  10  N.  Y.  Supp.  744.  Dec.  191;  Clapp  v.  Fullerton.  34  X.  Y. 

Secrecy,  artifice,  and  contrirance  as  190;    Clarke    v.    Davis.    1    Redf.    249: 

badges  of  fraud.     Coffin   v.   Coffin.   23  Clarke  v.   Fisher.  1   Paige.   171;   Wat- 

N.  Y.  9;   Blanchard  v.  Nestle,  3  Den.  son  v.  Donnely.  28  Barb.  fi.')3 ;  La  Ban 

37;  Tunison  v.  Tunison.  4  Bradf.  138.  v.    Vanderbilt.    3    Redf.    384:    Deas    v. 

Duress  and   fhrrats.     Fagan   v.   Du-  Wandell.  1  Hun,  120;  Matter  of  Lasak. 

gan,  2  Redf.  341;  INlatter  of  Spratt,  17  '■>!   id.  417:   131   X.  Y.  (i24 :   Matter  of 

App.  Div.  030:  45  X.  Y.  Supp.  273.  Monroe,    2    Connoly.    3_0.5 ;    Matter    of 

Mistake  in  or  inwqual  prorisions  of  Williams,  4G  St.  Rep.  791. 

v'iU.      Burger   v.   Hill,    1    Bradf.    300;  8  Blackwood    v.    Darner,    2    Phillim. 

Mowry  v.  Silber,  2  id.   133:  Waters  v.  4.')8,  and  other  cases  cited  in  Williams 

Culleii,  id.  3.^4 :  Creelv  v.  Ostrander,  3  on  Exrs..  400,  40S.     See  1  .Tarman  on 

id.   107;   O'Xeil  v.  ".Murray.  4  id.  311;  Wills,  41.5;   1  Redf.  on  Wills,  499. 

Morri-son  v.  Smith.  3   id. '209:   Wi<rht-  !>  Burger  v.  Hill.  1  Bradf.  300.     Com- 

nian    v.    Stoddard,    id.    393;     Coffin    v.  pare  ^Matter  of  Chapman.  27  Hun.  .573. 

Coffin,  23  X.  Y.  9:  .lackson  v.  .lackson.  See  2  Whart.  on  Ev.,   §  992;   Abbott"-^ 

39  id.  1.53;  American  Seamen's  Friend  Trial    Ev.    13.5;     1    .larman     on    Will-^ 

Soc.   V.   Hopper.   33   id.   019:    43    Barb.  (415)  ;   1  Redf.  on  Wills,  499. 
625:    Gamble   v.   Gamble,   39   id.   373; 


§  221. 


The  Probate  of  Wills. 


184r 


testator.  The  importance  of  exercising  this  jurisdiction  in  pro- 
ceedings for  the  probate  of  wills  of  personal  property  is  apparent^ 
when  we  consider  the  effect  of  such  probate  as  conclusive  of  the 
validity  of  the  will.^^ 

§  221.  Immaterial  error. —  But  an  error  as  to  a  matter  of  fact, 
unless  of  such  a  character  as  to  atfect  the  testamentary  inten- 
tion,—  e.  g.,  an  overstatement  of  the  amount  of  certain  advances,^^ 
which  the  will  directed  to  be  deducted  from  a  legacy, —  is  not  a 
ground  for  denying  probate.  If  the  amount  is  misstated,  the 
error  may,  jierhaps,  be  corrected  on  the  settlement  of  the  estate, 
when  the  amount  is  to  be  deducted  from  the  share  of  the  bene- 
ficiary, or  on  an  application  to  pay  off  the  advance  and  stop  the 
interest.  A  mere  accidental  omission  in  a  will,  unless  it  clearly 
appears  that  the  omission,  as  the  will  stands,  defeats  entirely  the 
testator's  intention,  is  not  a  ground  for  refusing  probate.  Xor 
has  the  court  any  power  to  correct  the  mistake  by  inserting  any- 
thing in  the  will,  or  otherwise  reforming  it.  The  extent  of  its 
jurisdiction  is  the  negative  power  of  refusing  probate  to  the  in- 
strument, in  a  proper  case.'^^ 


10  See  Hill  v.  Burger,  10  How.  Pr. 
264:  Burger  v.  Hill,  1  Bradf.  360; 
Sanders  v.  Stiles,  2  Redf.  1.  In  Bur- 
ger V.  Hill  (supra),  the  decedent  had 
sufficient  testamentary  capacity,  but 
his  mind  was  enfeebled  by  disease. 
Shortly  before  his  death,  he  gave  in- 
structions to  counsel  in  regard  to  his 
will;  and  on  directing  the  draughts- 
man to  give  all  his  personal  property 
to  P.,  and  all  his  real  property  to  his 
mother  and  sisters,  was  asked  by  th^ 
counsel  whether  he  had  any  real  prop- 
erty, and  replied  affirmatively,  specify- 
ing his  store  in  Greenwich  street.  New 
York,  which  was,  in  fact,  leasehold 
property.  The  will  was  drawn  accord- 
ingly ;  but  it  was  held,  that  as  the 
will  did  not  correctly  express  the  tes- 
tator's testamentary  intentions,  it 
could  be  admitted  to  probate  only 
under  a  limited  decree,  establishing  its 
validity,  except  as  to  the  leasehold 
premises,  which,  not  being  bequeathed, 
would  go  to  the  next  of  kin. 

llBoell  V.  Schwartz.  4  Bradf.  12. 
See   1    Jarman  on   Wills    (412),   Ran- 


dolph &  T.'s  notes,  pp.  717,  723.  A 
mistake  made  in  the  person  named  as 
executor  will  not  avoid  a  will ;  the 
will  should  be  proved,  and  an  adminis- 
trator with  the  will  annexed  ap- 
pointed. (Matter  of  Finn,  1  Misc.  280; 
22  X.  Y.  Supp.  1066.)  Parol  evidence 
is  admissible  to  correct  the  date  of  a 
will.  (Matter  of  Haviland,  17  Misc. 
193:  40  X.  Y.  Supp.  973.) 

12  Creely  v.  Ostrander,  3  Bradf.  107, 
1 14.  Compare  Matter  of  Chapman,  27 
Hun.  573.  In  Matter  of  Forbes  (60 
id.  171;  14  N.  Y.  Supp.  460;  afTd., 
128  N.  Y.  640),  the  probate  of  a  will 
was  resisted  because  the  name  of  a  son 
of  the  testator,  as  a  recipient  for  a 
portion  of  the  income  of  the  trust  es- 
tate created  by  the  will,  was  omitted, 
and  the  claim  was  made  that  sucli 
omission  was  a  mistake: — Held,  that 
it  did  not  justify  the  rejection  of  the 
will.  So,  too,  in  ^Matter  of  Tousev  (34 
Misc.  363 :  69  X.  Y.  Supp.  846 ) ,  where 
the  will  recited  that  the  testatrix  had 
no  "  direct  heirs." 


185  TiiK  PiioiJATK  OF  "Wii.i.s.  §§222,223. 

SUBDIVISIOX  7. 

REVOCATION  AND  ALTKRATION  OF  "WILL. 

^  222.  Direct  revocation. —  It  sometimes  becomes  a  question  in 
proceedings  for  the  p.robate  of  a  will,  or  even  npon  an  accounting 
by  the  executor,^^  whether  or  not  the  alleged  will  was  revoked  by 
the  testator.  When  a  will  has  once  been  duly  executed,  it  re- 
mains as  a  disposition  of  the  testator's  property,  to  take  effect  at 
his  death,  and  can  only  be  revoked  in  the  manner  provided  in 
the  statute,  at  the  time  the  revocation  was  effected.^'* 

The  statute  declares  that  no  written  will,  nor  any  part  of  it, 
can  be  expressly  revoked  or  altered,  except,  either  (1),  "  by  some 
other  will  in  writing,  or  some  other  writing  of  the  testator,  declar- 
ing such  revocation  or  alteration,  and  executed  with  the  same  for- 
malities with  which  the  will  itself  w"as  required  by  law  t<j  be  exe- 
cuted ;  or  (2)  unless  such  will  be  burnt,  torn,  canceled,  obliterated 
or  destroyed,  with  the  intent  and  for  the  purpose  of  revoking  the 
same,  by  the  testator  himself,  or  by  another  person  in  his  presence^ 
];y  liis  direction  and  consent;  and  when  so  done  by  another  person, 
the  direction  and  consent  of  the  testator,  and  the  fact  of  such 
injury  or  destruction,  shall  be  proved  by  at  least  two  witnesses."  ^^ 
Xot  only  must  a  written  revocation,  to  be  valid,  be  executed  with 
the  same  formalities  with  which  the  will  itself  is  required  by  law 
to  be  executed,^"  but  a  codicil  cannot  be  deemed  effective  to  re- 
voke a  prior  will,  unless  it  is  proved  to  have  been  a  valid  testa- 
mentary disposition.^' 

§  223.  Revocation  by  later  will  or  codicil. —  A  revocation  in  writ- 
iiiii'  may  be  either  bv  a  clause  of  revocation  in  a  later  will  or  other 


I'J  Davis'  Estate,  1  Tuck.  107.  7  Paige,  97.)  A  writing  stating  that 
l-t  As  to  how  a  will,  oxeoutoci  before  a  specific  sum  was  rewived  in  lieu  of 
the  .statute,  could  be  revoked  (iftcr  the  a  devise  in  a  will  dcK-s  not  of  itself  re- 
statute  took  etlect.  s(h'  Sherry  v.  Lo-  yoke  the  devise;  the  devise  will  not 
zier,  1  Bradf.  437;  Matter  of  Gris-  stand  where  the  will  was  unaltered, 
wold,  15  Abb.  Pr.  299.  (Burnham  v.  Comfort,  108  X.  Y.  535.) 
15  2  R.  S.  04.  §  42.  For  the  distinc-  As  to  revocation  of  mutual  wills,  see 
tion  between  the  revocation  of  provi-  Edson  v.  Parsons.  155  X.  Y.  555. 
sions  in  a  will,  and  the  ademption  or  lo  Xelson  y.  Public  Adm'r,  2  Bradf. 
satisfaction  thereof,  see  Langdon  y.  210;  Ex  p.  Lindsay,  id.  204;  Leay- 
Astor,  10  N.  Y.  41.  At  common  law,  craft  y.  Sinunons,  3  id.  35;  ^IcLoskey 
revocation  of  a  devise  could  not  be  v.  Reid.  4  id.  334;  Langdon  y.  Astor, 
proved  bv  parol.  (Jackson  v.  KnifTen,  10  X.  Y.  9;  Barry  v.  Brown,  2  Dem. 
2  ,Tohns."31.)  All  that  can  be  shown  309;  Dyer  v.  Ervi'ng.  id.  100. 
iire  intrinsic  circumstances,  showing  a  i"Delafield  v.  Parish,  25  X.  Y.  9; 
change  in  the  subject  of  the  devise.  Matter  of  Johnston,  23  X.  Y.  Supp. 
but  nothing  more.     (Adams  v.  Winne,  355. 


223. 


The  Probate  of  Wills. 


186 


instrnment^^  in  writing,  executed  in  conformity  with  the  statute, 
or  it  may  be  implied  from  the  fact  that  a  later  will  is  inconsistent 
with  the  one  already  executed.  If  the  later  will  contains  a  clause 
revoking  a  former  will,  then  the  former  will  is  rendered  abso- 
lutely nugatory,  although  the  later  will  does  not  dispose  of  the 
property  embraced  in  the  first  ;^^  but  if  the  later  will  contains  no 
such  revoking  clause,  then  the  former  will  is  revoked  pro  tanto 
only,  i.  e.,  only  so  far  as  it  is  inconsistent  with  the  latter  one.^** 
On  the  same  principle,  a  codicil  is  not  a  revocation  of  a  will  fur- 
ther than  in  respect  to  provisions  in  the  will  inconsistent  with 
those  of  the  codicil."^  The  rule  is,  that  a  codicil  will  not  operate 
as  a  revocation  beyond  the  clear  import  of  its  language;  and  an 
expressed  intention  to  alter  a  will  in  one  particular  negatives  an 
intention  to  alter  it  in  any  other  respect.^"  But  a  will  which 
makes  a  full  disposition  of  all  the  testator's  property,  renders  use- 
less, and  therefore  amounts  to  a  total  revocation  of,  every  prior 
wdll.^^  And  an  inconsistent  devise  in  a  later  will  is  a  revocation 
of  the  other  devise  in  the  earlier.^'*  The  mere  existence,  how- 
ever, of  a  later  will,  is  not  necessarily  a  revocation  of  a  former 


18  Matter  of  Backus,  49  App.  Div. 
410:  G3  X.  Y.  Supp.  544.  See  Matter 
of  Barnes,  70  App.  Div.  523 ;  75  N.  Y. 
Supp.   373. 

i!>  ^Matter  of  Thompson,  1 1  Paige, 
453.  See  Pinckney"s  Estate,  1  .Tuck. 
436.  So  a  clause  may  revoke,  pro 
(fin to,  a  prior  clause  of  the  same  will. 
(Tuttle  V.  Heiderman,  5  Redf.  199.) 

20Xelson  v.  McGiffert.,  3  Barb.  Ch. 
158  ;  Brant  v.  Wilson,  8  Cow.  56  ;  Rob- 
inson v.  Smith,  13  Abb.  Pr.  359;  Mc- 
Loskey  v.  Reid,  4  Bradf.  334.  The  pro- 
visions of  the  Code  as  to  what  kind  of 
evidence  is  necessary  to  prove  a  lost 
will,  do  not  apply  where  it  is  sought 
to  prevent  probate  by  showing  the  ex- 
istence of  a  revoking  clause  in  a  will 
that  has  since  been  lost.  (CoUigan  v. 
McKcrnan,  2  Dem.  421.) 

21  Conover  v.  HofTman.  15  Abb.  Pr. 
100;  Brant  v.  Wilson,  8  Cow.  56.  See 
Cooper  V.  Heatherton,  65  App.  Div. 
561.  But  a  bequest  in  a  will  is  super- 
.seded  by  the  execution  of  a  codicil  con- 
taining a  diflferent  disposition  of  the 
same  property.  (Alvord  v.  Sherwood. 
21  Misc.  354.)  A  void  disposition  in 
a  codicil  repugnant  to  a  valid  one  in  a 
will  does  not  revoke  the  former  one, 
the  codicil  not  containing  an  express 
revocation  of  the  will.  (Altrock  v. 
Vandenburgh,  54  St.  Rep.  327.) 


22  Wetmore  v.  Parker,  52  X.  Y.  451 ; 
Viele  V.  Keeler,  129  id.  190;  41  St. 
Rep.  187.  See  Appleton  v.  Fuller, 
id.  386;  16  N.  Y.  Supp.  353.  In  Mat- 
ter of  Lockwood  (43  St.  Rep.  618; 
17  X.  Y.  Supp.  771),  the  will  provided 
for  a  certain  disposition  of  the  residu- 
ary estate  and  that  a  sum  of  money 
should  be  retained  to  pay  legacy  taxes 
and  administration  expenses,  but  the 
codicil  created  trusts  and  directed  the 
balance  to  be  paid  to  legatees,  with  a 
provision  that  the  codicil  should  con- 
trol where  it  conflicted  with  the  will. 
Held,  that  the  specific  nrovision  for 
legacy  taxes  was  annulled. 

23  Simm.ons  v.  Simmons,  26  Barb. 
68:  Van  Wert  v.  Benedict,  1  Bradf. 
114.  An  irrevocohlc  irill  may  not  be 
admitted  to  probate  in  the  face  of  a 
later  testamentary  paper  expressly  re- 
vokin?  it.  (Matter  of  Gloucester,  32 
St.  Rep.  901.)  If  the  first  will  was 
made  for  a  valuable  consideration,  its 
provisions  may  be  enforced  against  his 
estate  as  a  binding  contract,  in  a 
court  of  equity :  but  a  Surrogate's 
Court  has  no  jurisdiction  to  deal  with 
it.  (lb.)  See  Edson  v.  Parsons,  155 
X.  Y.-.555. 

24  Barlow  v.  Coffin,  24  How.  Pr.  54. 


187  TiiK  Prorate  ok   Wills.  §  224. 

will;  so  that,  where  the  later  will  has  been  lost  or  destroyed,  and 
its  provisions  cannot  be  ascertained,  the  mere  fact  that  such  a  will 
Avas  (Inly  executed  is  not  a  ground  for  refusing  probate  of  a  for- 
mer will."'^  When  it  clearly  appears,  however,  that  a  subsequent* 
Avill,  duly  executed,  contained  a  revocation  clause,  though  the  will 
itself  cannot  be  found,^'  or  where  the  proof  of  execution  of  the 
later  will  is  insufficient,^^  probate  will  be  refused. 

§  224.  Burning,  tearing,  obliterating,  etc.,  of  will. — Revocation 
•of  a  will  may  be  accomplished  by  burning,  tearing,  canceling, 
■obliterating  or  destroying  the  instrument  itself  with  the  intent  of 
revoking  the  same,  in  the  manner  provided  in  the  statute.  It  is 
only  when  the  act  is  done  by  another  person  that  the  fact  of  injury 
or  destruction,  together  with  the  direction  and  consent  of  the 
testator,  are  to  be  proved  by  at  least  two  witnesses.^*  The  revo- 
cation by  destruction  or  cancellation  must  extend  to  the  Avhole 
will  and  not  to  a  part  of  it  only.  Where  a  will  is  found  among 
the  testator's  papers  wnth  his  signature  and  the  name  of  the  prin- 
■cipal  legatee  partially  obliterated,  there  is  a  presumption  of  revo- 
cation by  cancellation."^  In  order  to  constitute  revocation,  com- 
plete destruction  or  cancellation  of  the  will  is  not  necessary. 
Tearing  the  will  into  several  fragments  is  sufficient,  although  the 
fragments  are  capable  of  being  restored. ^'^  But  revocation  of  a 
particular  provision  or  clause  of  the  will  cannot  be  effected  by 
merely  canceling  or  erasing  such  clause,  or  making  interlinea- 
tions which  change  its  character.^^  If  a  particular  clause  is  can- 
celed or  altered,  the  will  should  be  reacknowledged,  to  give 
■effect  to  the  change.  In  a  case  of  an  unattested  interlineation, 
erasure  or  other  alteration  either  bv  the  testator  or  a  stranger. 


25  Nelson  v.  MeGifTert,  3  Barb.  Ch.  contained  the  disposing  part  and  the 
158:  Matter  of  Williams,  .34  Mise.  748;  other  the  si<jnature  and  attestation 
70  N.  Y.  Supp.  1055.  See  Pinckney's  clause,  proved  to  have  been  duly  exe- 
Estate,  1  Tuck.  430;  Clark  v.  Kings-  cuted,  found  in  the  desk  of  the  scriv- 
ley,  37  Hun,  246.  oner  who  drew  it.  but  with  the  separa- 

2(5  Moore  v.  Griswold,  1  Redf.  388:  tion  unexplained,  in  which  was  also 
Matter  of  Myers.  28  Misc.  359:  50  found  a  memorandum  signed  by  the 
X.  Y.  Supp.  008:  ^Matter  of  Forbes,  24  testatrix  but  not  duly  executed  as  a 
id.  841.  And  see  Bloomer  v.  Bloomer,  will,  for  a  ditT<>r('nt  disposition  of  the 
2  Bradf.  339.  property.      Held   not   to  have  been  re- 

2T  ;Matter  of  Barnes,  70  App.  Div.  vokod.  and  to  be  entitled  to  probate. 
523:   75  N.  Y.  Supp.  373.  (Matter   of   Aekcls,   23    Misc.    321:    52 

28Timon  v.  ClaflFv.  45  Barb.  438.  N.  Y.  Sunp.  240.) 

20  Clark's  Will.  1  Tuck.  445.  See  3iLovell  v.  Quitman.  88  X.  Y.  377: 
Matter  of  Alger.  38  :Misc.  143.  Quinn  v.  Quinn.  1  Sup.  Ct.   (T.  i-  C.) 

•■^0  Sweet  v.  Sweet,  1  Redf.  451.  Com-  4.17  :  Matter  of  Prescott.  4  Redf.  179: 
pare  Matter  of  Forman,  54  Barb.  274.  Clark  v.  Smith.  34  Barb.  140:  Gugel 
But  where  a  will  was  written  on  two  v.  Vollmer.  1  Dem.  484.  So  far  as  it 
separate  sheets  of  paper,  originally  be-  holds  othei'wise.  the  case  of  ^tcPherson 
ing  one  sheet  of  legal  cap,  one  of  which    v.  Clark,  3  Bradf.  92,  is  overruled. 


§  225.  Ttie  Probate  of  Wills.  188 

after  the  execution  of  the  iii>trument,  the  court  will  disregard  the 
change,  and  probate  the  will  according  to  its  original  language."^ 
A  question  is  always  likely  to  arise  whether  an  erasure  or  inter- 
polation was  made  before  or  after  the  execution  of  the  instru- 
ment. The  rule  is  that,  in  the  absence  of  suspicious  circum- 
stances, no  presumption  arises  that  an  interlineation  or  erasure^ 
fair  upon  its  face  and  entirely  unexplained,  was  fraudulently  made 
after  the  will  was  executed.^^  But  material  alterations  will  not 
be  presumed  to  have  been  made  prior  to  execution,^'*  and  in  the 
absence  of  direct  evidence  as  to  when  the  cutting,  tearing,  or  the 
obliteration  and  interlineations  were  made,  circumstances  may  be 
sufficient  to  justify  an  inference  that  they  were  done  before,  and 
not  after,  the  execution  of  the  will.^^ 

§  225.  Intent  to  revoke. —  To  effect  a  revocation  by  destruction 
or  cancellation  of  the  instrument,  it  is  essential  that  there  should 
be  an  intention,  as  well  as  a  physical  a'ct;  the  mere  act  of  cancel- 
ing a  will  is  not  a  revocation,  unless  it  be  done  animo  revocandi.^^' 
But  a  mere  intention  to  revoke,  however  strongly  declared,  is  of 
no  effect  unless  carried  out  by  some  act  amounting  to  a  cancella- 
tion or  revocation.^'  The  act,  however,  being  done,  the  inten- 
tion may  be  inferred  from  the  circumstances  attending  the  act. 
Thus,  the  fact  that  the  instrument  was  last  seen  in  the  decedent's 


32  Matter    of   Wilcox,     46   St.    Rep.  33  So  held,  admitting  the  will  to  pro- 

877;  ]\iatter  of  Carver,  3  Misc.  507;  23  bate,    where    testators    signature    had 

X.   Y.    Supp.   753;    Matter  of   Lang,   9  been  obliterated,  then  rewritten.  (Mat- 

Misc.    521;    30   X.    Y.    Supp.    388.      In  ter  of  Wood,  32  St.  Rep.  286;  Matter 

Quinn  v.  Quinn  isiipra),  the  testator,  of  Tighe,  24  Misc.  459;  53  N.  Y.  Supp. 

after  he  had  executed  his  will,  made,  718;   Matter  of  Dwyer,  29  id.  382;  61 

in    his    own    handwriting,    various    al-  N.  Y.   Supp.   903;   Crossman  v    Cross- 

terations,   erasing   some   legacies    alto-  man,  95  X.  Y^.  145. 

gether,    and    changing    the    names    of  34  Matter   of   Barber,   92    Hun,    489 ; 

some  of  the  legatees.     He  also  changed  37  X.  Y.  Supp.  235. 

one  of  the   executors.     Held,  that  the  35  Matter  of  Homes,  32  St.  Rep.  902;; 

will   as  originally  executed   should  be  Matter  of  Potter,  33  id.  936;   12  X.  Y. 

upheld.       In    Wetniore     v.     Carryl     (5  Supp.    105 ;    Matter   of   Carver,    23   id. 

Redf.    544),   the  will  had  been  admit-  753;  Matter  of  Voorhees,  6  Dem.  162; 

ted    to    probate    and    recorded    as    al-  Matter  of   Barl)er,  supra.      Interlinea- 

tered.      An   application   to  change   the  tions    need    not   be    noted   at   the    foot 

record  by  substituting  the  original  for  of  the  instrument,  if  the  place  where 

the    altered    form    of    the    will    was  they   should    appear   is    clearly   desig- 

granted.     Compare  Dyer  v.  Erving,  2  nated.      (Matter   of  Whitnev,  90  Hun, 

Dem.   160.     In   Stevens  v.   Stevens"  (6  138;    35   N.   Y.    Supp.    798';    revd.    on 

Dem.    262).    the    testatrix,    after    the  other  grounds    in  153  N.  Y''.  259.) 

execution   of   a   will,   desired   to .  make  30  Jackson    v.    HoUoway,    7    Johns, 

certain    further   bequests    which    were  394;    Jackson    v.    Potter,    9    id.    312; 

inserted    by    the    draughtsman,    there  Sweet  v.  Sweet,  1  Redf.  451;  Smith  v. 

being  no  re-execution  or  republication.  Wait,  4  Barb.  28. 

Held,   that   the   instrument   should   be  37  Clark  v.  Smith,  34  Barb.  140. 
admitted  as  executed  and  without  the 
interpolated  clause. 


1S9 


PiCOliATK    OF     WlLT.S. 


^   --*'■'• 


possession,  but  cdiild  not  Ix;  found,  upon  due  >f'iir('-li,  aftf-r  his 
death,  raises  a  presunijjtion  of  intended  rexocation  hy  destruc- 
tion ;'***  and  there  is  a  like  |»resuni})tion  where  it  was  found  in  his 
<lra\\cr  with  liis  signatui'c  caneeled.^''  J3ut  sueh  a  jjrcsuniptioii 
is  entirely  overcome  when  it  apjwars  that,  ui)on  its  execution,  the 
will  was  <le])()sited  by  testator  with  a  custodian,  and  that  tiie  tes- 
tatfu-  did  not  there-after  have  it  in  his  possession,  or  have  access 
1o  it.'"  Since  an  <iniiiiiis  rcrocandi  is  essential,  it  must  be  shown 
that  the  testator  was  of  sound  mind,  and  that  the  act  of  destruf- 
tion  was  done  frecdy,  and  not  under  undue  iidluciice.  It  must 
apjiear  that  the  testator  had,  at  the  time  of  the  act  of  destruction, 
sufficient  capacity  to  understand  the  nature  and  effect  of  the  act, 
and  ])erfornied  it,  or  directed  it  to  be  performed,  freely  and  vol- 
untarily, with  the  intent  to  effect  a  revocation.*^  ''  T^pon  a  rpie*- 
tion  of  revocation,  no  declarations  of  the  testator  are  admissible, 
except  such  as  accompany  the  act  by  which  the  will  is  revoked; 
such  declarations  being  received  as  part  of  the  res  gestce,  and  for 
the  ]">urpose  of  showinc;  the  intent  of  the  act."  "^^ 

v:<  226.  Effect  of  revocation  of  will  upon  codicil. —  The  destruc- 
tion or  mutilation  of  a  will  is  not  necessarily  a  revocation  of  a 
codicil,  if  the  latter  is  so  independent  of,  and  unconnected  with. 


38Tilley  V.  Bowen,  11  Wend.  227: 
Bulklev'v.  Redmond,  2  Bradf.  281; 
Holland  v.  Ferris,  id.  ^'?,A:  Betts  v. 
Jackson.  G  Wend.  173;  flatter  of  Ken- 
nedv.  53  App.  Div.  10r>;  (i.T  N.  Y. 
Nupp.  870;  afTd..  1G7  X.  Y.  103;  Hard 
V.  Ashley,  88  Hun.  103:  34  N.  Y. 
Supp.  583. 

3u  Clark's  Estate,  1  Tuck.  44.",:  Mat- 
ter of  Philip,  46  St.  Bep.  3r,(i :  1!)  N. 
Y.  Supp.  13 ;  CoUyer  v.  Collyer,  3  St. 
Bep.  135;  Matter  of  Nichols,  40  Hun, 
387 ;  Crossman  v.  Grossman,  95  N.  Y. 
145.  But  see  Matter  of  Hopkins,  73 
App.  Div.  550,  where  it  was  held  that 
the  mere  fact  that  canceling,'  marks  a])- 
pearcd  u])on  the  sijjjiiature  to  a  will 
oirered  for  probate  was  not  sulllcient 
to  authorize  the  inference  that  sucli 
marks  were  made  by  tlie  testator  so  as 
to  require  the  rejection  of  the  instru- 
ment as  havinj;  been  revoked,  where 
there  was  no  other  evidence  of  an  in- 
tention to  revoke,  and  the  will  had 
been  formally  executed  ten  years  jire- 
vious  to  the  testator's  death  and  was 
found  some  days  after  his  death  in  a 
<lra\ver  of  a  desk  which  he  had  been 
accustomed  to  use,  but  had  not  been 
found   upon   a   thorough   search   made 


about  two  hours  previously;  distin- 
guishing Matter  of  Clark,  1  Tuck.  445. 

■lORchultz  v.   Schultz,  35  X.  Y.   1)53. 

41  Idlev  V.  Bowen,  11  Wend.  227; 
Smith  V.'  Wait,  4  Barb.  28;  Matter  of 
Fornian,  54  id.  274;  Voorhis  v.  Voor- 
his,  50  id.  110;  :\Iatter  of  Waldron, 
10  :\Iisc.   333;   44  N.  Y.  Supp.  353. 

Where  a  will  is  made  in  a  sound 
state  of  mind,  and  is  subsequentlT  re- 
voked without  the  slightest  evidence 
of  any  eliange  of  piir])ose,  or  any 
ground  for  it,  after  the  testator  has 
shown  signs  of  breaking  up  meiUallv, 
the  revocation  mav  be  attributed  to  de- 
lusion. (Miller  v.  White.  5  Redf.  320.) 
In  :\ratter  of  De  Oroot  ( 18  Civ.  Broc. 
Rej).  102).  testimony  as  to  the  de- 
struction of  a  will  in  the  lifetime  of 
the  testatrix  was  considered,  and  de- 
struction held  to  be  without  her  direc- 
tion or  consent,  and  fraudulent,  and 
the  same  admitted  to  jirobate  upon 
proof  of  the  contents  thereof.  See.  as 
to  proof  of  lost  or  destroyed  wills, 
§  234,  post. 

•42 Pit  Selden,  J.,  Waterman  v.  Whit- 
ncv,  11  X.  Y.  157:  Matt.^r  of  liopkin-, 
35  Misc.  702 :  affd..  73  App.  Div.  550. 


§  227.  Till-:  Probate  of  Wills.  190 

the  will  tliat,  imder  the  circumstances,  it  solely  expresses  the  tes- 
tator's testamentary  intentions.'*^  Bnt  the  general  rule  is  that  a 
codicil  is,  prima  facie,  dependent  on  the  will,  and  that  the  destruc- 
tion of  the  will  is  an  implied  revocation  of  the  codicil. 

§  227.  Revocation  implied  from  change  of  property. —  A  total  or 
partial  revocation  may  be  effected  indirectly  or  impliedly,  as  by  a 
change  in  the  condition  of  the  property  devised,  or  in  the  devisor's 
interest  in  it,  such  revocation  being  deduced  from  the  facts  of 
each  case,  under  familiar  rules  of  law.  Accordingly,  where  a 
testator,  having  devised  or  bequeathed  specific  property,  after- 
wards in  his  lifetime  sells  or  otherwise  absolutely  disposes  of  the 
same  property,  this  amounts  to  a  revocation  of  such  devise  or 
legacy,'**  to  che  extent  that  he  has  divested  himself  of  the  property 
devised  or  bequeathed.*^  Where  the  testator  does  not  wholly 
divest  himself  of  his  interest  in  the  property,  but  retains  any  por- 
tion thereof,  as,  e.  g.,  a  life  estate  in  lands  devised,  or  reserves 
rent  and  a  right  of  re-entry,*'^  this  does  not  work  a  revocation. 
In  regard  to  such  revocations,  the  common  law  has,  in  most  cases, 
been  declared  or  modified  by  the  statute.  A  mere  agreement  to 
convey  is  not  a  revocation,  but  the  property  passes  by  the  devise 
or  bequest,  subject  to  the  same  remedies  for  a  specific  perform- 
ance or  otherwise,  against  the  devisees  or  legatees,  as  might  be 
had  by  law  against  the  heirs  of  the  testator,  or  his  next  of  kin,  if 
the  same  had  descended  to  them.*^  In  the  same  way,  a  charge 
or  incumbrance  upon  any  real  or  personal  estate,  for  the  purpose 
of  securing  the  payment  of  money,  or  the  performance  of  any 
covenant,  is  not  a  revocation  of  any  will  relating  to  the  same 
estate,  previously  executed;  but  the  devises  and  legacies  therein 


43Wms.    on    Exrs.    126;    Matter    of  Barb.   416.     As  to   restoration  of   the 

Day,  1   Bradf.  476.  devise,   upon    a     reconveyance     of     the 

44  Livingston  v.  Livingston,  3  .Johns,  land,  see  Walton  v.  Walton,  7  Johns. 

Ch.    148;    Minuse   v.    Cox,    5    id.    441;  Ch.    258;    BroAvn  v.    Brown,    16    Barb. 

Walton  V.  Walton,  7  id.  258 ;  Herring-  569.       As   to   effect   of   devise   of   land 

ton  v.  Budd,  5  Den.  321;  Ametrano  v.  contracted  to  be  sold,  see  McCarty  v. 

Downs,  170  N.  Y.  388;  63  N.  E.  Rep.  Mvers,  5  Hun,  83. 

340;   McXaughton  v.  McNaughton,  34  47  2  R.  S.  64,  §  45.     And  see  Knight 

X.  Y.  201;   Adams  v.  Winne,  7  Paige,  v.  Weatherwax,  7  Paige,  182;   Walton 

97;    Beck    v.    McGillis,    9    Barb.    3*5 ;  v.  Walton,  7  .Johns.  Ch.  258;  Gaines  v. 

Brown  v.  Brown,  16  id.  569;   Barstow  Winthrop.  2  Edw.  571;  Roorne  v.  Phil- 

V.    Goodwin,    2    Bradf.    413;    Xottbeck  ips,  27  X.  Y".  357,  364;    Guelich  v.  Clark^ 

v.    Wilks,   4  Abb.   Pr.   315;    Gilbert   v.  3  Sup.   Ct.   (T.  &C.)  315;   Xutzhorn  v. 

Gilbert.    0    Barb.    532;    Arthur   v.   Ar-  Sittig,   34  Misc.  486;    70  X.  Y^   Supp. 

thur.   10  id.  9.  287;    Williams   v.    Haddock,    78    Hun. 

45Vreeland  v.  McClelland,   1  Bradf.  429;    29  X.  Y^   Supp.    199;    aflfd..    145 

393.  N.  Y.  144:  Hollv  v.  Hirsch,  135  X.  Y\ 

46Herrington   v.   Budd,  5   Den.   321.  590;  49  St.  Rep.  14. 
See     Vandemark     v.     Vandemark,     20 


im  TiiK  PiioBATK  (.!•■   Wills.  §228. 

contained,  pass  and  take  effect  subject  to  such  charge  or  incum- 
brance.■*'^  Nor  is  any  act  of  a  testator,  by  which  his  interest  in 
])r()perty  is  altered,  but  not  wholly  divested,  to  be  deemed  a  revo- 
cation of  a  previous  devise  or  bequest  of  such  property;  but  the 
devise  or  bequest  gives  to  tlie  devisee  or  legatee  the  actual  estate 
or  interest  of  the  testator,  which  would  otliorwise  descend  to  his 
heirs,  or  pass  to  his  next  of  kin;  unless,  in  the  in^trinuciit  l)y  which 
such  alteration  is  made,  the  intention  is  declared  that  it  shall 
<)j)erate  as  a  revocation  of  such  previous  devise  or  bequest.'*^  But 
if  the  provisions  of  the  instrument  Ity  which  -ucli  alteration  is 
made  are  wholly  inconsistent  with  the  terms  and  nature  of  the 
previous  devise  or  bequest,  the  instrument  operates  as  a  revoca- 
tion tliercof,  unless  sncli  ])rovisions  depend  on  a  condition  or  con- 
tingency, and  such  condition  is  not  performed,  or  such  contin- 
gency does  not  happen.''''^ 

^  228.  Subsequent  marriage. —  The  common-law  rule  that  the 
marriage  of  a  ivoynan  operated  as  an  absolute  revocation  of  her 
prior  AviJl  was  made  a  part  of  the  statute  law  of  this  State  by  the 
Revised  Statutes. ^^  And  this  provision  is  not  repealed  by  inqdi- 
cation  by  the  ::\rarrie(l  Women's  Acts  of  1848,  1849,  and  18(50,  but 
is  still  in  force.'''"  Notwithstanding  these  acts  (which  confer  tes- 
tanuMitary  capacity  upon  married  women)  there  is  sufficient  rea- 
son for  the  continuance  of  the  rule  in  the  changed  relations  of  the 
woman  by  her  marriage.  Her  new  status  as  wife  induces  the 
presunq:)tion  of  a  new  testamentary  intention  and  demands  a  new 
testamentary  act.  Hence  the  unmarried  woman  of  the  statute 
is  the  wonum  who  is  not  in  a  state  of  marriage,  e.  g.,  a  widow. ^^ 
But  a  will  executed  by  a  married  woman  is  not  revoked  by  the 
death  of  lun-  linslmnd  and  lier  subsequent  remarriage,^'*  nor  by  a 
nuirriage  following  a  divorce. ^^  After  her  marriage,  the  testa- 
trix may  republish  her  will  made  before  marriage,  with  the  same 
effect  as  if  re-executed  after  marriage.'^^ 


48  2  R.  R.  05,  §  4t).     And  see  Vande-  020;   4.3  St.  Rep.  282:   Croner  v.  Cow- 

iiiaik  V.  Vandoniark,  20  Rarl).  410.  drey,  1.39  N.  Y.  471;  54  St.  Rep.  728. 

•»!'2    R.    S.    Of),    §    47;     Burnliam    v.  r.4  Matter    of    :McLarney,    153    X.    Y. 

Comfort,   108  X.  Y.  535.  410;   47  X.  E.  Rep.  817. 

•W2  R.  S.  05,  §  48;  Ludlum  v.  Otis,  55  :Mattor  of  Burton,  4  IMise.  512. 

15  Ilun,  410.  r.r,  Brown  v.   (lark,   supra.      In   that 

•''1  2  R.  S.  04,  §  44.  case  a  sinolo  woman  made  a  will  and 

52  Brown   v.    Clark,    77    X.    Y.    309;  afterward    married,    whereby    the   will 

Loomis   V.    Loomis,  51  15arb.  257 ;    La-  was  revoked.     Thereafter  she  duly  exe- 

throp  V.  Duidop,  0  Sup.  Ct.  (T.  &  C.)  euted    a    codicil    referrin-r   to    and    de- 

512.     See  McMahon  v.  Allen,  4  K.  D.  seribinof  her  said   will  and   containinjr 

Smith,  519.  the  followintr  clause:    "  I  do  liereby  re- 

53?,Iatter    of    Kaufman,    131    X'.    Y.  publish,  reaiffirm.  and  adopt  the  afore- 


I  229. 


The  Prot$ate  of   Wills. 


192 


In  the  case  of  a  man,  who  has  disposed  of  his  whole  estate  by 
will,  his  subsequent  marriage  does  not  operate  to  revoke  such  will 
except  he  has  issue  of  such  marriage,  born  either  in  his  lifetime 
■or  after  his  death,  and  the  wife  or  issue  of  such  marriage  shall  be 
living  at  his  death,  unless  provision  is  made  for  such  issue  by 
some  settlement,  or  unless  such  issue  be  provided  for  in  the  will, 
or  in  such  way  mentioned  therein  as  to  show  an  intention  not  to 
make  such  provision.^"  ]^o  other  evidence  to  rebut  the  presump- 
tion of  such  revocation  can  be  received.^^ 

§  229.  Subsequent  birth  of  child. —  It  is  further  provided,  that 
whenever  a  testator  shall  have  a  child  born  after  the  making  of  a 
last  will,  either  in  the  lifetime  or  after  the  death  of  such  testator, 
and  shall  die  leaving  sucli  child,  so  after-born,  unprovided  for  by 
any  settlement,  and  neither  provided  for,  nor  in  any  way  men- 
tioned, in  such  will,  every  such  child  shall  succeed  to  the  same 
portion  of  such  parent's  real  and  personal  estate  as  would  have 
■descended  or  been  distributed  to  such  child  if  such  parent  had 
died  intestate,  and  shall  be  entitled  to  recover  the  same  portion 
from  the  devisees  and  legatees,  in  proportion  to  and  out  of  the 
23arts    devised    and    bequeathed    to    them    by    such   will.^^       The 


going  said  instrument  as  my  present 
will,  in  like  manner  as  if  so  executed 
by  me,  but  modified  pursuant  to  this 
«odicil,  which,  in  connection  with  an 
amendment  of  my  said  will,  I  now  pub- 
lish and  declare  together  as  constitut- 
ing my  last  will  and  testament.'"  The 
will  was  present  when  the  codicil  was 
executed,  and  the  testatrix,  at  the 
time,  declared  the  instrument  executed 
to  be  a  codicil  to  her  last  will  and  tes- 
tament, and  a  reaffirmation  of  the  lat- 
ter. Held,  that  the  effect  was  to  re- 
publish the  will,  which,  with  the  codi- 
cil, constituted  the  testatrix's  last  will 
and  testament. 

157  2  R.  S.  64,  §  43. 

58  It  was  held,  before  the  Revised 
Statutes,  that  marriage  and  birth  of  a 
child  might  amount  to  an  implied 
revocation,  and  that  such  revocations 
were  not  within  the  Statute  of  Frauds. 
(Brush  v.  Wilkins,  4  .Johns.  Ch.  506: 
Sherrv  v.  Lozier,  1  Bradf .  437. )  See 
Bloomer  v.  Bloomer,  2  id.  339. 

The  presumption  of  intent  to  revoke 
a  Avill  arising  from  subsequent  mar- 
riage and  birth  of  issue,  is  considered 
in  Havens  v.  Van  Denburgh,  1  Den.  27. 

A  will  made  in  ignorance  of  the  ex- 
istence of  a  living  child  is  not  revoked. 


even  at  common  law,  by  the  discovery 
of  its  existence.  (Ordish  v.  ^IcDer- 
mott,  2  Redf.  460.) 

Testator  made  a  will  in  1883,  and  a 
codicil  in  1884.  In  the  former  year 
he  began  illicit  intercourse  with  a 
voman  who  afterward  became  his  wife, 
and  he  gave  her  a  house,  but  did  not 
live  with  her  before  the  codicil  was 
made  or  then  hold  her  out  as  his  wife. 
Held,  that  at  the  date  of  the  codicil 
the  parties  had  not  passed  from  a 
state  of  illicit  intercourse  to  that  of 
marriage,  and  the  will  was  revoked  by 
the  subsequent  marriage  of  the  testa- 
tor and  birth  of  issue.  (Matter  of 
Gall,  31  St.  Rep.  9.54:  9  X.  Y.  Supp. 
466:  affd.,  10  id.  661 ;  32  St.  Rep. 
69.5. ) 

59  2  R.  S.  65.  §  49,  as  amended  L. 
1869.  c.  22.  SI.  See  also  Co.  Civ. 
Proc.  §  1868.  Where  the  testator, 
after  giving  the  residue  of  his  estate 
in  trust  for  his  wife  during  life, 
made  the  disposal,  "  I  give  the 
reversion  of  all  said  residue  and 
remainder "  *  *  *  "to  those  per- 
sons who,  if  my  death  occurred  at 
the  time  of  her  death,  would  then  be 
my  heirs-at-law  by  blood."'  and  a  son 
was  born  in  his  lifetime  after  the  exe- 


193 


'I'm:    l*i;oBATE  of  Wills. 


§230. 


statute,  it  will  Lo  observed,  says  parent,  thus  including  mother  as 
well  as  father.^'"  It  has  no  application,  however,  to  an  adopted 
child."^  The  birth  of  a  post-testamentary  only  child  is,  however, 
no  ground  for  refusing  probate.*'" 

§230.  Revocation  of  subsequent  will. —  Where  a  subsequent  will 
affects  one  previously  made  (which,  as  has  been  seen  above,  is  not 
always  the  case),  the  revocation  of  the  later  will  does  not  revive 
the  first,  unless  it  appears,  by  the  terms  of  the  revocation,  that  it 
was  the  testator's  intention  to  revive  his  first  will;''"'^  or  unless, 
after  such  revocation,  he  duly  republishes  his  first  will.'^ 


cution  of  the  will, —  Held,  that  the  son 
took  under  tiie  will  and  was  not  enti- 
tled to  a  distributive  share  of  the  es- 
tate, as  if  his  father  had  died  intes- 
tate, as  a  child  '"  unprovided  for  by 
any  settlement,  and  neither  provided 
ior  nor  in  anv  way  mentioned  in  such 
will,"  within  2  R.'s.  6.5,  §  49.  (IMinot 
V.  Minot,  17  App.  Div.  521;  45  N.  Y. 
Supp.  554.) 

CO  The  amendment  of  1869  consisted 
of  substituting  the  word  parent  for 
father:  thus  rendering  obsolete  the 
case  of  Cotheal  v.  Cotiieal  (-JO  X.  Y. 
405),  which  held  that  under  the  orig- 
inal statute  the  will  of  a  married 
woman  was  not  revoked  by  the  subse- 
quent birtli  of  children  who  survived 
her.  See  Plummer  v.  Murrav,  51  Barb. 
201;  Smith  v.  Robertson,  24  llun,  210. 

CI  Matter  of  Gregory,  15  Misc.  407  : 
37  N.  Y^  Supp.  92.5. 

62  Matter  of  Bunce,  6  Dem.  27S: 
Matter  of  Huiell.  id.  352;  :Matter  of 
Murphy,  144  X.  Y.  557:  (i4  St.  Rep. 
249;  Luce  v.  Burcliard.  78  Hun,  537: 
29  X.  Y.  Supp.  215. 

63  In  Matter  of  Campbell  (170  N.  Y. 
84;  62  X.  E.  Rep.  1070),  testatrix  exe- 
cuted a  will  in  1897.  In  1899  anotiier 
will  was  executed,  and  in  1900  an  in- 
strument was  executed  which  declared 
itself  to  be  a  codicil  to  the  last  will 
of  testatrix,  "which  will  bears  date 
July  0,  1897."  The  will  of  1899  modi- 
fied the  provisions  of  the  will  of  1S97 
in  respect  to  certain  legacies.  Each  of 
the  wills  was  executed  with  the  requi- 
site statutory  formalities,  and  con- 
tained the  usual  revocation  clause. 
The   codicil   modified   some   provisions 

13 


of  the  will  of  1897,  revoked  others,  and 
added  some  legacies.  Held,  tliat  the 
effect  of  the  codicil  was  to  republish 
the  earlier  will  as  of  the  date  of  the 
codicil,  and  to  revoke  the  intermediate 
will. 

\\'here,  however,  a  codicil  is  written 
partly  upon  the  will  itself,  modifies  it 
only  in  a  few  particulars  and  its  pro- 
visions are  inseparably  blended  with 
those  of  the  will,  and  it  appears  that 
testator  had  had  trou])le  with  a 
brother  who  was  named  as  executor  of 
the  will,  which  resulted  in  changes  in 
his  estate,  creating  inequalities  in  the 
devises  made,  an  erasure  of  the  sigjia- 
ture  to  the  codicil  will  be  held  to  re- 
yoke  the  will  as  well  as  the  codicil. 
(Matter  of  Brookman,  11  !Misc.  675: 
33  X.  Y.  Supp.  575.) 

Revocation  of  probate  of  a  will  as  to 
personalty,  by  the  surrogate, —  Held 
to  abrogate,  at  least  as  to  personalty, 
a  revocation  clause  therein,  so  as  to 
make  it  inoperative  as  against  the  pro- 
bate of  a  prior  valid  will.     (Matter  of 


59  X.  Y.   S 


upp. 


rkliller.  28  Misc.   373; 
978.) 

64  2  R.  S.  66,  §  53;  Matter  of 
Barnes,  70  App.  Div.  523:  75  X.  Y. 
Supp.  373.  A  will  expressly  revoked 
by  the  terms  of  a  subsequent  will, 
afterward  destroyed  by  the  testator,  is 
not  republished  so  as  to  become  a 
valid  will,  by  the  testator's  declara- 
tion to  persons  other  than  the  sub- 
scribing witnesses,  that  he  desires  the 
will  first  executed  to  stand  as  his  last 
will,  and  that  it  is  his  last  will. 
(Matter  of  Stickney,   161  N.  Y.  42.) 


231.  The  Probate  of  Wills.,  194 


AETICLE  riFTH. 

CODICILS   AND    INSTRUMENTS    ANNEXED    TO    WILLS. 

§  231.  Execution  and  effect  of  codicil. —  A  codicil  is  defined  to  be 
a  supplement  or  au  addition  to  a  will,  for  an  explanation  or  alter- 
ation of  the  former  dispositions  of  the  testator,  and  is  to  be  taken 
as  a  part  of  the  will,  all  making  but  one  testament.  Except 
where  a  contrary  intent  is  expressed  or  shown,  the  effect  of  the 
codicil  is  to  bring  down  the  date  of  the  will  to  the  date  of  the 
codicil,  making  the  will  speak  as  of  that  date,  unless  the  effect  of 
the  change  of  date  is  to  alter  the  meaning  of  the  will.^  The  exe- 
cution of  a  codicil  amounts  to  a  republication  of  the  -^dll  to  which 
it  refers  unless  a  contrary  intention  appears  on  the  face  of  the 
paper,  and  corrects  any  informality  in  the  execution  of  the  latter. ^^ 
The  effect  of  a  codicil  to  revoke  a  will  has  been  previously  con- 
sidered.^^ There  can  be  but  one  last  wiU,  but  the  testator  thhj 
make  any  number  of  codicils,  all  being  of  equal  force,  if  not  con- 
tradictory. It  is  not  necessary  that  the  codicil  should  be  written 
on  the  same  sheet  with  the  will,  nor  that  it  be  affixed  to  it  bodily, 
but  to  entitle  a  codicil  to  be  proved  and  so  take  effect  as  a  part 
of  the  will,  it  must  be  executed,  published,  and  attested  with  the 
same  formalities  as  the  will  itself. ^^  The  facts  that  it  was  pre- 
sented for  probate  with  the  will,  that  evidence  was  received  with, 
regard  to  it,  and  that  the  paper  was  received  by  the  surrogate  in 
connection  with  the  will  do  not  establish  it  as  a  codicil,  in  the 
absence  of  proof  of  formal  statutory  execution,*^ 


65  Stilhvell  V.  Mellersh,  5  Eng.  L.  &  Misc.  572 ;    72   N.  Y.   Supp.   55.     See 

Eq.  Rep.  185.     See  Brown  v.  Clark,  77  Southgate  v.   Continental    Trust    Co., 

N.  Y.  3G9,  375.     By  adding  a  codicil,  M  Misc.  415;   Farmers'  L.  &  T.  Co.  v. 

after  the  Revised  Statutes,  the  testa-  Ferris,  67  App.  Div.  1. 

tor  republishes  his  will,  and   subjects  f'^  See  §  223,  anie;  and,  in  addition 

its  construction,  and  the  validity  of  its  to  the  cases  there  cited,  Kane  \.  Astor, 

trusts   and   powers,  to  those   statutes.  9  K  Y.  113;  5  Sandf.  4G7,  519;  Coster 

(Salmon  v.  Stuyvesant,  16  Wend.  321;  v.  Coster,  3  Sandf.  Ch.  Ill;   Rowland 

Root  V.  Stuwesant,   18  id.  257.)      See  v.    Union   Theological    Sem.,    5   N.    Y. 

Langdon  v.  Astor,  16  M.  Y.  9.  193;    Wagstaflf   v.    Lowerre,   23    Barb. 

A  provision   in  a  will,  modified   by  209;    Conover  v.  Hoffman.   1  Abb.   Ct. 
a  codicil,    is   to  be   read   as   though   it  App.  Dec.  429;  Matter  of  Manning,  50 
had  been   written   in  conformitv  with  App.  Div.  407 ;  64  N.  Y.  Supp.  222. 
the   change.      (Simonson  v.   Elmer,    17  «»  Dack  v.  Dack,  19  Hun,  630;  Mat- 
Week.  Dig.  345.)  ter  of  Buckwell.  N.  Y.  Law  .J.,  March 

•56  Brown   v.    Clark,    77    N.   Y.    369;  18,1891.    That  there  is  no  attestation 

Matter  of  Storms,  3  Redf.  327 ;   Caul-  clause  to  a  codicil  to  a  will  does  not 

field  V.  Sullivan,  85  N.  Y.  154;   Cook  invalidate   it.      (Matter   of   Crane,   68 

V.  White,  43  App.  Div.  38S;  60  N.  Y.  App.  Div.  3,55;  74  N.  Y.  Supp.  88.) 

Supp.   153 ;    Matter   of  Campbell,    35  6S  Burhans  v.  Haswell,  43  Barb.  424. 


195  Tin:   Pkomati;  OK  WiLi.s.  §§  2:iL',  2;:{3. 

§  232.  Propounding  codicil. —  The  Revised  Statutes  declare  that 
the  term  "^  will,"  as  used  in  the  chapter  relating  to  wills,  testa- 
ments, etc.,  includes  all  codicils  as  well  as  wills ;''^  and  a  provision 
of  the  present  (^ode  is  to  the  same  effeet.^^  Where,  on  the  pro- 
bate of  a  will,  an  alleocd  codicil  is  brought  in  by  parties  who  are 
interested,  but  who  were  not  cited,  the  proper  course  is  to  direct 
them  to  file  an  allegation  propounding  the  codicil  for  proof,  as  a 
part  of  the  ponding  proceeding. ^^ 

§  233.  Instruments  referred  to  in  will. —  The  surrogate  can  only 
prove,  as  a  will  or  part  of  a  will,  such  instruments  as  have  been 
made  conformably  to  the  statute.  But  it  is  settled,  by  a  long 
line  of  authorities,  that  any  written  testamentary  document  in 
existence  at  the  execution  of  a  will  may,  by  reference,  be  incor- 
porated into,  and  become  a  part  of,  the  will,  provided  the  refer- 
ence in  the  will  is  distinct,  and  clearly  identifies,  or  renders  capa- 
ble of  identification  by  the  aid  of  extrinsic  proof,  the  document 
to  wdiicli  reference  is  made.'''^  Entries  in  a  book,  referred  to  in 
a  will,  become,  on  being  identified,  incorporated  into  the  latter, 
in  order  to  enable  the  court  to  reach  the  testator's  intention.'^'* 
Still,  instruments  so  incorporated  into  a  will  are  not  proved  or 
recorded  with  it.  Whether  such  papers  have  existence  or  not, 
or  whether  the  reference  is  properly  made,  or  the  provisions  of 
the  will  are  nugatory,  has  no  effect  on  the  question  of  probate. ^^ 
Although  reference  may  be  made  in  a  will  to  another  document 

70  2  R.  S.  08.   §  71.  74  In   Giiion   v.    Underhill     (1    Deni. 

71  Co.  Civ.  Proc,  §  2514.  siihd.  4.  .302).  testatrix,  by  her  will,  after  giv- 

72  Carle  v.  Underhill,  .S  Bradf.  101.  ing  one-third  of  the  residue  to  her 
And  see  Van  Wert  v.  Benedict,  1  id.  exoctitors,  in  trust,  to  apply  tlie  in- 
114.  terest   and    income   to   the    use    of   her 

73  Brown  v.  Clark.  77  N".  Y.  .3(in,  .377.  daughter  for  life,  with  remainder  over. 
But  see  Matter  of  Sanderson  (!)  Misc.  directed  "that  this  distribution  of  said 
574),  where  the  paper  referred  to  was  residue  ot  said  property  is  subject  to 
not  properly  executed.  See  also  Mat-  this  provision  —  that  the  third  so  di- 
ter  of  Fults',  42  App.  Div.  ,503;  59  N.  rected  to  be  invested  for  the  benefit  of 
Y.  Snpp.  750.  In  that  case  a  will  my  daughter  is  to  be  charpal  iiiih  the 
drawn  on  a  one-page  printed  form,  (imaunt  which  shall  he  found  on  my 
midway  of  tlie  page  of  which  a  double  books  charged  to  her."  Held,  that  the 
sheet  of  foolscap,  containiiig  bequests,  amount  to  be  deducted  from  the 
was  attached  by  pins,  neither  the  part  daughter's  third  must  include  the 
on  the  form  nor  that  on  the  foolscap  charges  found  on  the  books  as  of  dates 
referrinq  to  the  other, —  Held  to  have  subsequent,  as  well  as  prior,  to  the 
been  properly  denied  probate,  though  date  of  the  will.  See  also  Lawrence 
no   fraud  was  alleged.     As  to   when  a  v.  Lindsay,  08  X.  Y.  108. 

reference   in   a   will   to   an    unexecuted  "5  flatter  of   Tonnele,   5  X.   Y.  Leg. 

paper  is  sufhcient  to  incorporate  it  in  Obs.  254:  affd..  4  N.  Y.  140.     See  Mat- 

the  will,  see  Ludlum  v.  Otis,   15  Hun.  ter  of  Brand.  OS  App.  Div.  225;   Mat- 

410:    Dver    v.    Erving.    2    Dem.    100;  ter  of  Mandelick.  6  Misc.  71. 
Webb    V.    Dav.    id.    459;     Matter    of 
Hobert,  4  id.  185. 


§  234.  The  Probate  of  Wills.  19(> 

already  in  existence,  for  the  purpose  of  description,  there  can  be 
no  valid  disposition  except  in  the  will;  and  a  will  cannot  reserve 
the  power  to  give  by  an  instrument  not  executed  as  a  will.'^^ 
But  a  provision  that  advancements  or  beneficial  provisions  for 
persons  and  purposes  provided  for  in  the  will,  "  if  charged  in  my 
books  of  account,  shall  be  deemed  so  much  on  account  of  the  pro- 
vision in  my  will  or  codicils  in  favor  of  such  persons  or  purposes," 
is  valid;  and  gifts  actually  made  in  the  testator's  lifetime,  and  so 
charged,  are  to  be  deemed  advancements.^'  Several  testamentary 
instruments  executed  at  the  same  time  will  be  taken  and  construed 
together  as  one  instrument.^* 

TITLE  SIXTH. 

LOST   OR   DESTROYED    WILLS. 

§  234.  Jurisdiction  of  surrogate. —  Previously  to  1870,  Surro- 
gates' Courts  had  not  jurisdiction  to  take  proof  of  lost  or  de- 
t-troyed  wills,  the  only  method  of  establishing  such  a  will  being  by 
civil  action  in  a  court  of  record.  In  that  year,  the  surrogate  of 
]Srew  York  county  was  authorized  to  take  proof  of  the  execution 
of  such  a  will  in  the  same  manner  as  the  Supreme  Court  might 
do.'^  This  power  is  now  extended  to  all  surrogates  by  a  section 
of  the  Code  which,  in  form,  specifies  the  cases  in  which  the  Sur- 
rogate's Court  may  decree  probate  of  such  a  will.  By  implica- 
tion,  this  jurisdiction  is  coextensive  with   that  of  the   Supreme 

"6  Thompson    v.    Quimby,    2    Bradf.  78  Howland  v.   Union  Theo.   Sem.,  5 

449.    Thus,  in  Locke  v.  Farmers'  Loan  X.  Y.  193;  Pierpont  v.  Patrick,  53  id. 

&  T.  Co.   (21  N.  Y.  Supp.  524;  s.  c,  as  591;    Haven    v.    Haven,    1    Redf.    374; 

Locke  V.  Rings,  66  Hun,  428 ) ,  the  will  Matter    of    Forman,    54    Barb.     274 ; 

directed    the    executors    to    carry    out  Lynch  v.   Pendergast,  67   id.   501.     In 

the  terms  of  a   certain   deed  of  trust  Matter  of  Purdy   (47  St.  Rep.  284;  20 

executed   by  the   testator,   and  if  this  N.    Y.    Supp.    307 ) ,    two    instruments, 

could  not  be  done,  to   set  aside  from  written  upon   blanks,  each   in  form  a 

his  estate  a   certain  net   income,   and  complete  will,  but  without  a  date,  were 

pay    such    income    to   the   beneficiaries  offered    for    probate ;    one    disposed    of 

named   in   such  deed   of  trust,   in   the  money   and    specific   articles,    and   the 

proportions  set  out  therein.    Held,  that  other  of   specific   articles  only ;    it  ap- 

no  trust  was  created  by  the  will,  be-  peared  that  the  two  were  executed  at 

cause  it  disposed  of  no  property;   and  different  dates,  and  that  after  the  exe- 

it  received  no  support  by  the  reference  cution   of    the    first,    the   testatrix   re- 

to  the  deed  of  trust,  because  such  deed  ceived    a    lot    of    household    furniture, 

was  neither  authenticated  according  to  Held,  that  the  instrument  disposing  of 

the  Statute  of  Wills,  nor  incorporated  specific  articles  only  was  to  be  taken 

in  the  will.     See  Matter  of  Sanderson,  as  executed  last  and  interpreted  as  a 

9  Misc.  574.  codicil     to     the     other,    reject  ins     the 

""  Langdon   v.    Astor,    16    N.    Y.    9 ;  revocation  clause  in  the  printed  blank. 

Matter  of  Twombly,  24  Misc.   51;    53  and  thus  both  admitted  to  probate. 

N.  Y.  Supp.  385.  "9L.  1870,  c.  359.  §  8.    See  Sheridan 

V.  Houghton,  84  N.  Y.  643. 


197  The  Pkomatk  ok  Wills.  §  235. 

C'nurt,  wliicli  iiilicrits  its  jurisdiction  of  such  cases  from  the  for- 
mer Court  of  Chancery.  Under  the  Revised  Statutes,  that  juris- 
diction embraced  any  will  of  real  or  personal  estate,  lost  or  de- 
stroyed by  accident  or  design;  and  the  court  h^d  the  same  power 
to  take  proof  of  the  execution  and  validity  of  the  will  and  to  estab- 
lish it,  as  it  had  to  establish  a  lost  deed.*'*^  But  this  provision  of 
the  statute  has  been  repealed,®^  and  replaced  by  a  provision  of  the 
Code  of  Civil  Procedure,  to  the  effect  that  an  action  to  procure 
a  judgment  establishing  a  will  may  be  maintained  by  any  person 
interested  in  the  establishment  thereof,  where  the  will  has  been 
lost  or  destroyed  by  accident  or  design  before  its  proof  and  record 
within  the  State. ^~  Such  action  may  be  maintained  where  the 
will  (1)  was  in  existence  at  the  time  of  the  testator's  death,  or 
(2)  was  fraudulenty  destroyed  in  his  lifetime,  and  (3)  wdiere  its 
provisions  are  clearly  and  distinctly  proved  by  at  least  two  credi- 
ble witnesses  —  a  correct  copy  or  draft  being  equivalent  to  one 
witness. ^'^  In  the  same  cases,  and  those  only,  a  lost  or  destroyed 
will  can  be  admitted  to  probate  in  a  Surrogate's  Court. ®^ 

;<  235.  The  existence  of  the  will. —  The  legal  existence  of  the 
will  at  the  death  of  the  testator,  or  its  fraudulent  destruction  dur- 
ing his  lifetime,  are  the  essential  facts.  The  existence  will  not 
be  presumed  from  the  fact  that  it  was  seen  shortly  before  testa- 
tor's death,  nor  is  it  proved  by  a  declaration  of  the  testator,  made 
seven  months  before  his  death,  that  he  had  made  a  will;  for  this 
does  not  suffice  to  rebut  the  presumption  of  destruction  with  in- 
tent to  revoke,  which  arises  from  the  fact  that  no  will  could  be 
found,  after  diligent  search  made  soon  after  death.^  The  bur- 
den of  proof  is  on  the  proponent  to  show  either  the  existence  of 
the  will  at  testator's  death  or  its  prior  destruction.*^  Either  fact 
may  be  proved  by  circumstantial  evidence.  Thus  when  it  appears 
that  tlio  will,,  at  the  time  of  its  execution,  was  placed  by  the  tes- 

S"i;  R.  S.  G7.  §  G3.     As  to  jurisdic-  83  Co.  Civ.  Proc,  §   1865. 

tion  of  Court  of  Clianceiy.  be'foro  the  8^  Co.  Civ.  Proc,  §  2621. 

Kevised  Statutes,  see  Bowen  v.   Idlev,  85Col!yer    v.    Collver,    4    Deni.    53; 

0  Paijro.  46.                                               '  afTd.,  110  X.  Y.  481':   Matter  of  Ken- 

81  L.   1S80,  e.  245.  nodv,  167  id.   163:   60  N.  E.  Rep.  442. 

82  Co.  Civ.  Proc.  §  1861.  The  action  See' Matter  of  Marsh,  45  Hun.  107; 
must  be  brought  within  six  years  after  ^Matter  of  Barnes.  70  App.  Div.  523; 
the  testator's  death,  except  that  where  75  X.  Y.  Supp.  373. 

the   will   has   been   lost,   concealed,   or        86  Perry  v.  Perry,  49  St.  Rep.   201; 

destroyed,   the  cause  of   action   is   not  21  X.  Y.  Supp.  133 :  ^IcXally  v.  Brown, 

deemed  to  have  accrued,  until  the  dis-  5   Redf.   372;    Keery   v.   Dinion.    37    \. 

covery  by  the  plaintiff,  or  the  person  Y.   Supp.   92;    72   St.   Rep.    125;    Kahn 

under    whom   ho   claims,   of   the    facts  v.  Hoes,  14  Misc.  63;   35  N.  Y.  Supp. 

xipon  which  its  validitv  depends.     (Co.  273. 
Civ.  Proc,  §  382,  subd.  6.) 


§  236.  The  Probate  of  Wills.  If'S 

tator  in  the  hands  of  another  person  as  custodian,  who  took  charge 
of  it,  and  locked  it  up  in  a  trunk,  and  supposed  it  was  there  at 
the  time  of  the  testator's  death,  but,  upon  search  after  his  death, 
it  could  not  be  found,  its  legal  existence,  at  the  time  of  the  tes- 
tator's death,  is  sufficiently  shown.^"  If  the  will  was  not,  in  fact, 
in  existence  at  the  death  of  the  testator,  it  is  to  be  inferred, 
under  such  circumstances,  that  it  was  fraudulently  destroyed  or 
lost  during  his  lifetime,  and  in  that  case,  as  well,  it  was  his  last 
will  and  testament. ^^  But  a  lost  will,  not  traced  out  of  testator's 
possession,  is  presumed  to  have  been  revoked  by  him  by  destruc- 
tion.^^ 

§  236.  Its  due  execution. —  The  fact  that  the  will  is  lost  or  has 
been  destroyed  does  not  affect  the  requisites  to  its  due  execution. 
These  requisites  must  be  proved  as  if  the  will  were  present.  It 
cannot  be  done,  it  is  true,  by  the  same  description  of  evidence  in 
all  respects,  but  some  evidence  sufficient  to  show  a  compliance 
with  the  statute,  in  all  its  provisions,  must  be  given.^**  These 
facts  are  to  be  proved  in  the  usual  way,  as  other  facts  are  required 
to  be  proved,  to  make  them  evidence  in  a  court  of  justice.  The 
fact  of  testator's  mental  capacity  must  be  sho^vn;  if  not,  although 
the  existence  of  the  will  is  proved,  probate  will  be  refused.^^ 
While  the  statute  requires  rules  to  be  observed  in  the  execution 
and  publication  of  wills,  which  it  does  not  prescribe  in  regard  to 
the  execution  and  delivery  of  other  wT-itten  instruments,  the  proof 
of  the  several  acts  so  prescribed  is  the  same  as  the  proof  required 
to  establish  anv  other  fact.      The  law  lays  down  no  stubborn,  in- 


8"  Schultz  V.  Schultz,  35  N.  Y.  653 ;  not     overcome,     and     such      question 

Matter  of  Cosgrove,  31  Misc.  422;    65  should  be  submitted  to   a  jury. 

N.  Y.  Supp.  570.  89idley   v.    Bowen,    11    Wend.    227; 

88  lb.  In  Matter  of  Soule  (40  St.  Bulkley  v.  Redmond,  2  Bradf.  281; 
Rep.  600;  15  N.  Y.  Supp.  934),  the  Holland  v.  Ferris,  id.  334;  Hard  v. 
testatrix  had  made  a  will  to  take  the  Ashley,  88  Hun,  103;  34  N.  Y.  Supp. 
place  of  one  believed  to  have  been  583.  See  §  225,  ante. 
Avrongfully  abstracted  from  her  pos-  90  Grant  v.  Grant,  1  Sandf.  Ch.  235, 
session,  and  gave  it  to  the  person  who  343 ;  Voorhees  v.  Voorhees,  39  N.  Y. 
drew  it,  for  safe-keeping;  the  husband  4G3;  Matter  of  Purdy.  46  App.  Div. 
of  testatrix  obtained  it  two  weeks  be-  33;  61  N.  Y.  Supp.  430.  It  is  equally 
fore  her  death :  it  was  in  existence  necessary,  as  in  the  case  of  a  will 
two  days  before  that  event,  but  actually  presented,  that  two  at  least 
was  not  found  thereafter  by  those  of  the  subscribing  witnesses  be  pro- 
interested  in  its  production,  and  was  duced  or  the  nonproduction  of  them, 
not  produced  by  her  husband,  who  con-  or  either  of  them,  satisfactorily  ac- 
tested  the  probate  and  was  interested  counted  for,  and  then  the  handwriting, 
in  its  suppression.  Held,  that  in  the  or  the  fact  of  their  having  signed  the 
absence  of  evidence  that  the  will  was  will  as  witnesses,  must  be  duly  proven 
destroyed  by  testatrix,  or  that  she  had,  by  competent  testimony.  (Collyer  v. 
at  any  time,  an  intention  to  revoke  it,  Collyer,  4  Dem.  53;  affd.,  110  N.  Y. 
the  presumption  that   it  existed  was  481.) 

91  Matter  of  Paine,  6  Dem.  361. 


]99  Thk  rKoisATK  OK  Wii.i.s.  §3  237,  238. 

flexible  rules  in  such  cases,  but  accepts  the  best  evideuce  that 
can  be  procured,  adapted  to  the  nature  of  human  aifairs,  human 
infirmities  and  casualties,  which  tends  with  reasonable  certainty 
to  establish  the  fact  in  controversy. 

§  237.  Its  fraudulent  destruction. — A  will  is  "  fraudulently  de- 
stroyed," within  the  nieaiiiiiy,'  of  the  statute,  when  it  is  destroyed 
by  the  testator  himself,  in  consequence  of  the  undue  influence 
exercised  over  him,  and  the  misrepresentations  made  to  him  by  a 
person  interested  to  have  the  will  destroyed.  It  is  not  necessary 
that  the  will  should  have  been  destroyed  by  some  one  other  than 
the  testator,  or  that  the  means  by  which  the  testator  was  induced 
to  destroy  it  should  have  amounted  to  force  or  coercion.'"*"  It  is 
a  fraudulent  destruction,  if  accomplished  without  testator's  knowl- 
edge or  consent,  in  disre<>'ard  of  his  intention,  and  to  the  injury  of 
a  beneficiary,  though  with  no  design  to  gain  advantage,  or  injure 
or  deceive  any  one.^^  But  in  order  to  prove  the  -w-ill  ''  fraudu- 
lently destroyed,"  it  is  not  necessary  that  it  should  have  been 
destroyed  in  such  a  manner  as  to  amount  to  a  valid  revocation.*** 
The  statute  should  be  liberally  construed  in  furtherance  of  jus- 
tice and  for  the  prevention  of  fraud;  the  fraudulent  destruction 
of  a  single  item  or  clause,  or  distinct  portion  or  provision  of  a  will, 
must  be  considered  the  destruction, —  fraudulent  or  by  design, — 
of  the  ^^^ll,  if  the  destruction  afi'ects  the  disposition  of  the  testa- 
tor's property  in  any  essential  particular;  and,  accordingly,  the 
courts  have  power  to  restore  and  establish  portions  of  a  will  so 
destroyed  or  suppressed,  even  though  a  codicil,  alleged  to  have 
been  fraudulently  procured,  has  been  admitted  to  probate  by  a 
Surrogate's  Court.^^ 

^  238.  Its  contents. —  The  statutory  requirement,  that  the  pro- 
visions of  a  lost  or  destroyed  will  must  be  "  clearly  and  distinctly 
proved  by  at  least  two  credi])le  witnesses,"  should  receive  a  liberal 
construction;  and  its  spirit  is  complied  with  by  holding  that  it 
apjdies  only  to  those  provisions  which  aifect  the  disposition  of 
property,  and  are  of  the  substance  of  the  will.^*'      It  is  necessary, 

02Voorheea   v.    Voorheos.    39    X.    Y.  iH  Timon  v.  ClatTy.  4.i  Barb.  4.3^!. 

403:     Harris    v.    Harris,    20    id.    433;  95  Hook  v.  Pratt.  S  Hun.  103 ;  Timon 

Matter     of    Forman.     54     Barb.     274;  v.   ClatTy,   4.5    Barb.    438:    Voorhecs   v. 

Smith   V.    Wait,   4   id.   28;    Everitt  v.  Voorhoes,    39    X.    Y.    403:    Sfhultz    v. 

Everitt,    41    id.    38.5.      Accidental    de-  Sohultz.  35  id.  056. 

stntction   of   the   will    in  charge   of   a  9G  Early  v.  Early.  5  Redf.   370.     In 

custodian,  during  testator's  lifetime,  is  that    ease,    the    subscribing    witnesses 

insufficient.      (flatter   of    Reiffeld,    30  agreed  that  the  will  was  read  aloud  to 

:Misc.  472:   73  N.  Y.  Supp.  808.)  and    signed    by    the    testator,    in    their 

03  Early  v.  Early.  5  Redf.  376.  presence,  and  that  they  signed  in  liis 


239. 


The  Probate  or  Wills. 


200 


however,  that  both  witnesses  should  testify  upon  personal  knowl- 
edge of  the  contents;  thus,  it  is  not  enough  that  one  saw  a  draft 
which  the  other  declared  afterward  became  a  will.'''  The  proof 
of  a  lost  or  destroyed  will  proceeds  upon  the  theory  that  it  is  not 
in  existence  and  cannot  be  produced  before  the  surrogate;  and 
therefore  the  case  is  one  of  secondary  evidence  exclusively.®* 
Where  the  two  witnesses  differ  materially  in  their  testimony 
either  as  to  the  beneficiaries  or  the  amount  of  bequests,  the  will 
cannot  be  admitted  upon  their  testimony.^®  It  cannot  be  ad- 
mitted upon  the  stipulation  of  counsel  as  to  its  contents.^ 

§  239.  Issuing  of  letters. —  Where  the  will  is  established  in  an 
action,  letters  issue  thereupon  from  the  Surrogate's  Court  having 
jurisdiction,  if  so  directed  by  the  judgment."  The  judgment 
must  contain  a  copy,  or  the  substance,  of  the  will,  and  must  be 


presence,  but  they  difTered  as  to 
whether  the  declaration  of  the  nature 
of  the  instrument,  and  the  request  to 
sign,  were  made  by  the  testator,  one 
witness  swearing  positively  that  they 
were  so  made  and  the  other  stating 
that  they  were  made  in  testator's 
presence,  oy  M.,  who  drew  the  will 
and  supervised  the  execution.  Though 
testator  was  ill  and  feeble,  it  did  not 
appear  that  he  was  in  such  a  con- 
dition as  to  be  unable  to  make  or  dis- 
sent from  such  a  request  and  declara- 
tion; the  execution  was  not  imme- 
diately before  his  death ;  and  both 
subscribing  witnesses  testified  that  he 
was  of  sound  mind.  Two  witnesses 
agreed  that  all  the  property  was  de- 
vised and  bequeathed  to  testator's 
widow,  but  differed  as  to  whether  an 
executor  was  appointed.  After  the  will 
was  executed,  the  draughtsman  took 
it  with  him  to  keep  for  testator,  put 
it  among  his  papers,  and  died.  His 
son  found  it  among  his  father's  papers 
and  destroyed  it.  during  testator's  life- 
time, as  a  paper  of  no  importance. 
Held,  that  the  due  and  proper  execu- 
tion was  shown,  and  that  the  pro- 
visions were  sufficiently  proved,  not- 
withstanding the  doubt  as  to  the  ap- 
pointment of  an  executor,  which  was 
not  an  indispensable  part  of  the  will, 
and  that  the  destruction  was  fraud- 
ulent, as  against  the  beneficiary, 
within  the  meaning  of  the  statute,  and 
probate  should  be  granted.  In  Mc- 
Xally  V.  Brown  (5  Redf.  .372).  it  ap- 
peared that  the  will  was  in  existence 
at  the  time  of  decedent's  death,   and 


was  last  seen  in  the  possession  of  the 
principal  beneficiary,  the  petitioner, 
but  there  was  no  evidence  that  it  had 
been  lost  or  destroyed ;  and  the  testi- 
mony of  petitioner,  the  draughtsman, 
the  subscribing  witnesses,  and  another, 
as  to  its  jjrovisions,  was  such  as  only 
to  enable  the  courts  to  surmise  the 
nature  thereof,  and  no  two  witnesses 
proved  all  the  provisions.  Held,  that 
there  was  not  a  compliance  with  the 
statute,  and  probate  was  refused.  See 
Matter  .of  Purdv.  46  App.  Div.  33;  Gl 
X.  Y.   Supp.  430. 

97  Matter  of  Waldron.  19  Misc.  333; 
44  X.  Y.  Supp.  353. 

98Everitt  v.  Everitt.  41  Barb.  38.5; 
27  How.  Pr.  GOO;  Fetherly  v.  \Yag- 
goner,  11  Wend.  599.  See  Rider  v. 
Legg,  51  Barb.  260.  As  to  admissi- 
bility of  declarations  made  by  the  tes- 
tator, see  Grant  v.  Grant,  1  Sandf.  Ch. 
235,  243:  Timon  v.  Claffy,  45  Barb. 
438;  41  X.  Y.  G19.  The  declarations 
of  decedent  respecting  its  dispositions 
are  admissible  only  as  a  circumstance 
taken  in  connection  with  other  evi- 
dence tending  to  establish  the  facts. 
Reiterated  declarations  of  this  char- 
acter, uttered  by  decedent  to  various 
persons,  cannot  be  galvanized  into  the 
'■  two  credible  witnesses  "  made  an  in- 
dispensable necessity  by  the  Code. 
(Hatch  V.  Sigman.  l' Dem.  519.) 

99  Sheridan  v.  Houghton,  6  Abb.  X. 
C.  234.  See  Harris  v.  Harris,  26  X. 
Y.  433 ;  Grant  v.  Grant.  1  Sandf.  Ch. 
235. 

1  Matter  of  Ruser,  6  Dem.  31. 

2  See  Co.  Civ.  Proc,  §§  1864,  1865. 


201  TiiK    I'i;(>i!ATK   OK   Wills.  §§240,  l'4K 

recorded  in  the  surrogate's  office.  Where  the  proceedings  for 
probate  are  taken  in  a  Surrogate's  Court,  letters  issue  upon  the 
will,  when  admitted,  as  in  other  cases. 

TITLE  SEVEXTII. 

^NUNCUPATIVE   WILLS. 

§  240.  Who  may  make.—  Tn  the  early  history  of  wills,  before 
the  Statute  of  Frauds,  the  act  of  the  testator  in  disposing  of  his 
property  was  not  attested  by  any  writing,  but  his  will  was  de- 
clared by  him  verbally,  in  the  presence  of  witnesses,  usually  when 
he  was  in  his  last  sickness.  But  for  the  statute  which  declares  the 
mode  of  executing  testamentary  dispositions  of  property,  it  would 
not  be  essential  that  a  will  should  be  in  writing.^  The  statute  of 
this  State  restricts  the  making  of  unwritten  or  nuncupative  wills 
to  sailors  and  soldiers  while  in  actual  service  and  danger.  It  is 
provided  by  statute,  that  no  nuncupative  or  unw^ritten  will,  be- 
queathing personal  estate,  shall  be  valid,  unless  made  by  a  soldier 
while  in  actual  military  service,  or  by  a  mariner  while  at  sea."* 
Besides  the  restriction  thus  imposed  by  the  statute,  there  is  a 
common-law  restriction,  still  recognized,  that  the  will  must  be 
made  when  the  testator  is  in  extremis,  or  overtaken  by  sudden 
and  violent  sickness,  and  has  no  opportunity  to  malce  a  written 
will  ;^  though  it  is  not  necessary  that  it  should  be  made  in  the  last 
sickness.^  A  mariner  is  not  "  at  sea,"  even  when  in  the  naval 
service,  during  a  voyage  upon  a  river;'  but  a  captain  of  a  coast- 
ing vessel,  on  a  voyage,  and  while  lying  at  anchor  in  an  arm  of 
the  sea,  Avhere  the  tide  ebbs  and  flows,  mav  make  a  nuncupative 
will.s 

§  241.  Mode  of  execution  of  will. —  Xuncupative  wills  not  being 
regulated  by  statute  as  to  their  mode  of  celebration  or  execution, 
the  single  question  for  the  judgment  of  the  court  is,  whether  the 
nuncupation  was  made  by  a  person  entitled  to  that  privilege.  It 
is  sufficient  that  the  testator,  in  prospect  of  death,  states  what  dis- 


3  For  a  history  of  the  \aw  of  nun-  See  the  American  cases  collected  in 
cvipative  wills,  the  curious  reader  is  notes  to  1  Jarman  on  Wills  (ed.  of 
referred   to  the  opinion   of   Chancellor  Randolph  &  T.),  238. 

Kent,  in  Prince  v.  Hazelton.  20  Johns.  •>  ^,r  p.  Thompson.  4  Bradf.   lo4.     It 

.■102.    and    of    Surro<,'ate    Bradford,    in  was  otherwise  held   under  our   former 

Ex  p.  Thompson.  4' Bradf.    154.  Statute   of   Wills.      (Prince    v.    Hazel- 

4  2  B.  S.  (10.  §  22.     A  cook  on  hoard  ton.  20  Johns.  502.) 

a  steamship  is  a  "mariner."       {Ex  p.  "Owin's  Estate.  1  Tuck.  44. 

Thompson.  4  Bradf.  154.)  8  Hubbard  v.  Hubbard,  8  N.  Y.  196. 

5  Prince  v.  Hazelton,  20  Johns.  502. 


§§  242,  243.  The  Probate  of  Wills.  202 

position  he  desires  to  make  of  his  property;  and  it  is  enough  if  he 
does  this  in  answer  to  questions.  Xo  particular  form  of  language 
is  necessary,  nor  need  he  request  the  persons  present  to  be  wit- 
nesses that  it  is  his  will;  nor  need  he  name  an  executor.®  A 
letter  written  by  a  soldier  in  actual  military  service,  in  anticipa- 
tion of  battle,  and  in  view  of  death  therein,  has  been  held  a  valid 
nuncupative  will,  although  the  testator  was  not  killed  till  several 
months  thereafter.^*^ 

§  242.  Proof  of  will. —  Formerly,  no  particular  number  of  wit- 
nesses of  the  nuncupation  was  required  to  entitle  such  a  will  to 
probate,  if  the  court  was  satisfied  with  the  proof  ;^^  but  now,  be- 
fore a  nuncupative  will  is  entitled  to  probate,  its  execution  and 
the  tenor  thereof  must  be  proved  by  at  least  two  witnesses.^^  It 
is  necessary,  also,  that  the  testamentary  capacity  of  the  deceased, 
and  the  animus  testandi  at  the  time  of  the  alleged  nuncupation 
should  be  clearly  and  satisfactorily  proved. -^^  The  same  mode  of 
procedure,  by  petition  and  citation,  is  to  be  adopted  to  prove  a 
nuncupative  ^vill,  as  has  been  detailed  in  regard  to  the  proof  of  a 
written  will.  The  citation  must  state  that  the  will  was  nun- 
cupative;^'* and  the  petition  should  set  forth  the  fact  that  the 
•decedent  was  either  a  soldier  or  sailor,  his  rank  or  capacity,  the 
extremity  of  his  illness  at  the  time,  and  the  particular  words  or 
language  used,  which  it  is  proposed  to  establish  as  a  will.  Forms 
of  the  petition  and  probate  will  be  found  in  the  appendix. 

TITLE  EIGHTH. 

DECREE  GRANTING  OR  REFUSING  PROBATE;   RECORDING  WILL,   ETC. 

§  243.  Surrogate's  decree  on  probate —  The  parties  for  and 
against  the  probate  having  introduced  their  proofs,  and  summed 
up  the  case  —  the  proponent  being  entitled,  as  having  the  affinna- 
tive  of  the  issue,  to  the  opening  and  closing  —  the  admission  or 
rejection  of  the  instrument  propounded  then  aw^aits  the  decision 
of  the  surrogate  upon  the  law  and  facts.  It  appearing  to  the 
satisfaction  of  the  court  that  the  will  was  duly  executed,  and  that 
the  testator,  at  the  time  of  executing  it,  was  in  all  respects  com- 
petent to  make  a  will,  and  not  under  restraint,  it  must  be  admitted 

9  Ex  p.   Thompson.   4   Bradf.    154:  il  Ex' p.  Thompson,  4  Bradf.  154. 
Hubbard  v.  Hubbard,  8  X.  Y.  196.    See  12  Co.  Civ.  Proc.  §  2618. 
Botsford  V.  Krake,  1  Abb.  Pr.   (N.  S.)  13  Hubbard  v.  Hubbard,  supra. 
112.  "Co.  Civ.  Proc,  §  2616. 

10  Botsford  V.  Krake,  1  Abb.  Pr.  (X. 
S.)    112. 


103  I'liE  Pkuijatk  oi-    Wills.  §  244. 

to  probate  as  a  will  valid  to  pass  real  proporty  or  personal  property, 
or  both,  as  the  surrogate  deterininos,  and  the  petition  and  citation 
require;  and  the  decree  must  state  whether  the  probate  was  or 
Avas  not  contested.  ^^ 

ij  244.  All  the  issues  to  be  decided. —  Where,  in  addition  to  ques- 
tions as  to  the  factum  of  the  will,  the  court  is  called  ujion  to  de- 
termine the  true  constniction  and  the  legal  effect  of  the  instru- 
ment, as  he  may  be  rcijuired  to  do,  the  decree  admitting  the  will 
to  prol)ate  must  contain  the  decision  determining  the  true  con- 
struction and  meaning  of  the  instrument.  A  question  has  been 
raised  whether  the  determination  of  both  these  issues  should  be 
by  one  and  the  same  decree,  or  whether  the  court  may,  on  being 
satisfied  of  the  validity  of  the  execution  of  the  will,  or  in  case 
there  is  no  contest  on  that  question,  decree  the  probate,  and  re- 
serve the  question  of  construction  for  further  consideration  and  a 
subsequent  decree.  Xotwithstanding  the  possibility  of  an  injury 
to  the  estate,  resulting  from  a  delay  in  the  grant  of  letters  upon  a 
probate  to  which  the  executor,  in  such  a  case,  is  confessedly  en- 
titled, we  think  it  safer,  if  not  indeed  vital,  that  probate  should 
not  be  granted  until  all  the  issues  properly  ^^  raised,  whether  of 
validity,  construction,  or  otherwise,  are  determined.  The  statute 
declares,  that  ^'  the  surrogate  must  determine  the  question  [of 
construction,  etc.]  upon  rendering  a  decree," — that  is,  a  decree 
granting  probate.  After  a  will  is  once  admitted  to  probate,  the 
proceeding  may  be  said  to  have  come  to  an  end,  and  the  court  to 
have  lost  jurisdiction  to  proceed  further  in  the  matter.  There 
may  be  some  question  whether,  notwithstanding  the  provision  of 
section  2624,  prescribing  that  the  question  of  construction  is  to 
be  determined,  "  unless  the  decree  refuses  to  admit  the  will  to 
probate,"  etc.,  the  unsuccessful  party  may  not  of  right  require  a 
decision  of  the  question  of  construction,  even  where  probate  is 
refused;  for,  by  section  2625,  it  is  pro\'ided  that  "  where  the  sur- 
rogate decides  against  the  sufficiency  of  the  proof,  or  against  the 
validity  of  a  will,  or  upon  the  construction,  validity,  or  legal  effect 
of  any  provision  thereof,  he  must  make  a  decree  accordingly ;  and, 
if  required  by  either  party,  he  must  enter  in  the  minutes  the 
grounds  of  his  decision." 


15  Co.  Civ.  Proc,  §  2623.  must  probate  it  as  a  will  of  real  prop- 
it!  Where  a  will  presented  for  pro-  erty,  witiiout  repird  to.  and  without 
bate  whieh  is  duly  executed  assumes  adjudiratinir  ujion,  any  question  as  to 
to  make  a  dcrisc  of  rcnlty,  and  the  pe-  the  validity  of  the  devise.  (Matter  of 
tition  and  eiuation  so  require,  and  the  ^Ferriam,  13(1  N.  Y.  58;  48  St.  Rep. 
petitioner   so   requests,    the    surrogate  897.)     bee  c.  VII.  post. 


§§  245,  246.  T}iK  Probate  of  Wills.  204 

The  purpose  of  the  requirement,  that  the  surrogate  must,  on 
request,  enter  in  the  minutes  the  grounds  of  his  decision,  is  to 
enable  the  appellate  court  to  correct  an  erroneous  conclusion  of 
law,  without  the  necessity  of  examining  and  passing  upon  all  the- 
factfe.^"  It  will  be  borne  in  mind,  however,  that  "  an  appeal  from 
a  decree  or  an  order  of  a  Surrogate's  Court  brings  up  for  review, 
by  each  court  to  which  the  appeal  is  carried,  each  decision  to 
whicli  an  exception  is  duly  taken  by  the  appellant."  ^^ 

§  245.  Probate  of  part  of  will. —  We  have  already  pointed  out 
that  the  court  may  deny  probate  of  a  particular  clause  of  a  will, 
or  grant  a  limited  probate  of  the  will,  as  it  is  sometimes  termed. 
This  will  be  done  where  it  is  shown  that  a  particular  clause  has  been 
inserted  by  fraud  or  mistake,  without  the  knowledge  of  the  tes- 
tator. It  is  not  necessary  that  the  whole  will  must  stand  or  fall.^^ 
A  ^^i\\  should  not  be  permitted  to  be  made  a  vehicle  for  libel  or 
contumely,  and  when  such  a  design  plainly  appears  from  the  con- 
text, such  matter,  in  so  far  as  it  is  not  dispositive,  should  be  re- 
fused probate  and  record.^*^  Codicils,  which  are  as  much  parts  of 
the  will  as  if  incorporated  therein  and  draw  the  will  down  to  their 
date,  as  if  then  republished,  may  be  rejected,  leaving  the  will  to 
stand.^^  But  where  the  surrogate  has  reached  the  conclusion  that 
the  factum  of  the  will  has  not  been  established,  he  has  no  dis- 
cretion and  cannot  admit  it  to  probate  for  any  purpose.^ 

g  246.  Certificate  indorsed  on  proved  will. —  The  surrogate  is  re- 
quired to  "  cause  to  be  indorsed  upon,  or  annexed  to,  the  original 
vdW  admitted  to  probate,  or  the  exemplified  copy,  or  statement  of 
the  tenor  of  a  will,  which  was  admitted  without  production  of  an 
original  written  will,  a  certificate,  under  his  hand,  or  the  hand  of 
the  clerk  of  his  court,  and  his  seal  of  office,  stating  that  it  has, 
upon  due  proof,  been  admitted  to  probate,  as  a  will  valid  to  pass 
real  or  personal  property,  or  both,  as  the  case  may  be."  ^ 

17  See  §  114,  ante.  punge  from  the  probate  any  parts  of 

18  Co.  Civ.  Proe.,  §  2545.  See,  as  to  the  will  which  constitute  operative- 
the  rule  under  the  former  statute,  portions  of  the  instrument.  But  of- 
Schenck  v.  Dart,  22  N.  Y.  420;  Cau-  fensive  passages  have  sometimes  beea 
jolle  V.  Ferrie,  23  id.  90;  Robinson  v.  allowed  to  be  omitted  from  the  pro- 
Raynor,  28  id.  494;  Rowland  v.  Tay-  bate,  when  the  omission  does  not 
lor'.  5.3  id.  627.                                         '  change  the  legal  effect.      {In  re  Wort- 

19  Burner  v.  Hill.  1  Bradf.  360:  In  naby,  1  Rob.  Ecc.  Rep.  423.)  See  also 
re  Welsh,  1  Redf.  238;  Baker's  Will,  2  Wms.  on  Exrs.  (6th  Am.  ed.),  p.  443^ 
id.    179;    .James    v.    Beaslev,    14    Hun,  and  2  Redf.  on  Wills,  43. 

.520.      See  ante,  §  220.        '  21  See  §  231,  ante. 

20  Matter  of  T—  B— ,  27  Abb.  N.  C.  22  :Matter  of  Eckert,  36  Misc.  6i0; 
125;  44  St.  Rep.  304;   18  N.  Y.  Supp.    73  N.  Y.  Supp.  1122. 

214.     The  court  cannot,  even  with  the        23  Co.  Civ.  Proc,   §  2629. 
consent  of   all   parties   interested,  ex- 


205  'I'liK   Pi:<)i!ATK  OF  Wills.  §§247,248. 

s<  247.  Its  effect  as  evidence. —  "  The  will,  or  the  copy  or  state- 
ment, so  autlienticatod,  the  record  thereof,  or  an  exemplified  copy 
of  the  record,  may  be  read  in  evidence,  as  proof  of  the  original 
will,  or  of  the  contents  or  tenor  thereof,  without  further  e vi- 
olence," and  with  the  conclusive  effect,  as  evidence,  of  a  decree  of 
probate  of  a  will  of  .personal  property,  under  section  262G;  and 
with  the  presumptive  effect  of  a  decree  of  probate  of  a  will  of 
realty,  under  section  2027  —  subject  to  the  provision  of  section 
2628,  protecting  a  purchaser  from  an  heir  of  a  person  who  died 
seized  of  real  property  against  a  devise  of  the  same,  unless,  within 
four  years  after  the  testator's  death,  the  will  containing  the  devise 
is  admitted  to  pro])ate  and  recorded,  or  is  established  by  action.^* 

^  248.  Disposition  of  will  after  probate. —  When  it  shall  be  shown, 
by  affidavit  or  otherwise,  to  the  satisfaction  of  the  surrogate,  that 
the  decedent  left  real  or  personal  property  in  another  State  or 
Territory  of  the  United  States,  or  in  a  foreign  country,  and.  that 
the  law^s  of  such  State,  Territory  or  country  require  the  produc- 
tion of  the  original  will  before  the  provisions  thereof  become 
effective,  the  surrogate  may,  at  any  time  after  probate,  and  ui)on 
such  notice  to  the  parties  interested  in  the  estate  as  he  may  think 
proper,  cause  any  original  will  remaining  on  file  in  his  office  to 
bo  sent  by  post  or  otherwise  to  any  court  which,  or  to  any  officer 
of  such  State,  Territory  or  country  who,  under  the  law^s  thereof, 
is  empowered  to  receive  the  same  for  probate,  or  may  deliver  such 
^vill  to  any  person  interested  in  the  probate  thereof  in  such  State, 
Territory  or  country,  or  to  his  representative,  upon  such  terms  as 
he  shall  think  proper  for  the  protection  of  other  parties  interested 
in  tlie  estate.^'"^  "  Except  where  special  provision  is  otherwise  made 
l)y  law,  or  where  the  surrogate  sends  a  will  into  another  State  or 
Territory  or  into  a  foreign  country,  or  delivers  it  to  a  party  in 
interest,  as  provided  in  section  2620  of  this  act,  a  written  will, 
after  it  has  been  proved  and  recorded,  must  be  retained  by  the  sur- 
rogate until  the  expiration  of  one  year  after  it  has  been  recorded, 
and,  if  a  petition  for  the  revocation  of  probate  thereof  is  then  filed, 
until  a  decree  is  made  thereupon.    It  must  then  be  returned,  upon 

24  Co.  Civ.  Proc.  §  2629.  .ts  amended  snrroo;ate,  althou<:h  the  latter  are  not 

1882.     See  Carroll  v.  Carroll,  00  N.  Y.  thereby  made  evidence  in  the  cause  in 

121,    125,     for    a  construction    of    the  which  the  will  was  otlered.     See  Nich- 

oripinal  enactment.      It  was  held,  un-  ols  v.  Romainc.  .3  Abb.  Pr.  122;  Morris 

der  the  former  statute,  that  in  order  v.  Keys.   1    Hill.   540 :    Caw  v.  Robert- 

to  make  the  record  or  oxomplification  son.  5  X.  Y.  125,  132. 

of  the   record   of   the  will   evidence,   it  25  Co.  Civ.  Proc.  §  2620,  as  amended 

must  be  accompanied  with   the  proofs  1902   (L.  1902,  c.   114). 
and    examinations    taken    before    the 


§§  249,  250.  The  Probate  or  Wills.  20(> 

demand,  to  the  person  who  delivered  it,  unless  he  is  dead,  or  a 
lunatic,  or  has  removed  from  the  State;  in  which  case  it  may,  in 
the  discretion  of  the  surrogate,  be  delivered  to  any  person  named 
therein  as  devisee,  or  to  an  heir  or  assignee  of  a  devisee;  or,  if  it 
relates  only  to  personal  property,  to  the  executor,  or  administrator 
with  the  will  annexed,  or  to  a  legatee."  ^ 

§  249.  Recording  wills. —  We  have  already  given'^  the  provision 
of  the  Code  as  to  the  record-books  to  be  kept  by  the  surrogate. 
Besides  the  records  of  his  own  business,  a  surrogate  is  empowered 
to  complete,  certify,  and  sign  in  his  own  name  all  records  of  papers 
left  uncompleted  or  unsigned  by  any  of  his  predecessors  in  office."® 
When  a  surrogate  admits  a  will  to  probate  he  is  required  to 
record  it  in  his  office."^.  But  there  are  other  circumstances  when 
a  will  is  entitled  to  be  so  recorded.  Thus  where  a  will  has  been, 
established  in  a  civil  action  brought  for  that  purpose,  the  sur- 
rogate is  required  to  record  a  copy;  or,  if  the  will  is  lost  or  de- 
stroyed, the  substance  of  the  ^yi]],  as  incorporated  in  the  judgment 
of  establishment,  transmitted  to  him,  must  be  recorded.^^  Where 
a  will  of  real  property  has  been  proved  and  recorded  in  any  court 
of  the  State,  of  competent  jurisdiction,  a  transcript  thereof  and 
of  all  the  notices,  process  and  proofs  relating  thereto,  must,  when, 
duly  exemplified,  be  recorded,  upon  the  request  of  any  person 
interested  therein,  in  the  Surrogate's  Court  of  any  county  in 
which  real  property  of  the  testator  is  situated.^^ 

§  250.  Recording  foreign  wills. —  In  certain  cases  the  exemplified 
copy  of  a  foreign  will  of  personalty,  or  of  realty,  which  has  been 
admitted  to  probate  abroad,  may  become  entitled  to  record  in  a 
surrogate's  office  of  this  State.  Where  real  property,  situated 
w^ithin  the  State,  or  an  interest  therein,  is  devised  or  made  subject 
to  a  power  of  disposition  by  a  will  duly  executed,  in  conformity 
with  the  laws  of  this  State,  of  a  person  w^ho  was,  at  the  time  of 
his  or  her  death,  a  resident  elsewhere  Avithin  the  United  States,  or 
in  a  foreign  country,  and  such  will  has  been  admitted  to  probate 

26  Co.  Civ.  Proc,  §  2635,  as  amended  unsigned  and  uncertified  records  of 
1902  (L.  1902,  c.   114).  wills,  and  of  other  pi'oofs  and  exami- 

27  See  §  24,  ante.  nations  taken  in  the  proceeding  of  pro- 

28  Co.  Civ.  Proc,  §  2481,  subd.  9.  bate  thereof,  before  their  predecessors 
From  time  to  time  the  Legislature  has  in  office,  are  hereby  confirmed  and  de- 
passed  general  confirmatory  acts,  the  dared  to  be  valid  and  in  full  compli- 
latest  (e.  155  of  L.  1890)  being  as  fol-  ance  with  tlie  pre-existing  require- 
lows:    "  All  acts  hitherto  of  surrogates  ments." 

and  officers  acting  as  such  in  complet-  29  Co.  Civ.  Proc,  §  2623. 

ing.  by  certifying  in  their  own  names,  30  Co.  Civ.  Proc,  §  1864. 

any   uncertified  wills,   and  by  signing  31  Co.  Civ.  Proc,  §  2G30. 
and  certifying  in  their  own  names,  the 


207  TiiK   PitoiiATK  OF  Wills.  §§  251,  252. 

wltliin  the  State  or  'rorritory  or  foreifun  country  where  the  de- 
cedent so  resided,  and  is  filed  or  recorded  in  the  projK'r  office,  etc., 
a  copy  of  such  unll,  or  of  the  record  thereof,  and  of  the  proofs,  or 
of  the  record  thereof,  etc.,  may  be  recorded  vdth  the  surrogate  of 
any  county  where  the  real  property  is  situated. ^^  Where  a  will  of 
personal  property  made  by  a  nonresident  at  the  time  of  the  execu- 
tion thereof,  or  at  the  time  of  his  death,  has  been  admitted  to 
probate  witliin  a  foreign  country,  or  within  the  State  or  the 
Territory  of  the  United  States,  where  it  w^as  executed,  or  where 
the  testator  resided  at  the  time  of  his  death,  the  Surrogate's  Court 
having  jurisdiction  of  the  estate  must,  upon  an  application  made 
as  prescribed  in  this  article,  accompanied  by  a  copy  .of  the  will, 
and  of  the  foreign  letters,  if  any  have  been  issued,  authenticated 
as  prescribed  in  this  article,  record  the  will  and  the  foreign  letters 
and  issue  thereupon  ancillary  letters  testamentary,  or  ancillary 
letters  of  administration  with  the  will  annexed,  as  the  case 
requires. 

§  251.  Filing  nonresident's  will  with  secretary  of  state. —  Where 
the  surrogate  admits  to  probate  the  will  of  a  pei^son  who  was  not 
a  resident  of  the  State  at  the  time  of  his  death,  or  grants  original 
or  ancillary  letters  testamentary  upon  such  a  will,  or  original  or 
ancillary  letters  of  administration  upon  the  estate  of  such  a  per- 
son, he  must,  within  ten  days  thereafter,  transmit  to  the  secretary 
of  state,  to  be  filed  in  his  office,  a  certified  copy  of  the  will  or 
letters.  The  surrogate's  fees  for  making  the  copy,  and  the  ex- 
penses of  transmission,  must  be  audited  by  the  comptroller,  and 
paid  out  of  the  treasury  upon  his  warrant.^'* 

§  252.  Copies  of  record  of  ancient  wills  as  evidence. — It  is  pro- 
"vaded  that  "  the  exemplification  of  the  record  of  a  will,  ])roved 

32  Co.  Civ.  Proc,  §  2703,  as  amended  land.  08  App.  Div,  182.)      See  Taylor 

1900    (L.    I'.tOO,   c.   750).     The   produc-  v.  Synie.   102  X.  Y.  513:    Lockwood  v. 

tion   of  siu'li   a   record   is  j)resiinii)tive  Lockwood,  supra.     It  will  be  ob.-?erved 

evidence   of   sucli   will   and   llie    exocii-  tiiat  no  provision  is  made  for  the  issu- 

tion  thereof,     (lb.)    In  IJroniley  v.  Mil-  ance   of   letters   testamentary   on    siuli 

ler  (2  T.  &  C.  575),  it  was  held  tliat  a  will.    Hence,  whether  an  executor  of 

the    record    here    of    such    a    will    and  such  a  recordeil  will  has  ijualilied  him- 

proofs    is   equivalent    to    proof    of   the  self    to    exercise    a    power    of    sale    in 

will  in  this  State.     But  see  Lockwood  respect  to  land  in  this  State  must  de- 

V.  Lockwood,  51   Hun,  337;  Matter  of  pend  upon   what  he   has   done  at   the 

Lanffbein,     1     Dem.    448;     Matter    of  place  of  forei<,Ti  probate.     (Pollock  v. 

Shearer,  1  Civ.  Proc.  Rep.  455;  Matter  Hoolev.  22  N.  Y.  Supp.  215.) 

of    Nash,    37    Misc.    706.      The    "  pre-  :?3  Co.  Civ.  Proc.  §  2G95.     As  to  au- 

sumptive  evidence  "  is  overcome,  how-  thentication    of    such    wills,    see    Co. 

ever,    where   the    record    shows   on    its  Civ.  Proc,   §  2704. 

face  that  the  will  was  not  properly  ad-  34  Co.  Civ.  Proc,  §  2503. 
mitted  to  probate.     (Meiggs  v.  Hoag- 


§  252.  The  Prorate  of  Wills.  20S 

before  the  judge  of  the  former  Court  of  Probate,  and  recorded 
in  his  office  before  the  1st  day  of  January,  in  the  year  1785,  cer- 
litied  under  the  seal  of  the  officer  having  custody  of  the  record, 
must  be  admitted  in  evidence  in  any  case,  after  it  has  been  made 
to  a])]->ear  that  diligent  and  fruitless  search  had  been  made  for  the 
original  will."  ^^  ''An  exemplified  copy  of  the  last  will  and  testa- 
ment of  any  deceased  person,  which  has  been  admitted  to  probate, 
whether  as  a  will  of  real  or  personal  property,  or  both,  and  re- 
corded in  the  office  of  the  surrogate  in  any  county  of  this  State, 
shall  be  admitted  in  evidence  in  any  of  the  courts  of  this  State, 
without  the  proofs  and  examination  taken  on  the  probate  thereof, 
and  whether  such  proofs  shall  have  been  recorded  or  not,  with 
like  effect. as  if  the  original  of  such  will  had  been  produced  and 
proven  in  such  court,  ivJien  thirty  years  have  elapsed  since  the  will 
was  admitted  to  probate  and  recorded.  And  the  recording  of  such 
will  shall  be  evidence  that  the  same  was  duly  admitted  to  probate. 
The  exemplification  of  the  record  of  a  will  which  has  been  proved 
before  the  surrogate  or  judge  of  probate,  or  other  officer  exercis- 
ing the  like  jurisdiction,  of  another  State  must,  when  certified  by 
the  officer  having  by  law,  when  the  certificate  was  made,  custody 
of  the  record,  be  admitted  in  evidence,  as  if  the  original  will  was 
produced  and  proved,  ivhen  thirty  years  have  elapsed  since  the  ivill 
ivas  proved.^'  ^^ 

The  evidential  effect  of  a  decree  granting  probate  will  be  con- 
sidered hereafter,  under  the  head  of  decrees  generally,  and  their 
effect  as  adjudications.^^ 

35  Co.  Civ.  Proc,  §  26.31.  emplifications  in  such  eases  supersede 

36  Co.  Civ.  Proc.,  §  2632,  as  amended  the  necessity  of  proving  anew  the  exe- 
1901  (L.  1901,  c.  540).  The  object  of  ciition  of  the  will  on  producina:  the 
the  originals  of  the  foregoing  provi-  exemplification.  (Ackley  v.  Dygert,  33 
sions,  relating  to  wills  which  may  be  Barb.  176.) 

termed  ancient,  was  to  make  the  ex-       37  See  c.  XXI,  post. 


CHAPTER  VII. 

THE  VALIDITY,  CONSTRUCTION,  AND  EFFECT 

OF  WILLS. 

§  253.  Implied  power  to  construe  wills. —  As  a  necessary  incident 
to  their  general  powers  to  control  executors,  to  direct  the  pay- 
ment or  charging  of  legacies  and  the  like,  Surrogates'  Courts  have 
always  exercised  the  right  and  the  power  to  look  into  the  will 
and  determine  its  true  construction;  and  this  power  has  always 
been  considered  to  be  as  extensive  as  the  power  to  which  it  is 
incident.  As  an  incident  to  their  duty  to  settle  the  accounts  of 
executors,  and  to  decree  distribution  of  the  estate,  remaining  in 
their  hands,  "  to  the  persons  entitled,  according  to  their  respec- 
tive rights,"  they  may,  therefore,  construe  a  will  so  far  as  it 
may  be  necessary  to  determine  to  whom  the  legacies  are  payable 
and  whether  any  of  them  should  abate.  These  questions,  to  some 
extent,  at  least,  require  the  court  to  decide  whether  a  legacy 
attempted  to  be  made  is  invalid  or  inciTectual  as  being  obnoxious 
to  the  rule  against  perpetuities,^  or  to  the  statute  liniiting  chari- 
table gifts  to  one-half  of  the  estate,^  or  as  being  in  violation  of 
some  statute,  or  settled  rule  of  law  which  restrains  or  limits  the 
power  of  testamentary  alienation.^  So,  in  a  proceeding  to  revoke 
letters  testamentary,  it  may  be  necessary  for  the  court  to  con- 
strue the  will  in  order  to  determine  whether  or  not  the  executors 
were  guilty  of  the  waste  charged,  in  turning  over  the  estate  to 
one  of  their  number  as  an  absolute  devisee  and  legatee."*  These 
cases  proceed  upon  the  ])rin('i]ile  that  wherever,  in  any  proceeding 
touching  the  administration  of  the  estate,  in  which  the  validity  of 
the  will  is  pertinent  to  the  matter  in  hand,  the  court  will  deter- 
mine tlie  (]uestion;  as  where,  for  example,  it  appears,  on  the  ac- 
counting of  an  executor,  that  the  testatrix  had  married  subse- 
quently to  the  execution  of  the  will,  the  court  will  not  hesitate 


1  Matter  of  Vorplanck.  01  N.  Y.  4.30;  4  Fernb.<iolior  v.  Fornbachor.  4  Dom. 
Eipc  V.  Crapp.  -IC,  Hun.  SO;  89  X.  Y.  227.  Compare  ^fatter  of  Ellis.  1  Con- 
470;  Purdy  V.  Hayt.  02  id.  44G :  Mat-  noly,  200:  Matter  of  Soule.  id.  IS. 
ter  of  French,  52  Hun.  .30.3:  23  St.  So,*  in  assessinj;  the  inheritance  tax, 
Rep.  4.50.  the  comt  mav  determine  what   estate 

2  Stephenson  V.  Short.  02  X.  Y.  433.  passed    under"  the    will.       (Matter    of 
sTappen    v.    IMcthodist    Church.    3  I'llmann.    137    X^   Y.    403:    Matter   of 

Deni.  187:  Dubois  v.  Brown,  1  id.  317:  Peters.   <10   App.    Div.    40.5:    74   X.   Y. 

Matter  of  Collyer,  4  id.  24.  Supp.  1028.) 
14                               [<^09] 


§  254.         Validity,   Coxstruction,  Etc.,  of  Wills.  210 

to  declare  the  will  revoked,  and  direct  a  distribution  as  in  a  case 
of  intestacy.^ 

^  254.  Express  jurisdiction. —  The  original  statute*'  required 
that,  "  before  recording  any  will  or  admitting  the  same  to  probate,^ 
the  surrogate  shall  be  satisfied  of  its  genuineness  and  validity.^'' 
It  was  claimed  that  this  requirement  involved  the  necessity  of 
examining  the  contents  of  the  instrument  propounded,  before 
decreeing  probate,  and  of  summarily  rejecting  so  much  of  il  as 
the  court  might  find  illegal  or  ineffectual  for  any  cause;  but  it 
was  decided  that  the  statute  only  required,  as  a  condition  of 
granting  probate,  that  the  court  should  be  satisfied  that  the  in- 
strument was  ''  valid,"  as  a  will,  not  that  it  should  declare  each 
or  any  of  its  provisions  valid;  in  short,  that  the  factum  of  the 
will  was  the  only  issue  in  a  probate  proceeding,  and  the  court 
would  not  examine  its  contents  except  as  they  bore  upon  the 
question  of  its  execution  and  authenticity."  In  1870,  the  Legis- 
lature conferred  power  upon  the  Surrogate's  Court  of  New  York 
county,  in  a  proceeding  to  prove  a  will,  to  pass  upon  the  validity 
of  any  of  its  provisions  or  their  legal  effect,  Avhen  called  in  ques- 
tion by  any  heir  or  next  of  kin  of  decedent,  or  by  any  legatee 
or  devisee  named  in  the  will,  to  the  same  extent  that  the  Supreme 
Court  had  jurisdiction  to  pass  upon  and  determine  the  true  con- 
struction, validity,   and  legal  effect  thereof.^     This  jurisdiction, 


5  Matter  of  Davis,  1  Tuck.  107.  So  "N.  Y.  Supp.  791;  Baldwin  v.  Smith, 
in  an  accounting  proceeding  the  court  3  App.  Div.  350 ;  38  N.  Y.  Supp.  299. 
may  ascertain  the  intention  of  the  tes-  When,  however,  upon  an  accounting, 
tator  in  regard  to  the  compensation  to  no  question  of  distribution  is  before 
be  made  to  the  executors.  (Matter  of  the  court,  any  direction  as  to  the 
Thompson,  5  Dem.  117.)  On  a  motion  future  is  not  binding  upon  the  court 
to  open  a  decree  on  a  final  accounting  when  the  question  becomes  a  present 
and  to  modify  it,  the  court  mav  con-  one.  (Matter  of  McCahill,  29  Misc. 
strue  the  will  with  a  view  of'deter-  450;  61  N.  Y.  Supp.  1071.)  S.  P., 
mining  whether  the  testator's  widow  Matter  of  Haight,  51  App.  Div.  310; 
had  the  right  to  a  life  use,  only,  of  per-  G4  N.  Y.  Supp.  1029. 
sonal  property  which  the  executor  was  6  L.  1837,  c.  400,  §  17. 
bound  to  turn  over  to  her  as  trustee  "  Matter  of  McLaughlin,  1  Tuck.  79. 
of  the  remaindermen.  (Kelsevv.  Van  The  present  Code  (§  2622),  adopting 
Camp,  3  Dem.  530.)  See  Matter  of  the  statute  of  1837,  defined  the  '' va- 
Finn,  1  Misc.  280 ;  Matter  of  Havens,  lidity,"  of  which  the  court  was  to  in- 
8  id.  574 ;  29  X.  Y.  Supp.  1085 ;  Mat-  quire,  on  a  will  being  offered  for  pre- 
fer of  Metcalfe,  6  Misc.  524;  27  X.  Y.  bate,  to  be  "the  validity  of  its 
Supp.  879;  Matter  of  Young,  17  Misc.  execution." 

680;    s.   c,   as   Matter   of   Cornell.    41  8  L.  1870,  c.  359,  §  11.     It  was  held, 

X.     Y.     Supp.     539;     affd..     15     App.  under  this  statute,  that  even  if  some 

Div.     285 ;     Matter     of     Perkins,     75  of  the   provisions   of   the   will   created 

Hun,  129 ;  26  X.  Y.  Supp.  958 ;  Matter  an  unlawful  suspension  of  ownership, 

of  Owens,  24  Civ.  Proc.  Rep.  256 ;   33  this  was  no  objection  to  the  probate  of 

X.  Y.  Supp.  422;  Matter  of  Davenport,  the  will,  and  the  court  refused  to  pass 

37    ^lisc.    179;    74   X.   Y.   Supp.    940;  upon  the  question  before  admitting  the 

Matter  of  Raymond.  73  App.  Div.  11:  will    to  probate.      (Wade  v.   Holbrook, 

Matter   of   Vandevort,   8   id.    341;    40  2  Redf.  378.) 


211  Validity,   C'oxstkuctiox,   Etc.,   or  Wills.         §  255. 

considerably  curtailed,  is  now  enjoyed  by  all  surrogates,'''  though 
it  is  said  that  the  principle  of  the  two  statutes  is  the  same.^'^  The 
jurisdiction  is  confined  to  the  cases  of  wills  of  personal  property, 
and  such  a  will  must  be  that  of  a  resident  of  this  State,  and 
have  been  executed  within  this  State. *^  It  is,  therefore,  far 
from  conferring  upon  these  courts  the  same  powers  and  juris- 
(liction  which  the  Supreme  Court  has  in  such  a  maiter.  The 
jurisdiction  to  construe  wills  which  these  courts  now  enjoy  is  only 
new  in  that  it  may  be  exercised  not  only,  as  heretofore,  inci- 
dentally to  some  other  proceeding  in  the  course  of  the  adminis- 
tration of  the  estate,  but  it  nmy  be  exercised  before  the  admin- 
istration has  begun,  and  in  the  same  proceeding  by  "which  the 
factum  of  the  will  is  sought  to  be  established.  By  the  same  de- 
cree which  admits  the  instrument  to  probate  as  the  validly  exe- 
cuted will  of  a  cai)able  testator,  the  surrogate  ''  must,"  if  required, 
construe  the  document  with  the  view  of  determining  its  *'  va- 
lidity "  and  "  effect,"  that  is,  so  far  as  they  can  be  determined 
by  "  construction,"  according  to  the  rules  of  law  governing  that 
subject.  Where  the  question  df  the  validity  of  the  will  is  not 
material  or  pertinent,  the  court  wall  decline  to  entertain  it.^^ 

^  255.  Limits  of  jurisdiction. —  Xotwithstanding  this  extension 
of  their  powers  in  this  regard,  the  rule  still  is,  that  Surrogates' 
Courts  have  no  authority  to  construe  a  wall,  except  as  it  is  ex- 
pressly conferred  by  statute,  or  as  it  is  a  necessary  incident  to 
some  other  power  expressly  conferred. ^^  Xo  statute  expressly 
confers  upon  them  any  jurisdiction  of  a  direct,  independent  pro- 
ceeding for  the  construction  of  a  will.  The  will  having  once 
been  admitted  to  probate,  the  court  has  not  power  to  entertain 
a  new,  independent  proceeding  for  its  construction.^'*    This  object 


»  Co.  Civ.  Proc,  §  2f)24.  to  file  an  inventory  and  why  he  should 

10  Jones  V.  Hamersley.  4  Deni.  427.  not   be   removed    from   ofiice,   the   sur- 

11  The  fact  that  the  testator  was  a  ro«rate  has  power  to  construe  a  will 
resident  does  not  give  jurisdiction,  if  was  questioned  in  Wilde  v.  Smith  (2 
the  will  was  executed  outside  the  Dem.  93).  The  force  and  effect  of  a 
State.  (Tiers  v.  Tiers.  2  Dem.  200.)  testamentary  provision  cannot  be 
A  '■  resident.''  as  used  in  this  section,  finally  determined  up.  n  an  applica- 
must  mean  a  resident  at  the  time  of  lion  for  an  advance  upon  a  legacy, 
the    testator's    death.       See    Co.     Civ.  (Rank  v.  Camp.  3  Dem.  27S.) 

I'nic.  §  2()!)4.     This  limitation  is  con-  13  Washbon  v.  Cope,  144  N.  Y.  287; 

fined,   apparently,  to  cases   where  the  G3  St.  Rep.   71G.     Jurisdiction  cannot 

(piestion   is    raised   (lirccthi   in  a   pro-  be  conferred  by  consent.      (Matter  of 

bate  proceeding,  as  authorized  by  sec-  Campbell.  88  Hun.  374:  34  N.  Y.  Supp. 

tion  2()24.  831.) 

12  Whether,  upon  an  application  to  1-t  Bevan  v.  Cooper,  72  X.  Y.  317: 
require  an  executor  to  show  cause  why  Matter  of  ^IcClouth.  9  Misc.  38.5:  30 
he  should  not  be  attached  for  failure  X.  Y.  Supp.  274. 


§  255.         Validity,  Construction,  Etc.,  of  Wills.  212 

can  be  accomplished  either  as  an  incident  to  the  probate  pro- 
ceeding, or  afterward,  as  an  incident  to  some  other  proceeding, 
where  the  due  administration  of  the  estate  makes  it  necessary 
that  it  should  be  done.  The  authority  of  a  Surrogate's  Court  to 
pass  upon  the  validity  of  dispositions  of  property  by  will,  in  a 
proceeding  for  its  probate,  is  limited  (1)  to  the  case  of  wills  of 
residents  of  this  State,  executed  within  the  State;  and  (2)  to 
dispositions  of  personal  property  therein  attempted  to  be  made. 
In  regard  to  the  testator's  residence  and  the  place  where  he 
executed  his  will,  I  apprehend  that  the  limitation  applies  only  to 
probate  proceedings,  and  that  if  the  question  of  the  validity  or 
effect  of  a  foreign  w^ll,  or  the  will  of  a  nonresident,  necessarily 
arises  in  a  proceeding  affecting  the  administration  of  the  estate 
under  it,  the  court  should  not  refuse  to  detennine  it. 

The  limitation,  depending  upon  the  species  of  property  involved 
in  the  dispositions  of  the  will  sought  to  be  construed,  has  now 
been  defined  with  precision  by  the  court  of  last  resort,  after  no 
little  uncertainty  had  been  created  through  discussion  in  the 
trial  courts.  It  is  now^  settled  that  the  law  is  now,  as  it  has 
always  been,  that  Surrogates'  Courts  have  no  jurisdiction,  either 
direct  or  indirect,  to  determine  the  validity,  construction,  or 
effect  of  devises  of  real  property.  Although  the  Code  declares 
it  necessary  that  a  petition  for  probate  should  state  whether  the 
will  relates,  or  purports  to  relate,  exclusively  to  real  or  personal 
property,  or  to  both,  and  that  the  will  must  be  admitted  ""  as  a 
will  valid  to  pass  real  property  or  personal  property  or  both  " 
(§  2623),  this  does  not  vest  the  surrogate  with  the  power  to 
determine  whether  the  instrument,  upon  its  face,  is  sufiicient,  in 
terms  and  legal  effect,  to  convey  the  title  to  any  of  testator's 
real  property.  The  extent  of  the  surrogate's  jurisdiction,  on  a 
probate  proceeding,  is  to  examine  the  will  to  ascertain  whether 
it  purports,  or  is  sufficiently  comprehensive,  to  dispose  of  real 
property,  and  if  it  does,  he  is  then  to  decide  that  it  shall  be 
admitted  to  probate  as  a  will  valid  for  such  a  purpose,  provided 
he  finds  it  to  have  been  executed,  and  the  petition  and  citation 
so  require;  the  effect  of  his  decision  goes  no  farther.^"     Where 

iSMatter  of  Merriam,  136  X.  Y.  58;  from  whose  decree  the  appeal  was 
48  St.  Rep.  897.  In  that  case  the  will  taken  had  refused,  on  the  probate  pro- 
contained  but  a  single  paragraph  by  ceeding,  to  entertain  the  question 
which,  after  the  payment  of  liis  debts,  whether  or  not  the  devise  was  void. — 
testator  devised  and  bequeathed  "  all  a  decision  which  was  affirmed.  See 
my  property  and  estate,  real  and  per-  ]\Iatter  of  Schweigert,  17  Misc.  186; 
sonal,  to  the  government  of  the  United  40  X.  Y.  Sunp.  970.  The  decision  in 
States    of    America."      The    surrogate  Bevan  v.  Cooper  (12.  X.  Y.   317)    was 


213  VAMitn-Y,   T'oxsrini  'iioN,   Etc,   ok  Wills.         ^  250. 

the  (lis]»(»iti<>ns  relate  to  liotli  kiiid.^  of  jtroperty,  and  they  are 
not  in.sej)arabl_v  connected,  the  courts  may  undertake  to  construe 
those  \vhi(di  rcdate  to  ])ersonal  property  extdusively,'"  otherwise 
they  will  not.^^ 

The  exercise  of  the  express  statutory  authority  of  these  courts 
to  construe  a  will  is  also  limited  to  the  single  proceeding,  to  wit: 
an  oriuiiial  j)roeee(ling  to  i)robate  a  will.  The  question  of  the 
validity  or  effect  of  the  will  on  its  face  cannot,  therefore,  be 
raised  in  a  proceeding  to  revoke  a  probate  on  allegations  filed, 
under  section  2647  et  seq.  of  the  Code  ;^*  nor  upon  an  application 
for  letters  of  administration  with  the  will  annexed.^''* 

g  256.  Scope  of  construction  of  will. —  If  the  subject  is  suscepti- 
ble of  being  reduce<l  to  a  general  rule,  it  may  be  gathered,  from 
the  cases,  that  the  '*  validity,  construction,  or  effect "  of  the 
will  which  a  surrogate  can  determine  must  be  such  as  can  be 
determined  by  an  examination  of  the  will  itself,  without  resort 
to  extrinsic  evidence.  The  investigation  must  be  confined  to 
questions  arising  between  the  parties  to  the  proceeding,  as  be- 
tween different  legatees  or  between  heirs-at-hiw  and  legatees 
qrovnui  out  of  lite  terms  of  the  viU.^'^  A  question,  for  example, 
which  involves  the  title  of  the  property  bequeathed,  as  between 
the  estate  and  a  third  person,  who  claims  it  adversely  to  the 
will,  never  was  triable  in  a  Surrogate's  Court,  and  is  not  made 
triable  by  the  new  statute.  Such  a  question  should  be  reserved 
until  a  representative  is  a^Dpointed  to  defend  the  estate,  and 
can  then  be  tried  only,  as  between  him  and  the  claimant,  in  a 
common-law  court  where  a  jnry  trial  is  guaranteed,  except  in 
cases  of  equitable  cognizance. ^^     .V  tribunal  engaged  in  proving 


placed    principally    upon    tlie    ground  Rep.    745;    125    N.    Y.    762),    but    the 

th!it  the  Act  of  1870,  c.  359,  §  11.  gave  point  was  not  raised. 

the     surrogate     power     to     determine  1<J  See   Jones   v.   Hamersley.  4   Dem. 

<juestions  (jf  construction,  onli/  in  the  427;  Matter  of  Fuller,  22  St.  Rep.  352. 

proceeding  for  probate,  thiiiigh  whether  17  ]\Iatter   of    Shrader,   63    Hun,    30; 

Hie  court  possessed  jurisd'ction  of  such  17   N.   Y.   Supp.   273;    flatter  of  Mer- 

a  question  in  (tin/  procccd'ng  was  dis-  riani,   supra;   flatter  of  Morganstern, 

cussed,   with   the  conclusion   stated   in  9  Misc.  IDS;  30  X.  Y.  Supp.  215. 

the  text.     See  Hillis  v.  Hillis,  10  Hun,  18  Matter  of   Ellis,    1    Connoly,   206; 

76:    Currin    v.    Fanning,    13    id.    458;  22  St.  Rep.  77 ;  Matter  of  Watson,  131 

Matter  of  French,  .52  id.  303;  Marx  v.  X.  Y.  587:  42  St.  Rep.  877. 

McGlynn.  4  Redf.  485;   88  N.  Y.  357;  19  :Matter  of  Smith,  41  St.  Rep.  337; 

Prive   V.    P'oucher.    3   Dem.    330.     The  18  X.  Y.  Supp.  174. 

cases  of  ^Matter  of  Lonk    (22  St.  Rep.  20 Matter  of  Walker.   136  X.  Y.   20; 

86).    and    Matter    of    :\Iarcial     (37    id.  48   St.  Rep.   803:    Matter  of   Keleman, 

560).  so  far  as  they  hold  that   surro-  12()  X.  Y.  73:  36  St.  Rep.  300. 

gates  have  authority  to  determine  the  21  Matter  of  Walker.    136   X.  Y.  20. 

va'idity    of    a    devise,    are    overruled.  In  that  case,  the  will  gave  certain  leg- 

The  former  case  was  aflirmed    (26  St.  acies  which  were  described  as  moneys 


§257.         Validity,   Con^struction,  Etc.,  of  Wills.  21-1 

a  will  is  not  a  fit  place,  nor  is  the  time  appropriate,  for  making 
an  inventory  of  the  estate  and  adjudging  its  liabilities  with  a. 
view  of  ascertaining  Avhether  or  not  certain  charitable  gifts  in 
the  will  exceed  in  amount  one-half  the  estate,  after  the  payment 
of  all  just  debts.  The  question  of  the  quantum  of  the  estate  is 
not  triable  in  a  probate  proceeding,  for  the  reason  that  its  solu- 
tion does  not  require  a  construction  of  the  will  or  a  determina- 
tion of  the  legal  effect  of  its  provisions  under  the  statute. 
Whether  or  not  there  shall  be  an  abatement  of  the  charitable 
bequests,  and  if  so  to  what  extent,  will  be  determined  in  the 
course  of  the  administration  of  the  estate,  at  the  instance  of  the 
rejDresentative.^  The  question  Avhether  a  legacy  in  the  will  pro- 
pounded was  created,  not  by  a  direct  or  express  gift,  but 
was  to  be  inferred  from  language  wdiich  shows  an  intention  to 
give  a  legacy,^^  and  the  question  whether  the  will,  by  its  terms, 
established  any  trust,  and  if  so  whether  that  trust  is  valid,^  are 
properly  cognizable  by  the  surrogate  when  raised  on  a  probate 
proceeding;  but  in  neither  case  can  the  court  go  beyond  the  lan- 
guage of  the  will  itself.  If,  in  the  latter  case,  there  are  any 
extrinsic  grounds  for  impressing  a  trust  ex  maleficio  in  favor  of 
heirs  or  next  of  kin  upon  the  bequest,  an  action  for  such  a  pur- 
pose must  be  brought  in  equity  where  the  power  resides  for 
granting  that  relief.  Xot^^dthstanding  the  mandatory  language 
of  the  statute  that  "  the  surrogate  tnust  determine  "  the  issue  of 
validity,  when  raised  on  the  probate,  the  court  is  bound  to  con- 
sider the  limited  extent  of  its  general  jurisdiction,  and  its  in- 
adequacy to  deal  with  certain  questions,  which  belong  more  prop- 
erly to  common-law  courts. 

§  257.  Who  may  invoke  jurisdiction. —  The  mere  fact  that  oneis 
a  party  to  a  controversy  over  the  probate  of  the  instrument  does 
not  entitle  him  to  insist  that,  before  entry  of  a  decree  according 
probate,  the  court  shall  pass  upon  all  questions  which  he  may 

deposited  in  certain  savings  banks  by  him,  and  so  were  void  for  the  excess, 

the  testator,  as   trustee  for  the  lega-  as  the  testator  left  children  surviving, 

tees,  a  portion  of  which  deposits  were  Held,  that  the  surrogate  had  no  juris- 

drawn   out  by   the    testator    and   con-  diction  in   proceedings  for  probate  to 

verted  to  his  own  U'^e.     Upon  probate  determine    those    questions.      See    als(j 

of  the  will,  the  beneficiaries  named  ap-  McClure  v.  Woolley,  1  Dem.  574. 

peared  and  claimed  that  the  moneys  so  22  ]\Iatter  of  Walker,  supra  ;  Matter 

deposited  did  not  belong  to  the  testa-  of   Mullen,    25   Misc.   2.5.3 ;     5.5   N.   Y. 

tor  at   his  death,   but  to  the   persons  Supp.  432. 

designated  as  beneficiaries:  it  was  also  23  Matter  of  Vowers.  113  N.  Y.  569. 

cHimed  that  certain  legacies  to  char-  See  Smith  v.   Floyd    71   Hun.   56;    24 

itable   and    religious   institutions    ex-  N.  Y.  Supp.  610;  affd..  140  N.  Y  337. 

ceeded   one-half   of  the   estate   left  by  24  Matter  of  Kelcman.  126  X.  Y.  73. 


215  Vatjihty,  Cox«tklction,  Etc.,  <»i    W'u.j.s,         §  257. 

see  fit  to  raise  respecting  the  validity,  construction,  or  effect  of 
the  will,  or  of  any  of  its  provisions."''  Xo  person  can  command 
the  exercise  of  such  jurisdiction,  unless,  under  the  will  whose 
provisions  he  seeks  to  have  interpreted,  he  claims  some  interest 
in  the  personal  estate  bequeathed,  or  unless,  on  the  other  hand, 
111-  (  laims  that  because  of  the  invalidity  of  the  testator's  disi)o<i- 
tion  of  such  personalty  or  of  some  portion  thereof,  he  is  en- 
titled to  share  in  the  same  under  the  Statute  of  Distributions.^ 
A  legatee  who  has  accepted  a  legacy  under  a  will  is  esto))))ed 
from  contesting  the  validity  of  the  will."'  Where  the  cii-cuni- 
stances  of  the  case  are  such  that,  in  accordance  with  its  course 
and  practice,  the  Supreme  Court  would  not  exercise  its  juris- 
diction, the  Surrogate's  Court  ought  not  to.~^  It  ought  not  to 
bo  understood  that  the  jurisdiction  of  a  Surrogate's  Court  to 
interpret  a  will  can  only  be  invoked  by  the  ])arties  at  whose  in- 
stance a  court  of  equity  will  act.  For  while  neither  an  heir-at- 
law  or  next  of  kin  claiming  in  hostility  to  a  will,"'*  nor  a  devisee,^'^ 
or  legatee, ^^  can  maintain  an  action  to  obtain  a  construction 
thereof,  they  may  do  so,  in  a  proper  case,  in  these  courts.  The 
jurisdiction  of  courts  of  ecpiity,  to  pass  upon  the  interpretation 
of  wills,   is  incidental  to   that  over  trusts,    and  where   the  will 


25  .Tones  V.   llanicrley,  4  Dem.  427;  the   exeix-iso    by   the    surrogate    of   the 

1  St.  Rep.  319;   9  Civ.  I'roc.  Kep.  293.  power   conferred   by   section    2024,   un- 

In  that  case,  the  court  refused  to  pass  less,  in  accordance  with  tiie  course  and 

u]jon   the  validity  of   a   power  of  ap-  practice   of   the    Supreme   Court,   tliat 

j)ointnient   conferred   upon   a   life   ten-  tribunal  would,  under  similar  circum- 

ant,  ])endin,ii:  the  lifetime  of  the  latter,  stances,     exercise      its     jurisdiction." 

notwitiistanding    tlie    mandatory    Ian-  (Per  Rollins,  S.,  in  Jones  v.  Hamers- 

guage  of   the   statute,   "  tiie  surrogate  ley,  supra.) 

must   determine,"  etc.  ^OC'hipman  v.  Montgomery,  tj3  X.  Y. 

2()  Jones  V.   llamersley,  siiprii :  Mat-  221.     Com])are  Meseroh'  v.  ^Slescrole,   1 

ter  of  Campbell,   88  Hun,   374;   34  N.  Hun,  (10;  Stinde  v.  Ridgeway,  .5."i  How. 

Y.  Supp.  831:  Matter  of  Robertson,  23  Pr.   .301;   Marlett  v.   Mariett,    14  Hun, 

Misc.  450:    51    X.   Y.   Supp.   302.     See  313. 

Rich   V.   TiflTany,   2   A  pp.   Div.   25:    37  -W  Duncan  v.   Duncan.  4  Abb.  X.  C. 

X.  Y.  Supp.  330 ;  Fraser  v.  Hoguet,  05  275. 

App.   Div.   192.     But  it  is  inunaterial  31  Sutherland    v.    Ronald,    11    Hun. 

wliether    he    seeks    to    maintain    or   to  238;    Brundage  v.  Brundage.  05   Barb. 

destroy   its   provisions.      (Simmons   v.  397.  Although  an  action  may  be  main- 

Burreil,  8  Misc.  388;   28  X^.  Y.  Supp.  tained   by   an   executor    in   respect   to 

625.)  personal    property,    or    bv    a     legatee 

2TOibhins   v.    Campbell,    148    N.    Y.  (^Vager  v.   Wager,   89   X."Y.    101).    it 

410;   42  X.  E.   1055;   Matter  of  Soule,  cannot  be  sustained  on  the  ground  of 

1     Connoly,     18;     Matter    of    Peaslee,  a  doubt  on   wliicli   it   does  not   appear 

73    Hun,   "ll3;    25    N.    Y.    Supp.    940;  that  ihe  executor  and  the  legatee  dif- 

Matter  of   Richardson,   81    Ihui,   425;  fer,  nor  on  the  ground  of  a  doubt   in 

30  X.  Y.  Supp.  1008.     See  Baldwin  v.  respect    to   wliich   the  executor   is  not 

Palen,  24  !Misc.   170;    53   X.  Y.   Supp.  yet  called  upor  to  act  and  may  never 

520;   Walker  v.  Taylor,   15  App.  Div.  i)e ; — as   in   the   case   of   a   contingent 

452;  44  X.  Y.  Supp.  440.  gift.       (AVead   v.     Cnntwell,    36     Hun. 

2S"An   occasion   does  not   arise  for  528;   affd..  108  X.  Y.  255.) 


§  258.         Validity,  Construction,  Etc.,  of  Wills.  21$ 

contains  no  trusts,  a  suit  will  not  be  entertained  for  the  sole 
purpose  of  construction,  nor  where  legal  rights  only  are  in  con- 
troversy.^^ 

g  258.  Principles  governing  construction. —  Having  defined  the 
jurisdiction  of  these  courts  to  determine,  by  construction,  the 
validity  and  effect  of  a  testamentary  disposition  of  personal  prop- 
erty (whether  incidentally  to  the  probate  of  the  will,  or  to  the 
administration  of  the  estate,  after  probate),  it  only  remains  to 
indicate,  in  a  general  way,  the  grounds  on  which  invalidity  is 
usually  predicated,  and  the  rules  which  govern  courts  in  deter- 
mining the  question.  While  it  is  a  fundamental  principle  that 
a  testator's  intention  must  govern,  such  an  intention  must  be  a 
legal  intention,  that  is,  must  not  be  inconsistent  with  rules  of 
law,  statutory  or  otherwise. ^^  A  will  may  disclose,  on  the  face 
of  it,  an  intention  to  dispose  of  property  in  an  illegal  manner, 
or  for  an  illegal  object,  or  to  a  person  legally  incapable  of 
taking,  or  an  intention  to  override  public  policy  or  settled  rules 
of  law.  On  the  other  hand,  where  there  is  an  uncertainty,  ap- 
parent upon  the  face  of  the  will,  as  to  the  application  of  any 
of  its  provisions,  or  if  the  w^ords  of  a  will  fail  to  disclose  an 
intention,  collateral  or  extrinsic  evidence  is  admissible  to  discover 
it;  and  an  intention  being  once  discovered,  extrinsic  evidence  is 
admissible  to  explain  it.  In  other  words,  the  question  in  ex- 
pounding a  will  is  not  what  the  testator  meant,  as  distinguished 
from  what  his  words  express,  but  simply  —  what  is  the  meaning 
of  his  words?  But  the  rule  is  inflexible  that  guesses  at  the 
testator's  intention  will  not  be  indulged  in.  Such  intention  is 
to  be  collected  from  the  words  of  the  will,^**  free  of  conjecture, 
under  the  guidance  of  precedents  and  rules  of  law,  taking  into 

32Mellen  v.  Mellen,  139  N.  Y.  210;  Williams,  8  id.  525;   Quin  v.  Skinner, 

54  St.  Rep.  G70.     See  Wager  v.  Wager,  49  Barb.    128;    Dupre  v.  Thompson,  4 

21  Hun,  93;  Bailey  v.  Briggs,  56  N.  Y.  id.  279;   Tucker  v.  Tucker,  5  id.   103; 

407;    Chipman  v.  Montgomery,  63  id.  Martin  v.  Ballou,  13  id.  119;  Richards 

221;    Kalish    v.    Kalish,    166    id.    368;  v.  Northwest  P.  D.  Church,  32  id.  42; 

Smith  V.  Rockefeller,  5  Sup.  Ct.  (T.  &  Ryckman  v.  Gillis,  6  Lans.  79;    Dar- 

C.)   562;  Meserole  v.  Meserole,  1  Hun,  ling  v.  Rogers,  22  Wend.  489;  Murray 

66.  V.  Bronson,  1  Dem.  217;  Sweet  v.  Bur- 

•33Montignani  v.  Blade.  74  Hun.  297;  nett,  136  N.  Y.  204;  49  St.  Rep.  113; 

26  N.  Y.  Supp.  670;   145  K  Y.  111.  Meehan  v.  Brennan,  16  App.  Div.  395; 

34  1  R.   S.  74S,   §  2.      See  Myers  v.  45  N.  Y.  Supp.  57 ;   Moak  v.  Moak,  8 

Eddy,    47     Barb.    263:    Terpen'ing    v.  App.   Div.    197;    40  N.  Y.   Supp.  438; 

Skinner,  30  id.  373;   Fosdick  v.  Dela-  Matter  of  Van  Home,   25  Misc.  391; 

field,   2   Redf.    392;    Wager  v.    Wager,  55  N.  Y.  Supn.  651;   Gwver  v.  Gwver, 

96  N.  Y.  164;  Freeman  v.  Coit.  id.  63;  5  App.  Div.  156;  38  N.  Y.  Supp.  1097; 

Williams    v.    Freeman,     83     id.    561:  afTd..  160  N.  Y.  659;   Marks  v.  Halli- 

Underhill  v.  Vandervoort,  56  id.  242;  gan,  61  App.  Div.  179;  70  N.  Y.  Supp. 

Bridger  v.  Pierson.  45  id.  601  :  Morris  444. 
v.  Ward,  36  id.  587,  595;   Williams  v. 


217  Validity,  Consthuctiox,  Etc.,  of  Wills.         §  258. 

view  the  circumstances  under  which  it  was  inade."'^  If  the  in- 
tention of  the  testator  is  evinced  from  lan<;ua^fe  free  from  am- 
hi^uity,  evidence  concerning  it  is  not  adniissilde.^"  Where  it 
cannot  have  effect  to  its  full  extent,  it  must  have  effect  as  far 
as  possible. ^^  No  chiuse  is  to  be  rejected,  or  interest  intended. 
to  be  ^iven  sacrificed,  on  the  ground  of  repugnance,  when  it  is 
possible  to  reconcik'  the  ])rovisions  supposed  to  be  in  conflict.^*'  If, 
however,  it  is  iin])ossible  to  reconcile  two  inconsistent  provisions, 
the  latter  must  prevail."'^  In  construing  a  will,  the  intention  of 
the  testator  is  to  govern  in  preference  to  a  general  rule  of  con- 
struction, where  they  come  in  conflict.^*^  Eveiy  expression  is  to 
be  construed,  if  practicable,  so  as  to  give  effect  to  all  parts  of 
the  will,  and  not  to  nullify  any,'*^  to  avoid  intestacy,'*^  and  the 
disinheritance  of  the  natural  objects  of  the  testator's  bounty.^^ 


The  rule  of  construction  that  the  in-  Rep.    748;    IS    X.    Y.    Supp.    535;    and 

tention   of   tlie   testator   is   to  govern,  cases  supra. 

although  it  may  not  be  in  entire  har-  37  Brown    v.    Lyon,    6    N.    Y.    420: 

mony   with  the   language   of   the   will,  Chrystie  v.   Phyfe,   19   id.   348;    Oxley 

is  not  to  be  resorted  to  where  the  Ian-  v.  Lane,  35  id.   340 ;    Savage  v.   Burn- 

guage  is  explicit  and  free  from  doubt,  ham,    1 7    id.    577 ;    Kane    v.    Gott,    24 

even   in  case  where  the  court  may  be  Wend.  G65. 

of  opinion   that  had   the   testator  an-  38  Taggart  v.  Murray,  53  N.  Y.  233; 

ticipatcd    that    which    happened    after  Van  Vechten  v.  Keator,  63  id.  52. 

Ills  (icath,  he  would  have  made  a  dif-  3!)  Xoble    v.    Thayer,    19    App.    Div. 

fcrent    disposition    of    the    remainder.  446;    46   N.   Y.   Supp.   302.     See   Hen- 

(]?avlies    v.    Hamilton,    30    App.    Div.  derson  v.   ^Merritt,    10  App.   Div.   397; 

133:    55  N.   Y.   Supp.   390;    aflFd.,    165  41  N.  Y.  Supp.  885. 

N.  Y.  641.)  40  Matter  of   James,   14G   N.   Y.   78; 

sriWlu'thcr     a    will     should  be    con-  66  St.  Rep.  246 ;  Matter  of  Brown,  154 

strued  as  of  the  time  of  its  execution  N.  Y.  31.3. 

or  as  of  the  time  of  testator's  death  is  41  Hard   v.   Ashley,    117   X.   Y.    006; 

to  be  determined  by  his  intention  and  Terry  v.  Wiggins.  47  id.  512,  517.     But 

depends     iipoii     the     peculiar     circum-  it    is    not    permissil)le    to    refer    to    a 

stances   of   each   case    (MofTett   v.   El-  clause  which   is  doubtful  for  the  sole 

inciidorf.  S2  Ilun.  470;    31  N.  Y.  Supp.  purpose  of  obscuring  aiuitlu'r  wliich  is 

720;    affd.,    152    N.   Y.    475).    and    for  clear.       (Fothergill    v.     Fothergill,    80 

tlu»     purpose     of     ascertaining     that  Hun,  316;  30  X.  Y.  Supp.  292.) 

intentiiin  the  court  may  reject  words  42  Vernon   v.  Vernon,   53  X^.   Y.   351. 

and    limitations,    supply   or    transpose  361;  Kalish  v.  Kalish.  1(!0  id.  308;  59 

them,   to  get  at   the  correct  meaning.  N.   E.   917;     Haight   v.   Pine.   3    App. 

(Benjamin    v.    Welch.    73    Hun.    371;  Div.   434;    39   X.   Y.   Supp.   511;    Xew- 

20  X.  Y.  Supp.  156;  Karstens  v.  Kar-  comb   v.    Xewcomb.    33    Misc.    191;    08 

stens,    29    App.    Div.    229;    51    X.    Y.  X.  Y.  Supp.  4.30 :  Zone  v.  Z<me.  4  Misc. 

Supp.    795.)       But    the    court    has    no  559;  Meehan  v.  Brennan.  1(!  App.  Div. 

power,  in  its  construction  of  wills,  to  395;    45   X.    Y.    Sujip.    57;    Hushes    v. 

insert    clauses    made    necessary    by    a  ]\Iackin.    16   Ajip.   Div.   291  ;    44   X'.   Y. 

change    in    the    circumstances    of    the  Supp.     710;     Sanford    v.    Goodell.    82 

property   subsequent   to   the   will    and  Hun,  369. 

for  which  the  testator  did  not  provide.  4;;  Goodwin  v.  Coddington.  154  X.  Y. 

(Parker   v.    Butler,   76    Hun,    240;    27  283;    IMatter   of   Aliller,    18   App.   Div. 

N.  Y.  Supp.  805.)  211;    45   N.  Y.   Supp.   956;    affd.,   155 

3«Wadsworth  v.  Murrav.   161   X.  Y.  X.   Y.    640;    Sage   v.   Wheeler.   3   App. 

274;     55     N.     E.     910;    '  Schmeig     v.  Div.  38 ;  37  X.  Y.  Supp.  1 107  ;  Shangle 

Kochersberger.  IS  Misc.  017;   43  X.  Y.  v.  Hallock.  6  App.  Div.   55;   39  X.  Y. 

Sui>p.  748;   Bradhurst  v.  Field,  45  St.  Supp.  619. 


;§§  259,  2G0.     Validity,   Construction,  Etc.,  of  Wills.     218 

§  259.  Clerical  errors. —  Obvious  clerical  errors,  patent  upon  the 
face  of  the  instrument,  may  be  corrected.  Thus  "  and  "  may  be 
read  *' or,"  and  conversely;  ^^  "as"  may  be  read  "because;"^" 
"reviving"  may  be  read  "surviving;"'*'"  and  ''leave"  may  be 
read  "  have."  ■*' 

§  260.  Statutory  restrictions. —  The  statutes  of  this  State  re- 
strict the  power  of  testamentary  disposition  in  respect  to  (1) 
the  creation  of  trusts,  (2)  the  creation  of  future  estates  in  lands, 
or  of  future  contingeuL  interests  in  personal  property,  (3)  accumu- 
lations of  rents  and  profits  of  land,  or  of  the  income  of  personal 
property,  and  (4)  in  respect  to  benevolent,  literary,  and  other 
bequests.  Restrictions  are  also  imposed  in  respect  to  the  per- 
sons who  may  take  a  devise  or  bequest,  and  as  to  the  proportion 
of  the  estate  which  may  be  devised  or  bequeathed  for  benevolent 
and  other  purposes  in  certain  cases.  The  cases  involving  the 
application  of  these  provisions  to  particular,  and  often  compli- 
cated testamentary  dispositions  have  been  very  numerous,  and 
furnish  many  curious  examples  of  the  ingenuity  of  testators  in 
their  attempts  to  contravene  the  restraints  upon  alienation  of 
•estates,  as  well  as  the  acuteness  and  persistence  of  judges  in 
detecting  and  frustrating  such  intention.  But  generally,  clerical 
errors,  not  thus  apparent,  cannot  be  corrected  by  extrinsic  evi- 
dence that  the  testator  intended  otherwise  than  the  words  of  the 
"will  express.  Punctuation  may  be  resorted  to  when  no  other 
means  can  be  found  of  solving  an  ambiguity,  but  not  in  cases 
W'here  no  real  ambiguity  exists,  except  what  punctuation  creates 
itself.'*^  A  statement  of  the  statutory  rules  on  the  subject  will 
be  all  that  the  scope  and  purpose  of  this  volume  will  permit.  iSTo 
mention  is  made  here  of  the  statutory  rules  and  limitations  re- 
garding the  creation  of  express  trusts  of  real  property,"*^  and  of 


44  Jackson  V.  Blanshan,  G  Johns.  ,54;  chanfred  to  read  "as  joint  tenants  and 
Van  Vechten  v.  Pearson,  5  Paige,  512;  not  as  tenants  in  common,"'  see  Walter 
Koosevelt  v.  Thurman,  1  Johns.  Ch.  v.  Ham,  68  App.  Div.  381;  75  N.  Y. 
220;  Grim  v.  Dyar,  3  Duer,  354;  Scott  Siipp.   1S5. 

V.  Guernsey,  48  N.  Y.  106.  48Arcnlarius  v.  Sweet,  25  Barb.  403. 

45  Sharp  V.  Dimmiek,  4  Lans.  496.  When    the  punctuation    accords   with 

46  Pond  V.  Bergh,   10  Paige,  140.  the  sense,  the  use  of  a  capital  in  the 

47  Du  Bois  V.  Ray,  35  N.  Y.  162.  middle  of  a  sentence  must  be  regarded 
The  word  "  sell  "  may  be  supplied  be-  as  accidental  and  should  not  be  ner- 
fore  the  word  "  and,"  or  the  word  mitted  to  confuse  a  construction  other- . 
"and"'  be  omitted  in  order  to.  carry  wise  reasonably  clear.  (Kinkele  v.  Wil- 
out  the  evident  intention  of  the  testa-  son.  151  IST.  Y.  260:  45  X.  E.  869.) 
tor.  (Hall  V.  Thompson.  23  Hun.  334.)  49  i  R.  S.  728,  §55;  L.  1896,  c.  547, 
For  a  case  where  the  words  ''  as  joint  §  76. 

tenants  and  tenants  in  common  "  were 


SIO  Validity,   ( 'oNSTiacTiox,   Etc.,  of  Wills,         §-•»!• 

future  estates  in  lanJs,^"  as  they  do  not  indutU;  or  affect  trusts 
or  bequests  of  personal  property,  as  to  wliicli  alone  these  courts 
have  any  concern. ^^ 

§261.  Suspension  of  absolute  ownership. —  As  to  personal  prop- 
erty, tlie  absolute  ownershi})  cannot  be  suspended  longer  than 
during  the  continuance,  and  \uitil  the  termination,  of  not  more 
than  two  lives  in  being  at  the  date  of  the  instrument  containing 
the  limitation,  or,  if  by  will,  for  not  more  than  two  lives  in 
being  at  the  death  of  the  testator.  In  all  other  respects,  limita- 
tions of  future  or  contingent  interests  in  personal  property  are 
subject  to  the  rules  prescribed  in  relation  to  future  estates  in 
lands.^~  The  phrase  ''  suspense  of  absolute  ownership,"  as  used 
in  this  statute  in  relation  to  personal  property,  is  said  to  mean 
the  same  thing  as  "  suspense  of  the  power  of  alienation,"  as 
applied  to  real  property,''^  and  the  construction  of  the  two  pro- 
visions has  been  to  the  same  effect  as  to  each.  Words  in  a  will 
which  amount  to  a  suspension  of  the  power  of  alienation  of 
lands  will  be  held  as  sufficient  to  effect  a  suspension  of  the  abso- 
lute ownership  of  personal  property,  and  vice  versa.  That  period 
must  be  measured  by  existing  lives,  or  by  some  more  proximate 
event  "which  must  happen  during  life,  and  the  persons  whose 
lives  are  to  furnish  the  measure  of  the  svispension  must  be  desig- 
nated or  referred  to,  so  as  to  be  capable  of  ascertainment  in 
the  instrument  by  which  the  disposition  is  made.''^  Thus,  a  trust 
to  continue  for  a  period,  or  until  a  date,  specified,  is  not  valid."'^ 
The   period   of  suspension,   to  which  it   is  the  purpose   of   the 


50  1  R.  S.  7-22,  §§  14-10:  L.  1896,  Misc.  39;  Montignani  v.  Blade.  14.".  X. 
c.  547,   §   27.  Y.    Ill;    64   St.    Rep.    558;    Matter   of 

51  Trusts  of  personal  property'  may  Ackermann,  36  Misc.  752 ;  74  X.  Y. 
he  created  for  any  purpose  not  pro-  Siipp.  477;  Fairchild  v.  Edson,  154  X. 
liibited  by  law.  I  Holmes  v.  ISIead.  52  Y.  199.  Absolute  ownership  is  not 
N.  Y.  332,  343;  Bucklin  v.  Bucklin.  1  suspended  merely  because  the  executor 
Keyes,  141;  Brown  v.  Harris,  25  Barb,  may  reijuire  a  period  of  time  not 
134;  Gott  V.  Cook,  7  Paige.  521;  Fos-  measured  by  lives  in  wliich  to  execute 
ter  V.  Coe.  4  Lans.  53;  Roosevelt  v.  the  power  of  sale.  (Deegan  v.  Wade, 
Roosevelt,  6  Hun,  31;  Tabernacle  Bap-  144  X.  Y.  573;  64  St.  Rep.  240.)  A 
tist  Church  v.  Fifth  Ave.  Baptist  child  en  ventre  sa  mere  at  the  tes- 
Church,  60  App.  Div.  327 ;  70  N.  Y.  tator's  death  is  a  "  life  in  being." 
"Supp.  181.)  (Cooper  v.   Heatherton.   (i5   App.   Div. 

52  1   R.  S.  773.   §§   1.  2:   L.   1897,  c.  561:  73  X.  Y.  Supp.  14.) 

417_   g  2.  55  stajdes    v.    Hawes.    39    Apj).    Div. 

53  Emmons  v.  Cairns,  3  Barb.  243;  548:  57  X.  Y.  Supp.  452;  Matter  nf 
;Morton  v.  :Morton.  8  id.  18.  In  Con-  Snyder,  48  St.  Rep.  643;  21  X.  Y. 
verse  v.  Kellogg  (7  Barb.  590).  a  dif-  Supp.  430:  Kalisb  v.  Kalisb.  I(i6  X\  Y. 
fereut  view  is  taken.  368;  59  X.  E.  917;   Stcinway  v.  Stein- 

•'+ Everitt  v.  Everitt.  29  N.  Y.   39;  way,    10   Misc.   563;     32   N.   Y.   Supp. 

Wilber    V.    Wilber.    165    id.    451  ;     59  183. 
N.    E.    264;    Matter    of    Murray,    34 


§  262.         Validity,   Construction,  Etc.,  of  Wills.  220 

statute  to  limit  dispositions  of  property,  is  the  same  as  to  real 
and  as  to  personal  proi)erty,  that  is,  ''  two  lives  in  being;"  iiL 
the  ease  of  a  devise  of  real  property,  the  lives  must  be  "  in 
being  at  the  creation  of  the  estate;"  and  in  the  case  of  a  be- 
quest of  personal  property  the  lives  must  be  "  in  being  at  the 
death  of  the  testator."  But  "  the  time  of  the  creation  of  the 
estate  "  is  the  death  of  the  testator,  so  that,  in  both  cases,  the 
testator's  death  is  the  time  from  which  the  period  of  suspension 
is  reckoned.  So  the  statutory  term,  "  two  lives  in  being,"  applies 
equally,  and  in  the  same  sense,  to  suspension  occasioned  by  con- 
tingencies, trusts,  and  powers  in  trust;  to  postponement  of  vest- 
ing, and  to  suspension  of  the  absolute  ownership  of  personal 
property.  As  a  general  proposition,  it  may  be  stated  that  a 
suspension  of  the  absolute  ownership  of  personalty  occurs  only 
when  there  are  no  persons  in  being  by  whom  an  absolute  estate 
in  possession  can  be  conveyed.^*^  It,  therefore,  follows  that  i£ 
there  is  a  present  right  to  dispose  of  the  entire  interest,  even 
if  its  exercise  depends  on  the  consent  of  many  persons,  there  is- 
no  unlawful  suspension.^^ 

§  262.  Accumulations  of  income  of  personal  property. —  Accumu- 
lations of  income  of  personal  jDroperty  (except  as  specified  in  the 
statute)  are  placed  on  the  same  general  footing,  and  are  governed, 
by  the  same  rules,  as  accumulations  of  rents  and  profits  of  real 
estate. ^^  The  statute  provides^^  that  the  accumulation  of  the 
income  of  personal  property  may  be  directed  as  follows:  (1)  If 
the  accumulation  is  directed  to  commence  from  the  date  of  the 
instrument  or  from  the  death  of  the  person  executing  the  same^ 
it  must  be  for  the  benefit  of  one  or  more  minors^  then  in  being,^^ 
or  in  being  at  such  death,  and  terminate  at  or  before  the  expira- 


56  Sawyer  v.  Cubby,  146  X.  Y.  192;  §  5].)  See  Mason  v.  Jones.  2  Barb. 
66  St.  Rep.  582.  229;  Savage  v.  Burnhani,  17  N.  Y.  ,561. 

57  Williams  v.  Montgomery.  148  N  59  L.  1897,  c.  417,  §  4;  1  R.  S.  774^ 
Y.     519;     4.3     N.     E.     57;    'Mills     v.  §§  3,  4. 

Mills,     50   App.   Div.   221;     63   X.   Y.  60  See  Boynton  v.  Hoyt,   1  Den.   53^ 

Siipp.    771.      Consult,   in   this   connec-  58;  Hawley  v.  James,  10  Wend.  61.    A 

lion,    L.    1893,    c.    452,    and    L.    1897,  direction  to  accumulate  and  apply  in- 

c.    417.    §    3,    which   enables   the   bene-  come  to  the  discharge  of  incumbrances 

ficiarj^    of    a    life    interest,    with    the  is   void.       (Matter   of   Fisher,   4    Misc. 

assistance    of    the    remainderman,    to  46;     McComb    v.    Title    Guarantee    & 

terminate  a  trust  and  dispose  of  the  Trust  Co.,  36  id.  370 ;   73  N.  Y.  Supp. 

entire  interest.  554:  Matter  of  Snyder,  35  Misc.  588; 

58  Directions  for  the  accumulation  of  72  N.  Y.  Supp.  61.)  See  Hascall  v. 
rents  and  profits  of  real  estate,  except  King,  28  App.  Div.  280;  51  X.  Y. 
for  the  period  during  which  the  power  Supp.  73:    162  X.  Y.  134. 

of   alienation  of   the   estate   itself  can  61  Oilman   v.    Reddington.   24   X.   Y. 

be  limited,  are  void.     (L.  1896,  c.  547,  19;  Kilpatrick  v.  Johnson,  15  id.  322. 


221  Vai.iditv,   Constulc'tion,   Etc.,  of  Wills.         §  263. 

tiou  of  their  majority,""  or,  (2)  if  the  aceuimihition  is  diroctcd 
to  commence  at  any  time  subse(j[iient  to  the  above,  it  must  com- 
mence within  the  time  allowed  for  the  suspension  of  the  absolute 
ownership  of  personal  property  and  during  the  minority  of  the 
beneficiaries,  and  terminate  at  or  before  the  expiration  of  such 
minority.  If,  in  either  of  these  cases,  the  direction  for  an  ac- 
cumulation is  for  a  longer  term  than  during  the  minority  of  the 
beneficiaries,  the  direction,  whether  separable  or  not  from  other 
provisions  of  the  instrument,"''  is  void  only  as  respects  the  time 
beyond  such  minority.""*  In  other  words,  a  direction  for  an  illegal 
accumulation  does  not  render  a  legacy  wholly  void,  but  the  direc- 
tion may  be  stricken  out  and  the  legacy  and  the  general  pur- 
poses for  M'liich  it  was  given  may  remain."^ 

Implied  directions  to  accumulate  are  as  mueli  within  the  pro- 
liibition  of  the  statute  as  those  ex])ressly  given.  If,  u])on  compar- 
ing the  provisions  of  the  Avill  with  the  condition  of  the  estate,  it 
is  apparent  that  the  testator  intended  an  unauthorized  accumula- 
tion, this  intention  cannot  be  carried  into  effect,  and  any  pro- 
vision of  the  will  which  is  dependent  upon  it  is  void.  This,  how- 
ever, is  never  permitted  to  afTect  any  poi-tion  of  the  will  not 
necessarily  connected  with  the  illegal  accumulation,  and  which 
can  be  readily  executed  independently  of  it."" 

§  263.  Effect  of  illeg^al  suspension. —  The  statute"'  gives  to  the 
persons  presumptively  (entitled  to  the  next  eventual  estate,  in- 
come accruing  during  a  suspension  of  the  absolute  ownership,  and 


62  A  gift  of  p'-operty  to  executors  in  Williams,    S    X.    Y.    525.)       And    see 

trust  to  r(?ceive  rents  and  profits  and  Trustees    of    Theological    Seminary    v. 

■deposit  the  same  in  a  savings  bank  for  Kellog,  Iti  id.  83:  Wctmore  v.  Parker, 

ten  years  and  then  sell  and  divide  the  52     id.     450:     Matter     of     Ahbott,     .3 

proceeds     and     accumulations     among  Redf.    30.3:    Stanton   v.    Miller,    58    X. 

children,  all  of  whom  were  of  full  age,  Y.   192:  Livingston  v.  Gordon.  7  Abb. 

is  void.      (Brandt  v.  Brandt,  13  Misc.  X.   C.    53;    Matter  of   Weslev,    43   St. 

431;  34  X.  Y.  Supp.  G84.)      So,  too.  a  Rep.  952;   17  X.  Y.  Supp.  304. 

provision   requiring  the  creation   of  a  •">  Williams    v.    Williams,    S    X.    Y. 

hind  from   tlie   income   of  each   child's  525.      See  also   Dodge  v.    Pond.  23   id. 

share  and  the  animal   reinvestment  of  09:    Manice    v.    Manice,    43    id.    303; 

the  surj)lus  income  until  the  final  dis-  Robinson    v.    Robinson.    1    Lans.    117; 

tribution    when    the    youngest    reaches  Ilaxtun    v.    Corse,    2    Barb.    C'h.    500; 

the    age    of   25.       ( Horndorf    v.    Horn-  Craig  v.  Craig,  3  id.  7() :  Kili)atrick  v. 

■dorf,    13    :\Iisc.    343;    34    X.    Y.    Supp.  -Tohnson.  15  X.  Y.  322:  Bonard's  Will, 

5G0.)  10  Abb.  Pr.    (X.  S.)    128.  208:   Matter 

fi^See  Williams  v.  Williams,  8  X.  Y.  of  Koos,  4  Misc.  232:   24  X.  Y.  Supp. 

525;  Kilpatrick  v.  Johnson,  15  id.  322:  802. 

King  v.  Bundle,  15  Barb.  139.  66  Dodge  v.  Pond.  23  X.  Y.  07.  79; 

(■•■t  This  statute  does  not  apply  to  or  Chaplin,  .Suspension,  etc.,  §  430  ct  scq. 

afTect  property  given  in  perpetuity  to  <>"  L.  1890,  c.  547,  §53;   1  R.  S.  726, 

religious  corporations  incorporated  un-  §  40. 
tier  the  general  statute.      (Wil'iams  v. 


§§  264-266.     Validity,   Coxstkuctiox^,  Etc.,  of  Wills.      222 

of  which  no  disposition  or  valid  accumulation  is  directed.  It  is  no 
longer  donhtfnl  that  this  provision  applies  to  the  case  of  incomry 
from  personal  estate;''^  but,  it  seems,  only  where  such  income  is 
derived  from  some  specific  fund,  or  is  distinguishable  from  that 
of  all  other  property.*"^ 

§  264.  Trust  gifts  to  literary  institutions. —  Eeal  and  personal 
estate  may  be  granted  and  conveyed  to  any  incorporated  college 
or  other  literary  incorporated  institution  in  this  State,  to  be  held 
in  trust  (1)  to  establish  and  maintain  an  observatory;  (2)  to 
found  and  maintain  professorships  and  scholarships;  (3)  to  pro- 
vide and  keep  in  rej^air  a  burial  place  for  the  dead;  (4)  for  any 
other  specific  purpose  contem]dated  in  the  general  objects  author- 
ized by  their  respective  charters. 

§  265.  Bequests  to  city  or  village  corporation  for  certain  purposes. 
— •  Real  and  personal  estate  may  be  granted  to  the  corporation 
of  any  city  or  village  of  this  State,  in  trust  for  any  purpose  of 
education  or  the  diffusion  of  knowledge,  or  for  the  relief  of  dis- 
tress,'" or  for  parks,  gardens,  or  other  ornamental  grounds,  or 
grounds  for  the  purpose  of  military  parades  and  exercise,  or 
health  and  recreation,  within  or  near  such  city  or  village.'^  And 
property  may  also  be  granted  to  superintendents  of  common 
schools  of  any  town,  and  to  trustees  of  school  districts,  in  trust 
for  the  benefit  of  the  common  schools  of  the  town,  or  of  the  schools 
of  the  district."^ 

§  266.  Other  trusts.^ —  Except  as  above,  the  purposes  for  which 
trusts  of  i:)ersonal  property  may  be  created   are  not  defined  or 


68  Cook  V.  Lowrv,  29  Hun,  20.  See  1041;  Sanford  v.  Goodell,  82  Hun, 
Meldon  v.  Devlin.' 31  App.  Div.  146;  309:  31  N.  Y.  Supp.  490:  Matter  of 
53  N.  Y.  Supp.  172:  affd.,  107  X.  Y.  Snvder,  35  Misc.  588;  72  N.  Y.  Supp. 
573.  01.' 

69  Dodge  V.  Pond,  23  X.  Y.  09,  79:  "o  While  a  bequest  of  personal  prop- 
Grant  v.  Grant,  3  Eedf.  283 :  Thomas  erty  to  a  town  for  the  support  of  its 
V.  Pardee.  12  Hun,  151.  The  operation  poor  is  valid,  a  devise  of  real  estate 
and  application  of  this  statute  are  for  that  purpose  is  void.  (Fosdiek  v. 
further  illustrated  in  Pray  v.  Hege-  Hempstead.  29  St.  Rep.  545 ;  8  X.  Y. 
man,   92    X.   Y.    508:    Barbour   v.    De  Supp.  772.) 

Forest,   95   id.    13;    Delafield  v.    Ship-        Ti  Matter    of    Crane,    12    App.    Div. 

man.  103  id.  403:  Delafield  v.  Barlow.  271:    42   X.   Y.    Supp.    904:    affd.,    159 

107  id.  535:  Schcttler  v.  Smith.  41  id.  X.  Y.  557   (citing  Le  Couteulx  v.  CitT 

328:    Cook  v.  Lowrv,  95  id.   103.   107:  of  Buffalo,  33  X.  Y.  342;   Clements  v. 

"Williams  v.  Williams.  S  id.  525:  Kil-  Babcock,  26  Misc.  90;  56  X.  Y.  Supp. 

Patrick  v.  -Tohnsnn,  15  id.  322:  Potter  527.) 

v.   McAlpine,   3   Dem.    108:    Matter  of        T2  L.   1840,  c.   318:   L.   1841,  c.  261; 

Sands,    20    St.    Rep.    850;     Smith    v.  L.  1846.  c.  74;  L.  1855,  c.  432 ;  L.  1890, 

Sccor,    31    Apn.    Div.    103;    ,52    X.    Y.  c.   160;  L.   1892,  c.  25.     See  Adams  v. 

Supp.  562:  affd..  157  X.  Y.  402:  Clark  Perrv,  43  X.  Y.  487;  Yates  v.  Yates, 

V.  Clark.  23  Misc.  272 ;  50  X.  Y.  Supp.  9  Barb.  324. 


223 


Validity,  Constructiox,  Etc.,  of  Wills. 


2  GO. 


limited  by  the  statute — it  would  he  iinjii-act  icahh'  to  do  so, — 
hut  whatever  the  seheme  of  the  trust,  the  jturpose  must  be  defi- 
nite"' and  the  beneficiary  must  be  certain  and  entitled  to  enforce 
the  trust;  otherwise,  there  would  be  an  indefinite  continuance  of 
the  trustee's  powers  which  would  constitute  a  perjjetuity.^^  Thus 
a  direction  that  the  residue  of  the  estate  be  placed  in  the  hands  of 
the  pastor  of  a  church,  to  be  bestowed  in  a  manner  which  he  may 
wisely  (lin>ct,  is  void  for  want  of  a  defined  beneficiary. '°  For 
the  same  reason,  a  bequest  to  one,  in  trust  for  the  saying  of  masses, 
for  the  repose  of  testator's  soul,  is  invalid;  there  is,  in  such  a  ease^ 
no  defined  or  ascertainable  living'  person  who  has,  or  ever  could 
have,  any  temporal  interest  in  the  performance  of  the  trust,  and  no 
incorporated  church  designated  which  would  entitle  it  to  claim 
!inv  portion  of  the  fund.'^''' 

Presumably  to  secure  to  the  public  the  fruits  of  the  benevolent 
intentions  of  testators  against  the  dangers  incident  to  this  rule^ 


73  Matter  of  Scott,  31  Misc.  85;  64 
X.  Y.  Supp.  577;  McComb  v.  Title 
Guarantee  &  Trust  Co.,  30  ilisc.  370; 
73  N.  Y.  Supp.  554. 

V4  Adams  v.  Pcrrv,  43  X.  Y.  487; 
Tilden  v.  Green,  54 'llun.  231;  130  X. 
Y.  20. 

75  Matter  of  Foley,  10  X.  Y.  Supp. 
12.  Compare  Power  v.  Cassidy.  70  X. 
Y.  G02.  A  bequest  to  "  my  executors, 
to  l)e  expended  by  them  for  benevolent 
and  cliai-itable  pur])oses,  as  they  or  the 
survivor  of  them  sliall  in  their  or  his 
^ood  jiidj;ment  deem  wise  or  best  for 
the  promotion  of  Christianity  and  the 
welfare  of  mankind  in  the  world,"'  is 
void  for  uncertainty  as  to  the  bene- 
ficiaries. ( Matter  of  Jackson,  20  X. 
Y.  Supp.  380;  People  v.  Powers,  147 
X.  Y  104;  GO  St.  Rep.  403.)  So,  too,  a 
<dause  in  the  will  authoiizinp  the 
executors  to  distribute  testator's  jew- 
elry and  wearing  apparel  among  such 
of  his  friends  as  they  see  (it. —  IleUl 
vafjue  and  inojx'rat  ive.  (  Fairbrass  v. 
Purdy.  44  App.  Div.  (i3(i ;  00  X.  Y. 
>Supp.  753.)  A  bequest,  "to  be  used 
especially  for  the  interest  of"  a  person 
is  void  as  a  trust.  (Ramsay  v.  De 
Remer,  05  Hun.  212;  s.  p.,  Pell  v. 
Folo:er,  23  X.  Y.  Supp.  42.)  A  pro- 
vision that  all  of  testator's  property 
rcmaininn:  after  payinj;  his  debts 
should  be  expended  for  a  monument  at 
his  ffrave,  is  not  void  on  the  piround 
tliat  there  is  no  ascertained  bene- 
ficiary. CMatter  of  Boardman.  20  X. 
Y.  Supp.  00.)  For  illustrations  of  the 
rule,   see  Hope  v.   Brewer,    130  X.  Y. 


126;  48  St.  Rep.  834;  Dammert  v.  Os- 
born,  05  Hun,  585 :  20  X.  Y.  Supp. 
474;  Spencer  v.  De  Witt  C.  Hay 
l.ibrary  Assn.,  30  Misc.  393;  73  X.  Y. 
Supp.  '712;  :Mattor  of  Botsford,  23 
:\rise.  388;  52  X.  Y.  Supp.  238; 
afTd.,  37  App.  Div.  73;  Edson  v. 
Bartow.  10  App.  Div.  104;  41  X.  Y. 
Supp.  723  (modified  in  other  respects 
in  1.54  X.  Y.  199);  Pratt  v.  Roman 
Catholic  Orphan  Asylum,  20  App.  Div. 
352 ;  Beecher  v.  Yale,  45  X.  Y.  Supp. 
022:  Clapp  v.  Byrnes,  3  App.  Div.  284; 
38  X.  Y.  Supp.  i003:  Wvman  v.  Wood- 
bury, 80  Hun,  277:  3.3  X,  Y.  Supp. 
217';  00  St.  Rep.  845;  Butler  v.  Trus- 
tees, etc.,  92  Hun,  90;  30  X.  Y.  Supp. 
5C2. 

-G  Matter  of  Wright,  X.  Y.  Law  J.. 
Jan.  10,  1893;  Holland  v.  Alcock.  lOS 
X.  Y.  312:  Power  v.  Cassidy,  79  id. 
002;  Prichard  v.  Thompson,  95  id. 
70.  But  see  :\I:itter  of  Backes,  9  Misc. 
504  ;  30  X.  Y.  Supp.  394.  In  Matter  of 
Zimmerman  (22  .Misc.  411),  a  gift  to 
a  priest,  for  which  masses  were  to  be 
said,  was  upheld  as  a  conditional  be- 
quest. A  bequest,  absolute  on  its  face, 
to  the  *'  sister  superior  or  reverend 
mother."  who  should  at  the  time  of 
testator's  death  be  in  charge  ot  a  home 
for  the  aged,  provided  a  bequest  to  the 
home  should  fail,  as  it  did  by  reason 
of  the  will  being  executed  within  two 
months  of  his  death, —  stisfaiiwd.  as 
sufliciently  describing  the  legatee. 
(Matter  of  :MulIen.  25  Misc.  253;  55 
X.  Y.  Supp.  432.) 


§  267.         Validity,   Construction,  Etc.,  of  Wills.  224 

the  statute  provides  that,  "  No  gift,  grant,  bequest  or  devise  to 
leligious,  educational,  charitable,  or  benevolent  uses,  which  shall, 
in  other  respects,  be  valid  under  the  laws  of  this  state,  shall  or  bo 
deemed  invalid  by  reason  of  the  indefiniteness  or  uncertainty  of 
the  persons  designated  as  the  beneficiaries  thereunder  in  the  in- 
strument creating  the  same.  If  in  the  instrument  creating  such 
a  gift,  grant,  bequest  or  devise  there  is  a  trustee  named  to  execute 
the  same,  the  legal  title  to  the  land  or  property  given,  granted, 
devised  or  bequeathed  for  such  purposes  shall  vest  in  such  trustee. 
If  no  person  be  named  as  trustee,  then  the  title  to  such  lands  or 
property  shall  vest  in  the  supreme  court."  ^^ 

§  267.  Limitations  on  charitable  bequests. —  When  the  validity 
of  a  bequest  depends  u^Jon  whether  the  legatee  is  competent  to  take, 
-or  upon  the  proportion  which  the  bequest  bears  to  the  value  of  the 
whole  estate,  or  upon  any  other  fact  which  the  will  does  not  dis- 
close upon  its  face,  but  must  be  proved,  it  is  obvious  that  no  ques- 
tion of  the  construction  of  the  will  arises,  and,  therefore,  the 
validity  of  the  bequest  cannot  be  determined  on  the  application  for 
probate.  It  will  come  up  for  determination  during  the  course 
of  the  administration,  as  an  incident  to  some  other  proceeding.'^ 

It  is  declared  by  statute,''^  that  no  person  having  a  husband, 
wufe,  child,  or  parent  shall  by  his  or  her  last  will  and  testament, 
devise  or  bequeath  to  any  benevolent,  charitable,  literary,  scien- 
tific, religious,  or  missionary  society,  association,  or  corporation, 


TTL.  1893,  c.  701,  §  1;  L.  1001.  c.  20;  Matter  of  Counrod,  27  Misc.  475; 
291.  This  statute  has  no  application  59  N.  Y.  Supp.  164;  and  §  256,  ante. 
to  the  will  of  a  person  who  died  prior  ^D  L.  1860,  c.  360.  A  bequest  to  the 
to  its  passage.  (Butler  v.  Trustees,  pastor  of  a  designated  church  for 
€tc.,  supra.)  The  purpose  of  the  act  masses  to  be  said  for  the  repose  of  the 
was  to  restore  the  law  of  charitable  soul  of  testatrix,  is  not  within  the 
trusts  as  declared  in  Williams  v.  Wil-  operation  of  this  statute.  (Vander- 
liams,  8  N.  Y.  525.  Hence,  a  residuary  veer  v.  McKane,  25  Abb.  N.  C.  105.) 
bequest  to  trustees  named,  for  the  pur-  Xor  does  it  apply  to  a  gift  to  a  public 
po>e  of  founding  a  home  for  the  aged,  corporation  (Matter  of  Crane,  12  App. 
to  be  located  in  the  city  of  Syi-acuse  Div.  271;  42  N.  Y.  Supp.  904)  ;  nor 
for  the  benefit  of  those  who  by  mis-  to  bequests  to  individuals  to  found 
fortune  have  become  incapable  of  pro-  charities.  (Allen  v.  Stevens,  161  N". 
viding  for  themselves,  etc.,  the  dura-  Y.  122;  55  N.  Y.  Supp.  568.)  The 
ticn  of  the  trust  not  being  limited  by  claim  that  the  proposed  beneficiaries 
lives, —  Held  to  be  valid  and  not  sub-  are  foreign  corporations  with  no  in- 
ject to  the  objections  of  indefiniteness  hibition  as  to  taking  by  devise  or  be- 
or  creating  a  perpetuity.  (Allen  v.  qiiests  in  their  charters  or  under  the 
Stevens,  161  N.  Y.  122:  55  X.  E.  law  of  the  State  of  their  domicile,  and 
568.)  See  Hull  v.  Pearson.  36  App.  that  the  statute  as  to  them  is  not 
Div.  224 :  55  N.  Y.  Supp.  324 ;  Matter  operative,  is  not  relevant,  the  status 
of  Fitzsimons,  29  ]\Iisc.  204.  For  a  of  the  testator  and  not  that  of  the 
similar  statute  as  to  charitable  devises,  beneficiary  being  the  question  for  con- 
see  L.  1896,  c.  547.  §  93.  sideratioii.       (Scott   v.    Ives,    22    Misc. 

78  See  Matter  of  Walker,  136  N.  Y.  749;  51  N.  Y.  Supp.  49.) 


225 


Validitv,  CoxsTuucTiox,  Etc.,  of   Wills.         §  2G7, 


in  trust  or  otherwise,  more  than  one-half  part  of  his  or  her  estate, 
after  the  payment  of  his  (ji-  lior  debts.  Such  a  (k-vise  or  bequest  is 
docharcd  to  be  valid  to  the  extent  c>f  one-half  and  no  more.  As  to 
the  excess  over  one-half,  there  is  an  intestacy,  if  there  be  no  other 
valid  disposition.*" 

The  intent  of  the  statute  cannot  be  defeated  by  the  testator's 
bequeathing  to  two  or  more  corporations  in  the  aggregate  more 
than  he  can  give  to  a  single  object,  viz.,  one-half  of  his  estate.*^ 
The  proportionate  value  of  the  amount  given  to  the  corporation, 
as  compared  to  that  of  the  entire  estate,  is  determined  by  ascer- 
taining the  cash  value  of  the  gift,  and  also  of  the  entire  estate, 
sit  the  testator's  death.*^ 

For  the  purpose  of  ascertaining  the  estate,  the  widow's  dower,*^ 
and  the  debts,**^  are  first  to  be  deducted. 

The  restriction  may  be  insisted  on  by  any  one  who  wouM  derive 
a  benefit  from  the  estate,*"^  or  may  bo  waived  f*^  but  as  the  obvious 
design  of  the  statute  is  to  inhibit  the  disherison  of  persons  stand- 
ing in  near  relation  to  testators,  with  natural  claims  upon  their 


80  Kearney  v.  Missionary  Society,  10 
Abb.  N.  C.  274.  See  Matter  of  Mo- 
derno,  5  Dem.  288.  Where  the  gift  is 
to  the  officers,  trustees,  or  other  repre- 
sentatives of  the  corporation,  and  the 
intent  to  make  the  gift  to  the  corpora- 
tion appears,  it  will  vest  in  the  latter 
instead  of  the  former.  (^Manice  v. 
Manice,  43  X.  Y.  303,  314.  387:  Cham- 
berlain v.  Chamberlain,  id.  424,  437 ; 
Holmes  v.  :Nrcad,  .>2  id.  332;  New  York 
Inst,  for  tlie  Blind  v.  How,  10  id. 
84;  Van  Deuzen  v.  Trustees,  etc.,  4 
Abb.  Ct.  App.  Dec.  405 ;  Currin  v.  Fan- 
ning, 13  Hun,  458:  Matter  of  Isbcll, 
1  App.  Div.  158:  37  N.  Y.  Supp.  910; 
Hull  v.  Pearson,  30  App.  Div.  224:  55 
N.  Y.  Supp.  324 :  Matter  of  Woods.  33 
Misc.  12:  07  N.  Y.  Supp.  1123;  First 
Presbyterian  Church,  etc.  v.  ^NIcKallor, 
35  App.  Div.  98:  54  N.  Y.  Supp.  740: 
Preston  v.  Howk,  3  App.  Div.  43;  37 
N.  Y.  Supp.  1079;  affd.,  154  N.  Y. 
734.)  As  to  the  applicability  of  the 
law  against  perpetuities  to  gifts  un- 
der this  statute,  see  Wetmore  v. 
Parker.  52  X.  Y.  450:  Holmes  v.  Mead, 
id.  332:  Adams  v.  Perry.  43  id.  487, 
500,  and  cases  in  next  two  notes. 

81  Chamberlain  v.  Chamberlain.  43 
X.  Y.  424;  3  Lans.  355.  See  also  Bas- 
com  V.  Albertson.  34  id.  584,  010;  Har- 
ris V.  American  Bible  Soc,  2  Abb.  Ct. 

15 


App.  Dec.  310;  :Matter  of  Leary.  1 
Tuck.  235:  Currin  v.  Fanning.  13  Hun. 
458;  2  Redf.  520;  Matter  of  Stone.  15 
Misc.  317;  37  X.  Y.  Supp.  583. 

82  Harris  v.  American  Bible  Soc,  2 
Abb.  Ct.  App.  Dec.  310;  4  Abb.  Pr.  (X. 
S.)  421;  40  Barb.  470;  Ilollis  v.  Drew 
Theo.  Sem.,  95  X.  Y.  100;  Lefevre  v. 
Lefevre,  59  id.  434 ;  McKeown  v. 
Officer,  25  St.  Rep.  319.  The  surro- 
gate will  not  undertake,  by  reference 
or  otherwise,  to  ascertain  the  amount 
of  the  devise,  until  the  party  inter- 
ested in  the  disputed  devise  is  brought 
in,  and  in  the  meantime  probate  will 
be  suspended.  ( Curren  v.  Sears.  2 
Redf.  520;    13  Hun,  458.) 

J^s  Chamberlain  v.  Chamberlain,  43 
X.  Y.  424.  440. 

84  Wetmore  v.  Parker,  52  X.  Y.  450. 
For  the  rule  to  determine  proportion- 
ate values,  see  Matter  of  Teed,  59 
Hun.  03;  s.  c.,  on  later  appeal,  70 
id.  507;  28  X.  Y.  Supp.  203:  Garvey 
v.  Union  Trust  Co..  29  App.  Div.  513; 
52  X.  Y.  Supp.  200. 

85  See  Jones  v.  Kelly.  63  App.  Div. 
614;  72  X.  Y.  Supp.  24;  affd.,  170  X. 
Y.  401 :  Hemmje  v.  Meinen,  20  X.  Y. 
Supp.  til 9. 

80  Trustees,  etc.  v.  Ritch.  91  Hun. 
509;  30  X.  Y.  Supp.  576;  aflfd..  151  X. 
Y.  282;  45  N.  E.  876. 


§  267.        Validity,  CoNSTRUCTioisr,  Etc.,  of  Wills. 


226 


bounty,  it  follows  that  if  a  testator  has  no  relatives  of  the  desig- 
nated class,  the  statute  does  not  apply.^^ 

By  another  statute,^*  no  such  devise  or  bequest  is  valid,  unless 
the  will  was  made  and  executed  at  least  two  months  before  the 
death  of  the  testator.  The  statute  applies  to  a  bequest,  executed 
within  the  prohibited  period,  although  it  is  a  mere  re-enactment 
of  a  provision  in  a  former  will.^^  This  statutory  provision  is  ap- 
plicable, how^ever,  only  to  corporations  formed  under  the  general 
law  made  by  that  statute,  or  those  whose  charters  refer  to  it  and 
make  its  provisions  applicable.^*^  But  the  statute  is  not  applicable 
to  a  corporation  incorporated  in  another  State  by  whose  laws  it  is 
authorized  to  take  the  gift.^^  Hence  a  bequest  to  trustees  in  a 
foreign  country,  for  the  purposes  of  a  charity  to  be  established  in 
that  country,  is  valid,  although  obnoxious  to  our  law,  providing  it 
is  valid  by  the  law  of  the  place  where  the  gift  is  to  take  effect,  and 
which  governs  the  trustees  and  the  property  when  transmitted 
there.^^  On  the  other  hand,  if  the  laws  of  the  foreign  State,  like 
our  own,  prohibit  the  bequest,  it  will  be  declared  void  here.^^ 


87  Matter  of  Simpson.  N.  Y.  Law  J., 
March  4.  1893  (X.  Y.  Surr.  Ct.).  See 
cases  supra. 

88  L.  1848,  c.  319,  §  6.  See  Vander- 
veer  v.  McKane.  25  Abb.  X.  C.  105; 
Lawrence  v.  Elliott.  3  Redf.  23fi ;  Cur- 
rin  V.  Fanning.  13  Hun,  459;  Hemmje 
V.  Meinen.  20  N.  Y.  Supp.  619;  Cle- 
ments V.  Babeock.  26  Misc.  90;  56  N. 
Y.  Supp.  527.  This  act  was  not  re- 
pealed by  the  act  of  1860  (Lefevre  v. 
Lefevre,'59  X.  Y.  434.  See  Kerr  v. 
Dougherty,  79  id.  327)  ;  nor  by  L. 
1881,  c.  319.  which  extends  the  rights 
of  corporations  formed  under  the  Act 
of  1848  to  take  a  larger  amount  by 
devise  or  beqviest:  "subject,  however, 
to  the  restrictions  "'  contained  in  that 
act.  (Matter  of  Conner,  44  Hun, 
424.)  See  Hollis  v.  Drew  Theo.  Sem.. 
95  X.  Y.  166;  Riker  v.  Xew  York  Hos- 
pital, 66  How.  Pr.  246;  Wardlaw  v. 
Home.  etc..  4   Dem.   473. 

89  Matter  of  Benedict,  32  St.  Rep. 
139. 

90  Stephenson  v.  Short.  92  X.  Y.  433 ; 
Matter  of  Kavanagh,  125  id.  420;  Hol- 
lis V.  Drew  Theo.  Sem.,  95  id.  171; 
Lefevre  v.  American  Female  Guardian 
Soc,  59  id.  434;  Fairchild  v.  Edson, 
154  id.  199;  Peoples'  Trust  Co.  v. 
Smith.  82  Hun.  494:  31  X.  Y.  Supp. 
519;  Matter  of  Brush,  35  Misc.  689; 
72  X.  Y.  Supp.  421;  Pritchard  v. 
Kirsch,   58  App.  Div.   332;   68  N.  Y. 


Supp.  1049;  Matter  of  Fitzsimmons, 
29  Misc.  731;  62  X.  Y.  Supp.  1009; 
Matter  of  Cornelius,  23  Misc.  434;  51 
X.  Y.  Supp.  877.  See  Matter  of 
Xorton,  39  App.  Div.  369;  57  X.  Y. 
Supp.  407.  Thus,  it  does  not  affect 
membership  corporations  ( Spencer  v. 
De  Witt  C.  Hay  Library  Assn.,  36 
Misc.  393;  73  X.  Y.  Supp.  712;  Mat- 
ter of  Lampson.  22  Misc.  198;  33  App. 
Div.  49;  161  X.  Y.  511)  ;  nor  religious 
corporations  organized  .under  special 
acts,  in  the  absence  of  express  words 
making  them  subject  to  them  (Mat- 
ter of  Hardv,  28  Misc.  307;  59  iST.  Y. 
Supp.  912;  "Matter  of  Foley,  27  Misc. 
77;  58  X.  Y.  Supp.  201)  ;  nor  a  pub- 
lic corporation  ( Clements  v.  Bab- 
cock,  26  Misc.  90;  56  X.  Y.  Supp. 
527). 

91  Matter  of  Lampson,  161  X.  Y. 
511;   56  X.  E.  9. 

92  Hope  V.  Brewer,  136  X.  Y.  126; 
48  St.  Rep.  834;  Matter  of  Huss.  126 
X.  Y.  537;  37  St.  Rep.  789;  Doty  v. 
Hendrix,  16  X.  Y.  Supp.  284;  Cross 
V.  United  States  Trust  Co.,  131  X.  Y. 
330 ;  43  St.  Rep.  254 ;  Matter  of  Stur- 
gis.  164  X.  Y.  485;  Matter  of  Leo- 
Wolf,  25  Misc.  469;  55  X.  Y.  Supp. 
650. 

93  Kerr  v.  Dougherty.  79  X.  Y.  327 ; 
Matter  of  Robertson.  23  Misc.  450;  51 
X.  Y.  Supp.  502.  See  Carter  v.  Board 
of  Education,  68  Hun,  435,  as  to  where 


227  Validity,  Co.nstkuctiox,  Etc.,  or   Wills.         j^  2G>. 

§  268.  Bequests  to  corporations —  A  corporation  cannot  take 
hy  devise  or  bequest  unless  expressly  authorized  by  its  charter, 
or  by  g;eneral  statute.'"'"*  Hence  a  devise  of  lands  to  a  cor- 
poration for  charitable  uses,  which  that  corporation  has  not  ]>ower 
to  take,  is  void,^"''  r.  ry.,  a  devise  to  the  United  States  for  the  pur- 
]wses  of  a  general  charity.  Tlu-  ijovoniuient  exists  under  grants 
of  power,  express  or  iin])li(Ml,  in  a  written  constitution,  and  the 
functions  of  all  the  departments  are  definitely  limited  and  ar- 
ranged, and  it  is  not  within  its  express  or  implied  powers  to 
administer  a  charity.^*'  So  an  unincorporated  socictij  or  associa- 
tion is  incapable  of  taking  an  immediate  gift  under  a  will  as 
devisee  or  legatee.  Subsequent  incorporation  will  not  enal)lo  it  to 
take  the  bequest. ^^     An   association,   though   unincorporated,   is, 


the  void  bequest  goes.  Where  the  etc.,  3  Sandf.  .3.51.  And  see  Fontain 
rcsidvic  is  given  to  throe  religious  and  v.  Ravenel,  17  How.  (U.  S.)  309. 
fharitahh'  corporations  to  be  equally  9^  L,evy  v.  Levy.  33  N.  Y.  97 ;  Mat- 
«livided  between  them,  and  two  of  such  ter  of  Fox,  .52  id.  530.  As  to  the 
corporations  are  unable  to  take,  be-  power  of  a  Surrogate's  Court  to  pass 
cause  the  will  was  made  within  two  on  this  question,  see  Matter  of  iler- 
months  of  testator's  death,  the  third  liam,  130  N.  Y.  58;  §  25.5.  ante.  The 
is  not  entitled  to  the  entire  fund,  but  city  of  New  York  has  capacity  at  com- 
the  lapsed  shares  pass  to  the  next  of  mon  law  and  by  statute  to  take  per- 
kin.  (Simmons  v.  Rurrell,  8  Misc.  sonal  propertv  bv  bequest.  (Matter 
388:  2S  N.  Y.  Supp.  025.)  of  Crane,   12  App.  Div.  271;  42  X.  Y. 

9M  R.  S.  57.  §  3.  See  Hollis  v.  Supp.  904.) 
Drew  Theo.  Sem..  95  N.  Y.  166;  'J"  Wliite  v.  Howard.  40  X.  Y.  144; 
Spencer  v.  De  Witt  C.  Hay  Library  Williams  v.  Williams.  8  id.  524; 
Assn.,  36  ]\Iisc.  393;  73  N."  Y.  Supp.  Owens  v.  Missionary  Soc,  14  id.  .380; 
712;  First  Presbyterian  Church,  etc.  V.  Mar.x  v.  McGlynn,  88  id.  357;  Sher- 
McKallor.  35  App.  Div.  98 ;  54  N.  Y.  wood  v.  American  Bible  Soc.  4  Abb. 
Supp.  740.  Ct.    App.    Dee.    227:     1     Keves.    561; 

95Bovce  V.  Citv  of  St.  Louis,  29  Ronard's  Will,  10  Abb.  Pr."  (X.  S.) 
Barb.  (150:  Matter  of  McGraw,  45  128;  Lutheran  Ref.  Church  v.  Mock, 
Hun,  354.  The  former  English  law  of  4  Redf.  513:  First  Presbyterian  Soc. 
charitable  uses  is  not,  and  never  was,  v.  Bowen.  21  Hun.  389;  Riley  v.  Diggs, 
in  force  in  this  State  (Cottman  v.  2  Deni.  184;  Carpenter  v.  Historical 
Grace,  112  X.  Y.  299,  306;  Holmes  v.  Soc,  id.  574:  Matter  of  Y.  M.  C.  A.. 
Mead,  52  id.  332;  Holland  v.  Alcock.  22  App.  Div.  325;  47  X.  Y.  Supp.  854; 
108  id.  312,  336)  ;  and  the  doctrine  of  Matter  of  Round.s.  25  Misc.  101;  Fair- 
c}i  prcfi  has  no  place  in  our  law.  child  v.  Edson.  154  X.  Y.  199.  Com- 
(Beekman  v.  Bonsor.  23  X.  Y.  298,  pare  Danunert  v.  Osborn.  140  id. 
310;  Levy  v.  Levy,  33  id.  97.  138;  30.  Trustees  of  an  uninC(uporated 
Bascom  v.  Albortson.  34  id.  584.)  An  educational  institution  under  the  di- 
ontirely  new  system  has  been  adopted  rection  and  control  of  a  quarterly 
authorizing  and  limiting  gifts  to  meeting  of  the  Society  of  Friends, 
charity;  and  all  uses  and  trusts,  px-  — Held  capable  of  taking  a  bequest, 
cept  thos(>  autliorized  bv  the  statute,  (L'nderhill  v.  Wood.  05  X.  Y.  Supp. 
arc  al.olislied.  ( 1  R.  S.  727.  §  45.)  1105;  alTd.  in  53  App.  Div.  040.)  A 
The  Kiiglisli  law.  and  the  changes  devise  to  an  incorporated  society  in 
oflfected  by  our  statutes,  are  reviewed  trust  for  an  unincorporated  assoeiation 
in  Holland  v.  Alcock.  108  X.  Y.  312;  is  good,  if  the  latter  is  incorporated 
Matter  of  McGraw,  111  id.  06;  Bas-  before  the  nionev  is  payable  (  Phil- 
rom  V.  Albertson.  34  id.  584;  Levy  v.  son  v.  ^Moore,  23  Hun,  152.)  I'nder 
Levy.  33  id.  97 ;  Yates  v.  Yates.  9  a  devise.  "At  the  death  of  my  wife,  I 
£arb.  324,  338-341;  Avres  v.  Trustees,  give  and  devise"  to  a  society,  not  in- 


§  269.         Validity,   Construction",  Etc.,  of  Wills. 


228 


however,  entitled  to  take  a  legacy  for  a  pious  use,^^  and  hence  has 
a  right  to  intervene  and  become  a  party  to  the  probate  proceed- 
ing. ^'^  An  executory  bequest,  limited  to  the  use  of  a  corporation 
to  be  created  within  the  period  allowed  for  the  vesting  of  future 
estates  and  interests,  is  valid  ;^  and  a  bequest  to  a  foreign  corpora- 
tion is  valid  if  it  is  capable  of  taking  under  the  laws  of  the  State 
of  its  creation.^ 

§  269.  Canons  of  interpretation. —  The  following  are  the  rules 
governing  the  construction  of  wills"  most  likely  to  be  applied  in 
proceedings  in  the  Surrogate's  Court : 

1.  All  the  parts  of  a  will  are  to  be  construed  in  relation  to  each 
other,^  and  so  as,  if  possible,  to  form  one  consistent  whole  f  but 
where  several  parts^  are  absolutely'  irreconcilable,  the  latter  must 
prevail ;  unless  the  general  scope  of  the  will  leads  to  a  contrary 
conclusion.^  2.  Sev^eral  testamentary  instruments,  executed  by 
the  same  testator,  are  to  be  taken  and  construed  together  as  one 


corporated  at  the  time  of  testator's 
death,  but  incorporated  at  the  time  of 
the  death  of  his  wife,  the  society  can 
take,  because  the  title  does  not  vest 
until  the  death  of  the  wife.  (Lougheed 
V.  Uykeman's  Baptist  Church,  ,58  Hun, 
364;  12  N.  Y.  Supp.  207;  affd.,  129 
N.  Y.  211.)  Compare  People  v.  Simon- 
son,  126  id.  299;   37  St.  Rep.  371. 

98  Potter  V.  Chapin,  6  Paige,  639 ; 
De  Witt  V.  Chandler,  11  Abb.  Pr.  459: 
Owens  V.  Missionary  Soc,  14  N.  Y. 
380,  and  cases  cited.  See  Pratt  v. 
Roman  Catholic  Orphan  Asylum,  20 
App.  Div.  3.52;  46  N.  Y.  Supp.  1035; 
affd.,   166   N.  Y.   593. 

99  Carpenter  v.  Historical  Soc,  1 
Dem.  606. 

1  Rose  V.  Rose,  4  Abb.  Ct.  App.  Dec. 
108;  Phelps  V.  Pond,  23  X.  Y.  69,  77; 
Cruikshank  v.  Home  for  the  Friend- 
less, 113  id.  337:  Matter  of  Mavor. 
etc.,  of  New  York.  55  Hun,  204:  'll9 
X.  Y.  660;  Burrill  v.  Boardman.  43 
id.  2.54 ;  Lougheed  v.  Dvkeman's  Bap- 
tist Church,  58  Hun,  .364;  affd.,  129 
X.  Y.  211. 

2  Chamberlain  v.  Chamberlain,  43  X. 
Y.  424;  Riley  v.  Driggs,  2  Dem.  184: 
Hope  V.  Brewer.  136  X\  Y.  126;  Mat- 
ter of  Huss,  126  id.  537;  37  St.  Rep. 
789;  Congregational,  etc.,  Soc.  v.  Hale, 
29  App.  Div.  396;  51  X.  Y.  Supp.  704. 
See  §  267.  ante. 

3  Taken  mostly  from  the  Draft  of 
Civil  Code,  reported  in  1865. 


•i  Arcularius  v.  Geisenhainer,  3 
Bradf.  64;  affd.,  25  Barb.  403;  Eger- 
ton  V.  Conklin,  25  Wend.  224,  338; 
Covenhoven  v.  Shuler,  2  Paige,  130. 

5  Carter  v.  Hunt,  40  Barb.  "89. 

•j  Whether  in  the  same  or  different 
sentences.  (Morrall  v.  Suttan,  1  Phil- 
lips, 537,  547.) 

"  Van  Xostrand  v.  ^loore,  52  X.  Y. 
12;  Van  Vechten  v.  Keator,  63  id.  52; 
Sweet  V.  Chase,  2  id.  79 ;  Covenhoven 
V.  Shuler,  2  Paige,  123:  Trustees  of 
Theological  Seminary  v.  Kellogg,  16  N. 
Y.  88;  Xorris  v.  Beyea,  13  id.  284; 
Campbell  v.  Rawdon,  18  id.  414:  Grif- 
fen  V.  Ford,  1  Bosw.  123;  Bradstreet 
V.  Clarke,  12  Wend.  602.  Compare 
Lovett  V.  Gillender,  35  X'.  Y.  617; 
Everitt  v.  Everitt,  29  id.  39. 

8  Where  two  clauses  of  a  will  are  so 
inconsistent  and  irreconcilable  that 
they  cannot  possibly  stand  together, 
the  one  that  is  posterior  in  position 
will  be  considered  as  indicating  a  sub- 
sequent intention,  and  will  prevail,  un- 
less the  general  scope  of  the  will  leads 
to  a  contrary  conclusion ;  and  although 
the  latter  clause  be  invalid,  it  must, 
nevertheless,  be  retained,  and  consid- 
ered for  the  purpose  of  ascertaining 
the  intentions  of  the  testator,  and  for 
this  purpose  it  is  as  effectual,  and  its 
operation  upon  the  preceding  clause  is 
the  same,  as  thouirh  no  legal  obstacle 
to  its  being  carried  into  execution  ex- 
isted.    (Van  Xostrand  v.  Moore,  52  X. 


229 


Validity,   Constkuctio.v,  Etc.,  of  Wills.         ^  2«5'J. 


instnmiont."  Ij.  A  clear  and  distinct  devise  or  bequest  cannot 
be  alfected  bv  any  reasons  assigned  therefor/''  or  by  any  other 
words  not  equally  clear  and  distinct/^  or  by  inference  or  argu- 
ment from  other  parts  of  the  will/^  or  by  any  inaccurate  recital 
of  or  reference  to  its  contents  in  another  part  of  the  will.^"^ 
4.  Where  the  meaning  of  any  part  of  a  will  is  doubtful  or  ambigu- 
ous, it  may  be  explained  by  any  reference  thereto,  or  recital  thereof, 
in  another  ))art  nf  the  will.^"*  5.  The  words  of  a  will  are  to  be 
taken  in  their  ordinary  and  grammatical  sense,  unless  a  clear 
intention  1o  use  tliein  in  another  sense  '^  can  bo  collected,  and  that, 
other  can  be  ascertained.^'"  0.  The  words  of  a  will  are  to  receive 
an  inter])rctation  which  will  give  to  every  expression  some  effecr, 
rather  than  one  which  will  render  any  of  the  expressions  ino])- 
erative.^'  7.  Of  two  modes  of  interpreting  a  will,  that  is  to  be 
preferred  which  will  prevent  either  a  total  or  a  partial  intestacy.^^ 
8.  Where  there  are  two  equally  probable  interpretations  of  Xhe 
language  of  a  will,  that  one  is  to  be  adopted  which  prefers  the 


Y.  12.)  s.  p.,  Harrison  v.  Jewell,  2 
Dein.   37;   Matter  of  Manice,  .31   Hun, 

119.  See  Hang  v.  Schunuicher,  lOG 
N.  Y.  50tJ:   (JO  N.  E.  245. 

9  Howland  v.  Union  Thco.  Seni.,  5 
N.  Y.  1<»3,  214;  Haven  v.  Haven,  1 
Redf.  374 ;  Lynch  v.  Pendergast,  G7 
Barb.  501;  Pierpont  v.  Patrick,  53  N. 
Y.  591. 

10  Cole  V.  Wade.  10  Ves.  27.  See 
Thompson  v.  Whitlock,  5  Jur.  (N.  S. ) 
991. 

iiThornhill  v.  Hall,  2  CI.  &  F.  22 ; 
Barclay  v.  Maskelyne,  H.  K.  V.  Johns. 

120.  This  rule  applies  equally  to  prior 
(Greenwood  v.  SutclillV.  14*  B.  &  C. 
220)  and  to  suhsecjuent  words  (Arcu- 
larius  v.  Ueisenhainer.  3  Hradf.  75; 
atrd.,  25  Barb.  403;  Kiver  v.  Uldfield. 
4  De  Gk»x  &  J.  30;  Borrell  v.  Haigh,  2 
Jur.  229:  Haight  v.  Pine,  3  App.  Div. 
434;  39  X.  Y.  Supp.  511;  Banzer  v. 
Banzer.  150  X.  Y.  429;  51  X.  E.  291  ; 
riav  V.  Wood.  153  X.  Y.  134:  47  X.  E. 
274:  Matter  of  Peters.  09  App.  Div. 
405:   74  X.  Y.  Supp.   1028.) 

i2C'ampbell  v.  Harding.  2  Puss.  & 
M.  409;  Jennings  v.  Xewnian,   10  Siin. 

1"' llillersdon  v.  Lowe,  2  Hare,  355. 
.{72 ;  :Mortinier  v.  Hartley,  3  He  Gex  & 
Sni.  332.  Where  the  meaning  of  the 
testator  is  apparent  from  the  language 
of  a  will,  the  plain  import  of  the  lan- 
guage cannot  be  dei)artcd  from,  thougli 


it  result  in  rendering  the  will  invalid. 
(Van  Xostrand  v.  Moore,  52  X'^.  Y. 
12.) 

14  Hoppock  v.  Tucker,  59  X.  Y.  202 ; 
Taggart  v.  Murray,  53  id.  233;  Kiah  v. 
(Jrenier,  50  id.  220.  See  Hyatt  v. 
Pugsley,  23  Barb.  285;  Marsh  v. 
Hague,  1  Edw.  174. 

15  Hone  V.  Van  Schaick,  3  X'.  Y.  538; 
Lytle  V.  Beveridge,  58  id.  592 ;  Cromer 
v.  Pinekney,  3  Barb.  Ch.  400;  Abbey  v. 
Aymar,  3  Dem.  400;  Bullock'  v. 
Downes,  9  H.  of  L.  Cas.  24.  As  to  the 
use  of  the  word  "  money  "  in  a  will, 
see  Sweet  v.  Burnett,  130  X.  Y.  204; 
49  St.  Rep.  113. 

10  De  Xottebeek  v.  Astor,  13  X.  Y. 
98;  Bradhurst  v.  Bradhurst,  1  Paice, 
331;  Covenhoven  v.  Shuler,  2  id.  122; 
Rathbone  v.  Dyokman,  3  id.  9;  Crosby 
v.  Wendell.  0  id.  548;  Staats  v.  Staats, 
11   Johns.  337. 

iTCxriffen  v.  Ford,  1  Bosw.  123,  140; 
^lasnn  v.  .Tones,  2  Barb.  229:  Butler  V. 
Butler,  3  Barb.  Ch.  304:  Pond  v. 
Bergh,  10  Paige,  140:  Chrvstie  v. 
Phvfe.  19  X.  Y.  34S:  Dubois  v."  Rav,  .35 
id.'  102:  Post  v.  Hover.  33  id.  593; 
Bates  v.  Hillman.  43  Barb.  645;  Corse 
V.  Chapman.  153  X\  Y.  400;  47  X\  E. 
812. 

IS  Vernon  v.  \'ernoTi.  :■>:]  X.  Y.  351; 
Kalish  V.  Kalisli.  100  id.  308;  59  N. 
E.  917. 


§  269.         Validity,   Constkuction,  Etc.,  of  Wills.  230 

kill  of  the  testator  to  strangers.^'*  i).  Technical  words  are  not 
necessary  to  give  effect  to  any  species  of  disposition  hy  a  will;"-* 
but,  where  used  in  a  will,  they  are  to  be  taken  in  their  technical 
sense,^^  unless  the  context  clearly  indicates  a  contrary  intention.^^" 
10.  A  devise  or  bequest  of  "  all  the  testator's  real  or  personal  prop- 
erty "  in  express  terms,  or  in  any  other  terms  denoting  his  intent 
to  dispose  of  all  his  real  or  personal  property  (except  of  the  resi- 
due), passes  all  the  real  or  personal  property  which  he  was  enti- 
tled to  dispose  of  by  will  at  the  time  of  his  death.^"  11.  A  testa- 
mentary disposition  to  ''  heirs,"  "  relations,"  "  nearest  relations," 
"  representatives,"  "  legal  representatives,"  or  "  personal  repre- 
sentatives," or  "  family,"  "  issue,"  ''  descendants,"  "  nearest,"  or 
"  next  of  kin,"  of  any  person,  without  other  words  of  qualifica- 
tion, and  when  the  terms  are  used  as  words  of  donation, 
and  not  of  limitation,  vests  the  property  in  those  who  would 
be  entitled  to  succeed  to  the  property  of  such  person.  These 
terms  are  to  be  considered  used  as  words  of  donation,  and 
not  of  limitation^  when  the  property  is  given  to  the  person 
so  designated  directly,  and  not  as  a  qualification  of  the  es- 
tate   given    to    the    ancestor    of    such    person."^       12.   Words    in 

19  Quinn  v.  Hardenbrook,  54  X.  Y.  porting  to  devise  "  all  the  real  or  per- 
8.3 :  Wood  V.  Mitchara,  92  id.  375 ;  Mat-  sonal  property"  of  the  testator.  (L. 
ter  of  BoTce,  37  Misc.  146:  74  X.  Y.  1897,  c.  417,  §  6.  See  Van  Wert  v. 
Siipp.  946:  Matter  of  Lee,  65  Him,  Benedict,  1  Bradf.  114.)  As  to  the 
524 ;  20  X.  Y.  Supp.  579 ;  aflfd.,  141  -^flfect  of  a  devise  of  the  residue  of  the 
N.  Y.  58.  t(stator"s  estate,  see  Van  Cortlandt  v. 

20  .Jacicson  v.  Luquere,  5  Cow.  228 ;  Kip,  1  Hill,  596 :  7  id.  352,  and  Tucker 
Parks  v.  Parks,  9  Paige,   117:   Bliven  v.  Tucker.  5  X.  Y.  348. 

v.  Seymour,  88  X.  Y'.  469,  476.  24  As    to    "  next    of    kin,"    "  heirs," 

21  iloore  v.  Lvons,  25  Wend.  154,  '•  issue,"'  etc.,  see  Keteltas  v.  Keteltas, 
155:  Campbell  v.  Rawdon,  18  X.  Y.  72  X.  Y.  312;  Luce  v.  Dimham.  69  id. 
417:  Brown  v.  Lyon,  6  id.  419;  Jack-  36;  Smith  v.  Scholtz,  68  id.  42;  Lud- 
son  V.  Luquere.  .5  Cow.  228;  Keteltas  lum  v.  Otis.  15  Him.  410:  Pinckney  v. 
v.  Keteltas.  72  X^.  Y.  312.  Pinckney,     1     Bradf.     269.       Compare 

22Corrisan  v.  Kiernan.  1  Bradf.  20S:  Bundy  v.  Bundy,  38  X.  Y.  410;  Heard 

Sherwood  V.  Sherwood,  3  id.  230:   De  v.   Horton.   1   Den.   165;   Kiah  v.   Gre- 

Kay  V.   Ers'ing,   5  Den.   646;   Parks  v.  nier,  56  X".  Y.  220;    Cushman  v.  Hor- 

Pai-ks.  9  Paige,  107.  ton,  59   id.  149:   Soper  v.  Bro^\Ti,   136 

23  2  R.  S.  57,  §  5.     See  :McXavighton  id.  244:  Drake  v.  Drake.  1.34  id.  220: 

V.  McX'aughton,  41  Barb.  50:  Meeks  v.  Wadsworth   v.   Murrav.   29   App.   Div. 

Meeks.   161   X.   Y.   66;    55  X.   E.  278;  191:     51     X.    Y.     Supp.     1038:     affd., 

Seibert  v.  Miller,  34  App.  Div.  602 :  55  161    X.    Y.    274:    Canfield    v.    Fallon, 

X.  Y.  Supp.  593:  Toerge  v.  Toerge.  9  26   Misc.    345:    57   X.   Y.    Supp.    149; 

App.   Div.    194;    41   X.  Y.   Supp.   244.  Snider    v.    Snider,    160    X\    Y.     1.51; 

The  term  "  heirs,"  or  other  words   of  54    X.    E.    676 :    Matter    of    Fidelity, 

inheritance,    are   not    requisite   to    de-  etc.,  Co.,  57  App.  Div.  532;   68  X.  Y. 

vise  a  fee,  and  a  devise  of  real  prop-  Supp.     257:     Daly    v.    Greenberg.     69 

ertv  passes  all  the  estate  of  the  testa-  Hun,  228;  23  X.  Y.  Supp.  582:  INIatter 

tor,  unless  otherwise  limited.     ( 1  R.  S.  of  U.  S.  Trust  Co.,  36  Misc.  378 ;   73 

748.  §  1 :  L.  1896,  c.  547.  §  210.)     Real  X.    Y.    Sunn.   635:    Emmet   v.   Emmet, 

or   personal    property,   embraced   in   a  67  App.  Div.  183:  73  X.  Y.  Supp.  614: 

power  to  devise,  passes  by  a  will  pur-  Hilliker  v.  Bast,  64  App.  Div.  552;  72 


231 


V.vLiinTY,    CoNSTKUCTiox,    Etc,   OK   WlLI.S.  §  269. 


a  will  referring  to  death,""'  or  .survivorship,"''  ftiuiply,  relate 
to  the  time  of  the  testator's  death,  unless  possession  is  ac- 
tually postponed,  when  they  must  he  referred  to  the  time 
of    possession.""       So    far    as    facts    and    circumstances    are    sus- 


N.  Y.  Sui)n.  30 1  ;  Matter  of  ^Mooic, 
152  X.  V.  (JU2;  Chwatal  v.  Sclnfiner, 
148  id.  US:J;  43  N.  K.  KiO ;  Xt-wvoinb 
V.  Lusli.  84  Hun,  234;  32  N.  V.  Supp. 
52(5;  alltl..  155  N.  Y.  G87  ;  Montignani 
V.  Blade,  145  N.  Y'.  Ill;  64  St.  Rep. 
558;  Bodine  v.  Brown,  154  N.  Y.  778; 
49  N.  E.  1093;  Johnson  v.  Brasing- 
ton,  15G  N.  Y.   181;  50  N.  E.  859. 

As  to  nieaninfx  of  ''  lieirs  "  and  "  is- 
sue "  in  a  ri'inainder  limited  to  take 
effect  on  the  death  of  a  person  witlioiit 
lieirs  or  issue,  see  L.  1890,  c.  547.  §  38. 

A  widow  is  neither  next  of  kin  nor 
heir.  (Snider  v.  Snider,  11  Apj).  Div. 
171;  affd.,  160  X.  Y.  151;  Matter  of 
Devoe.  171  id.  281;  Piatt  v.  Mickle, 
137  id.  106;  50  St.  Rep.  91.)  Com- 
pare Matter  of  Mesereau,  38  Misc.  208. 
The  word  "  wife  "'  means  a  woman  who 
is  lef,fallv  married.  (Miller  v.  !Miller, 
79  linn,"  197.) 

A  lef^acy  to  the  testator's  "  natural 
lieirs." —  Held,  to  be  a  designation  of 
his  next  of  kin.  in  the  absence  of  any- 
thing tending  to  some  other  interpre- 
tation as  more  consonant  with  liis  in- 
tention, and  tliat  his  widow  was  not 
included  witliin  the  descri])tion.  (  Mat- 
ter of  Sinzheimer,  5  Dem.  321.)  The 
surrogate  cited  Tilman  v.  Davis,  95 
K  Y.  17:  Drake  v.  Pell.  3  Edw.  Ch. 
251:  Slosson  v.  Lynch.  43  Barb.  147: 
Murdock  v.  Ward,"  67  ^^  Y.  387:  Ket- 
eltas  V.  Keteltas,  72  id.  312:  and 
distinsruished  Miller  v.  Chtirchill.  78 
K  C.  372:  Ludlum  v.  Otis,  15  Hun. 
410.  "  Relations,"  wlien  used  in  will 
relating  tn  nersonalty  only,  embraces 
persons  Avithin  the  Statute  of  Distribu- 
tions. (CJallatrhcr  v.  Crooks,  132  X.  Y. 
338;  44  St.  Rep.  436.)  So,  too,  of  the 
Avords  "lawful  heirs."  (Cngan  v.  !Mc- 
Cabe,  23  :\[isc.  739;  52  N.  Y.  Supp. 
48.)  "Lawful  issue"  held  not  to  in- 
clude an  adopted  child:  altliough  it 
had  a  right  to  inherit.  (X.  Y.  Life, 
etc.,  Co.  V.  Viele.  KU  X.  Y.  11  ;  55  X. 
E.   311.) 

A  bequest  in  trust  for  a  son  for  life, 
remainder  at  his  death  to  "  his  lawful 
issue  then  living."  given  by  a  will  exe- 
cuted in  1SS(i,  where  testator  knew  hi-; 
son  had  had  an  illejritimate  cliild,  and 
tlint  the  son  married  the  mother  <if  th(> 
child  in  1885, —  Held,  not  to  carrv  the 


remainder  to  such  child,  notwithstand- 
ing the  enactment  of  I..  l89li,  c.  272, 
S  18,  le.'.'itimizinL'  children  whose 
parents  married  after  their  birth.  (C. 
S.  Trust  Co.  V.  Maxwell,  26  Mi>e.  276: 
57  X.  Y.  Supp.  53.)  See  Harrison  v. 
:McAdam,  38  Misc.   18. 

"  Descendams  '  does  not  include  col- 
laterals. (Tompkins  v.  Verplanek,  10 
App.  Div.  572;  42  X.  Y.  Supp.  412: 
154  X.  Y.  634.) 

25  Adams  v.  Beekman,  1  Paige,  631: 
Ive  V.  Kintr,  Iti  Beav.  41;  Howard  v. 
Howard,  21  Beav.  550;  Schenck  v.  Ag- 
new,  4  Kay  &  J.  405.  See  Chapman 
\.  iMoulton,  8  App.  Div.  64;  Conkic  v. 
Grisson,  24  Misc.  115;  52  X.  Y.  Supp. 
500:  XcAvcomb  v.  Lush,  84  Hun.  254: 
32  X'.  Y'.  Supp.  526;  affd.,  1.55  X'.  Y. 
687;  Washbon  v.  Cope,  144  id.  287: 
63  St.  Rep.  716:  Benson  v.  Corbin, 
145  X.  Y'.  351;  64  St.  Rep.  815:  Mat- 
ter of  Geissler,  72  App.  Div.  85 :  Xel- 
.son  v.  Russell,  135  X.  Y.  137;  48  St. 
Rep.  64-  Stokes  v.  Weston.  142  X.  Y. 
433. 

-  i  Young  v.  Rol)ertson,  4  Macq.  319, 
330;'Y'oung  v.  Davies,  9  Jur.  (X'.  S.  * 
399.  The  contrary  Avas  held  as  to  real 
property  in  Moore  v.  Lyons,  25  Wend. 
119),  on  the  suj)posed  English  rule: 
but  that  rule  does  not  exist.  (  Taafe  v. 
Connor,  10  H.  of  L.  Cas.  77:  22  Beav. 
271.)  It  makes  no  ditlcrence  that 
there  is  a  postponment  Avithout  any 
preceding  life  interest.  (Hodgeson  v. 
[Micklethwaite,  2  Drewry,  294.1  Thi^ 
rule  is  not  now  laAV  Avhere  the  life 
tenant  dies  before  the  testator.  ( .Spur- 
rell  V.  Spurrell,  11  Hare.  154.) 

2"  The  rule,  that  Avords  of  survivor- 
ship refer  to  the  time  of  the  testators 
death,  applies  only  to  an  absolute  gift 
to  one  and.  in  case  of  his  death,  to  an- 
otlier;  it  has  no  application  in  a  case 
Avhere  the  first  devisee  or  legatee  takes 
a  life  estate.  (MullarkA-  a-.  Sullivan. 
136  N.  Y^  227:  Matter  of  Denton.  137 
id.  428;  51  St.  Rep.  60:  Lvons  v. 
Weeks,  53  Ap;>.  Div.  212:  C,^  X'.  Y. 
Supp.  818;  affd..  167  X^  Y.  135;  Oal- 
Avay  V.  Bryce.  10  Misc.  255:  30  X'.  Y. 
Supp.  985*.)  See  Matter  of  Cramer. 
170  X'.  Y.  271:  Cromwell  v.  Croni- 
Ave'l.  55  App.  Div.  103:  Ackerman  v. 
Ackc-.inan.  {'>?>  id.  370:  Matter  of  Baer, 


§  269.         Validity,   Coxstkuctiox,  Etc.,  of  Wills.  232^ 

ceptible  of  anticipation  Ly  the  testator,  so  as  to  enable  liiui  to 
place  himself  in  the  position  in  Avliich  he  will  be  at  the  time  jf  his 
death,  relatively  to  his  property  and  his  family,  he  is  presumed  to 
speak  in  his  will  with  reference  to  that  time."**  But  whenever  a 
testator  refers  to  an  actually  existing  state  of  things,  his  language 
will  be  held  to  refer  to  the  date  of  the  will,  not  to  that  of  hi.5 
death. "^  13.  A  testamentary  disposition  to  a  class  includes  every 
person  answering  the  description  at  the  testator's  death  ;^^ 
but  when  the  possession  is  postponed  to  a  future  period,  it 
includes  also  all  persons  coming  v.'ithin  the  description  be- 
fore  the   time    to    which    possession    is   postponed.^^     14.  When 


147  N.  Y.  348;  69  St.  Rep.  694.  Com-  per  capita.  (Woodward  v.  James,  44 
pare  Stokes  v.  Weston,  142  N.  Y.  433.    Him.  95;   115  X.  Y.  346.) 

28  De  Peyster  v.  Clendiniiig,  8  Paige,  31  Teed  v.  Morton,  60  X.  Y.  502 ;  Kil- 
295;  26  Wend.  21;  Doubleday  v.  Xew-  pa  trick  v.  Johnson,  15  id.  322;  Tucker 
ton,  27  Barb.  431.  See  Collin  v.  Collin,  v.  Bishop,  16  id.  402;  Johnson  v.  Yai- 
1  Barb.  Ch.  630;  Van  Vechten  v.  Van  entine,  4  Sandf.  36.  Compare  Double- 
Veghten,  8  Paisre,  104;  Lvnes  v.  Town-  day  v.  Xewton,  27  Barb.  444;  Hoppock 
send,  33  X.  Y.  558;  McXaughton  v.  v.  Tucker,  59  X.  Y.  202:  Bisson  v. 
McXaughton,  34  id.  201;  Van  AlstjTie  West  Shore  R.  Co.,  143  id.  125;  62 
V.  Van  Alstvne,  28  id.  375;  Egerton  v.  St.  Rep.  133;  Schwencke  v.  Haffner, 
Conklin.  25"Wcnd.  224.  22   Misc.    293;    50   X^.   Y.    Supp.    165; 

29  Wetmore  V.  Parker,  52  X'.  Y.  451;  Cox  v.  Wisner,  43  App.  Div.  591; 
Livingston  v.  Gordon,  84  id.  136;  affd.,  167  X^  Y.  579.  There  are 
Rogers  v.  Rogei's,  153  id.  343;  47  numerous  cases  where  the  words 
X.  E.  452.  Where  a  devise  is  to  one  "  children,"  "  nephews,"  "  nieces,"  and 
who  does  not  take  by  purchase,  and  other  descriptive  terms  of  classes  or 
could  not  take  by  inheritance,  aiid  is  relations  have  been  subjects  of  judicial 
of  lands  now  owned  by  tlie  testator,  construction.  The  general  principle  is 
the  word  "  now  "  will  be  construed,  as  that  these  words  are  to  be  taken  in 
against  the  heirs,  to  refer  to  the  date  their  primary  and  simple  signification 
of  the  will,  not  to  the  time  of  the  tes-  where  that  can  be  done.  The  intention 
tator's  death.  ( Quinn  v.  Hardenbrook,  of  the  testator  will  prevail,  however: 
54  X.  Y.  83. )  See  Livingston  v.  and  where,  from  the  construction  of 
Greene,  52  id.  118.  the  whole  will,  it  can  be  made  to  ap- 

30  Tucker  v.  Bishop.  16  X.  Y.  402:  pear  that  the  testator  meant  by  "  chil- 
Campbell  v.  Rawdon,  18  id.  415.  dren "  to  include  children  and  the  is- 
Persons  who  died  before  the  testator  sue  of  such  children  as  were  deceased, 
are  not  included.  ( Stires  \.  Van  that  construction  will  be  adopted. 
Rensselaer,  2  Bradf.  172;  Roosevelt  Thus,  grandchildren  and  great- 
V.  Porter.  36  Misc.  441 ;  73  X.  Y.  grandchildren  will  take  under  a  be- 
Supp.  800;  Campbell  v.  Rawdon,  quest  to  children,  whenever  that  is 
18  X.  Y.  414,  415.)  See  Hopkins  v.  necessary,  in  order  to  give  effect  to  the 
Hopkins,  1  Hun,  352 ;  Morton  v.  Mor-  words  of  the  will,  or  that  appears  to 
ton,  8  Barb.  18;  Jenkins  v.  Freyer,  4  have  been  the  evident  intention  of  the 
Paige,  47:  Lawrence  v.  Hebbard.  1  testator.  (Marsh  v.  Hague.  1  Edw. 
Bradf.  252;  Lyons  v.  Mahan,  1  Dem.  Ch.  174:  Home  v.  Van  Schaick,  3  X".  Y. 
180.     See  §   766.  post.  538.)      Compare  Mowatt  v.   Carow,   7 

A  testator  after  making  provision  Paige,  328:  Cromer  v.  Pinckney,  .'J 
for  his  wife  devised  and  bequeathed  the   Barb.  Ch.  406. 

remainder  of  his  estate  to  his  "  legal  Illegitimate  children,  imless  there 
heirs."  Xone  of  the  relatives  were  are  no  legitimate  children,  will  not  be 
named  in  the  will.  Held,  the  testator  included  in  the  term  "  children,"  un- 
leaving  no  descendants  or  parents,  that  less  a  different  intention  is  apparent, 
his  collateral  relatives  took  under  the  (Gardner  v.  Heyer,  2  Raise,  11;  Col- 
residuary   clause  per  stirpes  and  not   lins  v.  Hoxie,  9  id.  81;  Miller  v.  Mil- 


233  N'aliditv,  Co.NSTKLCTio.N,  Etc.,  oi-    Wills.  §  270. 

a  will  dirocts'-  the  conversion  of  real  property  into  money, 
such  property  and  all  its  proceeds  must  he  deemed  per- 
sonal property;^'*  from  the  time  of  the  testator's  death. '■* 
15.  A  child  conceived  hefore,  l»Ht  not  born  until  after  a 
testator's  death,  or  any  other  period  when  a  disposition  to 
a  class  vests  in  right  or  in  possession,  takes,  if  answering- 
to  the  description  of  the  class.'^  16.  When,  applying  a  will,  it  is 
found  that  there  is  an  imperfect  description,  or  that  no  person  or 
property  exactly  answers  the  description,  mistakes  and  omissions^ 
must  be  corrected,  if  the  error  appears  from  the  context  of  the  will 
or  from  oompotent  extrinsic  evidence.''' 

§  270.  Extrinsic  evidence  in  aid  of  interpretation. —  Cases  must 
occur  where  the  intention  cannot  be  discovered  or  explained  by 
the  words  of  the  Avill  itself,  and  resort  must  be  had  to  extrinsic 
evidence.  The  testator's  intention,  as  an  independent  fact,  cannot 
be  proved  by  such  evidence;  but  evidence  of  the  meaning  of  the 
words  used  by  the  testator,  being  ancillary  to  the  right  understand- 
ing of  them,  is  allowable. '^^  The  essence  of  the  rule  excluding  ex- 
trinsic oral  proof,  in  fixing  the  true  force  and  meaning  of  a  will,  is 
simply  this,  "  tliat  the  lanr/riafje  used  must  define  the  import  of 
the  instrument,  without  the  admission  of  any  extrinsic  evidence 

ler.  79  FTun.  107.)  The  word  "  chil-  34  Kane  v.  Gott,  24  Wend.  (i41 ;  Gra- 
dren  ■' must  be  taken  in  its  accustomed  ham  v.  Livingston.  7  Hun,  11.  But 
sense,  and  limited  to  offspring?  in  the  compare  Shumway  v.  Harmon.  6  Rup. 
first  degree,  in  the  absence  of  indica-  Ct.  (T.  &  C. )  (120:  Trask  v.  Sturges, 
tions  that  tlie  testator  intended  to  give  .31  Misc.  10.5.  For  the  distinction  be- 
lt some  otlier  meaning.  (Kirk  v.  tween  the  effect  of  a  sale  under  tli<» 
Cashman,  .3  Dem.  242:  Matter  of  provisions  of  a  will  and  a  sale  had 
Sparks,  27  Misc.  3.i0 :  58  X.  Y.  Supp.  under  a  decree  in  partition,  see  Mat- 
700.)  A  gift  to  brothers  and  sisters,  ter  of  Thomas,  1  Hun,  473. 
or  to  the  children  of  brothers  and  .sis-  35  .Jenkins  v.  Froyer,  4  Paige,  .53; 
ters,  includes  brothers  and  sisters  of  ;Morton  v.  iMorton,  8  Barb.  18.  Com- 
the  half  blood,  as  well  as  those  of  the  jiare  Lawrence  v.  Hebbard.  1  Bradf. 
whole  blood.  But  "children"  of  252;  Phelps  v.  Phelps.  28  Barb.  121: 
brothers  and  sisters  does  not  include  Stires  v.  Van  Rensselaer.  2  Bradf.  172. 
descendants  below  that  degree.  (San-  3GBoman  Catholic  Asvlum  v.  Km- 
son  V.  Bushnell,  25  Misc.  268:  55  N.  mons.  3  Bradf.  144:  Smith  v.  Wvckoff. 
Y.   Supi).   272.)  .3  Sandf.  Ch.  82.  88:  Conollv  v.  Pardon, 

32  Forsyth  v.  Pvathbone,  34  Barb.  1  Paige.  201  :  Sniitli  v.  Smith.  4  id. 
405:  Fowler  v.  Depau.  20  id.  239;  271:  Wightman  v.  Stoddard,  3  Bradf. 
Harris  v.  Clark,  7  N.  Y.  200;  Phelps  405:  Hart  v.  Marks,  4  id.  101:  Kalb- 
V.  Pond,  23  id.  70 :  Salisbury  v.  Slade,  fleisch  v.  Kalbtleisch,  07  N.  Y.  354 : 
100  id.  278;  54  N.  E.  741:  Car-  Matter  of  Wehrhane.  40  Hun,  542; 
pentor  v.  lk)nner,  20  App.  Div.  402;  Betts  v.  Betts,  4  Abb.  X.  C.  317: 
50  X.  Y.  Sui)p.  298.  Otherwise  as  to  a  First  Presbyterian  Soc.  v.  Bowen,  21 
discretionary  power.  (Koezly  v.  Koezly,  Hun,  389:  ^Fatter  of  Schweigert.  17 
31   :\lisc.  397:   05  X.  Y.  Supp.  013.)  *  :Misc.    180:    40   X.   Y.   Supp.   970:    and 

33  Meakings   v.    Cromwell.    5    X.   Y.  cases  in  notes  under  §  274.  post. 
130:    King  v.   Woodhull.   3   Edw.   79;  37  :\  fa  gee   v.    Magce.    07    Barb.    487; 
Bramhall    v.     Ferris,     14    X.     Y.    40;  Phillips   v.    :NrcCombs,    53    X.   Y.    494; 
Johnson    v.    Bennet.    39    Barb.    252;  Stevens  v.  Stevens.  2  Kedf.  265. 
Byrnes  v.  Baer,  86  X.  Y.  210. 


§  270.         Validity,  Construction,  Etc.,  of  Wills.  234 

of  the  iiilentlon  of  the  testator  in  the  use  of  such  terms  as  his  will 
is  expressed  in,  except  in  the  single  case  of  there  being  two  objects 
or  persons  to  whom  the  language  of  the  will  applies  with  legal 
certaudy,  so  that  either  might  be  justly  regarded  as  coming  within 
the  terms  of  the  instrument,  if  it  were  not  for  the  other.  This  is 
what  is  more  conunonly  called  a  latent  ambiguity,  liut  which 
Lord  Bacon  called  an  equivocation;  i.  e.,  where  the  terms  of  the 
will  applied  with  equal  strictness  to  more  than,  one  subject  or 
object.  And  in  every  case  of  patent  ambiguity,  as  well  as  those 
of  latent  ambiguity,  with  the  exception  of  cases  of  equivocation 
before  stated,  direct  evidence  of  intention  must  be  rejected ;  but 
all  other  evidence,  outside  of  the  instrument,  which  will  enable 
the  court  to  understand  in  what  sense  the  testator  used  the  lan- 
guage found  in  his  will,  must  be  received  and  acted  upon,  when- 
ever the  court  can  thereby  see  what  was  the  testator's  intention 
in  the  use  of  the  language  found  in  his  will ;  and,  in  this  respect, 
there  is  no  difference  between  patent  and  latent  ambiguity,  as  to 
their  being  removable  by  extrinsic  evidence,  with  the  single  ex- 
ception of  equivocation  before  stated.  "Whether,  therefore,  the 
will  appears  ambignious  or  uncertain  in  regard  to  its  import,  upon 
its  face,  or  such  ambiguity  or  uncertainty  arises  out  of  the  extrin- 
sic evidence,  there  is  no  obstacle  to  receiving  any  kind  of  extrinsic 
evidence  to  remove  it,  with  the  single  exception  that  the  court  can- 
not receive  direct  or  even  circumstantial  evidence  of  the  sense  in 
which  the  testator  understood  the  language  of  his  will.  But  in 
either  case  of  ambiguities,  patent  and  latent,  or  more  properly, 
uncertainties  in  regard  to  the  application  of  the  language  to  ex- 
ternal facts,  it  is  competent  to  receive  evidence  of  all  the  surround- 
ing circumstances,  so  as  to  place  the  court,  as  far  as  possible,  in  the 
position  of  the  testator  at  the  time  he  used  such  languasje."  ^^  The 
purposes  for  which  extrinsic  evidence  may  be  received  have  been 
stated  to  be,  to  aid  in  reaclinn.  testing,  applying  and  executing  the 
testamentarv  declaration  of  intention.^^ 


38Eeclf.  Am.  Cas.  on  Wills,  p.  GOO:  is  admissible  as  a  part  of  the  res 
Doe  V.  Provoost.  4  Johns.  61 :  Shulters  fiestw,  though  not  to  contradict  the 
V.  .Johnson.  .38  Barb.  80:  Stimson  v.  will.  (2)  ^Yhen  it  is  doubtful  as  to 
Vroman,  90  X.  Y.  74.  79.  which  of  two  or  more  extrinsic  objects 

•".9  Abb.  Trial  Ev.  129.  The  general  a  provision,  in  itself  imambi£ruous,  is 
rule  is  stated  by  Wharton  (2  Whart.  apnlicable.  then  evidence  of  the  testa- 
Ev..  §  992)  to  be  this:  "With  two  tor"s  declarations  of  intention  is  ad- 
exceptions,  evidence  of  the  testator's  missible:  not  indeed  to  interpret  the 
intentions  is  inadmissible  in  explana-  will,  for  this  is  on  its  face  iinambi'ru- 
tion  of  a  will.  Tbese  exceptions  are  ous,  but  to  interpret  the  extrinsic  ob- 
as  follows:  fl^  What  is  said  at  the  jects."' 
time  of  the  execution  and  attescation       The  following  are  the  seven  proposi- 


2:35 


Va  1. 1 1. 1  TV,  C'oxsTKrcTiox,  Etc.,  of  Wills.         §  271. 


§271.  Reading  the  will. —  As  an  ai<l  to  the  correct  rea<linj^  of 
the  will,  the  instrument,  if  written  in  a  foreign  language,  or  in 
shorthand  <>r  (•i])her,  may  l)e  translated  by  a  competent  witness. 
Where  the  testator  uses  terms  peculiar  to  his  trade  or  calling,  or 
Avliich  ho  hnhitnally  used  in  a  peculiar  sense,  or  according  to  local 


tions  applical)lo  to  the'  exposition  of 
wills,  iis  laid  down  in  Wifrrani  on  P"x- 
trinsie  Evidence,  etc : 

"  Proposition  I.  A  testator  is  al- 
ways j)resunie(l  to  use  the  words  in 
which  he  expresses  himself,  according 
to  their  strict  and  primary  accepta- 
tion, unless  from  the  context  of  the 
will  it  appears  that  he  used  them  in  a 
<li(r<'rent  sense,  in  wiiich  case  the  sense 
in  which  he  thus  apj)ears  to  liave  used 
them  will  he  the  sense  in  wliich  they 
are  to  he  construed. 

'•  II.  \\  here  there  is  nothing  in  the 
context  of  a  will  from  which  it  is  ap- 
parent that  a  testator  has  vised  the 
words  in  which  he  has  expressed  him- 
self in  any  other  than  tiieir  strict  and 
primary  sense,  and  where  his  words  so 
interpreted  are  sensible  icitli  reference 
to  e.rtriiisic  circumstances,  it  is  an  in- 
flexible rule  of  construction  that  the 
words  of  the  will  shall  be  interpreted 
in  their  strict  and  primary  sense,  and 
in  no  other,  although  they  may  be 
capable  of  some  popular  or  secondary 
interpretation,  and  although  the  most 
conclusive  evidence  of  intention  to  use 
them  in  such  popular  and  secondary 
.sense  be  tendered. 

'•  111.  Where  tliere  is  nothing  in  the 
context  of  a  will  from  wlncli  it  is  ap- 
parent that  a  testator  has  used  the 
words  in  which  he  has  expressed  him- 
self in  any  other  than  their  strict  and 
primary  sense,  but  his  words  so  inter- 
preted are  insensible  irith  reference  to 
extrinsic  circumstances,  a  court  of  law 
may  look  into  the  extrinsic  circum- 
stances of  the  case  to  see  whether  the 
meaning  of  the  words  be  sensible  in 
any  popular  or  secondary  sense,  of 
which,  with  reference  to  these  circum- 
stances, th(>v  are  capable. 

"  TV.  Where  the  characters  in  which 
a  will  is  written  are  ditlieult  to  be  de- 
ciphered, or  tlie  language  of  the  will  is 
not  understood  by  the  court,  the  evi- 
dence of  persons  skilled  in  deciphering 
writing  or  who  understood  the  lan- 
guage in  wliich  tlie  will  is  written  is 
admissible  to  declare  what  the  char- 


acters are,  or  to  inform  the  court  of 
the  proper  meaning  ul  liie  words. 

"  V.  For  the  purpcise  of  determining 
the  object  of  a  testator  s  houiity,  or  the 
subject  of  disposition,  or  the  quantity 
of  interest  intended  to  be  given  liy  iii> 
will,  a  court  may  in(iuire  into  every 
material  fact  relating  to  the  pirson 
who  claims  to  be  interested  under  the 
will,  and  to  tiie  property  which  i-> 
claimed  as  the  subject  of  disposition, 
and  to  the  circumstances  of  the  testa- 
tor, and  of  his  family  and  atl'airs,  for 
the  purpose  of  ena'olmg  tlie  court  to 
identify  the  person  or  ihiiig  intended 
by  the  testator,  or  to  determine  the 
quantity  of  interest  he  has  given  by 
his  will.  The  same  (it  is  conceived) 
is  true  of  every  other  disputed  point 
respecting  which  it  can  be  shown  that 
a  knowledge  of  extrinsic  facts  can,  in 
any  way,  be  made  auxiliary  to  the 
right  interpretation  of  a  testator's 
words. 

"  VI.  Where  the  words  of  a  will, 
aided  by  evidence  of  the  material  facts 
of  the  case,  are  insufficient  to  deter- 
mine the  testator's  meaning,  no  evi- 
dence will  be  admissible  to  prove  what 
the  testator  intended,  and  the  will  (ex- 
cept in  certain  special  (ases, —  see 
Proposition  VII )  will  lie  void  for  un- 
certainty. 

"  VII.  Notwithstanding  the  rule  of 
law  which  makes  a  will  void  for  un- 
certainty, where  tiie  \\()rds.  aided  by 
evidence  of  the  material  facts  of  the 
case,  are  insufficient  to  determine  the 
testator's  meanini,'.  courts  of  law.  in 
certain  s]iecial  cases,  admit  extrinsic 
evidence  of  intention  to  make  certain 
the  person  or  things  intended.' where 
the  description  in  the  will  is  insuffi- 
cient for  that  puroose.  These  cases 
may  be  thus  defined:  when  the  object 
of  "the  testator's  bounty,  or  the  sub- 
ject of  disposition  ii.  r..  the  jierson  or 
tiling  intended)  is  d' scri'-ed  in  terms 
which  arc  applicable  indill'erently  to 
more  than  one  person  or  thing,  evi- 
dence is  admissible  to  ])rove  which  of 
the  persons  or  things  st)  described  was 
intended  hv  the  testator." 


§§  272-27-i.     Validity,  CoiS'STKucTioN,  Etc.,  of  Wills,       23(> 

usage,  thcj  may  be  defined  by  competent  evidence.'*^  The  testa- 
tor's habitual  use  of  nicknames,  sobriquets,  or  any  designation  t'> 
distinguish  persons  or  things  may  be  shown.  But  the  meaning  o.'^ 
technical  legal  temis  cannot  be  varied  by  parol,^^  and  it  cannot  b& 
shown  by  such  evidence,  what  the  testator  intended  to  express  by 
initials  or  ciphers  in  a  bequest,  as  distinguished  from  what  was 
his  common  habit  in  their  use  in  speaking  and  writing.'*^ 

§  272.  Testing  the  will. —  In  testing  the  validity  or  legality  of 
a  will,  or  any  clause  of  it,  parol  evidence  is  always  admissible ; 
such  evidence  is  not  received  to  influence  the  construction  of  the 
will,  but  to  impeach  it  as  a  valid  testamentary  disposition,  as 
being  by  its  terms  in.  contravention  of  a  statutory  limitation,  or 
as  having  been  made  by  mistake  or  induced  by  fraud  or  undue 
influence. 

§  273.  Applying  the  will. —  As  an  aid  in  applying  the  will,  the 
court  may  inquire  into  the  testator's  circumstances  and  situation, 
the  nature  of  his  property,^'"^  the  number  of  his  family,'*'*  the  claims 
upon  him  of  a  legatee  whose  legacy  is  ambiguous,'*^  the  state  of 
former  wills  and  other  circumstances,  the  object  being  to  place 
the  court,  as  nearly  as  possible,  in  the  position  of  the  testator,  so  as 
to  enable  it  to  see  how  the  uncertainty  arose. 

^  274.  Designation  of  beneficiary. —  It  is  essential  to  the  validity 
of  a  bequest,  that  the  beneficiary  should  be  desigTiated  with  rea- 
sonable certainty,  or  that  it  should  be  possible  to  identify  him 
with  certainty.'*^'     If  there  is  no  person  in  existence  who  exactly 


40Ryersi5  V.  Wheeler,  22  Wend.  152.  of  a  mistake:   and  all  the  children  so- 

See  1  Jarman  on  Wills,  421.  in  existence  be  held  entitled,  unless  it 

41  See  ante,  §  269.  can  be  inferred  who  were  the  particu- 

42  Clayton  v.  Lord  Nugent,  1.3  Mees.  lar  children  intended;  and  a  like  prin- 
&  Wels.  200.  cip]e  will  be  applied  where  the  number 

43  Doe  V.  Provoost,  4  Johns.  61 ;  spoken  of  is  greater  than  all  the  chil- 
Shulters  v.  Johnson,  38  Barb,  80;  dren  in  existence.  (Kalbfleisch  v. 
Eoman  Catholic  Orphan  Asylum  v.  Kalbfleisch,  67  X.  Y.  3.54.)  See  Xavlor 
Emmons.     3     Bradf.     144:     White     A',  v.  Bro\\Ti,  32  Misc,  298. 

Hicks,   43    Barb.   65;    affd.,   33   X.   Y,        45  Terpening   v.    Skinner,    30    Barb. 

383,  373 :  29  X,  Y,  505 ;  Brower  v.  Bowers, 

The  date  of  a  will  may  be  established  1  Abb,  Ct,  App.  Dee,  214.    The  motive 

or  corrected  by  parol  evidence  showing  of  the  testator  is  not  to  be  regarded  in 

the  real  date  of  its  execution.      (Mat-  giving  effect  to  his  intention.      (How- 

ter  of  Haviland,  17  Misc,  193;   40  X.  land    v.    Union   Theo.    Sem„    5    X.    Y, 

Y,  Supp.  973.)  193.) 

44  Cromer  v.  Pinckney,  3  Barb.  Ch.  46  Holmes  v.  Mead,.  52  N.  Y.  332; 
466;  Pierrepont  v.  Edwards,  25  X.  Y,  Prichard  v.  Thomnson.  95  id.  76; 
128,  Where  a  gift  to  children  speaks  O'Hara  v,  Dudley,  14  Abb,  N^.  C.  71; 
of  them  as  a  specified  number,  which  Preston  v.  Howk,  3  App.  Div,  43 ;  37 
is  less  than  the  nimiber  in  existence  at  X,  Y,  Supp.  1079;  affd.,  154  X.  Y. 
the  date  of  the  will,  the  specified  num-  734,  See  Beekman  v,  Bonsor,  23  id. 
ber  will  be  rejected  on  the  assumption  298,     A  bequest  to  a  person,  when  he 


iJoT  Validity,  Coxsthuctiox,  Etc.,  of  Wills.  §  1^74. 

iiiiswers  the  (k'scrii)ti(iii,  cxlrinsic  fvidencp  is  admissible  to  ascer- 
tain to  Avhoiii  the  designation  points.  A  mere  misdescription  of 
the  legatee  or  of  the  subject  of  the  gift,  does  not  avoid  the  legacy, 
unless  the  ambiguity  is  such  as  to  render  it  impossible  to  ascer- 
tain, either  from  the  will  or  by  extrinsic  evidence,  who,  or  what, 
was  intended.  The  maxim  falsa  demonstraiio  non  nocet  is  well 
<^stablished,  and  means,  i)ractically,  that  however  erroneous  the 
■description,  either  of  the  object  or  the  subject  of  the  gift,  it  will 
not  avoid  the  bequest,  provided  enough  remains  to  show,  with  rea- 
sonable certainty,  what  was  intended.'*'  Thus,  a  legacy  to  Mary, 
"■  wife  of  Xathaniel  S.,"  when  Mary's  husband  was  Abraham  S., 
.and  Nathaniel's  wife  was  Sarah,  was  upheld  as  a  legacy  to  Mary.*** 
So  a  bequest  to  Cornelia  Thompson  was  held  a  good  bequest  to 
Caroline  Thomas.*'*  A  legacy  to  the  testator's  cousin  Paris,  he 
having  no  cousin  of  that  name,  was  sustained,  on  parol  proof,  as 
<i  le«!'acv  to  his  cousin  Priseilla.^'*  And  a  legacv  to  "  James,  son 
of  my  brother  Frederick,"  was  sustained  as  a  legacy  to  Frederick, 
son  of  the  testator's  brother  James,  on  proof  that  the  brother 
James  had  no  son  Frederick,  and  that  the  names  were  transposed 
by  a  mistake  of  the  draughtsman.'"'^  Tt  is  not  essential  that  a  cor- 
poration to  whom  a  legacy  is  given  should  be  designated  by  its 
legal  corporate  name.  Tf  not  designated  by  its  corporate  title,  a 
corporation  claiming  the  legacy  may  show,  hy  extrinsic  evidence, 
that  it  is  the  body  intended  by  the  testator,  as  distinguished  from 


shall  die,  is  not  void  for  incongruity,  48  Smith  v.  Smith,  4  Paige,  271. 

hut  is  ascertained  on  his  decease,  and  ^9  Thomas  v.   Stevens,  4   Johns.   Ch. 

is    transmissible    to    his    legal    repre-  GO". 

sentative.      (Terrill   v.    Public   Adm'r,  r.o  Hart  v.  Marks.  4  Bradf.  161. 

4    Bradf.    245.)       Compare    Riley    v.  51  ^x  p.  Hornby,  2  Bradf.  420.    For 

Diggs,  2   Dem.   184;    Shipman  v.  Rol-  other     illustiations,     see     Wright     v. 

lins,  98  N.  Y.  311.  Methodist  Episc(>i)al  Clnirch,  Hotlnian, 

The  use  of  the  words  "the  widow  of  202:  N.  Y.  Inst,  for  the  Blind  v.  How, 

my  said  son,"  held,  not  to  refer  to  the  10  N.  Y.  84;   Hornbeck  v.  Am.   Bible 

widow  of  a  second  marriage  of  the  son.  Society,   2    Saiulf.    Cli.    133;    Do   Witt 

(Davis  V.  Kerr,   3  App.  Div.  322;    38  v.   Chandler.   11   Abb.  Pr.   4.'30 ;   Attor- 

X.  Y.  Supp.  387.)  nev-Genoral  v.  Reformed  D.  Church,  33 

47  Jackson    v.    Sill.    11    Johns.    201,  Ba'rb.    303;    Attorney-Oeneral    v.    The 

218;  Mann  V.  Mann,  1  .Johns.  Ch.  231:  Minister,   etc.,   3(5   X".   Y.   4.->2;    Matter 

Conolly    V.     Pardon,     1     Paige,     291*;  of  Cahan,  3  Redf.  31.    In  the  last  case, 

Smith  V.  Smith,  4  id.  271  ;  Wightman  extrinsic     evidence     was    admitted    to 

V.    Stoddard,    3    Bradf.    393;    Hart    v.  show  that  by  the  term  "my  daughter 

Marks,  4  id.  101 ;   Roman  Catholic  Or-  Elizabeth."  iised  in  a   will,  where   the 

phan  Asylum  v.   Emmons.   3    id.    144;  testator  had  no  such  daughter,  the  tes- 

Smith     V.   WyckofT.   3   Sandf.    Ch.    82:  tator    intended   to   destribc   one   whom 

Matter  of  Woods,  33  Misc.   12;   67  N.  he   had   adopted    as   his   daughter,   al- 

Y.    Supp.    1123;    Dodin    v.    Dodin.    10  though    he    had    not   formally   adopted 

App.   Div.   42;    44   X.    Y.    Supp.    SOO :  her  in  accordance  with  the  provisions 

aflFd..  lf>2  X.  Y.  635;  Matter  of  Lang,  of  the  statute. 
9  Misc.  521;  30  N.  Y.  Supp.  388. 


§  275.         Validity,  Construction,  Etc.,  of  Wills. 


238 


all  other  corporations.'^^  The  amount  of  evidence  requisite  to 
prove  identity  in  the  case  of  a  description  of  the  legatee,  depends 
much  upon  whether  there  are  two  or  more  claimants  to  the  legacy, 
or  only  one.^^ 

§  275.  Description  of  subject-matter  of  legacy. —  There  are  many 
cases  of  misdescription  of  the  property  sought  to  be  devised  or  be- 
queathed, giving  rise  to  uncertainty  as  to  the  identity  of  the  prop- 
erty, the  nature  of  the  estate  given,  etc.  Such  questions  are  de- 
termined upon  the  same  principles  as  are  ambiguities  in  the  desig- 
nation of  persons,  and  extrinsic  evidence  may  be  resorted  to  as  au 
aid  in  applying  the  language  of  the  will  to  the  property,  as  it  i'5 
in  applying  the  language  to  the  person.^'*  It  also  frequently  be- 
comes necessary  to  resort  to  extrinsic  evidence  as  an  aid  in  execut- 
ing the  will,  that  is,  in  carrying  its  provisions  into  effect.  This 
subject  is  so  fully  treated  in  standard  treatises  that  an  enumera- 
tion of  the  cases  need  not  be  attempted  here. 


52  Lefevre  v.  Lefevre,  59  X.  Y.  434 ; 
2  Sup.  Ct.  (T.  &  C.)  330;  Riker  v. 
N.  Y.  Hospital,  66  How.  Pr.  246.  See 
Abb.  Trial  Ev.  142,  and  cases  cited.  A 
legacy  to  "  the  ladies  of  the  Ursuline 
Order,  residing  in  Charleston,"  was 
sustained  as  a  legacy  to  "  The  Ladies' 
Ursuline  Community  of  the  city  of 
Charleston."  (Banks  v.  Phelan,  4 
Barb.  80. )  See  Kearney  v.  ^Missionary 
Society,  10  Abb.  X.  C."274.  The  will 
directed  two-fovirths  of  the  residue 
"  to  be  diyided  equally  between  the 
home  and  foreign  missions."  Held, 
that,  upon  the  eyidence,  the  legacies 
belonged  to  the  Boards  of  Home  and 
Foreign  Missions,  respectiyely,  of  the 
Presbyterian  church  in  the  United 
States  of  America.  (Board  of  Mis- 
sions V.  Scovell,  3  Dem.  516.)  See 
Matter  of  Tobev,  X.  Y.  Law  .J.,  Feb. 
9,  1892   (X.  Y.  Surr.  Ct.). 

53  In  the  case  of  adverse  claimants 
of  the  same  gift,  Mr.  Abbott  (Trial 
Ev.  140)  gives  the  following  rules 
as  applying:  "1.  If  one  (being  com- 
petent to  take )  alone  precisely  answers 
the  whole  description  of  the  will,  or  is 
identified  by  the  context,  extrinsic  evi- 
dence that  the  other  was  intended  is 
incompetent.  2.  If  both  precisely  an- 
swer the  whole  designation  and  indi- 
cations of  the  will,  a  latent  ambiguity 
or  '  equivocation  '  is  presented,  and  ex- 
trinsic evidence  is  competent ;  and  in 
this  class  of  cases,  direct  evidence  of 
the  testator's  intention,  even  by  prov- 
ing his  declarations  of  purpose,  is  ad- 
missible.    (Matter  of  Wheeler,  32  App. 


Div.  183;  52  X.  Y.  Siipp.  943:  aflfd., 
161  X.  Y.  6.52.)  3;  If  neither  pre- 
cisely answers  the  description  and  in- 
dications of  the  will,  but  both  do  so 
approximately,  this  is  also  a  case  of 
latent  ambiguity,  admitting  extrinsic 
evidence ;  and  in  this  class  of  cases, 
too,  according  to  the  better  opinion, 
the  testator's  declaration  of  intent 
may  be  proved." 

But  as  to  this,  see  St.  Luke's  Home 
v.  Assoc,  of  Indig.  Females,  52  X.  Y. 
191,  in  Avhich  case  it  was  held,  that 
where  a  devise  or  bequest  is  made  to  a 
corporation,  and  there  are  two  cor- 
porations, neither  of  which  can  claim 
under  the  precise  name  used  by  the 
testator,  it  is  for  the  court  to  deter- 
mine which  of  the  two  is  best  or  most 
nearly  described  by  the  name,  or  which 
will  best  and  most  closely  answer  the 
delineation  used  by  the  testator ;  and 
if  with  a  knowledge  of  the  names  and 
general  character  and  purposes  of  the 
two  corporations,  as  disclosed  by  their 
charters,  there  is  no  latent  ambiguity, 
aftd  the  court  can  thus  determine 
which  of  the  two  was  intended,  other 
evidence  to  aid  the  interpretation  can- 
not be  resorted  to. 

54  See  Jackson  v.  Sill.  11  Johns.  201; 
;Mann  v.  ;Mann,  14  id.  1  ;  Ryerss  v. 
Wheeler,  22  Wend.  148:  Roman  Cath- 
olic Orphan  Asylum  v.  Emmons.  3. 
Bradf.  144:  Doe  "v.  Roe,  1  Wend.  541: 
Waugh  y.  Waugh.  28  X.  Y.  94:  Hunter 
y.  Hunter,  17  Barb.  25:  Woods  v. 
"Moore.  4  Sandf.  579:  .Jones  y.  Jones^ 
1  How.  Pr.   (X.  S.)   510. 


CHAPTER    VIII. 

CONTESTING  WILL  ON  ALLEGATIONS  AFTER 
PROBATE. 

§  276.  Revoking  probate  on  motion. —  As  we  have  seen/  the 
Surrogate's  Court  has  power  to  relieve  a  party  ivom  the  conclusive 
effect  of  a  probate,  on  motion  in  a  proper  case, —  as  where  the  de- 
cree was  taken  by  default,  or  in  consequence  of  a  mistake,"  or 
where  it  was  improperly  obtained  upon  a  false  suggestion  of  fact» 
M'ithout  notice  to  the  party  entitled  to  administration,^  or  u])on  a 
fraudulent  concealment  of  the  truth  with  respect  to  any  material 
fact.^  A  motion  for  a  citation  to  vacate  the  decree,  rather  than  a 
direct  proceeding  by  petition  to  revoke  the  probate,  is  the  proper 
practice,  where  a  later  wall  than  the  one  probated  has  been  discov- 
ered, the  citation  being  directed  not  only  to  the  heirs  and  next  of 
kin,  but  also  to  the  legatees  under  the  first  will.^  Indeed,  when- 
ever the  decree  is  void  for  want  of  jurisdiction  to  grant  it,  as 
where  the  proper  parties  were  not  before  the  court,  it  will  be 
opened  on  motion,  leaving  the  parties  to  initiate  a  new  proceeding 
for  probate,  instead  of  continuing  a  proceeding  to  revoke  probate 
on  allegations.^  So  a  decree  admitting  a  will  to  probate  may  be 
opened,  at  the  instance  of  a  former  contestant,  to  enable  him  to 
apply  for  a  judicial  construction  of  a  codieilJ  A  party,  who  was 
not  cited  upon  the  application  for  probate,  may  come  in  and  ask 
to  be  heard  ;  and  the  court  has  the  power  to  open  the  decree,  on 
motion,  and  hear  the  matter  anew,  on  the  merits.^  Tn  that  case, 
the  executor  must  re-prove  the  requisite  fonnalities  of  execution. 

1  Sec  ante,  §  54,  and  c.  XIV,  post,  domiciled  at  the  time  of  his  dcatli  on 

2  Pew  V.  Hastinj,'s,  1  Harh.  Ch.  452;  the  frroinul  tliat  it  had  heon  revoked 
Skidmore  v.  Davies,  10  Pai<;e,  310.  Jicoording  to  the  law  of  that  State,  the 

3  Proctor  V.  Wanmaker,  1  Barb.  Ch.  will  must  be  rejjanled  here  as  void,  as 
302.  a   will    of   personalty;    but   not   neccs- 

4  Dobke  V.  McClaran.  41  Barb.  491;  sarily     so     as     to     the     real     estate. 
Bailey   v.    Hilton.    14    Hun.   3.      As   to  ( Bloomer  v.  Bloomer.  2  Bradf.  33!>. ) 
the  power  of  the  Supreme  Court  to  re-  5  Matter     of    Hamilton,    2    Connoly, 
lieve  against  the  etTect  of  a  surrogate's  2CS.     See  Matter  of  Daily.  25  St.  Rep. 
decree  granting  probate,   see  De  Bus-  1020;  7  N.  Y.  Supp.  250. 

sierre  v.   Holladay.  4  Abb.  N.   C.    111.        <!  Matter  of    Hughes.   X.   Y.  Law  J., 
Where,  after  probate  of  a  foreign  will,    Jan.  17,  ISOl. 

it    is    declared    void    by    a    competent        T  ]\ratter  of  Keeler,  5  Dem.  218. 
court  of  the  State  where  testator  was       s  Booth  v.  Kitciien,  7  Hun,  255. 

[239] 


:g  277.  Contesting  Will  After  Pkobate.  240 

])nblieation,  etc.^  But,  on  an  application  of  this  kind,  the  conrt 
lias  a  discretion,  to  be  exercised  according  to  the  circumstances 
of  the  case  and  with  a  just  regard  for  the  interest  of  all  the  par- 
ties. He  mav,  therefore,  refuse  the  application  to  open  the  decree, 
where  doing  so  would  seriously  embarrass  many  and  important  in- 
terests, and  where  the  remedy  of  the  party,  by  action,  is  ample. ^*^ 
As  a  rule,  probate  on  default  will  not  be  set  aside  in  the  absence 
of  any  claim  of  fraud,  incapacity,  or  undue  influence.^^ 

^  277.  Eevoking  probate  by  direct  proceeding. —  But  besides  this 
remedy  by  motion,  jjrovision  is  made  for  a  direct  proceeding, 
after  probate,  to  contest  a  will  of  personalty,  and  thus  necessarily 
annul  the  probate.  This  proceeding  is  a  matter  of  right,  and  the 
court  is  bound  to  entertain  it  in  a  proper  case.  Previous  to  the 
adoption  of  the  Revised  Statutes,  in  .1830,  this  ])ractice  and  pro- 
cedure of  the  English  prerogative  courts  prevailed,  by  which  wills 
Avere  allowed  to  be  probated  ex  parte,  or  in  the  common  form,  ex- 
cept where  a  caveat  was  filed,  or  objection  was  made  by  a  party 
in  interest ;  and  revocation  of  a  probate  could  be  effected  only  by 
a  suit  brought  directly  for  that  purpose.^^  This  is  still  the  prac- 
tice in  some  of  the  States.  By  the  Bevised  Statutes,  the  Legisla- 
ture, in  effect,  abolished  probate  in  the  common  form,  and  sub- 
stituted the  proceeding  known  as  solemn  form.  In  other  words, 
the  statute  required  that  in  every  proceeding  for  the  proof  of  a 
Avill,  the  heirs  and  next  of  kin  of  the  decedent  should  be  cited  in 
the  first  instance,  so  that  they  might  then  and  there  present  their 
objections,  if  any.  One  feature  of  the  old  probate  practice  was, 
however,  retained,  to  wit,  the  permitting  of  an  interested  party 
to  come  in,  after  probate,  to  contest  the  validity  of  the  will.  The 
revisers  had  reported  a  provision  which  limited  this  right  to  those 
who  had  not  been  cited  to  appear  upon  the  probate,  but  the  Legis- 
lature went  a  step  further,  and  provided  that  any  of  the  next  of 
kin  might  come  in,  at  any  time,  within  one  year  after  the  probate, 
and  file  allegations  against  the  validity  of  the  will,  notwithstand- 


9  Matter   of   Odell,    1    Misc.   390;    23  ing  the  motion.     See  Matter  of  Tilden, 
X.  Y.  Supp.  143.  oCVApp.  Div.  277:  07  X.  Y.  Supp.  879. 

10  Bailey  v.  Hilton,  supra.  In  that  where  it  was  intimated  that  the  power 
case  the  applicant  was  interested  in  to  open  tlie  decree  should  be  exercised 
the  real  property  alone,  and  as  the  only  on  behalf  of  one  who  was  a  party 
decree  granting  probate  was  not  con-  to  the  proceeding,  as  the  decree  was 
elusive  as  to  such  property,  and  the  not  binding  on  those  not  brought  in. 
remedy  by  action  was  open  to  the  mov-  ii  r^lntter  of  Gillies,  28  St.  Rep.  630; 
ing  party,  the  surrogate  was  upheld  in  7  X.  Y.  Supp.  909. 

the  exercise  of  his  discretion  in  deny-        12  See  1  Rev.  Laws,  p.  446,  §  9. 


241  Contesting  Will  Aftkk  Probate.     §§  2Tn,  27'.i. 

ing  the  probate  and  its  otherwise  conclusive  effect/^  It  is  not 
difficult  to  perceive  that  such  a  remedy  is  greatly  in  furtherance 
of  justice,  for  it  may  well  hapi)eu  that  a  party,  though  duly  cited 
in  the  original  probate  proceeding,  was  unable,  by  reason  of  sick- 
ness, or  absence,  or  oversight,  or  by  reason  of  ignorance  of  any 
grounds  of  opposition,  to  assert  his  claim  at  the  time.  The  rem- 
edy given  by  the  Revised  Statutes  is  substantially  the  same  now- 
existing  under  the  Code.^^ 

§  278.  Remedy  as  to  wills  of  personalty  only. —  The  remedy  i.- 
only  applicable  to  the  probate  of  wills  of  personal  property ;  and 
■where  the  probate  is  of  a  will  of  both  real  and  personal  property, 
the  probate  can  be  revoked  only  so  far  as  the  will  affects  the  per- 
sonal property,  leaving  the  probate  unimpaired  so  far  as  it  relates 
to  real  property.^'' 

§  279.  Remedy,  when  to  be  availed  of. —  The  petition  must  ho 
presented  "  within  one  year  after  the  recording  of  the  decree  ad- 
mitting the  will  to  probate,"  ^^  except  that,  Avhen  the  person  enti- 
tled to  present  it  is  then  a  minor,  or  insane,  or  is  imprisoned  on  a 
criminal  charge,  or  in  execution  upon  a  conviction  of  a  criminal 
offense  for  a  term  less  than  for  life,  the  time  of  such  disa1)ility 
is  not  part  of  the  year  limited  for  taking  the  proceeding,  unless 
such  person  shall  have  appeared  by  general  or  special  guardian  or 
otherwise,  on  the  probate.^"    It  is  enough  to  file  the  petition  within 

13  In  Collier  V.  Idley  (1  Bradf.  94),  of    Donlon,    6G    Hun,    199;    21    N.    Y. 

Siirro<,'ate    Bradford    lias   piven    a    full  Supp.    114. 

account   of  the   English   practice,   and  I'J  The  limitation  of  one  year.  Avh ere 

the  history  of  our  o\^-n  legislation  on  the    issues   on   probate   were   tried   by 

the  subject.  .iury,  begins  to  run  from  the  entry  of 

1-4  Co.  Civ.  Proc,  §  2047:  2  R.  S.  fil,  the   decree    on    the    findings,    and    not 

§  30.    The  article  of  the  Code,  provid-  from   its   filing   in    Surrogate's   Court, 

-ing  for,  and  regulating,  this  proceed-  (]\Iatter    of    Rupnaner,    9    App.    Div. 

ing   is    entitled    "Revocation    of    Pro-  422:  41  X.  Y.  Supp.  212.) 

bate."  but  we  prefer  to  retain  the  ap-  i"  Co.  Civ.  Proc..  §  2048.  as  amended 

pcllation  of  "  Contesting   Will   on   Al-  1881.    The  pendency  of  an  appeal  from 

legations,  etc.."  by  which  the  proceed-  so  much  of  a  decree  of  the  surrogate  as 

ing  has  been  known,  as  it  di.stinguishes  construes   a    will   in   reference    to   the 

it   from   the  jjrocccding  by   motion  to  destination  of  lapsed  legacies,  does  not 

revoke  probate.                     '  bar  an  application  for  the  revocati(m 

is^ilatter  of  Kellum.  .'iO  N.  Y.   301.  of   the   probate   of   the   will    upon   the 

In  tnat  case  it  was  held  that  this  stat-  grounds  that  the  testator  had  not  tcs- 

iitory  remedy  was  not  taken  away  by  tamentary   capacity,   and   was   unduly 

the  statute  ("L.  1837,  c.  400.  §§  IS. 'l9)',  influenced.       (Matter    of     Bonnett.     1 

Avhich  required  the  same  proof  for  the  Connoly,  294;  9  X.  Y.  Supp.  4.")0.) 

probate  of  wills  of  personal  property  But  "in  :Matter  of  De  Haas   (24  Misc. 

as    of    real    property,    and    wliich    dis-  420) ,  after  the  validity  of  the  will  had 

pensed  with  the  separate  recording  of  been  passed  on  bv  Supreme  Court,  the 

the   instrument  as  a  will  of   personal  contestant    subsequently   filed    a    peti- 

property  after  it  had  been  recorded  as  tion  for  a  revocation  of  the  probate  in 

a  will  of  real  property.     See  Matter  the  Surrogate's  Court,   the   object  be- 

16 


§  280,  CoNTESTiXG  Will  After  Probate.  242 

tlic  year,  though  the  citation  was  issued  after  that  time/*'  This- 
limitation  of  one  year  does  not  affect  the  remedy  by  motion  to  re- 
voke the  decree,  above  mentioned,  as  to  which  the  court  has  a  dis- 
cretion \vhether  or  not  it  M'ill  hear  it  after  that  time;  though 
laches  may  defeat  it.^'* 

§  280.  Who  may  maintain  the  proceeding. —  Before  the  present 
Code,  only  the  next  of  kin  of  the  decedent  could  avail  of  this  rem- 
edy, but  it  is  now  extended  to  any  "  person  interested  in  the  es- 
tate," ^" —  that  is,  any  person  entitled,  either  absolutely  or  con- 
tingently, to  share  in  the  personal  estate,  except  a  creditor.  If  a 
particular  clause  of  the  instrument  is  sought  to  be  declared  in- 
valid, then  such  issue  can  be  raised  only  by  a  party  having  an  in- 
terest under  the  will  in  the  event  that  clause  should  be  so  de- 
clared."^ It  was  held,  under  the  former  statute,  that  one  who, 
being  a  party  to  the  original  probate  proceeding,  filed  his  objec- 

ins  to   procure   a   construction   of  the  20  Hence,     formerly,     a    legatee,     a» 

will  which  she  believed  would  result  in  such,  could  not  institute  the  proceed- 

its  being  declared  invalid, — Held,  that  ing.      (Booth  v.  Kitchen,  7  Hun,  260.) 

such  petition  could  not  be  entertained.  But    a     legatee    who    has    accepted     a 

I8]\latter  of  Gouraud,  95  X.  Y.  250;  legacy  under  a  decree  admitting  a  will 

Matter   of   Bradley,   70   Hun.    104:    23  to   probate,   is  thereby   estopped   from 

X.  Y.   Supp.    1127:    ^Matter  of  Laytin,  contesting    the    validity    of    the    will; 

15  IMisc.  600:  37  X.  Y.  Supp.   1125.  and   a   tender  of  the   amount  of   such 

19  It  ^^■as  the  obvious    intent  of  the  legacy  with  interest,  but  without  costs, 

final  sentence  of  Co.  Civ.  Proc,  §  264S  into  court,  after  the  filing  of  a  petition 

—  excluding  from  the  one  year's  lim-  to  set  aside  the  probate  does  not  re- 

itation   of  proceedings  to  revoke  pro-  move     the    estoppel     of    the     legatee, 

bate     of    a     will,   an     application     to  (Matter   of  Soule.   1   Connoly,   18:    22 

A"acate,  etc.,  a  cecree  pursuant  to  sec-  Abb.  N.  C.  236 :  Matter  of  Peaslee.  73 

tion  2481,  subd.  6  — to  soften  the  rigor  Hun,   113;   25  X.  Y.  Supp.  940:   Mat- 

of    the    remainder    of    the    first-named  ter    of   Richardson,    81    Hun,    425;    30 

section    by    extending    the    surrogate's  X.  Y.    Supp.   1008.)      See  ante,   §  257. 

general  power  of  setting  aside,  etc.,  to  Where  the  petitioner  is  estopped  or 

decrees   or   probate   after  a  year  from  disqualified  from  maintaining  the  pro- 

their   rendition.     After  the   year,   the  ceeding,   it  cannot  be   continued   by  » 

application  is  in  the  surrogate's  discre-  respondent  who  could  not  have  instl- 

tion.      Accordingly,    where    a    petition  tuted    it.      (Matter   of    Euppaner,   15 

for  the  revocation  of  a  probate  decree  ]\Iisc.  054 :   37  X.  Y.  Supp.  429 ;   affd., 

rendered  in   1873  was  presented  after  9    App.   Div.   422.)      One   who   was   a 

the  lapse  of  more  than  seven  years,  by  party   and    appeared   in   an   action   to 

a    daughter   of    testator,    who,    thougli  determine    the    validity    of    a    will    is 

then  an  infant,  was  not  represented  by  estopped  by  the  judgment  in  favor  of 

guardian  on  the  probate,  she  claiming  its   validity   from   maintaining   an   ac- 

that,  by  reason  of  the  provisions  of  the  tion  to  revoke  probate.      (lb.) 

Crde  mentioned,  her  time  to  apply  was  A  residuary  legatee  has  a  sufficient 

imlimited  —  it  anoearing  that  she  be-  interest  to  maintain   a   proceeding  to 

came  of  age  in  1874  —  it  was  held,  that  revoke  probate  of  provisions  of  the  will 

her  absolute  right  to  contest  the  pro-  in    favor    of   another,    alleged   to    have 

bate  ceased  at  the  end  of  a  year  after  been  procured  by   fraud.      (Matter   of 

the  decree  was  rendered;  that  she  had  Janes,    87    Hun,    57;    33    X.   Y.    Supp. 

been    guilty   of    laches   by    delay;    and  968.) 

that  the  application  should  be  denied.  21  .Jones  v.  Hamersley,  4  Bern.  427; 

(Becker  v.  I3ochus,  5  Redf.  488;  affd.,  flatter  of  Havemeyer,  X.  Y.  Law  J., 

28  Hun,  207.)  April  15,  1890. 


243  CoxTESTiNG  Will  After  Probate.      §§  281-283 

tions,  and  actually  contested  the  probate,  conld,  in  the  event  of  an 
adverse  decision,  renew  the  same  ol)jeetions  l)y  a  i)etition  in  this 
proceeding;"  and  this  is  undoubtedly  the  rule  in  a  proceeding 
under  th^  Code.^"^ 

§  281.  The  petition. —  The  petition,  besides  showing  "  the  inter- 
est "  of  the  petitioned,  should  allege  the  grounds  <jn  which  tho 
validity  of  the  will,  or  its  proof,  is  sought  to  be  contested.  It 
should  state  the  names  of  the  executor  or  tho  administrator  with 
the  will  annexed,  as  the  case  may  be ;  also  the  names  of  the  devi- 
sees and  legatees  named  in  the  will,  and  "■'  of  all  other  persons  who 
were  parties  "  to  the  original  probate  proceeding.^'*  The  facts 
upon  which  the  allegations  are  founded  should  l)e  stated  with  suffi- 
cient certainty  to  enable  the  court  to  determine  whether  they  con- 
stitute, if  true,  good  grounds  for  entertaining  the  proceeding. ^^ 
The  relief  prayed  for  is,  that  the  probate  may  be  revoked  and  that 
a  citation  may  issue  to  the  persons  named. 

§  282.  Persons  to  be  cited. —  Under  the  former  statute,  only  the 
executor,  or  the  administrator  with  the  will  annexed,  as  the  case 
might  be,  and  the  legatees  residing  within  the  State,  were  entitled 
to  notice,  but  now,  not  only  they,  but  "  all  other  persons  who  were 
parties  "  to  the  original  proceeding,  without  limitation  as  to  resi- 
dence, are  required  to  be  cited.  If  a  legatee  is  dead,  his  executor 
or  administrator  luust  be  cited,  if  one  has  been  appointed ;  if  not, 
such  persons  must  be  cited  as  representing  him,  as  the  surrogate 
designates  for  the  purpose."*^ 

§  283.  Service  and  return  of  citation. —  The  surrogate  is  re- 
quired to  issue  a  citation,  upon  the  presentation  of  the  petition. 


22  :Matter  of  Gouraud,  95  X.  Y.  2.j().  to  a  petition  for  probate.     Averments 

23  See  ;Matter  of  Bonnett,  1  Connoly,  of  matters  of  evidence  are  generally 
294:  9  X.  Y.  Supp.  439.  In  Matter  of  out  of  place  in  a  petition  for  such 
Bradley  (70  Hun.  104;  2.3  X.  Y.  Supp.  revocation,  and  may  be  stricken  out, 
1127).  the  petitioner,  who  had  filed  ob-  on  motion.  (Henry  v.  Henry,  3  Deni. 
jections  in  the  original  proceed inu-,  l)ut  322.)  See  Matter  of  Hopkins,  19  St. 
had  failed  to  appear  and  substantiate  Rep.  .528. 

them,  was  held  entitled  to  maintain  25  Wliere  it  nowhere  appears  by  the 
the  proceeding,  as  if  no  adjudication  petition,  or  allegation,  that  the  alleged 
had  been  had.  So,  too,  though  the  will  proceeded  against  has  been  ad- 
petitioner  had  waived  the  issue  of  a  mitted  to  probate,  the  surrogate  is 
citation  upon  the  original  proceeding  without  jurisdiction.  (Xeergaard's 
and  consented  that  the  will  be  ad-  Estate.  20  Dailv  Reg.  Xo.  151.) 
mitted  to  probate.  (Matter  of  Albert,  26  Co.  Civ.  Proc.  §  2049.  Tlie  sur- 
38  ]\Iisc.  61.)  rogate  may  order  supplementary  cita- 

24  A  petition  for  the  revocation  of  tions  on  revocation  proceedings  where 
probate  of  a  will  should  not  ditl'er  es-  the  same  were  actually  begmi  witliin 
sentially,  in  its  statement  of  the  one  year.  (Matter  of  Phalen,  51  Hun, 
grounds  of  objection,  from  an  answer  208.) 


§§  284-286.     Contesting  Will  After  Peobate.  244 

It  seems  that  it  is  the  duty  of  the  surrogate  to  issue  the  citation 
at  once  upon  the  presentation  of  the  petition,  and  it  must  be  served 
within  sixty  days  after  its  issue.^"  If  all  the  parties  are  not 
served  in  time,  the  surrogate  may  issue  a  supplemental. citation.^^ 

§  284.  Suspension  of  executor's  proceedings. —  A  citation  having 
been  served  upon  the  executor,  or  the  administrator  with  the  will 
annexed,  as  the  case  may  be,  he  "  must  suspend,  until  a  decree  is 
made  upon  the  petition,  all  proceedings  relating  to  the  estate ;  ex- 
cept for  the  recovery  or  preservation  of  property,  the  collection 
and-  payment  of  debts,  and  such  other  acts  as  he  is  expressly  al- 
lowed to  perform,  by  an  order  of  the  surrogate,  made  upon  notice 
to  the  petitioner."  ^^  This  was  intended  to  restrict  the  powers  of 
the  executor,  and  not  to  enlarge  those  of  the  surrogate.  Hence 
the  latter  cannot  order  a  portion  of  the  estate  paid  over  to,  and 
distributed  among,  the  legatees,  even  though  they  would,  as  next 
of  kin,  be  entitled  to  distributive  shares  of  the  estate,  in  case  the 
probate  was  revoked.  "  Such  a  power  would  be  extremely  danger- 
ous, and  might  be  the  subject  of  great  abuses."  ^'^ 

§  285.  Proceedings  on  return  of  citation. —  In  this  proceeding, 
the  probate  of  the  will  already  made  is  regarded  as  a  mere  nullity, 
and  not  even  prima  facie  evidence  of  its  due  execution.  The  bur- 
den of  proof  is  on  the  proponents  of  the  will,  in  the  same  manner 
as  it  was  on  the  former  application,  and  they  must  prove  the  will 
de  novo  in  the  same  way.^^  The  evidence  to  sustain  the  probate 
must  be  taken  anew.  The  testimony  which  was  taken  on  the  orig- 
inal probate  cannot  be  given  in  evidence,  except  that  of  witnesses 
who  may  be  dead,  or  out  of  the  State,  or  who,  since  their  testimony 
was  taken,  have  become  lunatic  or  otherwise  incompetent ;  the 
testimony  of  such  witnesses  is  expressly  allowed  to  be  received."^ 

§  286.  Issues  triable. —  It  has  been  loosely  remarked  that  any 
question,  which  might  have  been  raised  by  objection  to  the  pro- 
bate originally,  may  be  raised  in  this  proceeding.     This  is  only 

27  Matter  of  Bradley,  70  Hun,   104;  28  Matter  of  Bradley,  supra. 

23  X.  Y.  Supp.  1127,  citino:  Matter  of  29  Co.  Civ.  Proc.  §  26.50. 

Phalen,  .51  Hun,  208;   Matter  of  Lid-  30  Matter  of  McGowan,  28  Hun,  246; 

dington,   20   St.    Rep.    610:    and   over-  La    Bau   v.   Vanderbilt,    3   Redf.    386, 

ruling    Fountain    v.    Carter.    2    Dem.  414.      Compare    Hovt    v.    Jackson,    1 

313;   Fryer  v.  Clapp.  1   id.  387:   Mat-  Dem.   5.53. 

ter  of  Bonnett.  1  Connoly.  294.    Where  31  Collier    v,     Idlev.    1     Bradf.    94; 

the   petitioner   wilfully   refrains   from  ]\Iatter   of   Soule,    1    Connoly,    18;    22 

serving   the    citation    on    some    of    the  Abb.  X.  C.   236:   Hoyt  v.   Hoyt,   9  St. 

parties,    the     proceeding    may    be    dis-  Rep.  731:  affd..  112  N.  Y.  493. 

missed.      (IMattor  of  Friedell.  20  App.  32  Co.  Civ.  Proc,  §  2651. 
Diy.  382;  46  N.  Y.  Supp.  787.) 


245  Contesti>;g   Will  Aftkk  Pkubate.  §  2S7. 

true  to  tlio  extent  that  aiiv  quesiiuu  involving  the  factum  of  the 
Avill,  including',  hesitles  tlie  facts  of  due  execution,  publication, 
and  attestation,  the  testator's  mental  capacity^""  his  freedom  from 
undue  influence,^'*  the  existence  of  a  later  will,^^  and  similar  facts ; 
as  to  which,  the  whole  case  is  o]»ened  for  retrial  and  determination, 
upon  the  same,  or  upon  additional,  evidence,  as  that  produced  oti 
the  original  proceeding.  iJut  the  right  of  a  contestant,  to  ])ut  in 
issue  the  "  validity,  construction  and  effect  "  of  tlie  provisions  of 
tin*  will,  docs  not  extend  to  this  proceeding,  which  is  provided 
for  under  a  dift'crcnt  title  <if  the  Code  from  that  which  confers 
that  s])ecial  jurisdiction  on  Surrogates'  Courts.  In  a  ])roceeding 
to  revoke  ])rol)ate,  on  allegations,  the  court  will  not,  therefore,  de- 
termiiK^  the  legality  of  a  direction  to  accumulate  interest,^*"  or 
other  such  questions."'^  As  the  proceeding  itself  necessarily  con- 
cedes the  court's  jurisdiction  to  render  the  original  decree,  the 
contestant  cannot  raise  that  question  in  this  proceeding.^®  In 
short,  no  question  can  properly  be  passed  upon,  either  by  the  sur- 
rogate, or  by  the  appellate  court,  except  as  to  the  legal  execution 
of  the  will,  and  whether  its  probate  should  stand.  The  extent  of 
the  court's  authority  is  to  render  a  decree  either  revoking  or  con- 
firming the  probate,  especially,  where  no  question  of  construction, 
if  allowable  at  all,  was  involved. ^^ 

§  287.  Decision  and  decree. —  If  the  surrogate  decides  that  the 
will  is  not  sufficiently  proved  to  be  the  last  will  of  the  testator,  he 
must  make  a  decree  revoking  the  probate  thereof;  otherwise,  he 
must  make  a  decree  confirming  the  probate.'*'^  The  record  of  the 
will  remains,  however,  and  if  the  instrument  has  also  been  proved 
as  a  will  of  real  estate,  the  effect  of  that  probate  is  not  impaired 
by  the  revocation  of  the  probate  as  a  will  of  personal  property. 
The  revocation  simply  divests  the  probate  of  its  quality  as  that 
of  a  will  of  personalty  ;^^  although  the  ]u*oceeding  is  im]')ortant 
and  useful  in  facilitating  any  subsequent  controversy  over  the 
will  as  a  disposition  of  real  property.^" 

ssMattor  of  Liddinfrton.  20  St.  Rep.  :5i;  ^Matter   of   Soule,    1    Connolv,    18; 

610.  22  Abb.  X.  C.  236. 

^■i  Mattor   of  Lowman.    1    ■\Iise.   4.3  :  37  ]\[atter  of  Ellis,  1  Connolv,  206. 

Matter  of  Blair,  16  Dalv,  540;   16  N.  «S  Hoyt  v.  Hovt.   112  X.  Y.   493:   9 

Y.  Rupp.  874.                     ■  St.  Rop.    731.     Relief   apainst  the   de- 

•''■'  Where  it  was  souiiht  to  revoke  the  eree,  as  bein?  void  for  want  of   juris- 

probate  on  the  pronnd  of  the  existenee  diction,  may  be  had  by  motion  to  set 

of  a  later  will  whicli  was  propounded  it  aside,  under  Co.  Civ.  Proc..  §  2481. 

aoeordinply,  it  appearing  that  the  lat-  "!•  IMatter  of  Watson.  131  X.  Y.  587. 

ter    instrument   was   a    codieil    to   the  40  Co.  Civ.  Proc.,  §  2652 ;  Matter  of 

former,  the  petition  for  revocation  was  Watson,  131  X.  Y.  587. 

denied,   and   the  codicil   was  admitted  ^i  IMatter  of  Kellum,  50  X.  Y.   300. 

as  such.     (Canfield  v.  Crandall,  4  Dem.  42  Hovt  v.  Hoyt,  112  X.  Y.  493. 
111.) 


§§  288,  289.     Contesting  Will  After  Probate.  246 

§  288.  Notice  of  decree  of  revocation. —  If  the  decree  revokes 
the  probate,  the  surrogate  must  cause  notice  of  the  revocation  to 
be  immediately  published,  for  three  successive  weeks,  in  a  news- 
paper published  in  his  county."*^  The  former  statute  also  required 
that  personal  notice  should  be  served  upon  the  executor,  or  admin- 
istrator with  the  will  annexed,  and  further  provided  that,  upon 
such  notice  being  served  upon  the  executor  or  administrator,  his 
powers  and  authority  ceased,  and  he  must  account  to  the  repre- 
sentatives of  the  deceased  person,  whose  alleged  Avill  was  contested, 
for  all  moneys  and  effects  received ;  but  he  was  not  lialjle  for  any 
act  so  done  in  the  collection  of  moneys  or  the  payment  of  debts, 
after  the  service  of  the  citation,  and  previous  to  the  service  of 
the  notice  of  revocation.^*  But  under  the  Code,*^  the  cessation  of 
the  powers  of  the  executor  is  made  dependent  upon  the  entry  of 
the  decree,  instead  of  service  of  notice  of  the  entry. 

§  289.  Appeal  from  decree. —  From  the  surrogate's  decision  on 
such  a  contest,  an  appeal  lies  to  the  Supreme  Court  in  the  same 
manner  as  if  the  decision  had  been  made  on  the  original  applica- 
tion for  probate.*^  But  the  appeal  does  not  stay  the  execution  of 
the  decree.*^ 

43  Co.  Civ.  Proc,  §  2653.  46  Co.  Civ.  Proc.  §  2.570.    See  Alf?top 

44  2  R.  S.  62,  §§  37,  38.  v.   Jones,    10    Paige,   98,  as  to   appeal 

45  §  §  2603,  2684.  A  removed  or  from  such  decree  under  the  Revised 
superseded   representative,   as  long  as    Statutes. 

he  is  liable  for  assets  that  have  come        47  Co.  Civ.  Proc,  §  2.583.    See  Halsev 

into  his  hands,  is  amenable  to  process  v.    Halsey,     3   Dem.    196:     ^Matter    of 

from  the  surrogate,  calling  him  to  ac-  Feinbacher,    5   id.    219;    8    Civ.   Proc. 

count.     (Gerould  v.  Wilson,  81  N.  Y.  Rep.  349. 
573.) 


CHAPTER  IX. 

LETTERS    TESTAMENTARY. 


TITLE  FIRST. 

WHEN  AND  TO  WHOM  LETTERS  ISSUE. 

§  290.  The  probate  and  letters  testamentary. — The  terms  "  pro- 
I)ate "  and  "  letters  testamentary "  are  sometimes  used  as  con- 
vertible, and  ])ains  have  been  taken  to  point  out  the  differences 
between  them.^  'No  doubt  can  exist  that  they  are  essentially  dis- 
tinct under  the  Code  of  Civil  Procedure,  in  which  —  to  mention 
only  a  single  provision  —  it  is  enacted  that  a  decree  granting  or 
revoking  probate  of  a  will  must  also  revoke  the  letters  issued  there- 
upon ;~  and  under  which  the  prescribed  and  only  effect  of  the  latter 
revocation  is  the  cessation  of  the  executor's  powers,^  the  probate 
remaining  unaffected.  In  attempting  to  exhibit  the  difference 
between  these  terms,  under  the  Code,  embarrassment  is  occasioned 
by  the  slender  degree  of  resemblance.  Letters  testamentary  are 
tangible  written  authorization  to  the  executors,  duly  tested,  signed 
by  an  officer,  and  sealed  with  the  seal  of  the  court.*  Probate  is 
uniformly  employed  in  an  abstract  sense,  more  or  less  closely  al- 
lied to  its  etymological  equivalent  ''  proof,"  ^  viewed  either  as  a 
process  or  as  a  result,  and  cannot  be  identified  with  any  paper, 
record,  or  adjudication.'^ 

§  291.  Nomination  of  executor. —  The  executor'  is  the  person 
named  by  the  testator  in  his  will  to  whom  he  confides  the  power 

1  See  Wms.  on  Exrs.  255 ;  Kirt-  7  The  word  "  exeoutor."  as  used  in  a 
land's  Rurrofj^iite,  46;  Dayton  on  Sur-  will,  is  a  word  of  description  of  all  the 
rotates  (3d  ed. ),  212.  persons   appointed  by   the   will   to   the 

2  Co.   Civ.  Proc.,  §  2(584.  dnty  of  executing  its  provisions.     It, 

3  Co.  Civ.  Proc.,  §  2603.  therefore,  includes  "  executrix,"  unless 

4  Co.  Civ.  Proc,  §  25fl0.  n    contrary    intention    appears    on    the 

5  See  Co.  Civ.  Proc,  §  2476.  face   of   the   will.      The   word   "  execu- 

6  See  "  to  admit  to  probate,"  Co.  Civ.  trix  ''  does  not  appear  in  the  Revised 
Proc,  §  2472.  subd.  1:  "to  attend  the  Statutes.  In  Moke  v.  Norrie  (14  Hun. 
probate,''  §  2614;  "  presentinjr  for  pro-  138),  the  testator  appointed  his  wife 
bate."  §  2622;  "contested  probate,"  "  executrix."  and  liis  father-in-law  and 
§  2023.  other  males  "  executors  of  this  my  last 

[247] 


§291. 


Letteks  Testamentaky. 


248. 


and  authority  to  execute  the  provisions  of  the  will,  and  the  ad- 
ministration of  his  estate,  or  of  some  portion  of  it.  Such  person,, 
if  competent,  is  entitled,  upon  qualifying,  to  receive  letters  testa- 
mentary, as  evidence  of  such  authority.  He  is  so  entitled  (1) 
when  he  is  expressly  named  as  executor  in  the  will;^  or  (2)  when,, 
altliough  not  expressly  named  as  executor,  the  wall  shows  the  tes- 
tator's intention  that  he  should  have  the  administration  of  the 
estate,  or  some  portion  of  it ;  in  which  case  he  is  called  executor 
hy  the  tenor f  or  (3)  when  he  is  named  as  executor  by  some  per- 
son other  than  the  testator  under  a  power  of  appointment  con- 
tained in  the  will.^*^  Where  a  will  has  been  admitted  to  probate, 
letters  testamentary  will  not  be  withheld  from  the  person  named 
in  such  will  as  executor  on  the  ground  that  a  paper  purporting  to 
be  a  codicil  to  such  will,  the  validity  of  which  is  contested,  has 
been  offered  for  probate,  by  the  terms  of  which  another  person  is 
nominated  as  executor,  the  nomination  of  the  original  will  not 
being  expressly  revoked. -^^ 


will,  etc.,  and  trustees  thereunder  of 
my  estate."  In  another  place,  he  con- 
ferred certain  powers  upon  his  "  ex- 
ecutors,'' and  appointed  his  "  execu- 
tors "  guardians  of  his  children,  and 
conveyed  property  to  them  in  trust. 
Held,  that  the  testator,  by  the  word 
"  executors,"  intended  to  include 
therein  the  "  executrix,"  who  was, 
therefore,  entitled  to  act  as  trustee 
and  guardian. 

8  "  Unless  testator  has  designated  as 
executors  of  his  will  the  persons  ask- 
ing to  be  appointed  such,  they  cannot 
be  appointed  execvitors."  (Matter  of 
Schuvler,  N.  Y.  Law  J.,  Apr.  14,  1890.) 
In  Matter  of  Cornell  (17  Misc.  468, 
41  X.  Y.  Supp.  255),  testator's  will 
provided  that  in  case  of  the  death  of 
his  executor,  another  person  named 
should  be  his  successor.  Upon  that 
event  taking  place  the  surrogate  is- 
sued letters  testamentary  to  such  ap- 
pointee. 

9  Baveaux  v.  Bayeaux,  8  Paige,  333 ; 
Ex  p. 'McDonnell,  2  Brad.  32;  Ex  p. 
McCormick.  id.  1G9;  Hubbard  v.  Hub- 
bard, 8  N.  Y.  203.  It  is  not  necessary 
that  the  appointment  of  an  executor 
should  be  made  in  so  many  words. 
Any  provision  in  the  will  showing  that 
the  testator  intended  that  the  duties 
of  an  executor  should  be  discharged  by 
the  person  named  is  sufficient  to  con- 
stitute him  an  executor.  Hence, 
where,  by  a  will  executed  under  the 


French  law,  the  testatrix  constitutei 
her  husband  her  "  general  and  univer- 
sal legatee,"  and  dispensed  with  his 
giving  secvirity  —  it  appearing  that  by 
the  law  of  France  all  the  rights  and 
duties  of  an  executor  devolve  on  such 
a  legatee  —  held,  that  the  husband 
must  be  deemed  executor  of  the  will, 
although  not  specifically  named  as 
such,  and  was  entitled  to  letters  testa- 
mentary. (Matter  of  Blancan,  4  Redf. 
151.) 

As  to  the  effect  of  the  appointment 
of  "  the  trustees  for  the  time  being " 
of  a  specified  society,  see  Matter  of 
Hardv,  2  Dem.  91. 

lOHartnett  v.  Wandell,  60  N.  Y. 
346;  affg.  s.  c,  sub  nom.  Alexander's 
Will,  16  Abb.  Pr.  (N.  S.)  9,  and  over- 
rviling  Bronson's  Estate,  1  Tuck.  464. 
In  Hartnett  v.  Wandell  (supra ) ,  the 
words  of  the  will  were:  "I  nominate 
and  appoint  my  wife  executrix  of  this, 
my  will,  and  request  that  such  male 
friend  as  she  may  desire  shall  be  ap- 
pointed with  her  as  coexecutor."  Held, 
that  letters  should  issue  to  the  wife's 
appointee,  though,  it  seems,  the  wife 
could  not  designate  the  coexecutor  un- 
til she  had  herself  qualified  as  execu^ 
trix.  See  Rogers  v.  Rogers,  4  Redf, 
521. 

11  Stolzel  V.  Cruikshank.  4  Dem.  352. 
The  pendencv  of  a  proceeding  for  the 
revocation  of  probate  of  a  will,  will  not 
prevent  the  issue  of  letters  testament- 


240  Letters  Tkstamextaky.  §§  2'Jl\  l"j;3. 

§  292.  Number  of  executors. —  There  is  no  limitation  of  the 
number  of  jjersons  who  may  be  nominated  executors,  but,  what- 
ever the  number,  those  who  qualify  and  enter  upon  the  discharge 
of  their  trust  are  regarded  in  law  as  one  individual,  except  where 
each  is  appointed  to  take  charge  of  particular  pro])erty,  or  prop- 
erty situated  in  different  States.^"  Different  executors  may  be 
appointed  for  different  States  or  countries.^'*  Executors  may  be 
a])i)ointed  with  separate  functions,  or  to  succeed  each  other  in  the 
event  that  the  one  first  named  shall  die,  become  incapacitated,  or 
unwillinii'  longer  to  serve;  or  two  persons  may  be  aj)pointed  to  act 
for  a  detinite  i)eriod,  or  during  the  minority,  or  during  the  ab- 
sence from  the  country,  of  one  appointed  executor.^'* 

§  293.  Grant  of  letters  by  the  court. —  The  executor  derives  his. 
appointment  and  his  title  to  the  estate  from  the  will,  but  he  is 
without  substantial  power  until  the  surrogate  grants  him  authen- 
ticated evidence  of  his  title  in  the  fonn  of  letters  testamentary, 
upon  the  proof  of  the  will.  The  surrogate  is  authorized  to  grant 
letters  testamentary  in  three  classes  of  cases,  viz. :  1.  Where  the 
will  has  been  proved  before  him.^^  2.  Where  it  has  been  estab- 
lished by  a  final  judgment  in  an  action,  and  an  exemplified  copy 
thereof  filed  in  his  office. ^*^  3.  Where  a  will  of  personal  property 
has  been  proved  in  a  foreign  jurisdiction  and  letters  have  been 


ary  to  the  executor;  but  the  executor  naming  two  brothers  of  the  testatrix 

will   possess,  pending  the  controversy,  as  executors,  added,  "  and  in  case  both 

only    limited    powers   similar   to   those  of  my  said  brothers  herein  lastly  above 

specified    in   Co.    Civ.    Proc,     §    25S2.  named,  shall  depart  this  life  prior  to 

(Bible  Society  v.  Oakley,  4  Dem.  4.")(). )  my  decease,  or  in  case  they  shall  both 

12  Sherman   v.    Page,    21    Hun,    59;  decline  to  act  as  such  executors,  then  I 

affd.,  85  X.  Y.   124.     In  that  case,  the  hereby  nominate  and  appoint" — here 

testatrix  appointed  H.  P.  "  my  execu-  naming  a  son  of  each  of  the  brothers, 

tor  for  carrying  out  the  provisions  of  Both   brothers   survived   the  testatrix, 

my  last  will  and  testament  so  far  as  One  declined  to  act.     The  other  quali- 

they  relate  to   parties  and  properties  fiod  as  executor,  and  boih  subsequently 

in     this     State      (New     York),     and  died.     Held,  that,  there  being  nothing 

C.    O.    and    D.    J.,    my    executors    for  in  the  will  to  evince  a  controlling  in- 

everything    so    far    as    they    relate    to  tention  to  keep  the  administration   in 

parties   and   property   in   the   State  of  the  family,  the  court  could  not.  on  ex- 

^lichigan  and  elsewhere."     H.  P.  never  trinsic    evidence    that    both  testatrix's 

having  taken  out  letters  in  Michigan,  brothers  were  advanced  in  age  at  the 

was  held  not  accountable  as  executor  time  the  will  was  made,  disregard  the 

appointed    here,    for    property    of    the  words    "  prior    to    my    decease,"    and 

decedent  situated  without  the  State.  grant  letters  to  a   son   of  one   of  the 

l->Despard    v.   Churchill,     53   N.   Y.  brothers.       touch    words    constitute    a 

192 :   Sherman  v.  Page,  supra.  condition. 

14  3  B<'df.  on  Wills,  53 :    1  Wms.  on        15  Co.  Civ.  Proc,  §  263G. 
Exrs.(r>th  Am.  ed.)   280:   Rr  Langford.        16  Co.  Civ.  Proc,  §   1863.     See  ante, 

L.  R.,  1  P.  &  D.  448.    In  Fosdick  v.  Dela-  §  134. 
field    (2   Redf.   392),   the   will,    after 


§§  204,  295.  Letters  Testame^'tary.  250 

« 
granted  there,  and  an  exemplified  copy  of  the  will,  and  also  of  the 
foreign  letters,  if  any,  are  produced  hcre.^' 

§  294.  Selection  of  an  executor  under  a  power. —  Where  the  will 
contains  a  power,  authorizing  the  selection  of  an  executor,  not 
named  therein,  the  selection  must  be  made,  by  the  person  ap- 
pointed for  that  purpose,  within  thirty  days  after  making  the 
decree  admitting  the  will  to  probate;  in  default  whereof,  the 
power  of  selection  is  deemed  to  have  been  renounced.  Such  selec- 
tion must  be  made  by  an  instrument  in  writing,  designating  the 
person  selected,  signed  by  the  proper  person,  and  acknowledged 
or  proved,  and  certified,  in  like  manner  as  a  deed  to  be  recorded 
in  the  county,  or  proved  to  the  satisfaction  of  the  surrogate,  and 
filed  in  the  surrogate's  office.  Where  the  will  authorizes  the  per- 
son, so  to  be  selected,  to  act  with  the  executor  or  executors  named 
therein,  the  issuing  of  letters  must  be  delayed  for  thirty  days,  for 
the  exercise  of  the  power  of  selection,  and,  if  the  selection  is  so 
made,  for  five  days  thereafter,^^  to  enable  any  person  interested 
to  file  objections  to  him;  and  if  letters  are  not  issued  to  the  person 
so  selected,  the  power  of  selection  is  deemed  to  be  exhausted.^^ 

TITLE  SECOXD. 
kexuxciatioiv  a^t)  acceptance  of  appointment. 

§  295.  Right  to  renounce. —  Of  course,  any  person  named  as  ex- 
ecutor in  a  will  may  refuse  to  enter  upon  the  duties  of  the  office. 
He  cannot  be  compelled  to  take  a  grant  of  letters ;  but  before  let- 
ters will  be  issued  to  any  other  person  than  the  one  named  execu- 
tor, he  must  formally  renounce  his  appointment,  or  be  declared 
disqualified,  though  he  may  afterward,  in  certain  cases,  retract 
his  renunciation.^"^  The  right  to  renounce  the  appointment  is  ab- 
solute, and  the  surrogate  has  no  discretion  or  privilege  to  grant 
or  refuse  acceptance  of  it."^    The  right  to  resign  is  another  matter. 


1'  Co.  Civ.  Proc,  §  2695,  as  amended  did  not  impair  the  right  of  the  widow 

1888.     See  post,  tit.  4  of  this  chapter,  to  appoint,  on  the  death  of  the  second 

18  Co.  Civ.  Proc,  §  2640.  son  during  ner  lifetime.     (Cuthbert  v. 

19  Co.   Civ.   Proc,   §   2841.     Testator  Babcock,   2   Dem.    96.)      See   Hartnett 
appointed   his   son   and   wife   executor  v.  Wandell,  anie,  §  291,  note  10. 

and     executrix     respectively  —  adding  20  Robertson  v.   McGeoch,    11   Paige, 

that  if  the  son  died  in  the  wife's  life-  640;    Codding  v.    Ne\\Tnan,   6.3    N.    Y. 

time,  she  might  appoint  another.     The  6.30 :  Judson  v.  Gibbons.  .5  Wend.  227 ; 

son  died  liefore  testator,  who  made  a  Bodle    v.    Hulse,    id.    313;    Dempsey's 

codicil  appointing  another   son  as  ex-  Estate,  1  Tuck.  .51. 

ecutor,   and   declared   that  the  codicil  21  Casey   v.    Gardiner,    4   Bradf.    13. 

should  not  alter  the  will  further  than  An     agreement     to     renounce,     made, 

as  expressed.     Held,  that   the  codicil  though    for   a   valuable   consideralion, 


251  Lettehs  Testa.mkntauy.  §§  2UG-29H. 

At  common  law,  an  executor  having  once  accepted  the  office,  couhl 
not  resign  it."  The  statute  now  confers  upon  the  Surrogate's 
Court  the  power  to  accept  the  resignation  of  an  executor  or  admin- 
istrator, and  to  discharge  him  from  the  further  execution  of  his 
trust,  Imt  the  riglit  to  n^sign  is  not  absolute."'' 

§  296.  Renunciation,  how  effected. —  A  voluntary  renunciation 
must  bo  by  an  instrument  in  writing,  signed  by  the  executor,  and 
iicknowledgod  or  ])roved,  and  certified,  in  like  manner  as  a  deed 
to  be  recorded  in  the  county,  or  attested  by  one  or  more  witnesses, 
and  proved  to  the  satisfaction  of  the  surrogate,  and  filed  and  re- 
corded in  the  surrogate's  office."* 

§  297.  Retraction  of  renunciation. —  At  any  time  before  letters 
bave  been  issued  to  any  other  person,  or,  after  they  have  been 
issued,  if  they  have  been  revoked,  or  the  person  to  whom  they  were 
issued  has  died  or  become  a  lunatic,  and  there  is  no  other  acting 
executor  or  administrator, —  the  person  who  renounced  his  a],- 
pointment  may  retract,  by  an  instrument  signed,  acknowledged, 
and  filed,  in  like  manner  as  the  renunciation.  But  it  is  provided 
that  the  surrogate  has  a  discretion  in  the  granting  of  letters  to  the 
person  so  retracting  his  renunciation.^^  One  who,  beside  being 
named  executor,  is  also  a  devisee  in  trust  under  the  will,  having 
renounced,  and  letters  having  been  issued  to  the  other  executors 
alone,  cannot,  on  his  subsequent  retraction  of  his  renunciation, 
be  restored  as  a  trustee,  the  trust  having  already  vested  in  the  ex- 
ecutors who  proved  the  will."*' 

§  298.  Exclusion  on  failure  to  qualify  or  renounce. —  Where  the 
person  named  as  executor  docs  not  qualify  or  renounce  within 

before  the   testator's  death,   and  con-  utor  that  he  would  renoimce  as  exec- 

trary  to  his  expressed  wishes,  is  void  utor,   if  objections   to   probate   of   the 

as  being  ajjainst  public  policy.  (Staun-  will   were  withdrawn,   and  consent   to 

ton  V.  Parker,  10  Hun,  55.)  the  issue  of   letters  of  administration 

22  See  Flinn  v.  Chase,  4  Den.  85.  to  himself  and  another,  which  proposi- 

23  Matter  of  Bernstein,  8  Redf.  20.  tion  was  accepted  iuid  acted  upon, — 
Where  he  has  been  permitted  to  re-  Held  as  effective  as  the  execution  of  a 
si<?n,  and  has  been  discharfJied  by  the  formal  renunciation.  (Matter  of  Bald- 
court,  he  cannot  thereafter  retract  win,  27  App.  Div.  506;  50  N.  Y.  Supp. 
that  resifination.      (Matter  of  Beakes,  872;   158  N.  Y.  713.) 

5  Dem.  128.)  25  Co.  Civ.  Proc.  §  2G.39.     See  Cod- 

24  Co.  Civ.  Proc,  §  2fi39,  adoptinjr  2  ding  v.  Newman,  (i3  N.  Y.  639;  Mat- 
H.  S.  70.  §  8.  except  that  under  the  ter  of  Cornell.  17  Misc.  468;  41  N.  Y. 
Hevised  Statutes  two  witnesses  were  Supp.  255;  Matter  of  Clute,  37  Misc. 
required.       Ha\ing    once    become     in-  710. 

vested  with  the  oflice,  the  exerutor  may  26  Matter    of    Stevenson,     3    Paige, 

resign,  but  he  cannot  renounce  the  ap-  420:  .Matter  of  Van  Schoonhoven,  5  id. 

pointmcnt  under  this  section.     (Matter  559.    See  Dunning  v.  Ocean  Xat.  Bank, 

of  Suarez.   3   Dcm.    164.)      A   declara-  61  N.  Y.  497. 
tion  made  in  open  court  by  an  exec- 


§§  200,  300.  Letters  Testamentary.  252 

thirty  days  after  probate ;  or  where  a  person,  chosen  by  virtue  o£ 
a  power  in  the  will,  does  not  qualify  or  renounce  within  thirty 
days  after  the  filing  of  the  instrument  designating  him;  or,  in 
either  case,  if  objections  are  filed,  and  the  executor  does  not 
qualify  or  renounce  within  five  days  after  they  are  determined  in 
his  favor,  or,  where  the  objection  can  be  obviated  by  giving  a 
bniid,  within  five  days  after  the  objection  has  been  established, — 
the  surrogate  must,  upon  the  application  of  any  other  executor,, 
or  any  creditor  or  person  interested  in  the  estate,  make  an  order 
recjuiring  him  to  qualify  within  a  time  therein  specified ;  and  di- 
recting that,  in  default  of  so  doing,  he  be  deemed  to  have  re- 
nounced his  appointment."^  Such  order  should  be  served  person- 
ally, .but  if  it  cannot,  with  due  diligence,  be  so  seiwed  within 
the  State,  the  surrogate  may  prescribe  the  manner  in  which  it 
must  be  served,  which  may  be  by  publication.  If  the  person  does 
not  qualify  within  the  time  fixed,  an  order  must  be  made  and  re- 
corded reciting  the  facts,  and  declaring  that  he  has  renounced  his 
appointment  as  executor.^^  The  person  thus  failing  to  qualify  or 
renounce  may  afterward  apply  for,  and  the  surrogate  may,  in  his 
discretion,  grant,  letters  to  him,  unless  letters  have  been  alread^r 
issued  to  another  person,  or,  if  issued,  have  been  revoked,  or  the 
person  taking  them  has  died  or  become  a  lunatic,  and  there  is  no 
other  acting  executor  or  administrator."^ 

§  299.  Only  the  executor  named  in  letters  can  act. —  Onlv  the- 
executor  named  in  the  letters  issued  by  the  court  has  any  power  or 
authority  to  act  in  that  capacity.  A  person  named  in  the  will  as 
an  executor,  and  not  named  as  such  in  the  letters  testamentary  or 
in  letters  of  administration  with  the  will  annexed,  is  deemed  to 
he  superseded  by  such  letters,  and  consequently  has  no  power  or 
authority  whatever  as  executor  until  he  appears  and  qualifies.^^ 
Hence,  in  an  action  or  special  proceeding  in  favor  of  or  against 
the  executors  in  their  representative  capacity,  the  one  to  whom 
letters  testamentary  have  not  been  issued  is  not  a  necessary  party.^^ 

§  300.  Acceptance  and  oath  of  office. —  In  case  there  is  no  objec- 
tion to  tlie  competency  of  the  executor,  he  should  appear  and  take 
the  oath  of  office  forthwith  upon  the  entry  of  the  probate  decree. 


2TCo.  Civ.  Proc,  §  2642.  31  Co.  Civ.  Proc.  §   181S.     See  Mat- 

28  Co.  Civ.  Proc,  §  2642,  as  amended  ter  of  Stevenson.  3  Paige.  420 ;  Matter 
188.3.  of  Van   Sohoonhoven.  5  id.   559;    Leg- 

29  Co.  Civ.  Proc.,  §§  2639.  2642.  gett  v.  Hunter.   19  X.  Y.  445;   Wever 
3"  Co.  Civ.  Proc.  §  2613.  as  amended  v.  Marvin,  14  Barb.  376. 

1893.  adopting  2  R.  S.  71,  §  15. 


253  Letters  Testamentary.  §§  301,  302. 

The  oath,  wliieh  must  be  in  writing,  and  to  the  effect  that  he  will 
faithfully  discharge  the  duties  of  his  office,  should  be  filed  in  the 
surrogate's  office.  The  oath  may  be  taken  before  any  officer, 
within  or  without  the  State,  who  is  authorized  to  take  an  affidavit. 
Whore  it  is  taken  without  the  State,  it  must  be  certified  as  re- 
quired by  law,  with  respect  to  an  affidavit  to  be  used  in  the  Su- 
preme Court.^^ 

§  301.  Form  of  letters  and  their  record. —  Letters  testamentary, 
like  letters  of  administration  and  letters  of  guardianship,  must  bo 
in  the  name  of  the  People  of  the  State.  Where  they  are  granted 
by  a  surrogate,  or  by  an  officer  or  person  temporarily  acting  as 
surrogate,  they  must  be  tested  in  the  name  of  the  officer  granting 
them,  signed  by  him  or  by  the  clerk  of  the  Surrogate's  Court,  and 
sealed  with  the  seal  of  that  court.  Where  they  are  issued  out  of 
another  court,  they  must  be  tested  in  the  name  of  the  judge  hold- 
ing the  court,  signed  by  the  clerk  thereof,  and  sealed  with  his 
seal.^"'  They  must  in  all  cases  be  recorded  in  a  book  kept  for  that 
pur])()So  in  the  surrogate's  office.^^ 

§  302.  When  bond  required  of  executor. —  Unlike  an  adminis- 
trator, an  executor  is  not,  in  general,  required  to  give  a  bond  for 
the  faithful  discharge  of  the  duties  of  his  office.  The  will  may, 
however,  make  the  appointment  of  the  executor  conditional  upon 
his  giving  a  bond,  and  in  that  case  the  condition  must  be  complied 
with  before  letters  will  issue.  In  such  a  case,  the  bond  given 
«hould  run  to  the  legatees  and  not  to  the  people,  as  ordinarily.^" 
A  nonresident  executor  is  not  required  to  give  a  bond,  unless  ob- 
jection is  raised  on  the  ground  of  his  nonresidence.  If  there  is 
no  objection  to  him,  except  his  nonresidence,  he  is  entitled  to  let- 
ters without  giving  a  bond,  "  if  he  has  an  office  within  the  State. 
for  the  regular  transaction  of  business  in  person;  and  the  will 
contains  an  express  provision,  to  the  effect  that  he  may  act  with- 
out giving  security."  ^^  The  subject  of  official  bonds  is  discussed 
in  a  subsequent  chapter. 


32  Co.  Civ.  Proo..  §  2.o94.  The  creditor  or  person  interested  in  the 
officers  who  are  .inthorized  to  admin-  estate,  a  nonresident  executor  is  en- 
ister  the  oath,  either  within  or  with-  titled  to  letters  without  givinfr  secu- 
out  the  State,  are  enumerated  in  the  rity.  (Matter  of  Vernon.  1  Civ.  Proe. 
€ode.  §§  842.  844.  Rep.  .'?04.  note.)      In  Kinjrs  county   it 

33  Co.  Civ.  Proc,  §  2.5n0.  has  been  heUl  both  wavs.      (^ratter  of 

34  Co.  Civ.  Proc.   §  24ns.  snbd.  2.  Demarest.  1  Civ.  Proc.  Rep.  .302:  :Nrat- 

35  Sullivan's  Estate.  1   Tuck.  94.  tcr  of  Emery.   IS  id.  M:^.)      Upon  the 
3(5  See  Co  Civ.  Proc.   S   2038.     Tt  is  removal  of  an  executor  from  this  State. 

"held  in  New  York  county  that,  in  the  the  surrogate  must,  upon  application, 

absence    of    objections    thereto    by    a  revoke   the   letters   testamentarv  —  no 


§§  303,  304.  Letters  Testamentary.  254r 


TITLE  THIRD. 

NECESSARY    QUALIFICATIONS    OF    EXECUTOR. 

§  303.  Statutory  disqualifications. —  The  statute  declares  that 
"  no  person  is  competent  to  serve  as  an  executor  who,  at  the  time 
the  will  is  proved,  is  (1)  incapable  in  law  of  making  a  contract; 
(2)  under  the  age  of  twenty-one  years;  (3)  an  alien,  not  an  in- 
habitant of  this  State;  (4)  who  shall  have  been  convicted  of  an 
infamous  crime;  (5)  who,  on  proof,  is  found  by  the  surrogate  to 
be  incompetent  to  execute  the  duties  of  such  trust,  by  reason  of 
drunkenness,  dishonesty,  improvidence,  or  want  of  understand- 
ing." ^^  And,  in  his  discretion,  the  surrogate  may  refuse  to  gi-ant 
letters  to  a  person  unable  to  read  and  write  the  English  language.^^ 
The  statutory  disqualifications  of  administrators  are  similar, 
though  not  expressed  in  identical  language ;  and  the  convenience 
of  the  reader  will  be  consulted  by  referring  here  to  the  cases  whick. 
have  settled  the  construction  of  either  statute. 

§  304.  Letters  may  issue  to  married  women. —  lender  the  Re- 
vised Statutes,^^  a  married  woman  could  not  be  appointed  an  ad- 
ministratrix or  guardian,  and  she  could  not  act  as  an  executrix  and 
as  such  receive  letters  testamentary,  unless  her  husband  filed  a 
written  consent  with  the  surrogate,  thereby  becoming  responsible 
for  her  acts  jointly  with  her.  In  1863,'*'^  a  married  woman  was 
permitted  to  receive  letters  of  administration',  on  the  same  con- 
dition on  which  letters  testamentary  might  issue  to  her,  to  wit,. 


bond  havinor  been  piven.      (John's  Es-  changes,  a  part  of  section  2G12  of  Co. 

tate.   20   Daily   Reg..   No.    136.)      The  Civ.  Proc. 

Avill  of  testator  nominated  as  two  of  38  L.  1867.  c.  782,  §  5;  now  incor- 
its  executors  two  residents  of  finother  porated  in  Co.  Civ.  Proc.  §  2612. 
State,  expressly  providing  that  they  Before  the  passage  of  this  statute, 
might  act  as  such  without  giving  se-  it  was  held  that  mere  illiteracy 
curity.  The  nominees  were  respect-  did  not  authorize  the  surrogate  to- 
ively  the  treasurer  and  cashier  of  a  supersede  the  letters  testamentary. 
foreign  manufacturing  corporation,  (Emerson  v.  Bowers,  14  X.  Y.  449.) 
having  its  principal  office  in  the  city  The  fact  that  the  executor  has  but 
of  Xew  York,  and  attended  daily  slight  knowledge  of  the  English  lan- 
thereat  in  such  capacities  during  busi-  guage  does  not  furnish  sufficient 
ness  hours.  HeM.  that  they  had  "  an  ground  for  the  revocation  of  his  let- 
oflice  within  the  State  for  the  regular  ters,  it  not  appearing  that  the  estate- 
transaction  of  business  in  person."  has  suffered,  or  is  likely  to  suffer,  evil 
(Postley  V.  Cheyne.  4  Dem.  492;  s.  e.  results  from  that  cause.  (Hassey  v. 
as  Estate  of  Sterlinsr.  9  Civ.  Proc.  Rep.  Keller,  1  Dem.  .577.)  See  Matter  of 
448:  1  St.  'Re]i.  1.39.)  Halev.  21  Misc.  777:   49  N.  Y.  Supp. 

37  2   R.   S.   69,    §    3,   as  amended  L.  397." 

1830,  c.  230.  §  17:  L.  1873.  c.  79,  and  39  2  R.  S.  69,  §  4. 

bv  L.   1893,  c.  686,  made,  with  verbal  40  L.  1863.  c.  362.  §  4. 


255  Lettehs  Testamentaky.  §§  305-307. 

the  written  consent  of  her  hiishan<l.  It  was  nr»t  until  ISGT  ■"  tliat 
she  was  declared  capable  of  acting,  without  the  consent  of  her  hus- 
band, as  executrix,  administratrix,  and  guardian,  and  of  receiving 
letters  as  such,  as  though  she  were  a  single  woman. 

§  305.  Nonresident  aliens. —  Only  those  are  excluded  on  the 
ground  of  alienage  and  noninhal)itancy  who  are  both  aJiens  — 
i.  e.,  not  citizens  of  the  United  States  —  and  nonresidents  of  this 
State,  although  named  in  the  Avill  as  a  legatee.^^  "  Aliens,"  as 
used  in  the  statute,  means  those  bom  out  of  the  jurisdiction  of 
the  United  States,  and  who  have  not  been  naturalized;  not  citizens 
resident  of  another  State.^^ 

§  306.  Removal  of  disability. —  Where  the  disability  of  a  person 
under  age,  or  an  alien,  is  removed  before  the  complete  execu- 
tion of  the  will, —  /.  e.,  the  complete  administration  of  the  es- 
tate,—  he  is  entitled  to  api)ly  for,  and  receive,  supplementary 
letters  in  the  same  manner  as  the  original  letters,  and  is  author- 
ized to  join  in  the  execution  of  the  will,  with  the  persons  pre- 
viously appointed.'*^ 

§  307.  Drunkenness,  dishonesty,  improvidence,  etc. —  Drunken- 
ness, when  not  so  gross  as  to  justify  a  tinding  that  the  person  is 
an  habitual  drunkard,  under  the  statute,  will  not  preclude  the 
issue  of  letters.'*'^  The  "  infamous  crime  "  must  be  one  punish- 
able with  death,  or  by  imprisonment  in  a  State  prison,  and  the 
conviction  must  have  been  had  in  a  court  of  this  State,  for  an 
offense  against  the  laws  thereof.  A  conviction  in  a  court  of  an- 
other State,  of  the  crime  of  larceny,  is  not  evidence  of  improvi- 
dence on  the  part  of  the  convict,  which  would  justify  an  adjudi- 
cation, by  the  surrogate,  of  incompetence  to  execute  the  duties 
of  an  administrator.'**'  Before  "  dishonesty  ''  was  made  a  .di^- 
qualilication,  by  the  amendment  of  1873,^"  no  degree  of  legal  or 
moral  guilt  or  delinquency  rendered  a  person  incompetent,  unless 

41  L.  isr.7.  o.  7S2.  §  2.  See  Bunce  v.  43  McGregor  v.  MoGrefror.  ;?  Abb.  Ct. 
Vamlorgrift.    8    Paige.    37:    Matter   of    App.  Dec.  92;   1  Keyes,  133. 

Elgin.    1   Tuck.  <)7  :  AVhitnev  v.   Coap-  44  Co.  Civ.  Proc,  §  2613,  as  amended 

man.  39  Barb.  482.     After  the  Act  of  1803. 

1S(>7.  the  provision  of  L,   1837.  c.  4(10.  4.".  Elmer  v.  Kechele.   1   Redf.  472:    1 

§  34.  that  the  surrogate  might  revoke  Tuck.   52.      See   Matter    of    Cady.    3(> 

the     ai)]K)intment     of      an      executrix  Ilun,  122:  flatter  of  Manley.  12  ^lisc. 

marrying    after    her    appointment,   be-  472:    34   X.   Y.   Supp.   2oS :    Matter   of 

came  obsolete,  and  has  been  repealed.  Reichert.  34  Misc.  288;  69  N.  Y.  Supp. 

(L.    1880.   c.   24.5.)      See   Woodruff   v.  044. 

Cox    (2    Bradf.    153).   as   to   effect   of  40  O'Brien  v.  Xeubert.  3  Dem.  156. 

marriacre  after  letters.  47  L.  1873,  c.  79,  §  1. 

42  Walsh's  Estate.  20  Daily  Reg..  No. 
151;  Matter  of  Burk,  1  St.'  Rep.  316. 


j^  307.  Letters  Testamentary.  256 

he  had  been  actually  convicted  of  an  infamous  crime,  upon  in- 
dictment or  other  criminal  proceeding;'*''*  nor  did  immoral  habits 
or  offenses  of  moral  turpitude  disqualify.'*'"'  As  commonly  un- 
derstood, dishonesty  may  be  predicated  of  many  acts  not  pun- 
ishable under  the  criminal  law.  A  crime  is  not  necessary  to 
disqualify  a  person.  On  the  other  hand,  dishonest  conduct,  such 
as  breaking  a  contract,  pirating  a  trademark,  making  a  false  claim 
to  property  and  the  hke,  would  not  disqualify.  But  the  term 
would  include,  we  think,  the  case  of  a  debt  fraudulently  con- 
tracted or  incurred  in  a  fiduciary  relation  for  which  the  party 
was  held  to  bail  in  a  civil  action.  So  it  might  include  an  assign- 
ment of  property  adjudged  to  have  been  made  with  intent  to 
cheat  and  defraud  creditors.  It  would  seem  to  mean  a  ''  dis- 
honesty "  in  money  matters.  Mere  lying  or  even  perjury,  of  it- 
self, would  not^  we  think,  be  held  to  be  such  disqualifying  dis- 
honesty. It  may  be  properly  remarked  here  that  general  repu- 
tation for  dishonesty  ought  not  to  be  considered  sufficient  proof 
of  the  fact,  but  particular  acts  should  be  shown,  from  which 
the  court  may  draw  its  conclusion.  The  "  improvidence  "  con- 
templated by  the  statute  is  that  want  of  care  or  foresight  in  the 
management  of  property  which  is  likely  to  endanger  the  estate 
or  diminish  its  value,^''  and  refers  to  such  habits  of  mind  and 
body  as  render  a  man  generally,  and  under  all  ordinary  circum- 
stances, unfit  to  serve. ^^  The  fact  that  a  man  is  a  professional 
gambler  is  presumptive  evidence  of  such  improvidence,^"  but  mere 
insolvency  is  not,^^  nor  the  fact  that  he  is  a  debtor  to  the  estate.^'* 
A  ''  want  of  understanding  "  is  something  more  than  a  lack  of 
information  on  legal  subjects  or  business  matters  ;^^  and  it  has 
been  held  that  an  ill  regulated  temper  and  a  want  of  self  control, 
even  though  excessive,  are  not  a  good  objection  to  a  grant  of  let- 
ters.^'^  "We  shall  revert  to  this  subject  in  speaking  of  proceed- 
ings to  revoke  letters  for  the  incompetence  of  the  executor. 


4s  Coope  V.  Lowerre,  1  Barb.  Ch.  45.  ^3  Matter    of    Post,    Dayt.    on    Svn-r. 

See   Matter   of   Cutting,   5   Dem.   456.  (1st   ed. ),   Appendix,    1.      See   Shields 

The    only    admissible    evidence    of    the  v.    Shields.    60    Barb.    59;     Senior    v. 

<>onviction  of  a  crime  is  the  record  of  Aekerman.    2    Redf.    .302;     Martin    v. 

the     conviction.        {Harrison     v.     Mc-  Duke.  5  id.  5!)7;   Grubb  v.  Hamilton, 

Mahon.  1  Bradf.  289.)  2  Dem.  414. 

49  See  McGregor  v.  McGregor.  3  Abb.  54  Churchill    v.    Preseott.    2    Bradf. 
Ct.  App.  Dec.  92;    1   Keves.^  133.  304:    Matter   of   Morgan.    2    How.    Pr. 

50  Coope  V.  Lowerre.  1  Barb.  Ch.  45 ;  (X.  S.)    194. 

Coggshall  V.  Green.  9  Hun.  471.  r.5  Shilton's  Estate.  1  Tuck.  73.     See 

•'1  Emerson  v.  Bowers.  14  X.  Y.  449;  :\Iatter  of  Berrien.   3  Dem.  263. 

Matter  of  ^Manlev.  supra.  56  McGregor  v.  McGregor.  3  Abb.  Ct. 

52  McMahon  V.  ilarrison.  6  X.  Y.  443.  App.  Dec.  92;   1  Keyes,  133. 


257  Letteus  Testamentary.  §§  308-310. 

§  308.  Adversity  of  interest. —  'llio  grounds  of  disqualification 
given  in  the  statute,  and  those  only,  can  be  successfully  urged 
against  the  appointment  of  one  who  is  entitled  to  priority  under 
the  statute.  Adverse  and  conflicting  interests  are  not  statutory 
<iisqualifications.^^ 

§  309.  Staying  issue  of  letters. —  The  executor  may  demand, 
upon  his  ap])earing  and  (lualifying,  the  immediate  issue  of  letters 
to  him,  on  the  entry  of  the  decree  admitting  the  will  to  probate."''^ 
Ko  special  application  in  w  riring  or  order  for  the  letters  is  re- 
<iuired.  Before,  however,  the  letters  are  actually  issued,  any 
person  interested  in  the  estate,  including  a  creditor,  may  procure 
a  stay  of  their  issue  by  tiling  an  aliidavit.  The  affidavit  should 
set  fortli,  in  addition  to  a  statement  of  his  interest,  the  legal  ob- 
jections to  the  competency  of  the  executor,  or  that  the  affiant 
is  advised  and  believes  that  sufficient  objections  exist,  and  that 
he  intends  to  file  a  specific  statement  of  the  same.  Thereupon 
the  surrogate  is  required  to  stay  the  grant  of  letters  for  at  least 
thirty  days,  or  until  the  matter  is  sooner  disposed  of.^'^  The  speci- 
fication or  statement,  duly  verified  by  the  objector,  or  his  attor- 
ney, may,  of  course,  be  made  in  the  first  instance,  dispensing 
^vith  the  affidavit.  No  time  is  specified  for  the  filing  of  the 
specification,  after  the  affidavit,  but  if  not  filed  before  the  stay 
expires,  letters  will  issue  of  course.  If  the  objections  are  directed 
to  the  competency  of  only  one  of  several  executors,  the  issue 
•of  letters  to  the  others,  not  objected  to,  will  not  be  stayed.^'' 

^  310.  Disposition  of  objections. —  The  surrogate  must  inquire 
into  an  objection  duly  filed,  for  which  purpose  he  may  receive 
proof,  by  affidavit  or  otherwise,  in  his  discretion;  and  if  it  ap- 
pears that  there  is  a  legal  and  sufficient  objection  to  any  person 
"  named  as  executor  in  the  will,''  the  letters  will  not  be  issued 


5T  O'Brien  v.  Neubert,  3  Dem.   161 ;  under    the    assignment    was    only    in- 

Mattor    of    Shipiiian,    25    St.    Rep.    5;  sisted  on  because  of  the  threat  of  a  son 

Matter  of  Cuttinsr,  o  Dem.  457  ;   Mat-  to  contest  the  will.    The  objection  was 

ter  of  Place,  4  id.  487;   105  N.  Y.  629.  overruled.    Executors  are  not  precluded 

In  Matter  of  Cuiuminji;  ( X.  Y.  Law  J.,  froni    acting    as    trustees    upon    other 

Dee.  12,  1801),  objection  was  made  to  trusts    for    other    beneficiaries,    if    the 

the  executrix  and   testamentary  trus-  transaction    is    not    inconsistent    with 

tee  that  she  claimed  the  whole  estate  the    dulies    they    owe    as    executors, 

by    virtue    of    an    alleged    assignment  (Barry  v.  Lambert,  98  N.  Y.  300.) 

made  to  her  by  the  testator.     She  al-  58  Co.  Civ.  Proc,  §  2636. 

leged  that  it  was  not,  and  never  was,  59  Co.  Civ.  Proc,  §  2636. 

her  intention  to  take  the  estate  under  60  It  was  otherwise  under  the  former 

the  assignment;   that  she  intended  to  statute.     (McGregor  v.  Buel,  24  N.  Y. 

respect   the   wishes   of   testator   as   in-  167.) 
•dicated  in  his  will,  and  that  her  claim 

17 


§§  311,  312.  Letters  Testamentary.  258 

to  him,  except  in  certain  cases  hereinafter  mentioned. ^'^  The 
statute  docs  not  define  "  a  legal  and  sufficient  objection ;"  hut 
it  evidently  includes  not  only  cases  of  absolute  disqualification 
as  above  mentioned,  but  others;  such  as  precarious  circumstances^ 
or  nonresidence,  which  are  made  grounds  for  the  revocation  of 
letters  testamentary.^" 

§  311.  Obviating  objections  by  giving  a  bond. —  Although  an 
objection  against  an  executor  has  been  established  to  the  satisfac- 
tion of  the  surrogate,  he  may  entitle  himself  to  letters  by  giving 
the  usual  bond,  in  the  following  cases:  "^  1.  Where  the  objection 
is,  that  his  circumstances  are  such  that  they  do  not  afford  ade- 
quate security  to  the  creditors,  or  persons  interested  in  the  es- 
tate, for  the  due  administration  of  the  estate.  2.  Where  the 
objection  is,  that  he  is  not  a  resident  of  the  State;  and  he  is  a 
citizen  of  the  United  States."  ^^  Where  objection  is  made  un- 
der the  first  head,  it  is  not  material  to  inquire  whether  the  testator 
was  aware  of  the  want  of  responsibility  in  the  executor  at  the 
time  of  making  the  will.  If  he  has  been  so  improvident  as  to 
commit  the  administration  of  his  estate  to  one  whose  circum- 
stances are  such  as  not  to  afford  adequate  security  for  the  faith- 
fid  discharge  of  his  trust,  the  court  must  interfere  for  the 
protection  of  the  estate.*^'*  The  executor  from  whom  a  bond  is 
required,  must  qualify,  and  his  sureties  must  justify,  as  in  the 
case  of  an  administrator  giving  bonds.  In  fixing  the  penalty 
of  the  bond,  the  surrogate  must  take  into  consideration  the 
value  of  the  real  property  or  the  proceeds  thereof,  which  may 
come  into  the  executor's  hands  under  the  will.^^ 

TITLE  FOURTH. 

ANCILLARY  LETTERS  ON  FOREIGN  PROBATE. 

§  312.  When  granted. —  It  has  always  been  the  practice  of  our 
probate  courts,  independently  of  any  statutory  authority,  to  ac- 
knowledge the  foreign  probate  of  a  will,  so  far  at  least  as  to 
follow  the  decree  of  the  foreign  court,  in  the  grant  of  probate, 
and  to  issue  letters  testamentary  here.  This  was  done  upon  the 
production  of  a  duly  exemplified  copy  of  the  probate  granted  by 


61  Co.  Civ.  Proc,  §  2637.     If  objec-  62  See  e.  XIV,  post. 
tion  can  be  made  only  to  an  executor  63  Co.  Civ.  Proc,  §  26.38.     See  Mont- 
named  in  the  will,  the  section  does  not  fort  v.  Montfort,  24  Hun.  120. 
apply  to  an  executor  who  is  not  named,  64  Wood  v.  Wood.  4  Paige.  299. 
but  only  constructively  appointed.  65  Co.  Civ.  Proc,  §  2645.    See  c.  XV. 


259  Letters  Testamentary.  §  312. 

the  proper  court  of  the  testator's  domicile.  Precedents  of  tliis 
practice  are  found  in  the  records  of  the  colonial  government  of 
this  State  of  a  remote  date."''  The  practice  has  been  confirmed 
by  statute.  The  Code  of  Civil  Procedure,  revising  and  amend- 
ing the  former  statutes  on  this  subject,  provides,  that  where  a 
Avill  of  personal  property,  made  by  a  person  who  resided  without 
the  State  "^  at  the  time  of  the  execution  thereof,  or  at  the  time 
of  his  death,  has  been  admitted  to  probate  by  a  competent  court, 
within  the  foreign  country,  or  within  the  State  or  Territory 
of  the  United  States,  where  it  was  executed,^  or  where  the  testa- 
tor resided  at  the  time  of  his  death,  the  Surrogate's  Court  having 
jurisdiction  of  the  estate  must,  upon  an  application  duly  made, 
accompanied  by  a  copy  of  the  will,  and  of  the  foreign  lettei-s,  if 
any  had  been  issued,  duly  authenticated,  record  the  will  and  the 
foreign  letters,  and  issue  thereupon  ancillary  letters  testamentary, 
or  ancillary  letters  of  administration  with  the  will  annexed,  as 
the  case  requires.*^^  The  application  must  be  nuide  upon  an  ex- 
emplified copy  of  the  will,  not  on  the  original  will  itself.'" 

It  will  be  noticed  that  the  Code  (§  2695)  gives  the  surrogate  ju- 
risdiction, in  a  proper  case,  to  grant  not  only  ancillary  letters 
testamentary,  but  also  ancillary  letters  of  administration  with 
the  will  annexed,  as  the  case  requires.  A  foreign  administrator 
Avith  the  will  annexed  may,  therefore,  apply  here  for  ancillary 
letters;  if  the  letters  testamentary  issued  in  another  State,  on 
\vhich    ancillary    letters    testamentary    have   been   granted   here, 


66  See  Isham  v.  Gibbons,  1  Bradf.  which  it  was  admitted  to  probate  and 
69.  As  to  the  powers  of  a  foreign  not  executed  within  that  State, 
executor  or  administrator  to  take  (Taylor  v.  Syme,  1(52  X.  Y.  513;  31 
charge   of    the   estate    here,    to    collect  Civ.   Proc.  Rep.   1.) 

and  release  debts,  etc.,  consult  Vroom  G9  Co.  Civ.  Proc.  §  2005.  as  amended 

V.  Van  Home,   10   Paige,   549;    Brown  1888.     As  to  manner  of  authentication, 

V.  Brown,  1  Barb.  Ch.   180;  Lawrence  see    §    2704,    as    amended    1888.      Co. 

V.    Lawrence,    3    id.    71;    Williams    v.  Civ.  Proc,  §  2705.  was  repealed  bv  L. 

Storrs,  6  Johns.  Ch.  353;   Doolittle  v.  1888,  c  495.     Ancillary  letters  may  be 

Lewis,  7   id.  49;   Chapman  v.   Fish,   6  issued  on  a  will  admitted  to  probate 

Hill,  554.      See  §  518.  post.  by  the  court  of  a  United  States  con- 

67  See  Matter  of  Thompson,  1  Civ.  sulate-general.  {Matter  of  Taintor.  5 
Proc  Rep.  264.  The  court  must  be  Redf.  79.)  Before  the  amendment  of 
satisfied  that  the  testatrix,  at  the  1888,  besides  a  copy  of  the  will  and 
time  of  her  death  or  of  the  execution  copy  of  the  letters'  the  judgment  or 
of  the  will,  resided  without  th.e  State;  decree  admitting  it  to  probate  had  to 
the  motion  will  not  be  granted  on  afli-  be  produced.  (Brown  v.  London,  4 
davits,  but  a  reference  should  be  had  Civ.  Proc  Rep.  11.)  The  effect  of  the 
to  ascertain  the  facts.  (  Matter  of  amendment  is  to  supersede,  among 
Cavin.  1  Connoly,  117.)  other  cases.  Matter  of  Hudson.  5  Redf. 

68  A  Surrogate's  Court  of  this  State  333;  and.  in  part.  :^Latter  of  Thomp- 
lias  no   power   to  grant   ancillary  let-  son.  1  Civ.  Proc.  Rep.  264. 

ters  upon  a  foreign  probate  of  a  will,  "O  Matter  of  Thompson,  1  Civ.  Proc. 

made  by  a  nonresident  of  the  State  in  Rep.  264. 


§  313.  Letters  Testamentary.  260 

have  Leon  revoked,  the  latter  fall  with  the  revocation  of  the 
foreign  letters;  and  the  administrator  with  the  will  annexed  ap- 
pointed by  the  foreign  tribnnal,  on  the  removal  cf  the  executors, 
is  entitled  to  letters  here  without  notice  to  the  deposed  executors."^ 

g  313.  Application,  where  made. —  The  application  must  be 
made  to  ''  the  Surrogate's  Court  having  jurisdiction."  Jurisdic- 
tion is  acquired  l)y  the  existence  of  assets  in  the  county  of  the 
surrogate. ^^  The  word  ''  assets  "  is  defined  to  signify  "  personal 
property  applicable  to  the  payment  of  the  debts  of  the  decedent." 
It  is  the  actual  existence  or  location  of  such  personal  property  in 
the  county  which  determines  the  question  of  jurisdiction;  and 
where  the  asset  consists  of  a  bond  belonging  to  the  estate,  the 
county  in  which  the  instrument  actually  is,  and  not  the  county 
where  the  obligor  resides,  is  the  proper  county  in  which  to  apply 
in  such  a  case.  A\^iere,  therefore,  a  resident  of  another  State 
died  there,  leaving  a  will  wdiich  was  admitted  to  probate  there, 
and  owning  a  bond  in  a  county  of  this  State,  the  Surrogate's 
Court  of  that  county  was  held  to  be  the  "  court  having  jurisdic- 
tion of  the  estate,"  for  the  purpose  of  issuing  letters,  under  the 
original  of  the  foregoing  provision.^^  As  the  statute  which  re- 
lates to  the  grant  of  ancillary  letters  on  foreign  probate  applies 
only  to  wills  of  personal  property,  it  is  not  necessary  upon  an 
application  to  show  that  the  w411  in  question  was  executed  ac- 
cording to  the  laws  of  this  State,  nor  is  it  necessary  that  letters 
should  have  been  granted  upon  the  will,  in  the  State  wdiere  it 
was  admitted,  but  the  petition  must  show  that  the  surrogate  has 
jurisdiction.''*  The  petition  should  set  forth  the  names  of,  and 
(if  known)  the  indebtedness  due,  or  claimed  to  be  due,  to  cred- 
itors residing  in  this  State;  a  failure  to  do  so  being  fatal  to  the 
application.'^^  The  statute  relating  to  taxable  transfers  '^'^  pro- 
vides   that    every    petition    for    ancillary    letters,    whether    testa- 

71  Matter  of  Gilleran.  .50  Hun.  399.  Matter  of  Langbein.  1  Dem.  448.     The 

"2  Evans    v.    Schoonmaker,    2    Dem.  fact  that  the  petition  states  that  the 

249 ;  Hendriekson  v.  Ladd.  id.  402.    An  will  was  executed   in  the  State  where 

appointment    is     proper,     though     the  probate  was  granted,   will   not  confer 

only  asset  is  a  claim  against  the  ap-  jurisdiction,   where    the    transcript   of 

plicant's    husband    then    in   litigation,  the     record     which     accompanied     it 

which  had  resulted  in  a  judgment  in  showed     the     fact     to     be     otherwise, 

his  favor  from  which  an  appeal  was  (Taylor  v.   Syme,   162  N.  Y.   513;    31 

pending.     (Matter  of  Place,  4  St.  Rep.  Civ.Proc.  Rep.  1.) 

533.)  75  Hendriekson  v.  Ladd,  2  Dem.  402; 

73  Beers  v.   Shannon,   73  N.  Y.  292.  Estate    of    Winnington,    1    Civ.  Proc. 

See  Co.  Civ.  Proc,  §  2478;  Matter  of  Rep.  267. 

Place,  supra.  76  L.  1896,  c.  908,  §  229,  as  amended 

74Por  requisite  facts  to  give  juris-  by  L.   1901,  c.   173. 
diction,    see   Co.    Civ.    Proc.,    §    2476; 


2G1  Lettkks  Testamkxtary.  §§314,315. 

mentary  or  of  administration,  shall  set  forth  the  name  of  the 
county  treasurer  or  the  State  comptroller  (according  as  the  office 
of  appraiser  is  salaried  or  otherwise),  and  a  true  and  correct 
statement  of  all  the  decedent's  property  in  the  State  and  the  value 

thereof. 

^  314.  The  hearing;  citation,  etc. —  As  the  chief  object  of  the 
statute  authorizing-  ancillary  administration  is  to  protect  the  claims 
of  domestic  creditors,'"  the  surrogate  is  required,  upon  the  presen- 
tation of  a  petition  for  ancillary  letters  ujxjn  a  foreign  probate,  to 
ascertain,  to  his  satisfaction,  whether  any  creditors,  or  persons 
claiming  to  be  creditors,  of  the  decedent,  reside  witbin  the  State ; 
and  if  so,  the  name  and  residence  of  each  creditor,  or  person  claim- 
ing to  be  a  creditor,  so  far  as  the  same  can  be  ascertained.  Unless 
such  creditors  shall  file  duly  acknowledged  waivers  of  the  issuance 
and  service  of  citation,  he  must  thereupon  issue  a  citation,  directed 
to  each  person  whose  name  and  residence  have  been  so  ascertained ; 
and  also  directed  generally  to  all  creditors,  or  persons  claiming  to 
be  creditors,  of  the  decedent.  Any  sucli  person,  although  not 
cited  by  bis  name,  may  appear  and  contest  the  application,  and  thus 
make  himself  a  party  to  the  special  proceeding. ^^  The  citation 
should,  under  the  Transfer  Tax  Law,  also  be  issued  to,  and  served 
upon,  the  county  treasurer  in  counties  in  which  the  office  of  ap- 
praiser is  not  salaried,  and  in  other  counties,  the  State  comp- 
troller.'^ The  personal  names  and  residences  of  the  creditors,  not 
the  names  of  the  firms  of  which  they  arc  members,  must  be  given. ^'^ 

§  315.  To  whom  letters  will  be  granted. —  Where  the  will  spe- 
cially appoints  one  or  more  executors,  with  respect  to  personal 
property  situated  within  this  State,  the  ancillary  letters  testament- 
ary must  be  directed  to  the  person  so  appointed,  or  to  those  who 
are  competent  to  act  and  qualify.  If  all  are  incompetent,  or  fail 
to  qualify,  or  in  a  case  where  such  an  appointment  is  not 
made,  ancillary  letters  testamentary,  or  ancillary  letters  of  ad- 
ministration, will  be  '^  directed  to  the  person  named  in  the  foreign 
letters;  or  to  the  person  otherwise  entitled  to  the  possession  of 
the  personal  property  of  the  decedent,  unless  another  person  ap- 
plies therefor,  and  files,  with  lii'^  petition,  an  instrument,  executed 
by  the  foreign  executor,  or  administrator,  or  other  person  entitled 
as  aforesaid ;  or,  if  they  are  two  or  more,  by  nil  who  have  quali- 

77  Mover  v.  Weil,  1  Dem.  71.  79  L.  1800.  c.  008.  §  220.  as  amended 

78  Co.' Civ.  Proc,  §  2698.  as  amended    l«v  L.  1001.  o.  173. 

1899.  80  Matter  of  Thompson,  1  Civ.  Proc. 

Rep.  264. 


§§  310,  317.  Letteks  Testamentary.  262 

fied  and  are  acting;  and  also  acknowledged  or  proved,  and  certified, 
in  like  manner  as  a  deed  to  be  recorded  in  the  county,  authorizing 
the  petitioner  to  receive  such  ancillary  letters."  ^^  In  that  case  the 
surrogate  must,  if  the  petitioner  is  a  fit  and  competent  person,  is- 
sue such  letters  to  him.  Where  two  or  more  persons  are  named  in 
the  foreign  letters,  or  in  an  instrument  executed  as  above  pre- 
scribed, the  ancillary  letters  may  be  directed  to  either  or  any  of 
them,  without  naming  the  others,  if  the  others  fail  to  qualify,  or 
if,  for  good  cause  shown  to  the  surrogate's  satisfaction,  the  decree 
ao  directs. ^^ 

§  316.  Penalty  of  the  bond  required. —  The  names  of  creditors' 
are  required  to  be  ascertained  before  the  issue  of  citation,  so  that 
the  same  when  issued  may  be  served  on  them ;  after  the  return  of 
the  citation,  duly  served,  the  amount  of  debts  due  or  claimed  to  be 
duo  from  decedent  to  resident  creditors  are  then  to  be  ascertained, 
as  nearly  as  possible,  by  the  court,  with  a  view  of  fixing  the  pen- 
alty of  the  bond  to  be  given  by  the  ancillary  administrator.  The 
policy  of  our  statute  in  respect  to  the  security  to  be  exacted  of  an 
ancillary  administrator,  is  directed  to  insuring  the  distribution  to 
the  creditors  of  the  intestate,  residing  here,  of  their  ratable  share 
of  his  estate.  Such  being  the  case,  it  has  been  thought  that  a  bond 
"  in  a  sum  not  exceeding  twice  the  amount  which  appears  to  be 
due  from  the  decedent  to  residents  of  this  State,"  ^"  was  all  that 
the  court  could  require  of  an  ancillary  executor  or  administrator;^'* 
but  it  is  now  settled  that  the  surrogate's  power  is  not  limited  to 
requiring  a  bond  in  that  penalty,  but  he  may  require  a  bond  in  a 
penalty  of  double  the  value  of  the  personal  property  in  this  State, 
the  statute  intending  to  give  a  discretion  to  modify  the  general  rule 
with  regard  to  the  amount  of  the  penaltv  of  an  administrator's 
bond.^'  ^ 

§  317.  Assets  here,  how  disposed  of. —  It  is  made  the  ancillary 
executor's  duty,  "  unless  he  is  otherwise "  directed,  to  transmit 
the  money  and  other  personal  property  of  the  decedent,  received 
by  him  after  the  letters  are  issued,  or  then  in  his  hands  in  another 
capacity,  to  the  State  or  Territory  where  the  principal  letters  were 

81  Co.  Civ.  Proc,  §  2697.  taken  out  ancillary  letters  here.     See 

82  The  power  of  the  courts  here,  over    c.  XVII,  post. 

the  person  to  whom  the  ancillary  let-  83  Co.  Civ.  Proc.  §  2699. 

ters  are  issued,  and  his  rights,  powers,  84  Matter    of    McEvoy.    3    Law    Bui. 

duties,    and    liabilities,    will    be    con-  31  :   Matter  of  ^Muscfrave.  5  Dem.  427. 

sidered  hereafter.     We  shall  also  have  85  Matter   of   Prout,    128    N.    Y.    70; 

occasion  to  speak  of  the   rights,   etc.,  38   St.  Rep.  257. 

of  foreign  executors,  etc.,  who  have  not 


'J()o  Letters  Testamentary.  §  318. 

granted,  to  Le  disposed  of  pursuant  to  the  laws  thereof.  ITe  may 
be  directed  otherwise  to  dispose  of  such  property,  either  in  the 
decree  awarding  the  letters,  or  in  a  decree  made  upon  an  account- 
ing, or  by  an  order  of  the  surrogate  made  during  the  administra- 
tion of  the  estate,  or  by  the  judgment  or  order  of  a  court  of  record 
in  an  action  to  whicli  tlie  administrator  is  a  party ;  and  money  or 
other  property  transniitted  to  the  intestate's  domicile,  at  any  time 
before  he  is  so  directed  to  retain  it,  must  be  allowed  to  him  upon 
an  accounting.®^  It  is  discretionary  whether  the  court  will  direct 
administration  upon  local  assets,  or  will  order  their  transmission 
to  the  foreiaii  jurisdiction.®^ 

§  318.  Rights,  powers,  etc. —  The  rights,  powers,  duties,  and  lia- 
bilities of  an  ancillary  executor  or  administrator,  where  not  spe- 
cially regulated,  are  governed  by  the  rules  contained  in  the  Code 
applying  to  a  domestic  executor  or  administrator  in  chief,®^  unless 
a  different  intent  is  therein  expressed  or  implied ;  except  that  he 
has  no  power  or  duty  in  respect  to  the  disposition  of  his  intestate's 
real  property  situated  here,  for  the  ])ayment  of  debts  or  funeral 
expenses.®^  While  it  is  true  that  the  administration  of  the  de- 
cedent's domicile  is  the  principal  one,  and  others  ancillary  only, 
yet,  where  the  former  administration  has  been  completed  by  the 
distribution  of  the  assets,  and  the  principal  administration  has 
been  discharged,  it  may  be  said,  we  think,  that  the  ancillary  ad- 
ministrator here  becomes,  to  the  extent  of  the  assets  in  his  hands, 
a  principal  administraor,  wath  full  powers  as  such.  The  Surro- 
gate's Court,  or  any  court  of  this  State,  which  has  jurisdiction 
of  an  action  to  procure  an  accounting,  may,  in  a  proper  case,  by 
its  judgment  or  decree,  direct  the  ancillary  executor  or  adminis- 
trator to  pay,  out  of  the  money  or  the  avails  of  the  property  re- 
ceived by  him  under  the  ancillary  letters,  and  with  which  he  is 
chargeable  under  his  accounting,  the  debts  of  the  decedent  due 
to  creditors,  residing  within  the  State;  or,  if  the  amount  of  all 
the  decedent's  debts,  here  and  elsewhere,  exceed  the  amount  of  all 
the  deeedent'&  personal  property  applicable  thereto,  to  pay  such  a 

8GC0.  Civ.  Proo..  §  2700.     Soo  Mat-        «« Smith  v.   Second  Xat.   Tlnnk.   IfiO 

ter  of  Conklinnr,  15  St.  Rop.  748.  N.  Y.  467:  62  N.  E.  577.     In  that  case 

87  Dospard    v.    Churchill.    5.3    N.    Y.  it  was  held  that  he  niifiht  pledfje  the 

102:    ]\Iatter    of    Iluj^hes.    05    id.    55;  property  of  the  estate  in  anticipation 

Matter   of   Hepemann.   22   Daily   Rej;.,  of  income. 

No.  20:  Crnm  v.  Bliss,  1  Law  Bui.  68;        80  Co.  Civ.  Proc.  §  2702.     Ancillary 

Oummings    v.    Banks.    2    Barh.    602:  letters  do  not  authorize  the  sale  of  real 

Trimble   v.   Dzieduzviki.   57    How.   Pr.  property.       (Hendrickson    v.    Ladd,    2 

208.      See   INIatter    of    Dunn.    30    App.  Dem.  402.) 
Div.  510-  Sorzano  v.  Coudert,  28  Misc. 
C77. 


g  319.  Letters  Testamentary.  264r 

sum  to  eacli  creditor,  residing  witliin  this  State,  as  equals  that 
creditor's  share  of  all  the  distributive  assets,  or  to  distribute  the 
same  among  next  of  kin,  or  otherwise  dispose  of  the  same,  as  jus- 
tice requires.^'^ 

The  office  pertains  to  personal  property  only.  Hence  an  an- 
cillary executor  of  a  will,  containing  a  joower  of  sale  of  real  estate, 
which  he  executed,  is  not  entitled,  on  his  accounting,  to  commis- 
sions on  the  proceeds,  inasmuch  as  he  made  the  sale  as  the  donee 
of  a  power  in  trust,  and  not  by  virtue  of  his  office  as  ancillary 
executor.''^ 

TITLE  FIFTH. 

LETTERS    TO    TESTAME^'TARY    TRrSTEES. 

§  319.  Executor's  and  trustee's  functions  distinguished. —  The 
office  of  an  executor,  and  that  of  a  testamentary  trustee,  are  es- 
sentially distinct,  although  not  unfrequently  the  same  person  i* 
appointed  both  executor  and  trustee.  In  the  former  capacity, 
it  is  his  duty  to  collect  the  property  and  pay  the  debts  and  lega- 
cies; in  the  latter,  he  is  called  upon  to  invest  and  manage  a 
particular  fund  or  trust  estate,  in  accordance  with  the  directions 
of  the  wall.  Where  the  will  indicates  the  intention  of  the  tes- 
tator to  give  his  trustees  a  distinct  and  independent  character, 
the  probate  of  the  will  does  not  make  the  executors  trustees  also, 
unless  they  accept  the  trust  as  such  and  qualify  accordingly.^^ 
But  where  the  will  appoints  a  person  executor,  and  then  im- 
poses upon  him,  as  such,  the  execution  of  a  trust,  then  the  ap- 
pointee, by  proving  the  will  and  qualifying  as  executor,  will  be 
deemed  to  have  accepted  the  trust;  and  he  is  accountable  in  each 
capacity  separately.  It  is  as  if  two  different  persons  had  been, 
appointed  to  the  two  offices.  But  there  is  nothing  to  prevent  a 
person  who  is  named  both  executor  and  trustee  from  accepting 
one  office  and  renouncing  or  disclaiming  the  other. ®^  The  pre- 
sumption of  an  acceptance  of  a  trust,  arising  from  the  accept- 
ance of  the  office  of  executor  may  be  overcome  by  proof  that 

90  Co.  Civ.  Proc,  §  2701.  See  Suarez  guardian,  who  is  designated  by  a  will, 
V.  The  Mayor,  2  Sandf.  Ch.  173;  Par-  or  by  any  competent  authority,  to  exe- 
sons  V.  Lyman,  20  N.  Y.  103;  Despard  cute  a  trust  created  by  a  will.  It  also 
V.  Churchill.  53  id.  192.  includes   such   an   executor   or   admin- 

91  Matter  of  Deitsch,  N.  Y.  Law  J.,  istrator,  where  he  is  acting  in  the  exe- 
June  25,  1890.  cution  of  a  trust  created  by  the  will, 

92  De  Peyster  v.  Clendining,  8  Paige,  which  is  separable  from  his  functions 
295.  As  used  in  the  Code,  a  "testa-  as  executor  or  administrator.  (Co. 
mentary  trustee"   includes  every  per-  Civ.  Proc,  §  2514,  subd.  6.) 

son  except  an  executor,  an  administra-  93  Wms.  on  Exrs.  (6th  Am.  ed.) 
tor    Avith    the    will    annexed,    or    a    1894,  note  1. 


265  Lettkks  Tkstamkxtary.  §  320. 

the   trust  was  declined,   and  one  may   (Id   this  as  effectually  by 
words  or  acts,  without  deed,  as  by  a  deed."'* 

Until  1850,  Surrogates'  Courts  did  not  possess  jurisdiction,  hy 
statutory  proyision  at  least,  over  testamentary  trustees  as  such. 
Tlio  jurisdiction  has  been  extended  from  time  to  time  since  that 
date,  ami  is  greatly  enlarged  l)y  the  Code  of  Civil  Procedure. 
A  statement  of  the  nature  and  limits  of  this  new  jurisdiction  is 
reserved  for  future  consideration.'^^  It  is  proper,  however,  to 
speak  in  this  place  of  the  authority  of  the  court  to  make  a  grant 
of  letters  to  testamentary  trustees. 

§  320.  Executor  need  not  separately  qualify  as  trustee. —  As  was 
said,  above,  a  person  who  accepts  the  otiice  of  executor  by  qualify- 
ing and  receiving  letters  will  be  deemed  by  that  act  to  have  ac- 
cepted the  duty  of  executing  any  trusts  which  the  will  has  con- 
fided to  him.  He  is  not  required  to  take  any  additional  oath  of 
office;  nor  is  it  necessarv'  that  the  letters  testamentary  directed 
to  him,  should  designate  his  character  or  function  as  trustee,  as 
distinguished  from  that  of  executor.  So  also  his  bond  as  execu- 
tor, where  one  is  required  of,  and  given  by  him,  will  be  held 
as  security  for  the  faithful  performance  of  his  duties  as  trustee. 
In  case,  however,  the  will  contemplates  that  the  executor  (is  such 
is  to  perform  only  the  ordinary  duties  of  an  executor,"  and  that 
when  the  estate  is  settled  by  him,  another  duty  is  to  arise,  to 
be  performed  either  by  him  or  by  another,  then,  it  is  said,  the 
bond  of  the  executor  is  not  security  for  those  further  duties.'**^ 
The  designation  of  persons  named  to  execute  a  will  as  "  trustees  " 
does  not  constitute  them  such,  unless  the  will  creates  trusts  for 
them  to  execute,  but  in  order  to  ascertain  the  intention  of  the 
testator,  the  whole  will  and  all  its  parts  must  be  taken  into  con- 
sideration. A  provision  in  a  will  for  qualification  by  ])ersons 
therein  designated  "  executors  and  trustees,"  neo-atives  the  infer- 


9-1  In  Green  v.  Green   (4  Rodf.  S57),  the  interest  of  the  fund  to  D.,  and  to 
A..    B.,   and   C.    were   appointed    exec-  account,   it  was  held   that   A.,   hy   ac- 
iitors  of  a   will,  and  A.   and   B.   were  cepting  the  office  of  executor,  had  not^ 
also   appointed    tlierein    trustees   of   a  under  the  circumstances  of  this  case, 
fund,  to  pay  the  interest  thereof  to  D.  assumed    the    duties    of    trustee:    and 
for  life,  with  power  to  make  advances  never  havinp:  received  or  intermeddled 
to  him  out  of  the  principal.     A.  alone  with  the  trust  fund,  he  was  not  liahie 
qualified   as  executor.     T).   objected  to  therefor    to   the   beneficiary:    that    the 
A.'s    actinjj   as   trustee,   and    the    fund  payment  by  A.,  out  of  his  own  jiocket, 
was.  at  D."s  request,  held  and  manajjed  of  money  to  D..  for  his  support,  was- 
hy B..   who   paid   D.   the   interest  and  immaterial, 
part     of    the    principal.       lY^n     B.'s  ^'^  See  c.  XVTT.  post. 
death.    A.    advanced,    out    of   his    own  Ofi  Perry  on  Trusts,  §  262.  and  cases 
funds,   money   for   the    support   of   D.  cited. 
Upon  a   motion  to  compel  A.  to   pay 


I  321,  Letters  Testamentary.  266 

€nce  of  an  intention  to  constitute  a  trust,  in  the  technical  sense 
of  that  word.''' 

§  321.  Letters  of  trusteeship  not  necessary. —  A  different  ques- 
tion arises  in  case  the  ofHce  of  trustee  is  conferred  by  the  will 
upon  a  person  other  than  the  executor.  The  will  may  specifically 
devise  or  bequeath  a  part  of  the  estate  to  one  person,  in  trust 
for  particular  objects,  and  confide  the  remainder  of  the  estate 
to  another,  as  executor,  for  general  administration;  or  it  may 
confide  the  Avliole  estate  to  the  executor,  to  collect  the  same,  and, 
after  paying  debts  and  legacies,  to  hand  oyer  the  residuum  or  a 
part  of'  it,  to  another  person,  in  trust,  to  invest  and  manage.  In 
the  latter  case,  the  trustee  does  not  require,  as  evidence  of  his 
authority  to  receive  it,  any  formal  grant  of  letters  by  the  surro- 
gate. The  executor,  before  paying  over  the  fund,  will,  for  his 
own  protection,  see  to  it  that  the  trustee  is  competent  and  quali- 
fied to  accept  the  trust.  Having  once  accepted  it,  he  thenceforth 
becomes  subject  to  the  direction  and  control  of  the  Surrogate's 
Court,  and  may  be  required,  in  a  proper  case,  to  furnish  security 
and  to  render  an  account  of  his  proceedings  as  trustee.  The  stat- 
ute nowhere  confers  upon  Surrogates'  Courts  any  authority  to 
issue  letters  to  a  testamentary  trustee,  nor  to  appoint  such  a 
trustee,  except  in  the  cases  of  the  resignation,  death,  lunacy,  or 
removal  of  a  testamentary  trustee,  when  the  trust  has  not 
been  fully  executed.  They  may,  in  such  cases,  "  appoint  his 
successor."  ^*  AVe  believe  there  is  no  precedent  of  a  grant  of  let- 
ters of  trusteeship,  upon  the  probate  of  a  will,  to  a  person  other 
than  the  executor;  nor  of  any  proceeding  in  the  Surrogate's 
Court,  similar  to  those  in  the  case  of  executors,  to  compel  a 
person,  named  trustee  in  a  will,  to  appear  and  qualify  within  a 
time  stated,  or  be  superseded.  The  remedy  of  the  cestuis  que 
trust,  in  such  a  case,  is  in  the  law  courts.  Xor,  it  would  seem, 
has  the  Surrogate's  Court  any  authority  to  accept  the  renun- 
ciation or  disclaimer  of  a  person  named  trustee,  and  appoint 
another  in  his  stead;  nor,  to  appoint  one  to  fill  the  place  of  a 
nominated  trustee  who  died  before  the  probate  of  the  will.  The 
court  can  appoint  only  ''  a  successor  "  of  a  person  who  has  once 
been  trustee. ^^ 

9T  Bacon  v.  Bacon.  4  Dem.  5.  .5   Redf.   4G6 ;    Matter   of  Post.   30   St. 

9sCo.  Civ.  Proc.  §  281S.     As  to  ap-  Eep.  217. 
pointment  of  a  successor  to  a  deceased        99  Under    L.    1882.    c.    18.5,    entitled 

sole  trustee  cf  an  r.rpi-rfts  trust,  see  L.  "An  act  in  relation  to  trustees  of  per- 

1882,0.185.    See  also  Matter  of  C:ark,  sonal    estates,"    and   L.    1884,   c.    408, 


2G7  Lkttkij«  Tkstamentauy.  §§  323,  324. 

g  322.  On  appointing  a  successor. —  TIk'  dcereo  appointini:'  the 
successor  to  carry  out  the  unexecuted  trusts  of  the  will  is,  of  it- 
self, a  sufficient  warrant  of  authority  to  the  trustee  to  act,  and 
vests  the  trust  estate  in  liiiii,  without  the  issue  of  formal  letters, 
which  are  merely  evidence  of  his  authority,  and  not  the  source 
of  it.  Without  douht,  however,  the  surrogate  may.  and  in  some 
cases  it  may  he  dc-iralilc  that  he  should,  upon  ajijilication,  is- 
sue formal  letters  to  the  successor  thus  ajipointed,  upon  his  ac- 
cejitance  of  the  ajijiointment,  and  (jualifving.  A  hond  may  be 
n'([nii'cd  of  such  ap])nintce  in  cases  where  an  executr)r  wouhl 
be  reipiired  to  furnish  security;^  and  he  may  be  required  to 
subscribe  and  file  an  oath  of  office,  although  the  statute  is  silent 
on  the  subject. 

TITLE  SIXTH. 

FORCE  AND  EFFECT  OF  LETTERS. 

§  323.  Reckoning  time  upon  successive  letters Where  it  is  pre- 
scribed that  any  act,  with  respect  to  the  estate  of  a  decedent, 
must  or  may  be  done  within  a  specified  time  after  letters  are 
issued,  and  successive  or  supplementary  letters  are  issued  u])on 
the  same  estate,  the  time  so  specified  must  be  reckoned  from 
the  issuing  of  the  first  letters,  except  in  a  case  M'liere  it  is  other- 
wise specially  prescribed  l\v  law ;  or  where  the  first  or  any  sub- 
sequent letters  are  revoked,  under  section  2BS4  of  the  Code,  or 
bv  reason  of  the  want  of  power  in  the  Surrogate's  Court  to  issue 
them  for  any  cause. ^ 

§324.  Priority  among  different  letters. —  The  person  or  persons 
to  whom  letters  testamentary,  or  letters  of  administration,  are 
first  issued,  bave  sole  and  exclusive  authority,  as  executors  or 
administrators,  ]iursuant  to  the  letters,  until  the  letters  are  regu- 
larly revoked.  They  are  entitled  to  demand  and  recover  from 
any  person,  to  whom  letters  upon  the  same  estate  are  afterward 
issued  by  any  other  Surrogate's  Court,  the  decedent's  property 
in  his  bands.  But  the  acts  of  a  person,  to  wbom  letters  were 
afterward  issued,  done  in  good  faith,  before  notice  of  the  letters 
first  issued,  are  valid;  and  an  action  or  special  proceeding,  com- 

Te-enactin<?  Co.  Civ.  Proc,  §  2818.  the  Burke.  1  St.  Rep.  .316:  Matter  of  Sis- 
Supreme  Court  and  Surrocates'  Courts  tare.  X.  Y.  Law  J..  Oct.  2;i.  ISflO.  The 
have  concurrent  jurisdiction  over  the  proceedincfs  for  the  removal  of  a  tes- 
ap])ointmeiit  of  a  successor  to  a  de-  tamentary  trustee  are  detailed  in 
censed  sole  testamentarv  trustee,  c.  XTV.  tit.  4.  post. 
(Matter  of  Valentine.  .3  Bern.  .563.)  2  Co.  Civ.  Proc.  §  2.503.  See  Slocum 
ICo.  Civ.  Proc,   §  2815;   Matter  cf  v.  English.  02  X.  Y.  494.   • 


§  325.  Letters  Testamentary.  268 

meiiced  by  him,   may  be  continncd  by   and  in  the  name  of  the 
l^erson  or  persons  to  wlioni  the  letters  were  first  issued.^ 

§  325.  Effect  of  letters  as  evidence. —  The  subject  of  the  eon- 
chisive  effect  of  a  judicial  determination  of  a  Surrogate's  Court, 
in  matters  of  probate  and  administration,  has  already  been  dis- 
cussed.'^ In  regard  to  the  effect  of  the  letters,  as  evidence  of  the 
authority  of  those  to  whom  they  are  issued,  the  statute  declares 
that,  except  in  the  case  of  different  letters,  as  above  provided 
for,  letters  testamentary  are,  like  letters  of  administration,  and 
letters  of  guardianship,  when  granted  by  a  court  or  officer  hav- 
ing jurisdiction  to  grant  them,  "  conclusive  evidence  of  the  au- 
thority of  the  persons  to  whom  they  are  granted,  until  the  de- 
cree granting  them  is  reversed  upon  appeal,  or  the  letters  are 
revoked."^ 

3  Co.  Civ.  Proc,  §  2.592.  Crozier  v.   Cornell   Steamboat   Co.,  27 

4  See  ante,  §   247  ct  seq.  Hun,  21.5;  Brown  v.  Landon,  30  id.  57 ; 

5  Co.  Civ.  Proc.   §   2591;   Abbott  v.  Sullivan  v.  Tiopra  R.  R.  Co.,  7  St.  Rep. 
Ciirran,    98    N.    Y.    fiG5:    Lombard    v.  627;  12  Civ.  Proc.  Rep.  301. 
Cohmibia  Steam  Nav.  Co.,  84  id.  48; 


CTTAPTER  X. 


ADMINISTRATION  WITH  THE  WILL  ANNEXED. 

§  326.  In  general, —  in  the  ])rccc(liiiii'  (•lia])r('r,  we  considered 
the  case  of  a  decedent  leaving  a  will  wliidi  aiiihorizes  the  selection 
of,  or  nominates,  as  executor,  a  person  who  is  competent  and 
willing  to  serve,  and  does  serve,  in  that  capacity.  But  cases 
may  arise  where  the  will  fails  to  appoint  an  executor,  or  where 
the  appointment  fails  to  take  effect,  or  where  the  execntorshij) 
"becomes  vacant  before  the  personal  estate  of  the  testator  is  com- 
pletely administered.  The  administration  of  the  estate,  under 
the  directions  of  the  will,  is  not  affected  by  the  omission  to 
appoint  an  executor,  or  by  the  failure  of  the  appointment  to 
take  effect,^  or  by  the  office  of  executor  becoming  vacant.^  In 
such  a  case,  however,  it  becomes  necessary  for  the  surrogate  to 
appoint  a  suitable  person  to  perform  the  will  of  the  testator, 
30  far  as  it  properly  can  be  done  by  one  to  wdiom  he  has  not 
confided  the  trust.  The  person  so  appointed  receives  letters  of 
administration  with  the  will  annexed,^  and  thereupon  proceeds 


1  In  each  case  the  deceased,  in  the 
language  of  the  books,  is  said  to  die 
qiKtsi  intestatus  (Wms.  on  Exrs.  4t)l), 
but  that  phrase  does  not  imply  that 
the  testator  did  not  make  a  valid  dis- 
position of  all  his  i)roperty.  The  tech- 
nical distinction  between  a  will  and 
a  testament  -svas  that  the  ajjpointmont 


the  successor  in  interest  of  the  surviv- 
ing executor:  and  has,  subject  to  the 
direction  of  the  court,  the  like  i>ower 
as  an  administrator  with  the  will  an- 
nexed. (Co.  Civ.  Proc,  §  180!).  as 
amended  1895;  revising  L.  1863, 
c.    4(10,   §   1.) 

The  original  act  was  held  not  to  su- 


of  an  executor  was  essential  to  the  jiersede  the  power  or  duty  of  the  sur- 
latter,  and  it  was  anciently  even  held  rogate  to  appoint  an  administrator 
that,  without  the  appointment  of  an  with  the  will  annexed,  even  after  tlie 
executor,  a  will  was  void,     (lb.) 

2  Where  the  estate  of  a  decedent  has 
been  brought  under  the  jurisdiction  of 
the  Supreme  Court,  by  an  action  for 
partition  or  distribution,  or  for  the 
construction     or     establishn.ent    of     a 


appointment,  by  the  Sui)reme  Court, 
of  a  receiver  of  the  same  estate.  (De 
Pan's  Estate.  1   Tuck.  -lUO.) 

3  Where  an  administrator  of  the  es- 
tate of  an  intestate  dies  before  he  has 
administered  all  the  etrects.  the  grant 


will,  the  court  may.  upon  the  death  of  of  letters  is  entitled  "  administration 

the  sole  surviving  executor,  ajjpoint  a  dc  bonis  non,"  —  i.  e.,  administration 

receiver  of  the  estate,  ])ending  the  ac-  of  the  goods,  etc.,  left  unadministered. 

tion,  upon  such  terms  and  conditions,  This  phrase  should  not  be  used  with 

■and   ui)on   such   notice   to   the   parties  res])ect   to  a  ]ierson  appointed  to  suc- 

interested,    as    the    court    directs,    and  ceed  either  an  executor,  or  an  admin- 

upon   such  security,  if  any,  as  to  the  istrator    with    the    will    annexed,    as 

co\irt  seems  pro])er.     For  the  purpose  the  latter  term  is  the  proper  appella- 

of   carrving   into   effect   the   judgment  tion  of  such  an  officer.     (See  Co.  Civ. 

and  orders  of  the  court,  in  relation  to  Proc,  §  2643.) 
the  estate/ a  receiver  so  appointed  is 

[269] 


§  327.       Administration  With  tiik  Will  Axxexed.  270 

to  administer  the  personal  estate.  Administration  with  the  will 
annexed  is  frequently  distinguished,  in  the  statutes,  from  an 
ordinary  administration  in  case  of  intestacy;  but  the  term  "  ad- 
ministrator," when  used  in  the  statute,  unless  a  different  mean- 
ing is  expressly  or  ini])liedly  indicated,  is  to  be  considered  as  in- 
cluding an  administrator  with  the  will  annexed,  especially  w^here 
this  construction  is  necessary  to  secure  the  control  of  the  surro- 
gate, and  the  just  and  proper  responsibility  of  the  administrator.* 
For  this  purpose,  he  has  the  ordinary  powers  of  an  administrator 
appointed  in  a  case  of  intestacy,  so  far  as  they  do  not  conflict 
with  the  directions  of  the  will;  but  he  does  not,  by  his  appoint- 
ment, acquire,  in  every  instance,  the  rights  and  powers  conferred 
In-  the  will  on  the  person  who  is  nominated,  or  whose  selection- 
is  authorized  thereby.^ 

§  327.  When  letters  are  issuable. —  The  cases  in  which  the  sur- 
rogate has  power  to  appoint  an  administrator  with  the  will  an- 
nexed are  specified  in  the  Code,  He  is  authorized,  and,  upon 
proper  application,  is  required,  to  make  such  an  appointment,  if 
no  person  is  named  as  executor  in  the  will,  or  selected  by  virtue 
of  a  power  contained  therein;  or  if,  at  any  time,  by  reason  of 
death,^  incompetency  adjudged  by  the  surrogate,'  express  renun- 
ciation,^ or  renunciation  implied  from  failure  to  qualify,  or  to 


^Ex  p.  Brown,  2  Bradf.  22.  executor  (to  whom  letters  had  not  yet 

5  The  principal  distinction  is  in  re-  been  issued)  had  become  insane.  This 
gard  to  liis  power  over  real  property,  "incompetency"  must  be  first  "  ad- 
which  is  explained  jwst,  §  335.  judged  by  the     surrogate,"   before    he 

6  Formerly  the  executor  of  a  de-  will  entertain  the  application.  In 
ceased  executor  succeeded  to  his  du-  such  case  the  appropriate  practice  is 
ties,  but  the  rule  was  changed  bv  stat-  that  provided  bv  Co.  Civ.  Proc,  §  2642 
ute  (2  R.  S.  71.  §  17),  and  although  {§  298,  ante)/  (Matter  of  Van  Pelt,, 
the  section  cited  Avas  repealed  in  1880  X.  Y.  Law  J.,  [Mar.  --S,  18!t0. ) 

(L.  1S80,  c.  24.5,  §  1,  subd.  2).  without        8  For  the  mode  of  express  renuncia- 

a  formal  substitute,  its  policy  is  eon-  tion,  see  Co.  Civ.  Proc,  §  2639;   ante, 

tinned  by  Co.  Civ.  Prcc,  §  2643.  "  The  §  296.     Where  a  sister  of  the  testator 

designation  in  the  will  of  the  deceased  renounced  her  prior  right  to  letters  on 

executrix  of  two  of  the  respondents  as  the  apjilication  of  the  son  of  testator's 

her  successors  in  office  wovild  not,  even  brother,  but   intervened   in  a   proceed- 

if  her  will   was  admitted  to  probate,  ing  to  revoke  letters  issued  to  him, — 

be  operative,  as  the  power  to  make  it  Held,  that  the  renunciation  not  being 

appertained  solely  to  the  office  of  the  general    could   be    retracted,    and    that 

executrix,  and  she,  having  ceased  to  be  she  was  entitled  to  letters.     (Matter  of 

such  previously  to  her  death,  her  right  Haug,  29  Misc.  36.)     But  a  retraction 

to    select    her    successor     then     termi-  of    the    renunciation    cannot    be    made 

natcd."      (Per    Ransom.    S.,   in   ]\Iatter  without   permission   of   the    surrogate, 

of   Pinckney,   X.   Y.    Law  J.,    Oct.    23,  (Matter   of    Clute,    37    Misc.    710.)    In 

1890.)  that    case    the    sole    legatee,    executing 

7  It  is  not  a  ground  for  application  the  renunciation,  hr.d  assignad  his  en- 
for  letters  c.  t.  a.  that  the  nominated  tire   interest  in  the  estate. 


271  Administkatiox  Witi£  Tin:  Wii.i.  Axxexf.d.        §  328. 

expressly  renounce/''  or  i-evocation  of  letters/^^  there  is  no  execu- 
tor, or  iKhniuistrator  with  the  Avill  annexed,  (lualitied  to  act.^^ 

i<  328.  Who  are  entitled  to  letters. —  Under  the  Kevised  Stat- 
utes there  was  room  lor  chnibt,  and  a  conllict  of  authority  existed^ 
as  'to  who  were  entitled  to  letters  of  administration  with  the 
will  annexed,  owing 'chieHy  to  the  fact  that  a  rule  was  deducihle 
only  from  several  distinct  provisions,  whose  relations  to  each 
(•I her  were  ohscure.^"  These  statutes  also  excluded  heirs  and 
devisees  fi'oiu  the  list  of  persons  capable  of  receiving  such  letters, 
and  made  no  i)r(>vision  for  the  contingency  of  a  refusal  to  accept 
the  letters,  ou  the  i)art  of  all  the  qualilied  persons  entitled;  while 
the  reference,  in  one  of  the  sections  cited,  to  the  "  regulations 
and  restrictions  "  applicable  to  ''  letters  of  administration  in  case 
of  intestacy  "  rendered  it  necessary  to  examine  and  apply  the 
statutory  rules  upon  that  subject. ^^  These  regulations  and  re- 
strictions are  no  longer  applicable  in  granting  letters  of  adminis- 
tration with  the  will  annexed,  c.  g.,  the  preference  given  to  males 
over  females."  These  defects  are  remedied,  and  the  omissions 
sii])]»lied.  by  the  Code  of  Civil  Procedure,  which  establishes  a 
uniforni  and  explicit  rule  for  all  cases,  and  directs  ^^  that  when 
letters  of  administration  with  the  will  annexed  are  granted,  they 
must  be  issued  to  the  following  persons,  in  the  order  of  priority 
indicated:  1.  To  one  or  more  of  the  residuary  legatees,  who  are 
qualified  to  act  as  administrators.^*^     If  any  one  of  such  legatees 

9  See,  as  to  implied  renunciation,  Co.  Rcdf.  2.54:   Ex  p.  Browm,  2  Bradf.  22: 

Civ.  Proc.,  §  2642;  ante,  §  298.  Bradley  v.  Bradley,  3  Redf.  512;  Spin- 

n>  For     tue     various     grounds     and  ning"s  Estate,  1  Tuck.  78. 

modes   of   revocation   of    letters   testa-  13  2  R.  S.  71,  §  14. 

mentary,  see  c.  XIV,  post.  i-i  ^Matter   of   Wood,   27   Abb.   X.    C. 

11  Co.  Civ.  Proc,  §  2043.    The  death  329:   17  X.  Y.  Supp.  354. 

may  occur  before  letters  testamentary  15  Co.  Civ.  Proc,  §  2G43,  as  amended 
isgiie,  or  afterward,  and  before  the  1901  (L.  1901,  c.  141). 
estate  is  completely  administered.  Tlie  lO  Matter  of  Manley,  12  Misc.  472: 
incompetency  of  the  executor  may  pre-  34  X.  Y.  Supp.  258.  The  residuary 
vent  the  issue  of  such  letters,  or  oc-  legatee,  it  is  said,  is  the  testator's 
casion  their  revocation.  See  Co.  Civ.  choice;  he  is  the  next  person  in  his 
Proc,  §§  2030,  2()S5.  The  revocation  election  to  the  executor.  (Atkinson  v. 
of  letters  may  follow  tlie  acceptance  Yiarnard,  2  Phillim.  318.)  A  residuary 
of  the  executor's  resignation  (Id.,  legatee  is  entitled,  although  tliere  is 
§  2039),  or  be  for  cause.  But  in  case  no  present  prospect  of  anv  residue 
of  the  resignation  of  an  executor  and  (Wms.  on  Exrs.  404).  and  though  he 
trustee,  where  the  amount  of  the  re-  is  only  residuary  legatee  in  trust, 
siduary  estate  has  been  fixed  for  the  (lb.)  The  English  rule  is  that  where 
purposes  of  the  trust,  an  administra-  a  residuary  legatee  survives  the  testa- 
tor c.  t.  a.  should  not  be  appointed,  tor,  and  has  a  hcncficidl  interest,  his 
(^Matter  of  Curtiss,  1.")  Misc.  545;  37  representative  has  the  same  right  to 
X.  Y.  Supp.  580.)  letters   as   the   residuary   legatee   him- 

12  2  R.  S.  71,  §§  14,  17:  id.  75,  §  29;  self,  in  preference  to  next  of  kin.  (Id. 
id.  78,  §  45.     See  Matter  of  Ward,  1  405.)     But  this  is  not  the  rule  in  this 


328. 


AdministrxVTiox  With  the  Will  Annexed. 


272 


who  would  otherwise  be  so  entitled  is  a  minor,  administration 
shall  be  granted  to  his  guardian,  if  competent.  2.  If  there  is  no 
such  residuary  legatee,  or  guardian,  or  none  who  will  accept,- 
then  to  one  or  more  of  the  principal  or  specified  legatees  so 
qualified. ^^  If  any  one  of  such  legatees  who  would  be  otherwise 
so  entitled  is  a  minor,  administration  shall  be  granted  to  his 
guardian,  if  competent.  3.  If  there  is  no  such  legatee,  or  guard- 
ian, or  none  who  will  accept,  then  to  the  husband  or  wife,^^  or 
to  one  or  more  of  the  next  of  kin,  or  to  one  or  more  of  the  heirs  or 
devisees,  so  qualified.^®  4.  If  there  is  no  qualified  person,  entitled 
under  the  foregoing  subdivisions,  who  will  accept,  then  to  one 
or  more  of  the  creditors  who  are  so  qualified;  except  that,  in  the 
counties  of  Xew  York  and  Kings,  the  public  administrator  has 


State.  See  Kircheis  v.  Scheig,  .3  Redf. 
277;  Matter  ot  Thompson,  28  How.  Pr. 
581.  The  executor  of  a  sole  legatee 
has,  however,  a  right  to  receive  letters 
as  against  the  son  of  a  brother  of  the 
testator  who  died  after  the  testator, 
since  the  son  is  not  entitled  in  his  own 
right  to  share  in  the  un bequeathed 
residue  of  the  estate.  (Matter  of 
Haug.  29  Misc.  36.)  Where  a  testa- 
tor's residuary  estate  is  held  in  trust, 
the  beneficiary  of  the  trust  is  entitled 
to  letters  in  preference  to  the  trustee. 
(Matter  of  Eoux,  5  Dem.  523.)  See 
Matter  of  Drowne,  18  St.  Kep.  981. 
Even  before  the  amendment  of  1901 
ihe  right  of  the  guardian  of  an  infant 
residuary  legatee  to  preference  in 
granting  letters,  was  sustained.  (Mat- 
ter of  Lasak,  30  St.  Rep.  356 ;  8  N.  Y. 
Supp.  740.)  And  see  Matter  of  Tyler, 
19  St.  Rep.  897;  Blanck  v.  Morrison, 
4  Dem.  297. 

A  person  not  mentioned  by  name  in 
a  will,  but  who  is  entitled  to  take  un- 
der it  as  "  heir "  and  "  issue  "  of  a 
person  named  as  legatee,  is  a  "  princi- 
pal or  specific  legatee,'  and  is  equally 
entitled  to  apply  for  letters  of  admin- 
istration with  the  will  annexed, —  as 
a  person  whom  the  will  designated  by 
name  as  a  legatee.  (Matter  of  Wood, 
27  Abb.  N.  C.  329.) 

17  In  England,  the  next  of  kin  are 
entitled,  next  after  a  residuary  lega- 
tee, to  letters  with  the  will  annexed: 
and  if  the  next  of  kin  denline,  letters 
will  issue  to  a  legatee  or  a  creditor, 
but  on  notice  to  the  next  of  kin.  The 
word  "  principal  "  in  this  clause  has 
the  force  and  efTect  of  the  word  "  gen- 
eral," and  is  meant  to  be  descriptive 


of  all  legatees  who  are  neither  specific 
nor  residuary.  (Quintard  v.  Morgan, 
4  Dem.  168.)  A  general  legatee  is 
entitled  to  preference  in  the  issue  of 
letters,  over  a  trust  company,  guard- 
ian of  an  infant  legatee  wno  is  the 
only  next  of  kin  of  the  testator. 
(Matter  of  Milhau,  28  Misc.  366;  59 
N.  Y.  Supp.  910.) 

For  a  case  of  an  application  by  one 
claiming  under  a  void  devise,  see  Mat- 
ter of  Owens,  24  Civ.  Proc.  Rep.  256 ; 
33  N.  Y.  Supp.  422. 

18  Upon  the  death  of  a  sole  executor, 
the  residuary  legatee  is  first  entitled 
to  letters,  as  against  the  widow  of  the 
decedent,  in  like  manner  as  if  the  ex- 
ecutor has  renoimced  or  neglected  to 
qualify.  (Bradley  v.  Bradlev,  3  Redf. 
512.) 

19  Wliere  there  were  neither  residu- 
ary, principal,  nor  specific  legatees  of 
a  testatrix,  who  could  receive  letters 
testamentary  and  accept  administra- 
tion with  the  will  annexed,  and  sisters 
of  the  half  blood,  who  were  not  benefi- 
ciaries under  the  will,  were  the  only 
next  of  kin, —  Held,  that  the  issue  of 
letters  to  one  of  tnem  was  proper,  and 
that  they  could  not  be  revoked  on  the 
petition  of  one  who  claimed  as  the 
principal  beneficiary  under  the  will  of 
the  .sole  leeatee  of  the  testatrix.  (Kir- 
cheis V.  Scheig,  3  Redf.  277.) 

A  brother  of  tne  testator  is  to  be 
preferred  to  the  administrator  c.  t.  a. 
of  the  sole  legatee,  who  was  named 
sole  executor  and  who  died  after  tes- 
tator and  before  probate.  (Matter  of 
BroA\-n,  33  St.  Rep.  582;  11  X.  Y. 
Supp.   785.) 


273       ADMINISTR.VTION    WiTII    TIIK    WiLL    AXNEXED.    §§  329,  330. 

preference,  after  the  next  of  kin,  over  creditors  and  all  other 
persons.^  5.  If  there  is  no  qualified  creditor  who  will  accept, 
then  to  any  pro])er  ])erson  desiuiiated  1)V  the  surroi::ate."' 

§  329.  Priority  among  applicants  of  the  same  class. —  Where  a 
number  of  api)licants  for  letters  of  administration  with  the  will 
annexed  all  come  within  the  one  subdivision  of  the  section  re- 
lating to  priorities  of  right  to  letters,  the  surrogate  in  his  dis- 
cretion will  select  from  their  number,  having  regard  to  the  nature 
of  their  respective  intcrests.^^  The  statute  makes  no  discrim- 
ination between  males  and  females,  although,  it  seems,  the  court 
would,  other  things  being  equal,  prefer  a  male,  in  the  case  of 
opposing  claims.^^  The  next  of  kin  are  entitled,  in  the  order  of 
priority  in  which  they  are  entitled  to  administration  in  cases  of 
intestacy,  thus:  (1)  to  the  children,  (2)  to  the  father,  (3)  to 
the  brothers,  (4)  to  the  sisters,  (5)  to  the  grandchildren,  (6)  to 
any  other  of  the  next  of  kin  who  would  be  entitled  to  share  in 
the  distribution.  As  between  creditors,  the  first  one  applying 
has  priority.  It  is  reasonable  to  suppose  that  in  a  case  where  the 
surrogate  is  called  upon  to  designate  "  a  proper  person,"  under 
the  above  fifth  subdivision,  he  would  Ije  likely  to  designate  the 
public  administrator  or  the  county  treasurer,  as  the  case  may  be. 
In  selecting  an  administrator  with  the  will  annexed  from  among 
several  persons  having  equal  rights,  the  surrogate  may  consider 
the  testator's  preference,  expressed  in  his  lifetime,  as  to  one  of 
the  persons  ap]dying  having  the  management  of  his  estate."^ 

§  330.  Application  for  letters  generally. —  The  application  must, 
of  course,  be  made  to  the  surrogate  of  the  proper  county, —  that 
is,  the  surrogate  who,  by  the  provisions  of  the  Code,  has  juris- 
diction over  the  estate  of  the  decedent.'^     Ordinarily  the  appli- 


20  This  last  clausp  was  added  in  (X.  S. )  17;  Estate  of  Morgan,  8  Civ. 
1881,  thus  restoring  the  old  statute.  Proc.  Rep.  77;  Hulse  v.  Keeves,  3  Dem. 
By    a    rule    of    the     Englisli     I'rubale  486. 

Court,  no   person  wno   renounces  pro-  23  Matter  of  Wood.    17   X.  Y.  Supi>. 

bate  of  a  will  is  to  be  allowed  to  take  ,'554 :  27  Abb.  X.  C.  329. 

representation  in  another  character —  24  Matter  of  Powell,    5    Dem.    281; 

such  as  letters  of  adnuuistration  with  citing    Quintard   v.    ^lorgan,     4    Dem. 

the  will   annexed.     This  rule  was  fol-  1G8;  Underbill  v.  Dennis.  9  Paige,  203 ; 

lowed    in    Matter    of    Suarez,    3    Dem.  Cozine  v.  Horn.   1  Bradf.   143. 

1G4.  2.'.  See,  on  this  point,  Co.  Civ.  Proc. 

21  In  "Matter  of  Clute  i."7  !Misc.  710),  §  247().  Hence  it  must  appear  that 
the  assignee  of  a  sole  legatee  was  ap-  decedent  was  an  inhabitant  of  the 
pointed,    the    next    of    kin    cduscnting.  county  at.  or  immediately  l>efore,   his 

As   to   aooointment  of   banking  cor-  death.     Letters  will  not  be  g)";inted  on 

]>o7-ations,  see  L.  1900,  c.  r)o2.  the  ground    that    testator  died   within 

22  Matter  of  Beakes,  5  Dem.  128.  cit  the  county,  having  assets  therein,  it 
inc:   Cottle   v.   Vandcrhovdcn,    11    Abb.  not  a]ipearing  that  he  was  a  noninhab- 

18 


§  331.       Ad.mixistkatiox  With  the  AVill  Annexed.  27-t 

cant  will  be  the  person  claiming  to  be  entitled  to  the  letters^ 
and  one  of  the  few  sections  of  the  Code  especially  applicable  to 
such  letters  was  evidently  framed  upon  that  presmnption.^^  Pro- 
vision has  now  been  made,  however,  for  an  application  by  a  person 
"  having  a  lien  npon  any  real  property  iijion  which  the  decedent's 
estate  has  a  lien."  "'  Of  course,  in  such  case^  the  petitioner  should 
apply  for  the  issue  of  letters  to  some  person  having  a  right 
thereto,  as  j^rovided  by  the  statute. 

§  331.  Where  the  applicant  has  not  a  prior  right  to  letters. — Iil 

that  event  he  should  apply,  as  in  the  case  of  a  petition  for  letters 
of  administration  in  intestacy,  for  letters  to  issue  ''  either  to  him. 
or  to  such  other  person  or  persons  having  a  prior  right,  as  may 
be  entitled  thereto,  or  in  the  alternative,"  at  his  election,^®  and 
for  a  citation  to  those  having  a  prior  right,  to  show  cause  against 
such  appointment.  The  application  must  be  made  by  petition, 
unless  a  written  renunciation  of  every  person  having  such  a  prior- 
right  is  filed  Avitli  the  surrogate,  and  the  execution  thereof  is 
proved  to  his  satisfaction;^  and  a  citation  to  show  cause  must 
be  addressed  to,  and  served  upon,  those  having  such  right,  who 
have  not  renounced. ^'^  The  proceedings  thereupon  are  the 
same  as  upon  application  for  administration  upon  an  intestate's 
estate.  In  every  other  case,  the  surrogate  must  issue  the  letters, 
upon  the   appJication  of  the   creditor   or   person   interested,   or   a 


itaiit    of    the    State.      (Van    Giesen    v.  whether    the    Statute    of     Limitations 

Bridgford.     18    Hun,    73.)      See    also  has  barred  the  remedy  to  recover  the 

this    ease   on   appeal,     83   X.   Y.     348,  alleged      unadministered      assets,      or 

where  it  was  held  that  where  there  are  whether    the    proposed    administrator 

no   assets,   or   the  presumption   arises  with  the  will  annexed  would  have  any 

from  lapse  of  time  that  there  are  no  legal  or  equitable  cause  of  action  for 

assets    of    the    testator    in    existence,  the   benefit   of    tlie  estate;    such   ques- 

which  can  be  identified  and  reached  by  tions  being  properly   raised,  if  at  all, 

the    administrator,    and    there    is    no  only  in  subsequent  proceedings.     (lb.) 

claim  in  respect  to  them  which  can  be  23  Co.  Civ.  Proc,  §  2044. 

enforced,  and  no  other  reason  appears,  27  Co.  Civ.  Proc,  §  2G43,  as  amended 

the     granting     of     letters     cannot    be  189.5   (L.  1895,  c.  734). 

claimed  as  a  matter  of  right.     Where  2S  Popham  v.   Spencer,   4  Redf.   399^ 

the    application    is    m^ade    upon     the  In  that  case,  it  was  also  held  that  a 

ground  that  the  office  of  executor,  etc.,  petition  by  an  executrix  of  an  execu- 

is  vacant,  leaving  assets  of  the  testa-  tor   for   an   accounting,   under   section 

tor    unadministered,    prima    facie    evi-  260G  of  the  Code,  could  not  include  an- 

dence    that    there    are    such    assets    is  application  under  section  2693,  for  the 

sufficient:     and    a    general    allegation  appointment  of  an  administrator  witli 

that   the   executor  named    in   the   will  the  will  annexed,  in  the  place  of  peti- 

died  leaving  certain  assets  unadminis-  tioner's  testator.      The   proceedings  in 

tered,  followed  by  a  statement  of  the  each  case  are  separate  and  distinct. 

value     thereof,     confers     jurisdiction.  29  Co.  Civ.  Proc,  §  2fi44.    See  Bntch- 

(Pumpelly  v.  Tinkham,  23  Barb.  321.)  elor  v.  Batchelor,  1  Dem.  209:  64  How. 

The    surrogate    cannot,    on    such    an  Pr.  3.50. 

application,     determine    the     question  30  Batchelor  v.  Batchelor,  supra. 


275     Ai).mixisti;ati().\  Wnii   thk  Will  Axxlxkd.  §§  332,  333. 

person  having  a  lieu  ujiun  any  real  property  upon  wliidi  the  de- 
cedent's estate  has  a  lien,  and  upon  such  notice  to  the  other 
creditors  and  persons  interested  in  the  estate  as  the  surrogate 
deems  proper.^^  It  is  not  customary  to  require  notice,  where 
there  are  no  persons  entitled  to  priority  of  appointment;  e.  g., 
where  there  are  two  ox  more  of  a  class  equally  entitled  to  letters, 
each  is  at  liberty  to  apply  without  notice  to  the  other.^^  A 
competent  person,  although  not  entitled  to  letters,  may  be  joined 
with  the  person  so  entitled,  upon  the  latter's  consent,  in  the 
administration  with  the  will  annexed.^*^ 

§  332.  Oath  and  bond. —  The  official  oath  or  affirmation  of  an 
administrator  with  the  will  annexed  must  be  tiled  with  the  surro- 
gate before  letters  are  issued  to  hmi.  It  is  required  to  be  to 
the  same  effect,  and  may  be  taken  before  the  same  officers,  as 
that  of  an  executor,  or  an  administrator  in  case  of  intestacy.^* 
His  official  bond  is  the  same,  and  is  governed  by  like  provisions 
as  that  required  by  law  of  an  administrator  upon  the  estate  of 
an  intestate;  except  that  in  fixing  the  penalty,  the  surrogate  must 
take  into  consideration  the  value  of  the  real  property,  or  of 
the  proceeds  thereof,  which  may  come  to  the  hands  of  the  adminis- 
trator, by  virtue  of  any  provision  contained  in  the  will.^'' 

§333.  Letters  upon  proof  of  foreign  will. —  The  term  "foreign 
will "  is  manifestly  ambiguous.  Certain  wills  which  may  with 
propriety  be  so  designated  are,  as  has  been  seen,  admissible  to 
probate  in  a  Surrogate's  Court  of  this  State ;  and  when  that  course 
is  pursued,   the  issue   of  letters   thereupon  is  governed  by   the 


31  Co.  Civ.  Proc,  §  2643,  as  amendea  35  Co.  Civ.  Proc,  §  2645.  It  is  not 
189.5.  In  the  case  of  the  renunciation  essential  to  the  validity  of  the  bond 
or  deatli  of  a  person  named  in  ttie  will  that  his  special  character  should  be 
propounded  for  probate,  the  practice  recited  therein;  a  bond  in  the  ordinary 
in  New  York  county  is  to  proceed  with  form  required  of  general  adniinistra- 
tlie  proof  of  the  will  to  a  decree.  If  tors  by  the  statute  is  sufficient.  (Ca- 
adniitted  to  probate,  a  new  proceeding  soni  v.  Jerome,  58  X.  Y.  315.)  As  to 
must  then  be  instituted  for  letters  the  amount  of  penalty  required,  see 
with  tho  will  annexed.  Sutton  v.  Weeks,  5  Redf.  353 ;    1   Civ. 

32  flatter  of  Wood,  17  X.  Y.  Supp.  Proc.  Rep.  164;  Matter  of  Nesmith.  6 
354;  27  Abb.  N.  C.  320.  The  appli-  Dem.  333.  Section  2045,  enacted  in 
cant  must  bring  himself  within  the  1880,  and  section  2007,  which  was  en- 
terms  of  section  2043,  prescribing  the  acted  in  the  same  year,  and  prescribes 
order  of  priority  among  the  persons  the  requisites  of  the  bond  of  an  ad- 
entitled  to  such  letters.  (Matter  of  ministrator  in  intestacv.  which  was 
Allen,  2  Dem.  203.)  See  Matter  of  amended  in  1882,  by  adding  a  provi- 
Drowne.   18  St.  Rep.  981.  sion    that,    "in    cases    where    all    the 

33Quintard  v.  ^Morgan,  4  Dem.  108:  next   of   kin   to   the    intestat"    consent 

^Matter  of  ^^loehring,  24  Misc.  418;   53  thereto."  the  penalty  of  tlie  bond  may 

X.  Y.  Supp.  730.  be  limited  in   a  manner  specified,  are 

34  Co.  Civ.  Proc,  §  2594.  to  be  construed  together,  as  if  enacted 


§  334.       Administration  "With  tiik  Will  Annexed.  276 

same  rules  as  in  case  of  domestic  wills."'  A  second  class  of 
foreign  wills,  relating  to  personal  i)ropertY,  can  be  established  in 
this  State  only  by  means  of  a  judgment  rendered  in  a  civil  action, 
whereupon  letters  testamentary  or  of  administration  with  the 
will  annexed  may,  under  specified  conditions,  be  issued  from  a 
Surrogate's  Court  of  this  State,  in  like  manner  and  with  like 
effect  as  upon  a  will  duly  proved  in  his  court."'  In  respect  to  a 
third  description  of  foreign  wills,  also  relating  to  personal  prop- 
erty, which  includes  all  of  the  second  class,  and  certain  of  the  first 
class,  above  mentioned,  the  statute  contemplates  the  issue  of 
letters  from  a  Surrogate's  Court  of  this  State,  upon  proof  of  the 
foreign  probate,  -without  probate  or  establishment  here.  In  such 
cases,  before  the  matter  was  regulated  by  statute,  it  was  the  usage, 
when  letters  were  granted,  to  grant  them  to  the  attorney  in  fact 
of  the  foreign  executor,  if  he  applied  and  produced  a  power  of 
attorney  authorizing  him  to  receive  such  letters  on  behalf  of  the 
executor.  If  no  sufficient  application,  however,  was  made  by  such 
an  attorney,  the  court  would  grant  administration,  under  the 
statute,  to  the  legatees  or  to  other  persons  entitled.^^  But  the 
subject  is  now  fully  provided  for  by  the  Code,  as  noticed  in  a 
previous  chapter,  where  ancillary  letters  of  administration  ^^dtli 
the  will  annexed  are  discussed  in  connection  with  ancillary  letters 
testamentary.^^ 

§  334.  Duties  and  powers  under  letters. —  In  regard  to  the  gen- 
eral administration  of  the  personalty,  an  administrator  with  the 
■^^-ill  annexed  has  the  same  powers  as  an  ordinary  administrator 
in  case  of  intestacy,  except  that  he  is  to  be  guided  by  the  will 
of  the  testator.  He  is  not  confined  to  the  property  disposed  of 
by  the  Avill,  but  it  is  his  duty  to  collect  and  administer  the  entire 
personal  estate  within  his  jurisdiction.'*'^  "Where  he  is  appointed 
to  succeed  to  an  executor  who  has  received  letters,  but  has  died 
or  has  been  removed,  he  succeeds,  in  general,  to  the  powers  and 
to  the  duties  of  his  predecessor;  and  if  a  decree  has  previously 
been  obtained  against  his  predecessor  for  a  payment  due  from 

simultaneovisly; — Held,  therefore,  that  2G07   referred  to  is  now  section  2G64. 

an     administrator   with    the   will     an-  See  jiosf,  c.  XV. 

nexed  may  avail  himself  of  the  provi-  "<"•  See   Co.    Civ.   Proc,   §    2611;    and 

sions  contained  in  the  amendment  of  §  140,  ante. 

1882,    upon    obtainins:   the   consent   of  3T  Co.  Civ.  Proc,  §§   1861,  1863.  See 

the  next    of   kin,   althovigh   they   may  §   1.34,  ante. 

have  no  interest  in  the  decedent's  es-  38  Texidor's    Estate.    2    Bradf.    10.". 

tate.     The  existinir  statutory  rule  on  And  see  2  P.  S.  75.  §  31,  now  repealed. 

this  subject   is   criticised   in  Curtis  v.  39  See  ante.  §   312. 

Williams,    3    Dem.   C3.       The    section  40  Sullivan  v.  Fosdick,  10  Hun,  174. 


277 


Admixistratiox   With   thk  Will  Axxex-kd. 


§  335. 


the  estate,  the  administrator  with  the  will  annexed  should  satisfy 
the  decree  by  payment,  and  the  surrogate  may  enforce  this  duty.*^ 
He  may  enforce,  also,  the  obligations  of  the  deceased,  and  of  his 
removed  predecessor  to  the  estate;  and  for  this  purpose  may 
compel  an  accounting;^"  and  may  maintain  an  action  for  an 
accounting  against  such  predecessor,  or  against  his  personal  repre- 
sentative after  his  death,  for  assets  left  nnadministered  by  such 
predecessor.'*^  lie  may  continue  an  action  for  a  specific  perform- 
ance of  a  contract  made  by  the  executor.^'*  He  may  petition  for 
a  judicial  settlement  of  his  account  and  a  distribution  of  the 
estate  within  a  year  from  the  date  of  his  letters.''^ 

§  335.  Performing  the  will. —  The  statute  provides,  that 
"where  letters  of  administration  with  the  will  annexed  are 
granted,  the  will  of  the  deceased  shall  be  observed  and  performed; 
and  the  administrators  with  such  will  have  the  rights  and  powers, 
and  are  subject  to  the  same  duties,  as  if  they  had  been  named 
executors  in  the  will.''  ^"'  This  provision  has  been  the  subject  of 
much  controversv.  There  is  eminent  authoritv  for  rcffardino;  it 
as  only  declaratory  of  the  common  law,  and  a]iplicable  neither  to 


41  Bowers  v.  Emerson,  14  Barb.  G52. 

42  Clapi)  V.  :Meserole,  1  Abb.  Ct.  App. 
Dec.  302. 

43  Matter  of  Richmond,  G3  App.  Div. 
488;  Walton  v.  Walton,  4  Abb.  Ct. 
App.  Dec.  512.  An  administrator  with 
the  will  annexed,  appointed  in  this 
State,  cannot  maintain  an  action 
against  the  agent  of  the  deceased  ex- 
ecutor, to  compel  him  to  account  for 
money  collected  as  rents  oi  lands  in 
another  State,  nor  for  money  collected 
as  rents  of  lands  in  this  State,  in  re- 
spect of  which  there  is  a  devise  in 
trust  or  power  of  sale  to  such  de- 
ceased executor.  Nor  is  the  agent  of 
the  executor  liable  to  such  administra- 
tor in  an  ordinary  action  of  account, 
af  hue,  for  proceeds  of  jiersonal  prop- 
erty belonging  to  the  estate  in  his 
hands.  The  agent  is  liable  to  the  ex- 
ecutor and  his  personal  representa- 
tives; the  executor  is  liable  to  the  es- 
tate, and  the  remedy  of  the  adminis- 
trator at  law  is  against  his  personal 
representatives.  If  he  has  a  remedy 
against  the  agent,  it  is  in  equity. 
(Smith  v.  Edmonds.  10  X.  Y.  Leg.  Ob s. 
185.)  The  administrator,  and  not  the 
legatees  under  tlic  will,  is  the  proper 
person  to  recover  from  the  representa- 
tives of  the  deceased  executor  the  nn- 


administered assets.  (Squire  v.  Bug- 
bee,  Go  App.  Div.  429. ) 

An  administrator  is  not  entitled  to 
recover  assets  from  the  personal  rep- 
resentatives of  the  deceased  executor 
and  residuary  legatee  under  ihe  will  of 
his  decedent  where  the  legacies  given 
by  such  will  are  fully  secured  and  it 
is  not  shown  that  there  are  unpaid 
creditors  or  unpaid  expenses  of  ad- 
ministration, (loch  V.  Toch,  81  Hun, 
410;  30  N.  Y.  Supp.  1003.)  But 
where  he  has  incurred  expense,  he 
is  entitled  upon  an  accounting  by 
the  representatives  of  the  deceased  ex- 
ecutor to  have  the  balance  of  the  es- 
tate paid  over  to  him  and  an  oppor- 
tunity to  have  his  expenses  allowed 
therefrom,  although  all  claims  except 
a  single  legacy  represented  l\v  such 
balance  have  been  paid.  (Matter  of 
McDougall,  141  N.  Y.  21;  5G  St.  Rep. 
579.) 

In  an  action  against  a  removed  ab- 
sconding executor  the  administrator  is 
entitled  to  an  attachment.  (Van  Camp 
v.  Searle.   147  X.  Y.  1.50.) 

44  Farmers'  Loan  and  Trust  Co.  v. 
Eno,  21  Abb.  X.  C.  219. 

45  Matter  of  Burling,  5  Deni.  47. 
4<5Co.  Civ.  Proc,  §  2fil3,  as  amended 

1893,  incorporating  2  R.  S.  72,  §  22. 


§  335.       Administration  With  the  Will  Annexed,  278 

real  property  in  any  case,  nor  to  discretionary  powers,  nor  to 
gifts  in  trust,  nor  to  powers  inseparably  connected  therewith/^ 
It  is  well  settled  that  devises  to  the  executors,  and  discretionary 
powers,  relating  to  real  property  at  least,  do  not  pass  to  the 
administrator  with  the  will  annexed.^®  The  rule  is  stated  to  be, 
that  "  an  administrator  with  the  will  annexed  in  all  respects  takes 
the  powers  of  a  renouncing  or  deceased  executor,  unless  a  per- 
sonal confidence,  in  the  discretion  of  the  person  who  is  named  as 
executor,  is  plainly  expressed  or  to  be  implied.  Where  the  power 
or  trust  appears  to  be  annexed  to  the  office  of  executor,  it  may 
be  executed  by  an  administrator  with  the  will  annexed."  ^^  Thus 
a  power  to  an  executor  to  sell  land  and  personalty  in  trust  for 
the  payment  of  debts  and  legacies,  is  so  connected  with  the 
office  of  executor  that  it  can  be  executed  after  his  death  only 
by  an  administrator  with  will  annexed,  and  not  by  a  new  trustee 
appointed  by  the  court.^'^  But  a  devise  to  the  executor  named, 
in  trust,  does  not  annex  the  trust  duty  to  the  office  of  executor, 
but  to  the  pe7'son;  and  hence  an  administrator  with  the  Avill  an- 
nexed does  not  succeed  to  any  rights  concerning  the  trust  estate, 
unless  in  case  it  be  ordered  sold  for  the  payment  of  the  testator's 
debts.^^    Where,  however,  an  administrator  with  the  will  annexed 

47Doininick    v.    Michael,    4    Sandf.    commissions    of   a    trustee.       (Orphan 
374;    Conklin   v.    Egerton,    25    Wend.    Asylum  v.  White,  6  Dem.  201.) 
224.  5o:\Iatter  of  Christie,  59  Hun,    15.3; 

48  Beekman  V.  BonsTjr,  23  N.  Y.  298 ;  36  St.  Rep.  99:  affd.,  133  N.  Y. 
aflfg.  27  Barb.  260;  Fay  v.  Taylor,  31  473.  An  administratrix  with  will  an- 
Misc.  32 ;  G3  N.  Y.  Supp.  572 ;  Sim-  nexed  was  held,  under  a  peculiar  will, 
mons  V.  Taylor,  19  App.  Div.  499;  46  entitled  to  execute  a  power  to  sell 
N.  Y.  Supp.  730.  Compare  Roome  v.  lands  given  by  will  to  executor,  in 
Philips,  27  N.  Y.  357,  363;  De  Peyster  Hickey  v.  Peterson,  30  St.  Rep.  155; 
V.  Clendining,  8  Paige,  310;  Gilchrist  9  N.  Y.  Supp.  917.  A  provision  for 
V.  Rea,  9  id.  72 ;  Ji^dson  v.  Gibbons,  5  invej^ting  a  sum  in  trust  for  the 
Wend.  225.  A  discretionary  power  of  benefit  of  testatrix's  husband,  during 
sale  vested  in  executors  cannot  be  exe-  life,  and  on  his  death,  principal  to 
cuted  by  an  administrator  with  the  go  to  designated  legatees,  creates  a 
will  annexed.  (Cooke  v.  Piatt,  98  N.  trust  which  vests  in  an  administrator 
Y.  35.)  But  otherwise,  where  no  with  the  will  annexed.  (Matter  of 
executor  was  named  in  the  will.  Post,  30  St.  Rep.  217;  9  N.  Y.  Supp. 
(Matter  of  Kick,  11  St.  Rep.  688.)  449.)      See  Squire  v.  Bugbee,  65  App. 

49  Per    Commissioner     RejTiolds,    in   Div.  429. 

Bain  v.  Matteson,  54  N.  Y.  667;  s.  p.,  siDunning  v.  Ocean  Nat.  Bank,  61 
Merritt  v.  Merritt,  32  App.  Div.  442;  K  Y.  497.  Hence  he  might  accept  and 
161  N.  Y.  634,  citing  Greenland  v.  execute  the  trust  without  proving  the 
Waddell,  116  id.  234;  Campbell  v.  will  or  taking  out  letters  testament- 
Jennings,  22  Misc.  406;  Carpenter  v.  ary.  He  becomes  trustee,  and  is  vested 
Bonner,  26  App.  Div.  462.  This  doc-  with  the  trust  estate  by  virtue  of  the 
trine  is  substantially  that  of  Chancel-  will  alone.  (lb.)  For  a  case  where 
lor  Walworth  in  De  Peyster  v.  Clen-  an  administrator  with  the  will  an- 
dining,  8  Paige,  310.  Compare  Matter  nexed  was  held  to  have  power  to  sell 
of  Clark,  5  Redf.  466;  Kilburn  v.  See,  and  convey  real  estate,  see  Fish  v. 
1    Dem.    353.      He   is    entitled   to    the  Coster,  28  Hun,  64,  and  also  Bin.'^ham 

V.  .Jones,  25  id.  6. 


279  Administkatiox  With  thi:  Will  Annexed.       §  33G. 

assumes  to  act  as  trustee  of  the  real  property  under  the  \vill,  ho 
may  bo  hold  to  account  therefor  as  such  trustee. "'*" 

§  336.  Liabilities. —  An  administrator  with  the  will  annexed  is 
liable  upon  his  own  contract,  to  the  same  extent  as  an  ordinary 
iuhiiiuistrator,''^  but  he  is  not  liable  for  any  misapplication  of 
funds  by  his  predecessor.^* 

52  Lp  Fort  V.  Delafield,  3  Edw.  32.  tor   v.   La  very,    .51    App.   Div.    74;    64 

''^An    administrator   with    tliu    will  X.  Y.  Supp.  518,  citin>,'  Ferrin  v.  My- 

annexed,  who,  in  pursnance  of  the  pro-  rick.  41   N.  Y.  315;   Austin  v.  Munro, 

visions  thereof,  purchases  a  monument  47   id.  300;  New  v.  Nicoll,  73  id.   127; 

for   tlie   tomb   of  the  testator,   is   per-  Wetmore  v.  Porter.  02  id.  7G;   Parker 

s'->nally  liable  to  nay  for  the  same,  if  v.  Day,  155  id.  383.) 
the  estate  does  not  yield  enough,  above       54  Matter  of  Lamb,  10  Misc.  638;  32 

t'le  debts  and  expenses  of  administra-  N.  Y.  Supp.  225. 
tion,  to  pay  for  the  monument.     (Hoc- 


CHAPTER  XI. 

LETTERS  OF  ADMINISTRATION  IN  INTESTACY. 


TITLE  FIKST. 

JURISDICTION   11^^   CASES   OF   INTESTACY. 

§  337.  In  general. —  Where  the  administration  of  an  estate  — 
that  is,  the  collection  and  preservation  of  the  personal  effects  of 
a  deceased  person,  and  their  final  disposition  according  to  law  — 
is  not  conferred  upon  any  particular  person  by  the  will  of  the 
deceased  himself,  or  where  such  person,  if  appointed,  is  incapable 
of  jDerforming  that  function,  the  duty  devolves  upon  the  surrogate 
of  appointing  one  who  can.  The  last  chapter  was  devoted  to  the 
consideration  of  the  surrogate's  powder  of  appointment  in  cases 
w^here  the  will  of  a  deceased  failed  to  appoint,  or  where  its  ap- 
pointee was  either  incapacitated  or  ceased  to  act,  for  any  cause. 
We  now  come  to  consider  the  subject  of  administration  in  cases 
of  intestacy. 

§  338.  Nature  and  extent  of  jurisdiction. —  The  word  "  intes- 
tate "  signifies  a  person  who  dies  without  leaving  a  valid  wfill;  but 
where  it  is  used  with  respect  to  particular  property,  it  signifies  a 
person  who  dies  without  effectually  disposing  of  that  property  by 
will,  whether  he  leaves  a  mil  or  not.-^  The  jurisdiction  of  surro- 
gates was  formerly  more  restricted  in  the  matter  of  the  admin- 
istration of  intestates'  estates  than  in  matters  of  probate ;  since 
jurisdiction  to  grant  probate  of  a  noninhabitant's  will  might  be 
based  upon  the  situation  of  real  estate  of  the  testator  in  the  sur- 
rogate's county,^  whereas,  to  authorize  the  grant  of  administra- 
tion in  a  similar  case,  the  existence  of  assets  was  indispensable.^ 
But  this  difference  has  been  substantially  removed  by  the  present 
Code.  The  Code  of  Civil  Procedure  consolidates  certain  of  the 
former  statutes  specially  relating  to  surrogates'   jurisdiction  to 


1  Co.  Civ.  Proc.  §  2514,  subd.  1.  3  See  Hollister  v.  Hollister.  10  How. 

22  R.  R.  220.  §  1.  subd.  1;  L.  1837,    Pr.  532;  Roe  v.  Swezey,  10  Barb.  247; 
c.  460,  §  1,  subd.  5.  Hart  v.  Coltrain,  19  Wend.  378. 

[280] 


281  Letters  of  Admixis  tkatiox   in    I.ntestacv.       g  338. 

take  proof  of  wills,  and  to  issue  letters  of  administration  in  case 
of  intestacy,  res^jectively ;  and  the  resultin<;-  provisions  have  been 
discussed,  in  their  application  to  the  subject  of  probate,  in  the 
sixth  chapter  of  this  work,  to  which  reference  may  be  had  foi- 
such  remarks,  concerning  the  phraseology  of,  and  the  changes  pre- 
sumed to  l)e  effected  by,  the  Code,  as  are  also  pertinent  to  the 
snbicct  <d"  administi-ation  upon  the  estate  of  an  intestate.  Tt  will 
lie  convenient  to  repeat  the  jurisdictional  sections  in  this  place, 
in  order  to  examine  them  with  special  reference  to  the  topics  of 
this  chapter.  Tt  is  declared  that  the  Surrogate's  Court  of  each 
county  has  jurisdiction,  exclusive  of  every  other  Surrogate's 
Court,  to  grant  letters  of  administration  upon  the  estate  of  an 
intestate,  in  either  of  the  following  cases:  "1.  Where  the  de- 
cedent was,  at  the  time  of  his  death,  a  resident  of  that  county, 
whether  his  death  happened  there  or  elsewhere.  2.  Where  the 
decedent,  not  being  a  resident  of  the  State,  died  within  tliat  cnnnty, 
leaving  personal  property  Avithin  the  State,  or  leaving  personal 
property  Avhich  has,  since  his  death,  come  into  the  State,'  and  re- 
mains unadministered.  3.  Where  the  decedent,  not  being  a  resi- 
dent of  the  State,  died  without  the  State,  leaving  personal  prop- 
erty within  that  county,'*  and  no  other ;  or  leaving  personal  prop- 
erty which  has,  since  his  death,  come  into  that  county,  and  no 
(tther,  and  remains  unadministered.  4.  Where  the  decedent  was 
not,  at  the  time  of  his  death,  a  resident  of  the  State,  and  a  pe- 
tition for  probate  of  his  will,  or  for  a  grant  of  letters  of  adminis- 
tration under  subdivision  second  or  third  of  this  section,  has  not 
been  filed  in  any  Surrogate's  Court ;  but  real  property  of  the  de- 
cedent, to  which  the  will  relates,  or  which  is  subject  to  "disposition 
by  a  surrogate's  order  for  the  payment  of  debts  or  funeral  ex- 
penses, is  situated  within  that  county  and  no  other."  ^ 

It  may  be  stated  generally,  therefore,  that  the  surrogate  of  the 
proper  county  may  grant  administration  in  all  cases  Avhere  the  in- 
testate, at  the  time  of  his  death,  was  domiciled  in  the  State; 
and  in  either  of  the  following  cases  where  he  was  not  so  domi- 
ciled, viz.:  (1)  wdiere  he  left  personal  property  situated  in  the 
State,  or  coming  into  the  State  after  his  death,  and  remaining 
unadministered,  and  (2)  where  he  left  real  property  in  the  State, 
liable  to  be  sold,  etc.,  by  order  of  a  surrogate,  for  the  payment 
of  debts  or  funeral  expenses. 


4  It  is,  therefore,  immaterial  whetlier    of    Davis.    N.    Y.    Law    J..  Jan.    28, 
decedent  was   or   was   not   a   re>jidont,    1890.) 
provided  he  left  assets  here.      (Matter        5  Co.  Civ.  Proc.,  §  247G. 


§  3o!».       Lkxteks  of  Administration  in  Intestacy.  282 

g  339.  Exclusive  and  concurrent  jurisdiction. — In  determining 
which  is  tlie  jjruper  county,  the  tirst  (|nesti(»n  is  as  to  the  resi- 
dence of  the  intestate  at  the  time  of  his  death.  If  lie  then 
resided  in  the  State,  the  surrogate  of  the  county  of  his  decease 
has  exclusive  jurisdiction  to  entertain  the  application.*^  If  he 
was  not  then  a  resident  of  the  State,  an  analysis  of  the  various 
possible  cases,  similar  to  that  made  in  the  chapter  on  probate, 
will  indicate  in  what  county  the  petition  should  be  presented. 
The  intestate  may  have  left  (1)  personal  property  situated  in, 
or  coining  into,  the  State  as  above  mentioned,  or  (2)  real  i:)rop- 
erty  situated  in  the  State,  and  liable  to  judicial  sale,  etc.,  as 
specified,  or  (3)  both. 

1.  In  the  first  class  of  cases,  the  place  of  death  is  material. 
If  that  occurred  within  the  State,  the  surrogate  of  the  county 
of  the  intestate's  decease  has  exclusive  jurisdiction.  If  the  death 
occurred  without  the  State,  the  application  must  be  made  in 
the  county^  where  property  was  left  or  into  which  it  has  since 
come. 

2.  Where  the  existence  of  real  property  of  the  nonresident 
intestate  furnishes  the  sole  basis  of  jurisdiction,  the  latter  be- 
longs exclusively  to  the  surrogate  of  the  county  where  that  prop- 
erty is  situated,  independently  of  the  place  of  the  owner's  death. 

3.  "Where  real  property  of  such  an  intestate  exists  in  one 
county,  and  personal  property  in  another,  under  the  circumstances 
specified  in  the  statute,  the  surrogate  of  the  former  county  has 
jurisdiction,  unless  a  petition,  either  for  probate  or  for  adminis- 
tration, has  been  filed  in  the  latter;  but,  as  was  intimated  in  treat- 
ing of  the.  subject  of  probate,  we  do  not  discover  in  the  Code 
any  rule  forbidding  an  application  to  one  surrogate,  based  on 
the  existence  of  personalty,  after  the  filing,  in  another  Surro- 
gate's Court,  of  a  petition  for  letters  alleging  the  existence  of 
real  property. 

A  race  of  diligence  is  thus  apparently  rendered  possible.  But 
no  serious  conflict  is  likely  to  occur,  for,  doubtless,  the  filing 
of  a  petition  would  be  immediately  followed  by  some  act  of 
the  surrogate  constituting  an  exercise  of  jurisdiction;  and  an- 
other section  provides  that  "  jurisdiction,  once  duly  exercised 
over  any  matter,  by  a  Surrogate's  Court,  excludes  the  subsequent 


fi  ^fatter  of  Taylor,  6  Dem.  158;   13  wise  it  \vt)ul(i  be  a  case  of  concurrent 

St.    Rep.    176;    James    v.    Adams,    22  jurisdiction,    which    is    hereafter    dis- 

How.  Pr.  409.  cussed.      See    Duffy's    Estate,    3    Civ. 

7  It  is  assumed  for  the  present  that  Proc.  Rep.  229. 
there  is  only  one  such  county;   other- 


2S3  Letters  of  Ai».mim^ti;aii(>.\    i.\    Lnik.stacv.       ^  ."J  itJ. 

exercise  of  jurisdiction  by  another  Surrogate's  Court,  over  the 
same  matter,  and  all  its  incidents,  except  as  otherwise  specially 
prescribed  by  law."  '^  Where  the  special  proceeding  has  reached 
I  he  stage  of  the  issuing  of  letters,  the  case  comes  within  an- 
other provision  of  the  same  section,  to  the  effect  that  where 
letters  of  administration  have  been  duly  issued  from  a  Surro- 
gate's Court  having  jurisdit'tinn,  all  further  i)roceedings  to  be 
taken  in  a  Surrogate's  Court,  with  respect  to  the  same  estate 
or  matter,  nnist  be  taken  in  the  same  court."  But  besides  a 
case  of  the  equal  claim  oi  right  of  dilferent  surrogates  to  super- 
vise the  administration  of  the  estate  of  a  nonresident  intestate, 
by  reason  of  the  existence  of  real  proi)erty  in  one  county,  and 
personal  jiroperty  in  another,  it  may  also  ha})pen  that  such  an 
intestate  may  leave  personal  proj)erty  located  in,  or  aftenvard 
coming  into,  more  than  one  county;  ami  the  decedent's  realty 
may  be  situated  in  more  than  one  county.  With  respect  to  such 
contingencies,  it  is  provided  that  where  personal  property  of  the 
decedent  is  within,  or  comes  into,  two  or  more  counties,  under 
the  circumstances  specified  in  subdivision  third  of  the  section 
above  cited,^°  or  real  property  of  the  decedent  is  situated  in 
two  or  more  counties,  under  the  circumstances  specified  in  sub- 
iivision  fourth  of  that  section,  the  Surrogates'  Courts  of  those 
counties  have  concurrent  jurisdiction,  exclusive  of  every  other 
Surrogate's  Court,  to  grant  letters  of  administration.  But  where 
a  petition  for  probate  of  a  will,  or  for  letters  of  administration, 
has  been  duly  filed  in  either  of  the  courts  so  possessing  con- 
■current  jurisdiction,  the  jurisdiction  of  that  court  excludes  that 
of  the  other.^^ 

§  340.  Personal  property  and  assets  defined. —  The  term  '*  per- 
sonal property,"  in  the  present  statute,  replaces  the  word 
'*'  assets,"  occurring  in  the  original  jurisdictional  provisions,  in 
order  to  correspond  to  a  definition,  contained  in  another  section 
of  the  Code,^"  confining  the  latter  word  to  such  property  as  is 
applicable  to  the  payment  of  debts.  The  rule  as  to  what  is 
to  be  deemed  the  locality  of  certain  species  of  intangible  per- 
sonal property,  for  the  purpose  of  conferring  jurisdiction  in  cases 
of  intestacy,  is  the  same  as  in  matters  of  probate. ^^ 


8  Co.   Civ.    Proc.    §    2475.      And  see        12  Co.    Civ.    Proc,    §    2.514,   subd.   2. 
Id..  §  2510.  The   proceeds  of  a   partition   sale   are 

9  Co.  Civ.  Proc.  §  2475.  not    "assets."       (Lynch's    Estate,    19 

10  See  Co.  Civ.  Proc.  §  2476.  Dailv  Re;;..  Xo.  lOs!) 
n  Co.  Civ.  Proc.  §  2477.  is'See  §  144.  ante. 


§§  341,  342.    Letteks  of  Admixistkatiox  ix  Intestacy.      284 

§  C41.  Residence  defined. —  The  term  "  resident,"  in  the  fore- 
going ^tatutory  provisions,  like  the  word  ""  inhabitant,"  in  the 
former  statute,^'*  is  believed  to  refer  to  the  place  of  permanent 
residence,^''  /.  e.,  the  domicile  —  a  word  not  occurring  in  the 
Code  of  Civil  Procedure.  The  members  of  certain  tribes  of 
Indians,  however,  e.  g.,  the  Senecas  and  others,  although  they 
may  be  said  to  be  domiciled  within  the  State,  being  by  statute^*^ 
not  amenable  to  actions  on  contract  in  the  State  courts,  are,  as 
a  consequence  of  this  freedom  of  their  property  from  the  con- 
trol of  our  courts,  not  subject,  as  intestates,  to  the  jurisdiction 
of  the  surrogate.  The  disposition  of  such  a  deceased  Indian's 
personal  estate  is  regulated  by  the  customs  of  the  tribe  to  which 
he  belongs,  and  a  distribution  according  to  that  custom  conveys, 
a  good  title. ^'  Where  the  intestate  was  an  infant,  proof  of  its 
father's  residence  in  the  surrogate's  county  is  sufficient  prima 
facie  evidence  of  domicile  to  give  the  surrogate  jurisdiction.^^ 

§  342.  Jurisdiction,  when  acquired. —  In  the  matter  of  granting 
administration  in  intestacy,  as  in  other  special  proceedings,  "  the 
existence  of  the  jurisdictional  facts  prescribed  by  statute  "  is 
made  a  condition  of  the  acquirement  of  jurisdiction  by  a  Surro- 
gate's Court. ^^  The  facts  of  death  and  intestacy,  in  all  cases,, 
and  those  of  the  place  of  death,  place  of  residence  and  existence 


14  Isham  V.  Gibbons,  1  Bradf.  84.  and  to  educate  her  son.  They  so- 
1^  S'ee  §  143«,  ante.  journed  at  different  places  in  Europe, 
16  L.  1813,  c.  92,  §  2.  the  mother  sometimes  living  apart 
1"  Dole  V.  Irish,  2  Barb.  639.  from  her  sr:n  while  he  was  away  at 
18  Kennedy  v.  Ryall,  67  N.  Y.  380;  school.  The  mother  derived  her  in- 
40  X.  Y.  Supr.  Ct.  347.  In  that  case,  come  from  a  house  and  lot  in  the  city 
it  appeared  that  intestate's  father  of  New  York,  which  had  been  settled 
came  to  the  city  of  Xew  York  as  an  on  her  by  her  husband.  The  mother 
emigrant,  and  resided  there  for  seven  stated  to  her  brother-in-law,  a  banker 
months,  when  he  was  joined  by  his  of  New  York,  during  several  visits 
wife  and  children,  except  one,  the  in-  made  by  him  to  Europe,  that  she  in- 
testate, an  infant,  who  died  on  the  tended  to  send  her  son,  w"hen  he  was- 
voyage :  and  he  and  hi ;  family  con-  properly  educated,  to  him,  to  enter 
tinuously  resided  in  that  city  for  five  and  continue  in  his  employ :  and  in  a 
years.  He'd,  that  the  intestate  was  letter  addressed  by  the  mother  to  her 
an  inliabitant  of  Xew  York.  In  Von  brother-in-law,  written  shortly  before 
Hoffman  v.  Ward  (4  Redf.  244),  it  her  death,  she  bequeathed  her  son  to 
was  held  that  the  rule,  that  an  in-  him,  stating  that  she  left  him  with- 
fant's  d  micile  is  that  of  his  father,  out  support,  to  his  guidance  and  pro- 
is  not  overcome  by  the  mere  separa-  tection.  The  son,  at  the  time  of  his 
tion  of  the  parents  (there  being  no  death,  was  above  twenty-one  years  old. 
legal  dis-olutinn  of  the  marriage),  The  father  continued  to  reside  in  the 
and  the  departure  of  the  mother,  with  State  of  Xew  York.  Held,  that  the 
the  infant,  from  the  country  in  which  evidence  did  not  e-tablish  an  intention 
the  father  resides.  In  that  case,  while  on  the  part  of  decedent  to  adopt  a, 
decedent  was  a  minor,  his  parents  foreign  domicile, 
separated,  and  the  mother  went  abroad  19  Co.  Civ.  Proc.,  §  2474. 
with   decedent,   for  economy  of  living 


285  Letters  of  Admixistkatiox  ix  Ixtestacy.       §  343. 

of  property  of  the  decedent,  in  some  cases,  are  jurisdictional  in 
their  character.  By  the  rules  of  the  connuon  law,  however, 
the  fact  of  death,  as  a  test  or  basis  of  the  jurisdiction,  was 
assigned  a  superior  rank  to  that  of  the  other  facts  enumerated. 
The  general  subject-matter  of  the  surrogate's  jurisdiction  being 
to  grant  administration  upon  the  estate  of  deceased  persons,  if 
the  person  upon  whose  estate  letters  were  issued  was  actually 
dead,  an  error  as  to  inhabitancy  or  intestacy  only  rendered  the 
surrogate's  decision  voidable  and  liable  to  be  reversed  or  re- 
voked; while,  if  he  was  alive,  it  was  null  and  void  and  could  be 
collaterally  impeaehed.^*^  '"Death"  means  actual  death;  civil 
death,  as  where  a  person  has  been  convicted  of  murder  in  the 
second  degree  and  sentenced  to  the  State  prison  for  life,  and  is 
in  prison  under  the  sentence,  does  not  give  the  Surrogate's  Court 
jurisdiction  to  grant  letters  of  administration  upon  his  estate."^ 
As  an  application  for  letters  of  administration  rests  upon  in- 
testacy, where  the  surrogate  finds  that  there  vas  a  will,  he  will 
dismiss  the  proceeding;'^  his  jurisdiction  is  terminated,  so  as  to 
permit  an  application  in  another  county,  claimed  to  be  the  resi- 
<ience  of  the  testator,  for  the  probate  of  the  -will."^ 

ARTICLE  SECOXD. 

"WHO    ARE    EXTITLED    TO    LETTERS. 

§  343.  Order  of  preference  among  relatives. —  The  general  intent 
of  the  statute  which  prescribes  the  order  of  priority  among  the 
relatives  of  an  intestate  entitled  to  administer  his  personal  prop- 
erty is  to  secure  the  right  to  those  who,  in  other  respects  being 

20  See  Roderigas  v.  East  Riv.  Sav.  is  disposed  of,  notwithstandinir  tlie  de- 
Inst.,  76  N.  Y.  316.  dared  purpose  of  the  next  of  kin  not 

21  Matter  of  Zeph,  50  Hun,  523:  20  to  offer  it  for  probate.  (Matter  of 
St.  Rep.  382.  See  Avery  v.  Everett,  Taggart,  40  St.  Rep.  308:  16  N.  Y. 
30  Hun,-  0;  110  X.  Y.  317.  As  to  pre-  Supp.  514.)  In  such  case  the  creditor 
sumptions  of  death  from  prolonged  can  bring  proceedings  for  the  probate 
absence,  etc..  see  §  180.  ante.  of    the    will,     under    Co.    Civ.    Proc, 

22  The  surrogate  has  no  power  to  §  2614.  in  order  to  determine  its 
a])p()int  an  administrator  to  dispose  of  validity.  (lb.)  But  see  Matter  of 
the  undistributed  residuum  of  an  Cameron,  47  App.  Div.  120:  62  X. 
estate  not  disposed  of  by  the  will,  the  Y.  Supp.  187;  affd.,  106  X.  Y.  610. 
executor  under  the  will  having  abso-  In  that  case,  upon  an  application 
lute  power.  (Matter  of  Haughian,  37  for  the  issue  of  letters  of  adniin- 
Misc.  457:  75  X.  Y.  Supp.  932.)  istration    upon    the    estate    of    a    de- 

23  Matter  of  Could.  30  St.  Rep.  040:  cedent,  as  intestate,  it  was  sought 
D  X.  Y.  Supp.  603.  Wiiere  it  is  shown  to  prove  the  existence  of  a  will,  with- 
that  decedent  left  an  instrument  jnir-  out  offering  it  for  probate  here,  by 
porting  to  be  a  will,  letters  of  admin-  the  production  of  an  exemplified  copy 
istration  cannot  be  granted  to  a  cred-  of  the  decree  of  a  court  of  the  State 
itor,  until  the  question  of  its  validity  of  Illinois,  where  the  executor  resided 


§  343.       Letteks  of  Administration  in  Intestacy.  28G 

prnper  persons,  have  the  greatest  interest  m  the  distribution  of 
the  personal  estate,  without  reference  to  their  interests  in  the 
real  property,  and  to  those  directly  interested,  as  distinguished 
from  strangers.^"*  The  statute  declares  that  "  administration  in 
case  of  intestacy  must  be  granted  to  the  relatives  of  the  de- 
ceased entitled  to  succeed  to  his  personal  property,  who  will 
accept  the  same  in  the  following  order:  (1)  To  the  surviving 
husband  or  wife.  (2)  To  the  children.  (3)  To  the  father.  (4) 
To  the  mother.  (5)  To  the  brother.  (6)  To  the  sisters.  (7) 
To  the  grandchildren.  (8)  To  any  other  next  of  kin  entitled  to 
share  in  the  distribution  of  the  estate."  ^ 

Although  the  statute  provides  that  administration  shall  be 
granted  to  the  relatives  of  the  deceased,  "  entitled  to  succeed 
to  his  personal  estate,"  this  does  not  change  the  order  of  prefer- 
ence subsequently  laid  down  in  detail;  e.  g.,  if  the  only  relatives 
be  father  and  brother,  and  the  father  renounce,  the  brother  is 
entitled  to  administration,  in  preference  to  a  creditor,  or  the 
public  administrator,  although  the  father  would  be  entitled  to 
the  whole  personal  estate.'*^  But  a  relative  who  would  not,  under 
any  circumstances,  be  entitled  to  a  distributive  share  in  dece- 
dent's estate  would  not  be  entitled  to  letters."^     A  relative  who 


and  assets  existed,  ^yith  photographic  "  This   section   shall   not  be  construed 

copies  of  the  original  instruments  and  to  authorize  the  granting  of  letters  to 

a   transcript  of  testimony  relating  to  any  relative  not  entitled  to  succeed  to 

the  execution   of  the  will  and  codicil  the  personal  estate  of  the  deceased,  as 

taken  here  under  a  commission  from  next   of   kin,   at   the    time   of   his    de- 

the   Illinois   court,   and   evidence   that  cease;"     thus     superseding     the     last- 

the  originals  were  on  file  in  its  office  named  decision,  and  adopting  the  con- 

from     which     the     statute     prohibited  struction  given  to  the   statute  in  Pub- 

their   removal. —  Held,  that   while  the  lie  Adm'r  v.  Peters.     But  by  L.   1867, 

striking  out  of  the  copies  and  the  evi-  c.    782,   the   words   so   added   wei-e    ex- 

dence  of  their  authenticity   was  erro-  punged.      So    that    now,    the    right    to 

neous.    an    adjudication    of    intestacy  letters  of  any  person  of  the  blood   of 

should  be  sustained,  since  the   admis-  the  intestate,  not  disqualified,  is  supe- 

sion   of  the   evidence   would   not  have  rior  to  that  of  the  public  administrar 

changed  the  finding,  the  evidence  not  tor.      (Butler  v.  Perrott,  1  Dem.  9.) 
satisfying  the  surrogate  of  the  genu-        27  Thus,    where    the    intestate    was 

ineness  of  the  original  instruments,  or  illegitimate,  and  unmarried,  and  died 

the  validity   of  their   execution   under  domiciled  in  a  country  by  the  law  of 

the  laws  of  Xew  York,  where  the  will  which  he  could  have  no  legal  kindred,, 

was  executed.  except  lineal  descendants,  a  lawful  son 

24  Sweezey  v.  Willis,  1  Bradf.  495.  of  the  mother  of  the  intestate  has  no 

25  Co.  Civ.  Proc,  §  2660,  as  amended  right  to  a  distributive  share  in  the 
189.3:  adopting  2  R.  S.  74,  §  27,  as  estate  of  the  de:edent,  and  conse- 
aTuended  L.   1867,  c.  782,  §  6.  quently    is    not   entitled    to    letters    of 

2fi  Lathrop  v.  Smith,  24  N.  Y.  417:  administration  here.  (Ferrie  v.  Pub- 
overruling  Pub'ic  Adnvr  v.  Peters,  1  lie  Adm'r,  3  Bradf.  ..51.  249.)  See  Pub- 
Bradf.  100.  After  the  decision  in  lie  Adm'r  v.  Hughes,  1  id,  125:  Peters. 
Lathrop  v.  Smith  {supra),  in  June,  v.  Public  Adm'r,  id,  200.  Where  an 
1802,  the  section  (2  R.  S.  74.  §  27)  unmarried  woman,  having  a  living 
was  amended  by  L.  186.3,  c.  .362,  §  .3,  child,  marries  a  man  who  is  not  the 
by     adding     thereto     the     following:  child's  father,   the  child  has   no  right 


287  Letters  ok  Admix istkatiox  in  Intestacy.       g  .344. 

is  cntitlotl  to  a  share  in  his  own  right  is  preferred  to  one  who 
takes  by  representation.  Thus  wliere  the  intestate  leaves  no 
wife  or  descendant,  parent,  sister,  or  brother,  but  leaves  an  aunt 
and  the  children  of  deceased  uncles  and  aunts,  the  aunt  is  solely 
entitled  to  letters  of  administration,  and  no  citation  need  issue 
to  the  cousins."**  On  a  contest  for  pr.eference  between  relatives 
whose  priority  is  not  designated  by  the  statute,  the  single  point 
to  be  ascertained  is,  who  will  be  entitled  to  the  surplus  of  what 
is  confessedly  personal  estate."^  The  withholding  of  letters  of 
administration  from  one  who,  if  not  by  some  cause  incapacitated, 
would  be  entitled  in  priority,  under  the  statute,  is  never  justi- 
fiable, except  in  cases  where  his  disqualification  is  declared  by 
the  statute  itself.^"  Hence  the  mere  fact  of  nonresidence  does 
not  incapacitate;  a  nonresident  who  has  priority  of  right  over 
a  resident  relative  is  entitled  to  letters.^^  The  fact  that  the 
claimant  is  a  nearer  relative  of  the  intestate  than  any  other 
person  within  the  United  States,  does  not  entitle  him  to  admin- 
ister, if  there  are  elsewhere  next  of  kin  of  a  prior  class.  If 
the  next  of  kin,  entitled  under  the  statute,  is  not  here,  or  is  not 
legally  competent,  the  public  administrator,  or  creditors,  are  en- 
titled.^^  If  a  person  entitled  is  a  minor,  administration  must 
be  granted  to  his  guardian,  if  competent,  in  preference  to  cred- 
itors or  other  persons.^^ 

§  344.  Preference  among  others  than  relatives. — If  no  relative, 
or  guardian  of  a  minor  relative,  will  accept  the  same,  the  letters 
must  be  granted  to  an  executor  or  administrator  of  a  sole  legatee 
named  in  a  Avill,  whereby  the  whole  estate  is  devised  to  such  de- 
ceased sole  legatee,^"*  otherwise  to  the  creditors  of  the  deceased; 


to  administer  upon  the  man's  ostato  ^Matter  of  Williams,  44  Iliin.  07:  afTd.^ 
upon  his  death  intestate;  that  ripht  111  N.  Y.  680.  Hence,  a  son  who  re- 
passes to  his  next  of  kin.  because  sides  in  another  State  has.  in  spite  of 
the  marriape  of  the  man  and  woman  that  fact,  a  priority  of  ritrht  over  a 
cannot  legitimatize  the  child  of  the  daujihtcr  resident  here.  ( Lussen  v. 
Avoman  hv  another  man.  (flatter  of  Timmerman.  4  Dem.  2">0.)  Sec  Weed 
Pfarr.  .3S  :\risc.  223.)  The  father  of  v.  Waterbury.  5  Rcdf.  114. 
an  intestate  whose  death  was  fol-  32  Public  Adm'r  v.  Watts,  1  Paiee, 
lowed  first  by  the  death  of  his  child,  347;  reversed,  on  other  grounds,  in  4 
and  then  by  that  of  his  wife,  is  not  Wend.  1G8. 

entitled  to  letters  of  administration  on  33  Co.  Civ.  Proc,  §  2600,  as  amended 

his  estate,  since  not  he  but  the  leffal  1893.     See  Blanck  v.  ^Morrison,  4  Dcni. 

representatives  of  the  wife  succeed  to  297;  s.  c,  as  Estate  of  Planck.  3  TTow. 

the   personalty.      (Matter  of  Seymour,  Pr.    (N.   S.)    58.     The   fruardian   of  a 

33  ^lisc.  271  ;  68  N.  Y.  Supp.  638.)  minor  son  of  decedent  has  a  preference 

28;Matter    of    Gooseberrv,    52    TTow.  over  the  public  administrator.      Ofat- 

Pr.   310.     And  see  Adee  v.   Caiupbell,  tcr  of  Hudson,  37  :\Iisc.  539;  75  X.  Y. 

79  N.  Y.  52.  Supp.   1053.) 

29  Sweezev  v.  Willis,  1  Bradf.  495.  34  Co.  Civ.  Proc.,  §  2660,  as  amended 

30  O'Brien  v.   Neubert.   3   Dem.   1.56.  1894    (L.   1894.  c.  503). 
siLibbev  v.  Mason,  112  N.  Y.  525; 


§  345.       Letters  of  Administration  in  Intestacy.  288 

the  creditor  first  applying,  if  competent,  to  be  entitled  to  pref- 
erence. If  no  creditor  applies,  the  letters  must  be  granted  to 
any  other  person  or  jDcrsons  legally  competent.  The  public  ad- 
ministrator in  the  city  of  New  York  has  preference,  after  the 
next  of  kin  and  after  an  executor  or  administrator  of  a  sole 
legatee,  over  creditors  and  all  other  persons.  In  other  counties 
the  county  treasurer  shall  have  preference  next  after  creditors 
over  all  other  persons."  ^^  It  is  also  provided  that  where  no 
relative,  guardian  of  a  minor  relative,  creditor,  county  treasurer, 
or  public  administrator  consents  to  administration,  any  party  to 
an  action  brought  or  about  to  be  brought,  and  interested  in  the 
subject  thereof,  in  which  the  intestate,  if  living,  would  be  a 
proper  party,  may  apply.^^  And  in  the  case  of  an  alien  intestate, 
letters  of  administration  may  issue  to  the  consul-general  of  his 
country,^"  or  to  his  nearest  friend.^^ 

§  345.  Preference  of  persons  in  same  class. —  As  the  statute  enu- 
merates the  persons  having  a  right  to  administration  in  classes, 
it  becomes  necessary  to  distinguish  between  several  persons  of 
the  same  class,  and  provision  is  made  for  cases  of  this  character. 
"  If  several  persons  of  the  same  degree  of  kindred  to  the  intestate 
are  entitled  to  administration,  they  must  be  preferred  in  the 
following  order:  first,  men  to  women;  second,  relatives  of  the 
whole  blood  to  those  of  the  half  blood;  third,  unmarried  women 
to  married."  ^^     "  If  there  are  several  persons  equally  entitled 


35  Co.  Civ.  Proc,  §  2660.  as  amended  the  application  was  granted  %vithoiit 
1894.  As  to  the  preference  of  the  security  being  required,  on  the  ground 
public  administrator  in  Kings  county,  that  the  treaty  with  Italy  provided 
«ee  Co.  Civ.  Proc.  §  2669,  as  amended  for  it;  and  that  the  State  statute 
189.3.  -It  was  held,  under  the  original  should  give  way  to  the  obligations  of 
statute,  now  incorporated  in  section  the  Federal  government  under  its 
2669,  that  the  public  administrator  of  treaties  with  foreign  nations.  In  Mat- 
Kings  county  had  priority  over  an  in-  ter  of  Logiorato  (34  Misc.  31),  the 
fant  next  of  kin  in  that  county;  an  surrogate  of  New  York  refused  to  fol- 
infant  not  being  "competent,"  within  low  that  precedent,  and  granted  let- 
the  meaning  of  that  statute.  fSpreck-  ters  to  the  consul-general  only  because 
les  V.  Public  Adm'r,  1  Dem.  47-5.)  the  local  law  warranted  it,  and  be- 
Kelatives  of  an  intestate,  though  not  cause  the  public  administrator  re- 
entitled  to  share  in  his  estate,  have  fused  to  serve.  The  usual  security 
the  preference  in  the  issue  of  letters  was  also  required. 

of  administration  over  the  public  ad-        38  Matter    of   Paola.    36   Misc.     514; 

ministrator,  and  on  a  petition  in  his  73  X.  Y.   Supp.    1062. 
l)ehalf  must  be  cited  to  appear.     fMat-        39  Co.  Civ.  Proc.  8  2660.  as  amended 

ter   of   Lowenstein,  29   Misc.    722:    02  1893.    The  original  statiite,  which  gave 

^.  Y.  Supp.  819.)  a  preference  to  unmarried,   over  mar- 

36  Co.  Civ.  Proc,  §  2660,  as  amended  ried.  women,  was  not  repealed,  im- 
1897    (L.   1897,  c   177).  pliedly.  by  L.  1867.  c  782,  §  2,  which 

37  Matter  of  Fattosini.  33  ?klisc  IS;  declares  married  women  to  be  capable 
<>7  X.  Y.  Supp.  1119:  Matter  of  Lo-  of  acting  as  "administratrixes."  etc, 
brasciano,  38  Misc.  415.   In  those  ca-^es  as  thousrh  thev  were  single.     The  Act 


289  Letters  of  Admixistratiox  ix  Txtestacy,       §  346. 

to  a<liuini.stration,  the  surrogate  may  grant  letters  to  one  or  more 
of  such  persons."  ■*"  This  discretion  is  not  an  arbitrary  or  capri- 
cious one,  but  one  which  must  be  exercised  in  view  of  the  par- 
ticular circumstances  of  the  case,  and  the  peculiar  claims  and 
qualifications  of  the  applicants/^  Tlie  P^nglish  rule  is  that  where 
there  are  several  claimants  for  administration,  between  whom 
the  court  must  choose  according  to  its  discretion,  the  court  will, 
other  things  being  equal,  decree  administration  to  the  one  who 
has  the  greatest  interest. "'^ 

g  346.  Surviving  husband's  preference. —  The  Revised  Statutes 
did  not  mention  the  husband,  in  its  order  of  preference,  but  only 
*'  his  widow."  Another  section  provided  that,  *^  in  case  of  a 
married  woman  dying  intestate,  her  husband  shall  be  entitled  to 
administration  in  preference  to  any  other  person,  as  hereinafter 
provided;""*^  and  another,  that  '"a  husband,  as  such,  if  other- 
wise competent  according  to  law,  shall  be  solely  entitled  to  ad- 
ministration on  the  estate  of  his  wife."  ^^  The  substance  of 
these  enactments  were  brought  into  the  Code  in  1893,  the  words 
^'  surviving  husband  or  "wife  "  being  substituted  for  "  his  widow," 
in  the  order  of  preference.'*^  These  statutory  provisions  are  a 
declaration  and  aiRrmation  of  the  right  which  the  common  law 
gave  to  a  surviving  husband.'*^     The  only  alteration  of  the  com- 


of  1SG7  merely  freed  married  women  nearest  shall  be  preferred.  Hence,  a 
from  pre-existing  disabilities,  without  niece  is  preferred  in  administration  to 
disturbino:  the  order  of  appointment,  a  grj-andnephew  because  nearer  of  kin 
and  hence  the  appointment  of  an  im-  to  the  intestate.  ( ]\Iatter  of  Hawley. 
married  woman  as  administratrix,  'M  ^lisc.  6fi7.)  The  half  brother  of  an 
without  notice  to  her  married  sister,  intestate  is  entitled  to  letters  of  ad- 
was  valid,  the  latter  not  having  an  ministration  as  against  a  sister  of  the 
equal  right  to  letters.  (Matter  of  whole  blood.  (flatter  of  Moran,  5 
Curser,  89  N.  Y.  401;  overruling  West  Misc.   170.) 

v.   crapes,   4   Redf.   406.)      Before   the  -in  Co.  Civ.  Proc,  §  2660.  as  amended 

statute  of  1867.  giving  males  a  prefer-  180.3. 

ence.   it  was  held   that  as  between  an  *i  Peters  v.   Public  Adm'r.   1    Pradf. 

adult  daughter  and  the  guardian  of  a  207:  Quintard  v.  Morgan,  4  Dem.   171. 

minor  son,  the  former  was  to  be  pre-  42  Tucker   v.   Westgarth,   2   Addams, 

ferred.      (Cottle  v.   Vanderhevden.    11  352. 

Abb.    [N.    S.l    17.)       In   Wickwire   v.  43  2  R.  S.  74,  §  27. 

Chapman    (15   Barb.   302),  a   resident  44  Id.    75.    §    29.      See    Shumway   v. 

adult    female    was    preferred    to    non-  Cooper,     16     Barb.    556:     Ransom    v. 

resident     male     relatives,     who     were  Nichols,  22  N.  Y.  110:  Watson  v.  Bon- 

under  age.     The  words  quoted  in  the  ney.  2  Sandf .  405 :  McCosker  v.  Golden, 

text  do   not  jnean  that  if  both   claim-  1    Bradf.   04:    Vallance   v.    Baus^h.   28 

ants  belong  to  the  eighth  class  of  the  Barb.   6.33:    Libbey   v.   Mason.   42  Hun, 

section — "To  any   other  next  of  kin  470:    revd.,   on  another   point,   in   112 

entitled  to  share  in  the  distribution  of  N.  Y.  525. 

the  estate  " —  men  of  the  class  are  to  45  Co.  Civ.  Proc,  §  2660,  as  amended 

be  preferred  to  women  of  the  class  in  1893. 

all  cases  but,  on  the  contrary,  intend  46  Barnes   v.    Underwood,    47   X.   Y. 

that  where  members  of  the  class  are  351:   Robins  v.  McClure.   100  id.   328; 

of    different    degrees    of    kindred    the  Matter  of  Harvev,  3  Redf.  214. 


§  347.       Letters  of  Administration  in  Intestacy.  290 

mon-laAV  rule  is  the  statute  which  provides  that  the  husband  of 
a  deceased  wife,  leaving  descendants,  is  entitled  to  the  same 
distributive  share  of  her  estate  to  which  a  widow  is  entitled  in 
the  j)ersonal  property  of  her  husband."  ^^  The  statute  declares 
that  "  if  a  surviving  husband  does  not  take  out  letters  on  the 
estate  of  his  deceased  wife,  he  is  presumed  to  have  assets  in  his 
hands  sufficient  to  satisfy  her  debts,  and  is  liable  therefor."  If, 
however,  he  takes  out  letters,  then,  as  administiator,  he  is  liable 
"  for  the  debts  of  his  wife  only  to  the  extent  of  the  assets  re- 
ceived by  him."  ^*  The  statute  now  confirms  a  rule  which  the 
courts  have  adopted,  that  if  a  husband,  who  has  taken  out  letters 
on  his  wife's  estate,  "  dies,  leaving  any  assets  of  his  wife,  un- 
administered,  except  as  otherwise  provided  by  law,  they  pass  to 
his  executors  or  administrators  as  part  of  his  personal  estate; 
but  are  liable  for  her  debts,  in  preference  to  the  creditors  of  the 
husband."  *^  The  proviso  refers  to  the  statutory  order  of  pref- 
erence, so  that  in  case  a  wife  left  descendants,  they  would  take 
letters  in  preference  to  the  husband's  representative.^*^ 

§  347.  Divorced  wife. —  A  divorced  woman,  whether  the  divorce 
was  granted  because  of  the  misconduct  of  herself  or  of  her 
husband,  not  being  entitled,  if  he  die  intestate,  to  a  distributive 
share  of  his  estate,  is  not  entitled  to  administer  his  estate.^^  But 
otherwise  where  the  husband  and  wife  were  separated  by  articles 
containing  a  release  of  all  her  right  in  his  estate,  as  such  a  release 
does  not  amount  to  a  renunciation  of  the  riffht  to  administer. ^^ 


4TCo.  Civ.  Proc,  §  2734.  as  amended  (Matter   of   Sturtzkober,   37    St.   Rep. 

1893,    substantially    adopting   2   R.    S.  939;    14  N.  Y.  Supp.  501.) 

98,  §   11,  as  amended  L.   1867,  c.  782,  51  Matter  of  Ensign,  103  N.  Y.  284. 

§  11.  See   §   95,   ante.     In  Matter  of  Boyle 

48  Co.  Civ.  Proc,  §  2660,  as  amended  (N.  Y.  Law  J.,  March  14,  1891),  let- 
1893.  ters  were  refused  to  a  woman  claiming 

49  Co.  Civ.  Proc.,  §  2660,  as  amended  to  have  married  decedent  after  his 
1893.  divorce  from  his  first  wife,  for  his  own 

50  In  Matter  of  Harvey  ( 3  Redf.  adultery,  the  decree  having  forbidden 
214;  overruling  Matter  of  O'Niel,  2  decedent  marrying  again  during  life- 
id.  544),  it  was  held  that  where  the  time  of  plaintiff.  A  woman  who  went 
wife  died,  intestate,  leaving  no  de-  to  another  State  and  obtained  a 
ccendants,  and  afterward  the  husband  divorce,  procuring  the  decree  on  ser- 
died  without  taking  letters  of  admin-  vice  by  publication  on  her  husband, 
istration  upon  her  estate,  his  exec-  cannot  claim  the  right  to  letters  of 
utors  were  entitled  to  them ;  and  if,  administration  on  his  estate  on  the 
during   his   lifetime,   such   letters   had  ground    the    decree    is    invaHd    here, 

.been   issued   to   her   relatives   without  since    a    party   w^ho    has    invoked    the 

his  renunciation,  the  surrogate  would  jurisdiction  of  any  court  and  submit- 

revoke  them  and  issue  new  letters  to  ted  to  its  decree,  cannot  be  heard  to 

his  executors.     See  Matter  of  Thomas,  question  its  jurisdiction.      (Matter  of 

33   Misc.   729;    68   N.   Y.   Supp.    1116.  Swales,   60  App.   Div.   599;    70   N.   Y. 

Under  no  construction  of  the  statute  Supp.  220.) 

ran   the   public   administrator   become  52  Matter  of  Wilson,   92   Hun,   318;. 

entitled    to    letters    in    such    a    case.  36  N.  Y.  Supp.  882. 


201     Letters  of  Admixistration  in  Intestacy.     §§  348-351. 

§  348.  Joinder  of  person  not  entitled. —  Administration  may  be 
granted  to  one  or  more  competent  persons,  althougli  not  entitled 
to  the  same,  with  the  consent  of  the  person  entitled,  to  he  joined 
Avitli  such  person;  which  consent  must  l)e  in  writinir,  and  he  filed 
in  the  surrogate's  office. ^^  The  consent  is  ahsulutelv  necessary 
to  authorize  the  joinder;"^  and  notwithstanding  a  consent,  a 
stranger  cannot  he  a])pointed  administrator,  without  the  joinder 
^vith  him  of  a  person  entitled."'^"'* 

§  349.  Preference  not  to  be  delegated. — The  right  to  administer 
is  a  personal  one,  and  an  individual  who  has  the  prior  right 
thereto  can  prevent  the  grant  of  administration  to  those  subse- 
quent to  him  in  the  order  of  preference,  only  by  taking  letters 
himself.     He  is  not  entitled  to  nominate  a  third  person.'^ 

TITLE  TILIED. 

PROCEEDINGS  TO  OBTAIN  LETTERS. 

§  350.  Who  may  make  the  application. — It  is  not  essential  that 
the  applicant  for  letters  should  be  one  claiming  the  first  or  ex- 
clusive right  thereto.  Any  person  entitled,  absolutely  or  con- 
tingently, to  administration  on  the  estate  of  an  intestate,  may 
apply  for  an  award  of  letters,  either  to  himself,  or  to  such  other 
person  or  persons  having  a  prior  right,  as  may  be  entitled  thereto, 
or,  in  the  alternative,  as  the  petitioner  elects.^^ 

§  351.  Mode  of  application  and  contents  of  petition. —  The  ap- 
plication must  be  made  to  the  Surrogate's  Court  having  juris- 
diction, and  must  be  by  a  written  petition,  duly  verified,  setting 
forth  **  the  petitioner's  title;  the  facts  upon  which  the  juris- 
diction of  the  court  to  grant  letters  of  administration  upon  the 
estate  depends;  and  the  names  of  the  husband  or  wife,  if  any, 
and  of  the  next  of  kin  of  the  decedent,  as  far  as  they  are  known 
to  the  petitioner,  or  can  be  ascertained  by  him  with  due  dili- 
gence." The  following  facts  should  appear  by  the  petition: 
1.   The  full  name  and  address  of  each  person  to  whom  it  is  asked 


53  2  R.  S.  76.  §  34.  incorporated  in  alien  is  incapable  of  obtaining  letters 
Co.  Civ.  Proc,  §  2660,  as  amended  of  administration  upon  the  property 
1803.  of   a    resident   here,   and     cannot,     by 

54  Peters  v.  Public  Adm'r.  1  Bradf.  power  of  attorney,  authorize  another 
200.  to   do   so    in    his   behalf.      (Sutton   v. 

55  Matter  of  Root.  1  Redf.  257;  Mat-  Public  Adm'r.  4  Dem.  33.) 

ter  of  Ward.  id.  2.54.  57  Co.  Civ.  Proc.  §  2662.  as  amended 

56  Matter  of  Root.  1  Redf.  2.57;  Mat-  1893.  by  consolidating  former  §§  2660, 
ter  of  Ward.  id.   254.     A  nonresident  2661. 


§  351.       Letters  of  Administration  in  Intestacy.  292 

that  letters  be  issued,  and  enough  to  show,  prima  facie,  his 
competency  to  administer,  including  his  relationship  to,  or  the 
fact  that  he  is  a  creditor  of,  the  decedent,  and  his  age.  If 
either  of  such  persons  does  not  reside  in  this  State,  there  should 
be  an  allegation  that  he  is  a  citizen  of  the  United  States,  since 
a  nonresident  alien  is  incompetent.  It  is  not  necessary  to  state 
that  he  has  not  been  convicted  of  an  infamous  crime,  as  that 
will  be  presumed.  The  other  grounds  of  incompetency  specified 
in  the  statute  depend  on  the  adjudication  of  the  surrogate  upon 
the  facts,  and  there  need  be  no  allegation  in  regard  to  them. 
2.  The  fact  of  the  death  of  the  person  upon  whose  estate  a 
grant  of  administration  is  sought.  The  time,  place,  and  manner 
of  the  death  should  be  specified,  if  the  petitioner  has  knowledge 
thereof.  If  he  has  not  such  knowledge,  the  allegations  upon  that 
point  may  be  made  on  information  and  belief.  In  case  the 
only  available  evidence  of  the  death  is  circumstantial,  there 
should  be  a  statement  of  such  facts  and  circumstances  as  raise  a 
presumption  of  death,  and  justify  the  surrogate  in  adjudging  that 
the  same  has  occurred.  In  such  instances,  great  care  should  be 
taken  to  set  forth  every  circumstance  which  would  raise  an  in- 
ference of  death,  since,  in  a  case  where  the  fact  of  death  does 
not  actually  exist,  the  letters  cannot  be  sustained  against  col- 
lateral attack,  unless  due  proof  of  death  is  adduced  before  the 
surrogate.  As  to  the  fact  of  death,  mere  information  and  belief, 
without  any  reasons  for  it,  are  not  proof  or  evidence  in  any  legal 
sense.^^  ]^o  absolute  rule  can  be  laid  down  as  to  what  is  sufficient 
circumstantial  proof  of  death,  so  as  to  make  the  surrogate's  de- 
cision, that  the  person  is  really  dead  as  alleged,  conclusive.  Little 
question  can  exist  where  there  is  direct  evidence,  as  the  testi- 
mony of  one  who  witnessed  the  death  and  burial;  but  where  the 
evidence  is  circumstantial,  there  may  be  considerable  difficulty.^* 

58  Roderigas  v.  East  River  Sav.  Inst.,  and  belief,  the  fact  being  that  he  was 
76  N.  Y.  316.  In  this  case,  the  peti-  living.  Held,  that  "there  was  too 
tion  was  not  presented  to  the  surro-  much  '  voidness  '  in  this  proceeding  to 
gate,  who  never  saw  the  petitioner,  justify  any  court  in  sustaining  it  for 
and  never  in  fact  acted  upon  the  peti-  any  purpose  whatever,"  and  that  the 
tion,  and  had  no  actual  knowledge  of  letters  were  no  protection  to  an  inno- 
it,  nor  of  the  issuing  of  the  letters,  cent  person  who  had.  upon  presenta- 
the  business  being  done  by  a  clerk  in  tion  thereof,  in  good  faith  and  rely- 
the  office,  who  used  a  blank  which  had  ing  upon  them,  paid  to  the  person 
been  signed  by  the  surrogate  and  left  named  as  administratrix  a  sum  due 
with  him,  and  attached  the  surro-  the  alleged  decedent, 
gate's  seal.  The  only  proof  of  the  f>9  As  to  the  burden  of  proving  de- 
death  of  the  person  on  whose  estate  cedent's  death,  and  for  illustration-^  of 
administration  was  asked,  was  the  what  circumstances  will  prove  it  in- 
allegation  of  the  petitioner,  upon  the  ferentially,  see  §  186,  ante. 
best    of    her    knowledge,    information, 


203  Lettkks  of   Administkatiox   in   Intestacy.       §  351. 

3.  That  the  decedent  left  no  valid  will/''^  and  the  other  facts 
essential  to  show  that  the  surrogate  to  whom  the  application  is 
made  has  jurisdiction  to  grant  it  —  e.  g.,  that  the  deceased  was, 
at  the  time  of  his  death,  a  resident  of  the  surrogate's  county, 
or,  being  a  nonresident  of  the  State,  died  in  that  county,  leaving 
property  in  the  State,  etc.  -i.  The  value  of  the  decedent's  per- 
sonal estate,  so  far  as  ascertained.  5.  Whether  the  decedent  left 
any  husband  or  widow,  children,  adopted  children,  etc.,  so  as  to 
show  the  order  of  priority  of  right  to  the  letters.  If  any  such 
persons  survive,  the  petition  should  show  the  full  name  and  resi- 
dence of  each,  and  his  relationship  to  the  decedent,  and  whether 
any  of  them  are  infants,  and,  if  so,  the  full  names  and  residences 
of  the  guardians,  if  any.  Also,  whether  the  relatives  of  the  same 
degree  of  kindred  are  males  or  females, —  if  females,  whether 
married  or  single, —  and  whether  they  are  of  the  whole  blood  or 
of  the  half  blood,  as  these  matters  determine  the  preference 
among  several  persons  of  the  same  degree  of  relationship.  Where 
several  are  equally  entitled  to  administration,  the  petition  may 
properly  contain  a  statement  of  such  facts  as  mil  guide  the  sur- 
rogate in  the  exercise  of  his  discretionary  power  to  choose  among 
them.  6.  In  case  there  are  persons  who  have  a  right  of  admin- 
istration prior,  or  ecpuil,  to  that  of  those  to  whom  the  letters 
are  sought  to  be  issued,  and  they  have  renounced,  that  fact 
should  be  alleged.  If  the  applicant  prays  for  the  issue  of  letters 
to  himself,  and  desires  to  have  one  or  more  persons,  not  entitled 
to  administer,  joined  with  him  in  the  administration,  the  petition 
should  state  the  full  names  and  residences  of  such  persons,  and 
facts  showing,  prima  facie,  their  competency  to  administer,  in 
the  same  manner  as  with  resj^ect  to  a  person  entitled,  and  con- 
tain a  consent  to  such  joinder.  The  petition  must  always  pray 
for  a  decree  which,  under  the  present  statute,  is  a  preliminary 
to  the  issuing  of  the  letters  in  all  cases.  In  certain  instances 
there  will  also  be  a  clause  asking  that  a  citation  issue;  and  where 

60  A    verified    petition    allefring    the  tioncr  has  made  dilijient  search  among 

death    of    decedent    "  without    leavin":  the  papers  of  the  decedent,  and  found 

any  valid  hist  will  and  testament,  to  no  will,  is  sufficient:   or  that  a  paper 

my  knowledge,  information,  or  belief,"  purporting  to  be   a   will   was  revoked 

made  by  the  nephew  of  the  decedent,  by  the  testator  in  his  lifetime:  or  that 

a    resident    of    the    same    county    she  the    paper   was   not   a    valid    will,    by 

lived    in,    and    one   of   her   nearest   of  reason   of   the    incapacity   of   the   tes- 

kin, —  Held    sufficient   to   confer    juris-  tator,     AYhere   an   invalid   or   inopera- 

diction  on  the  surrogate  to  determine  five  testamentary  paper  is  alleged,  the 

the  fact  as  to  intestacy,  a  will  having  executors  and  legatees  named  therein, 

been  probated  in  another  State.     (^lat-  if  known,  should  be  mentioned,  and  the 

ter  of  Cameron,  47  App.  Div.  120:  02  court  ought  to  require  notice  to  them 

N.    Y.    Supp.    187:    affd.,    lOfi    N.    Y.  before  granting  administration. 
610.)      An    allegation    that    the    peti- 


§§  352-354.      Letters  of  Administratiox  in  Intestacy.      294 

the  petitioner  asks  that  letters  issue  to  himself,  and  desires  a 
person,  not  entitled,  to  be  joined,  he  shonld  add  a  prayer  to  that 
effect.  The  Code  provides  that  the  prayer  shall  be  for  a  decree 
awarding  letters  of  administration,  either  to  him  or  to  such  other 
person  or  persons,  having  a  prior  right,  as  may  be  entitled 
thereto,  or  in  the  alternative,  as  the  petitioner  elects;  and,  if 
necessary,  that  the  persons  recpiired  to  be  cited,  as  prescribed  in 
the  statute,  may  be  cited  to  show  cause  why  such  a  decree  should 
not  be  made.''^ 

§  352.  Renunciation  of  prior  right  to  letters. —  As  in  the  case  of 
one  appointed  executor  by  a  will,  the  right  to  administration  may 
be  renounced.  The  Code  provides  for  a  renunciation  by  a  person 
who  has  either  a  prior  or  an  equal  right  to  that  of  the  petitioner, 
and  the  mode  prescribed  for  the  renunciation  is  '*  by  a  written 
instrument,  acknowledged  or  proved,  and  certified,  in  like  manner 
as  a  deed  to  be  recorded  in  the  county,  or  otherwise  proved  to 
the  satisfaction  of  the  surrogate ;  which  must  be  filed  in  the  surro- 
gate's office."  ^" 

§  353.  Qualified  renunciation.-^  A  distinction,  not  indicated  in 
the  statute,  has  arisen  in  practice  between  an  absolute  and  a 
qualified  renunciation.  By  the  former,  the  person  having  the 
right  gives  it  up  without  qualification,  and  it  may  then  be  taken 
advantage  of  by  any  one  standing  in  the  same  or  the  subsequent 
order  of  preference;  while,  by  the  latter,  the  person  executing 
the  renunciation  inserts  a  clause  stating  that  he  renounces  in 
favor  of  a  certain  person  only,  and  such  a  renunciation  is  of  avail 
only  to  the  person  in  whose  favor  it  is  made.  It  seems  that  a 
renunciation  may  be  retracted  at  any  time  before  the  letters  of 
administration  have  actually  issued,  and  that  such  a  retraction 
is  a  matter  of  right  which  the  surrogate  cannot  refuse  to  allow.^'^ 

§  354.  Proof  requisite  for  citation  or  decree. —  Ordinarily  the  fil- 
ing of  the  petition  will  be  followed  by  the  issuing  of  a  citation; 
but  where  it  is  not  necessary  to  cite  any  person,  a  decree  grant- 
ing letters  may  be  made  directly  upon  presentation  of  the  peti- 
tion.^ Before  the  surrogate  acts  in  either  manner,  the  statute 
requires  that  he  should  have  before  him  satisfactory  presumptive 

61  Co.  Civ.  Proc  §  2662,  as  amended  administered  on  in  puch  State.  (Siilz 
189.3    (former   §  26G0).  v.  Mutual  Reserve  Fund  Life  Assn..  83 

62  Co.  Civ.  Proc.  §  2663.  as  amended  Hun.  139:  revd..  on  other  points,  in 
1893.  consolidatinfT  former  §  2664.     A  14.5  N.  Y.  .563.) 

renunciation    of   the    rijrht   to    be    ap-        63  Casev  v.  Gardiner.  4  Bradf.  13. 
pointed  administrator  in  another  State        64  Co.  Civ.  Proc.  §  2662.  as  amended 
relates  only  to  assets  which  must  be    1893,  consolidating  former  §  2661. 


295  Letters  of  AdministkuItion  in  Intestacy.       §  355. 

evidenc'O  of  the  facts  upon  which  his  jurisdiction  depends.  It 
is  provided  that  "  a  citation  shall  not  be  issued,  and  a  decree  shall 
not  be  made  where  a  citation  is  not  necessary,  until  the  petitioner 
presumptively  proves,  by  affidavit  or  otherwise,  to  tiie  satisfac- 
tion of  the  surrogate,  the  existence  of  all  the  jurisdictional  facts, 
and,  ])articMdarly,  that  the  decedent  left  no  will.  For  the  pur- 
pose of  the  in(piiry  touching  any  of  these  matters,  the  surrogate 
may  issue  a  subpcena,  rcMpiiring  any  person  to  attend,  and  be  ex- 
amined as  a  witness."  ^^  For  example,  where  administration  is 
claimed  by  an  alleged  son  of  the  intestate,  but  his  legitimacy  is 
denied,  proofs  must  be  taken,  and  the  question  of  interest  deter- 
mined."''* Where  the  decree  for  letters  is  made  without  citation^ 
upon  the  presentation  of  the  i)etition,  it  is  manifest  that  the 
latter  must  contain  all  the  proof  which  the  statute  requires  to 
be  presented.  The  surrogate  is  not  confined  to  any  form  of  pro- 
cedure or  mode  of  proof  on  an  a])])lication  for  letters  of  adminis- 
tration,    lie  may  receive  proof  by  affidavit.*'^ 

§  355.  When  citation  to  issue. —  As  to  whether  or  not  a  citation 
shall  issue,  upon  an  application  for  a  grant  of  administration,  the 
Code  specifies  three  classes  of  cases,  in  two  of  which  a  citation 
is  required,  while  in  the  third  its  issuing  is  in  the  discretion  of 
the  surrogate:  '*  1.  Every  person,  being  a  resident  of  the  State, 
who  has  a  right  to  administration,  prior  or  equal  to  that  of  the 
petitioner,  and  who  has  not  renounced,  must  be  cited  iipon  a 
petition  for  letters  of  administration.^^  2.  Where  the  surrogate 
is  unable  to  ascertain,  to  his  satisfaction,  whether  the  decedent 
left  surviving  him  any  person  entitled  to  succeed  to  his  estate, 


65  Co.  Civ.  Proc.  §  2062,  as  amended  rogate  to  issue  the  letters  did  not  de- 

1893,    consolidating     former     §     2(501.  jx'nd  upon  its  observanoe.      (Farley  v. 

The   last    clause   of   this   section    is    in  McConnell.  52  N.  Y.  630;  Johnston  v. 

addition  to  the  general  provision   (Co.  Smith.  25  Hun,  171.)     As  to  verifica- 

Civ.  Proc,  §  24S1,  suhd.  3)   conferring  tion  before  a  notary,  and  the  form  of 

upon   surrogates   power   to   issue    sub-  it,  see  Perry  v.  Cornell  Steamboat  Co., 

poenas  to  witnesses.     The  provision  of  27  Hun,  216. 

the    Revised    Statutes     (2    R.    S.    74,  «« Public  Adm'r  v.  Hughes,  1  Bradf. 

§   20),   which   this   section   supersedes,  12."). 

differed    from    it    in    phraseology,    re-  6' O'Connor   v.   Huggins,    113   X.   Y. 

quiring  that  before  the  letters  shall  be  511. 

issued,  •■  tlie  fact  of  such  persons  dying  68  Co.  Civ.  Proc.  §  2003,  as  amended 

intestate  shall  l)e  proved  to  the  satis-  1893,     consolidating     former     §     20()2. 

faction  of  the  surrogate,  who  shall  ex-  Formerly,  persons  having  equal   right 

amine   the   per.son    applying   for    such  to   the   administration    with   the   peti- 

letters,    on    oath,    touching    the    time,  tioner,  were  not   required  to  be  cited, 

place   and   manner   of   the   death,   and  (Peters    v.    Public    Adm'r,    1     Pradf. 

whether    or   not   the   party   dying   left  200.)       But   not   so  now.      (Matter   of 

any  will,  etc."     But  it  was  held  that  Tobin,  7  N.  Y.   Surr.,  MS.   Dee.    138; 

the    provision    was    merely    directory.  Matter  of  Early,  N.  Y.  Law  J.,   Feb. 

and   that   the  jurisdiction' of  the   sur-  18.   1S90.) 


§  356.       Letters  of  Administkation  in  Iivtestacy.  29G 

a  citation  must  be  issued,  directed  generally  to  all  creditors  of^ 
and  persons  interested  in,  the  estate,  and  also  to  the  attorney- 
general  and  the  public  administrator  of  the  proper  county,  re- 
quiring them  to  show  cause  why  administration  should  not  be 
granted  to  the  petitioner. ^^  3.  The  surrogate  may,  in  his  dis- 
cretion, issue  a  citation  to  nonresidents,  or  those  who  have  re- 
nounced, or  to  any  or  all  other  persons  interested  in  the  estate, 
whom  he  thinks  proper  to  cite."  ™ 

"  Where  it  is  not  necessary  to  cite  any  person,  a  decree,  grant- 
ing to  the  petitioner  letters,  may  be  made  on  presentation  of 
the  petition."  '^  It  is  obvious  that  where  there  is  no  one  who 
has  a  right  to  the  administration  either  "  prior  or  equal  to  that 
of  the  petitioner,"  no  citation  is  necessary;  for  example,  no  cita- 
tion is  necessary  on  the  application  of  a  widow  for  letters  on 
her  deceased  husband's  estate,'^^  nor  where  application  is  made  by 
a  residuary  legatee."^  A  person  who  has  the  prior  right  of  ad- 
ministration must  be  cited,  even  although  letters  issued  to  him 
have  been  revoked  for  a  failure  to  give  new  sureties."^*  Where 
the  person  having  such  prior  right  or  one  having  an  equal  right 
has  not  been  cited,  letters  issued  to  another  will  be  revoked  on 
his  application.^^ 

§  356.  Contents  and  service  of  citation. —  In  respect  to  its  con- 
tents, the  citation  must  of  course  conform  to  the  requirements 
of  the  statute  applying  to  all  citations  issued  by  a  surrogate. "^^ 
The  Code  specifies,  in  only  one  instance,  i.'e.,  where  the  public 
administrator  and  the  attorney-general  are  to  be  cited,^^  the  tenor 
of  a  citation  issued  upon  an  application  for  letters  in  intestacy; 
but,  in  other  cases,  as  in  the  one  referred  to,  it  should  require 
those  to  whom  it  is  directed  to  show  cause  why  administration 
should  not  be  granted  to  the  petitioner,  or  as  prayed  for  by  him. 
The  rules  governing  the  time,  manner,  and  proof  of  ser^dce  of 
the  citation  have  been  already  given,  while  treating  of  the  com- 
mencement of  proceedings  in  general.'^* 


G9Co.  Civ.  Prrc.  §  2Gfi3.     The  mode  T2  :\rattpr   of   :\rmiUon.    32    St.    Rep. 

of    service    of    such    a    citation,    upon  031  :   10  N".  Y.  Supp.  717. 

the  general  class  of  creditors  and  per-  73  Matter    of    Richardson,    8    Misc. 

sons    interested,    will    be    by    publica-  140:  29  N.  Y.  Supp.  1079. 

tion,    under    Co.    Civ.    Proc,    §    2,523.  T4  Barber  v.   Converse,   1   Redf.   330. 

See  §  75.  ante.  V5  Barber  v.  Converse.   1   Redf.   330: 

70  Co.  Civ.  Proc.  §  2663.  as  amended  Public  Adm'r  v.  Peters,  1  Bradf.   100. 
1893.  consolidatincr  former  §  2662.  And  see  Oram  v.  Oram.   3   Redf.   300. 

71  Co.  Civ.  Proc.  §  2663.  as  amended  76  Co.  Civ.  Proc.  §  2.519. 
1893,  consolidating  former   §  2662.  77  Co.  Civ.  Proc,  §  2663. 

78  Chapter  III,  ante,  §  76  et  seg. 


2U7      Letti-:ks  of  Ad.mixistkatiux  in  Lntkstacy.      §§  357,  358. 

§  357.  Appearance  by  person  not  cited. —  it  is  provided,  with  re- 
spect to  an  applicatittu  for  letters  in  intestacy,  that  "  where  a 
citation  is  issued,  any  creditor  of  the  decedent,  or  any  person  in- 
terested in  the  personal  estate,  although  not  cited,  may  appear 
and  make  himself  a  party  to  the  special  proceeding,  in  like  man- 
ner and  with  like  effect  as  a  devisee  or  legatee,  who  is  not  cited 
upon  an  application  for  probate."  '^ 

§  358.  Proceedings  on  the  hearing. —  The  statute  contemplates 
two  species  of  hearings  before  the  surrogate,  on  an  application 
for  a  grant  of  administration  in  case  of  intestacy, —  one  upon  his 
own  motion,  as  a  preliminary  to  the  issuing  of  a  citation,  or, 
where  no  citation  is  necessary,  in  case  he  requires  proof  of  the 
existence  of  one  or  more  of  the  requisite  jurisdictional  facts,  in 
addition  to  that  furnished  by  the  allegations  of  the  verified  peti- 
tion; and  the  other,  tlie  ordinary  hearing  where  a  citation  is  is- 
sued, and  questions  are  presented,  by  opposing  allegations,  for 
his  determination  before  the  rendering  of  his  decree.  If  the 
jurisdictional  facts  set  forth  in  the  petition,  such  as  the  intes- 
tate's death,  and  his  leaving  personal  pro])erty  within  the  State, 
are  not  put  in  issue,  oral  proof  of  these  facts  upon  the  hearing 
is  unnecessary.^*^  The  fact  that  the  deceased  was  not  intestate 
may  be  shown,  either  by  original  ])roof  of  a  will,  or  by  evidence 
that  a  will  has  been  didy  proved  in  a  court  of  competent  juris- 
diction. Upon  an  allegation  of  the  existence  of  an  un]U'Oven 
will,  ])roceedings  will  be  stayed  to  afford  opportunity  to  have  it 
proved  in  due  course. ^^  If  it  is  alleged  that  the  decedent  left  a 
u'ill,  and  an  executed  will  is  traced  last  to  his  possession,  there 
must  be  proof  of  search  for  it  among  his  papers.  If  it  cannot 
be  found,  the  presumption  is  that  he  revoked  it  by  destroying 
it.^^  In  determining  the  right  of  the  petitioner,  or  other  per- 
son, to  letters  of  administration,  it  frequently  becomes  necessary 
to  determine  questions  of  marriage,  legitimacy ,^^  etc.,  and  these, 

79  Co.  Civ.  Proc.  §  2063.  as  amended  Eedf.  200.)  See  Matter  of  Cameron, 
1893,  consolidating  former  §  2005.  47  App.  Div.  120:  02  X.  Y.  Supp.  187  : 
See  ante,  §  8.5.  affd..   100   X.   Y.   010. 

80  Matter  of  Gooseberry,  52  How.  S2  Bulklov  v.  Eedmond.  2  P.iadf. 
Pr.  310.                          ■           '  281.      See   §   235.  ante. 

SI  Isham    V.    Gibbons,    1    Bradf.    69.  P3  In  cases  whore  ther^  is  a  dispute 

Where  the  applicant    for  letters  swore  as  to  whether   tlie   intestate   was  ever 

that  decedent   died   without   leaving  a  married,  the  presumption  is  always  in 

will,   and    those   claiming   that   a    will  favor  of  marriage,  and  if  the  evidence 

had  been  made  and  destroyed  adduced  merely  shows  filiation,  legitimacy  will 

no  evidence. —  Held,  that  the  proof,  on  generally    be    presumed,    especia'ly    if 

the  part   of   the   applicant,   was   suffi-  the  affair  be  remote   and  the  parents 

cient.  and  that  his  petition  should  be  are  dead,  and   the  children   alone  are 

granted.        (Matter     of     Demmcrt,     5  interested.      The    lex    loci    contructus 


:§§  359,  360.     Letters  of  Administration  in  Intestacy.     298 

as  well  as  questions  of  preference,  require  to  be  first  determined 
on  evidence  to  be  produced  before  the  surrogate. 

§  359.  The  decree  and  letters. —  The  surrogate  must  make  a  de- 
cree, either  granting  or  refusing  to  grant  the  letters.  If  a  cita- 
tion has  issued,  the  Code  provides  that  upon  its  return  —  that  is, 
not  necessarily  immediately  upon  its  return,^^  but  after  hearing 
the  allegations  and  proofs  of  the  parties  —  the  surrogate  must 
make  such  a  decree  in  the  premises  as  justice  requires.^^  If  the 
decree  grants  letters,  it  may,  in  the  surrogate's  discretion,  award 
administration  without  a  personal  examination^'^  of  the  person 
to  whom  it  is  awarded;  and  it  may  make  the  award  to  any  party 
to  the  special  proceeding  who  appears  to  be  entitled  thereto.*^ 
Having,  with  his  sureties,  executed  the  bond^^  and  justified,  and 
taken  the  oath  of  office,  he  is  entitled  to  receive  the  letters. 

§360.  Limited  letters. —  In  a  proper  case,  the  court  may,  in  a 
grant  of  administration,  insert  in  the  letters  a  limitation  of  the 
authority  to  be  exercised  thereunder  by  the  recipient.  For  ex- 
ample, where  the  only  asset  is  a  cause  of  action  of  decedent,  of 
uncertain  value,  surviving  to  the  representative,  or  which  is 
granted  to  the  representative  by  law, —  e.  g.,  damages  for  negli- 
gently causing  decedent's  death, —  the  amount  likely  to  be  re- 
coverable being  doubtful,  the  court  may  accept  a  modified  secu- 


governs  as  to  the  fact,  whether  a  BraJf.  343:  Foster  v.  Hawley.  8  Hun, 
valid  marriage  took  place,  which,  in  HS :  Blossom  v.  Barrett.  37  X.  Y.  434: 
the  absence  of  proof  to  the  contrary,  Oram  v.  Oram.  3  Redf.  300 :  Davis  v. 
Avill  be  taken  to  be  the  same  as  the  Brown.  1  id.  259 :  White  v.  Lowe,  id. 
lex  fori.  (Ferrie  v.  Public  Adm'r,  4  376:  Wyles  v.  Gibbs.  id.  382:  Decker 
Bradf.  28.)  But  where  the  person  v.  Morton,  id.  477:  Renholm  v.  Pub- 
claiming  as  a  party  to  the  alleged  con-  lie  Adm'r,  2  id.  456 :  Byrnes  v.  Dibble, 
tract   of   marriage   is   living,   and   the  5  id.  383. 

transaction  is  recent,  defects  in  the  ^^  See  Co.  Civ.  Proc.  §  2514,  subd. 
proof,  or  in  the  explanation  of  sus-  10.  for  a  definition  of  this  expression, 
picious  circumstances,  are  taken  more  ^  Co.  Civ.  Proc,  §  2663.  as  amended 
s.dversely  than  when  the  events  in-  1893,  consolidating  former  §  2666. 
Yoh-ed  are  remote,  and  both  of  the  The  requirement  of  a  decree  in  all 
parties  are  deceased.  ( Hill  v.  Burger,  cases  is  new.  It  has  not  been  the 
3  Bradf.  432.)  See  Minor  v.  .Jones,  2  practice,  we  believe,  to  enter  a  formal 
Redf.  289:  Clayton  v.  Wardell,  4  N".  decree  where  there  is  no  contest,  ex- 
Y.  231 ;  Cheney  v.  Arnold,  15  id.  351 ;  cept  so  far  as  the  entry  in  the  record- 
Van  Tuyl  V.  Van  Tuyl,  8  Abb.  Pr.  (N.  book  kept  for  that  purpose  is  a  de- 
S.)  5;  57  Barb.  235:  .Jackson  v.  cree.  It  is  still  the  practice  to  issue 
Winne,  7  Wend.  47 :  Caujolle  v.  Fer-  letters  forthwith  in  such  a  case.  If 
rie,  23  N.  Y.  90:  .Jacques  v.  Public  any  order  is  made,  it  is  by  an  entry 
Adm'r.  1  Bradf.  499:  Hvde  v.  Hvde.  in  the  surrogate's  books. 
3  id.  509;  Bissell  v.  Bissell.  55  Barb.  8«  See  Farlev  v.  McConnell,  52  X. 
325 ;  Fleming  v.  People,  27  X.  Y.  329 ;  Y.  630. 

Brower    v.    Bowers.    1    Abb.    Ct.    App.  ^"  Co.  Civ.  Proc,  §  2663,  as  amended 

Dec.  214;   O'Oara  v.   Eisenlohr.   38  X.  1893.  consolidating  former   §   2666. 

Y.    296;    Cunningham    v.    Burdell,    4  88  See  c  XV,  posf,  on  Official  Bonds. 


299  Letters  of  Admimstkatiox   in   Intestacy,         §  361. 

rity,  and  limit  the  authority  of  the  letters  to  the  prosecution  of 
such  action,  and  restraining  the  representative  from  compromis- 
ing the  action  or  enforcing  any  judgment  recovered  therein 
without  the  order  of  the  surrogate,  on  additional  further  satis- 
factory security. ^^ 

.     TITLE  FOURTH. 

QUALIFICATIONS    OF    ADMINISTRATOR. 

§  36L  Who  are  incompetent  to  administer. —  The  rules  govern- 
ing the  competency  of  a  person  to  be  an  administrator  are,  with 
the  single  exception  hereinafter  noted,  the  same  as  those  in  the 
case  of  an  executor.  These  have  been  detailed  in  a  previous 
chapter.^"  AVith  respect  to  letters  of  administration,  the  statute 
declares  that  such  letters  shall  not  be  granted  to  (1)  a  person 
convicted  of  an  infamous  crime;  nor  to  (2)  any  one  incapal)le 
by  law  of  making  a  contract;  nor  to  (3)  a  person  not  a  citizen 
of  the  L'nited  States,  unless  he  is  a  resident  of  this  State;  nor 
to  (4)  a  person  under  twenty-one  years  of  age;  nor  to  (5)  a 
person  who  is  judged  incompetent  by  the  surrogate  to  execute  the 
<iuties  of  such  trust,  by  reason  of  drunkenness,  improAddence,  or 
want  of  understanding.^^ 

The  exception  referred  to  is,  that  whereas  "  dishonesty,"  when 
so  adjudged  by  the  surrogate,  disqualifies  a  person  for  the  office 
of  executor,  it  is  not  expressly  stated  to  be  a  bar  to  a  grant  of 
letters  of  administration,  though,  by  another  section,  dishonesty 
is  made  a  ground  for  revoking  such  letters.^^  The  fact  that  a 
man  sought  to  obtain  property  from  another  by  theft  or  fraud 
lias  been  held  not  to  be  "  improvidence  "  within  the  meaning 
of  the  statute,  though  no  one  can  doubt  that  it  is  "  dishonest."  ^ 
The  standard  of  incompetency  fixed  l)y  the  written  law  can  alone 
be  applied  in  passing  upon  the  qualifications  of  an  applicant  to 

89  Co.  Civ.  Proc,  §  2064.  as  amended  tion  by  the  administrator,  on  an  ob- 

189.3,    incorporatinfj    former    §     2()()7.  jeetion    that   the   letters   were   invalid 

Aside   from   the   question   of   security,  upon  their  face,  and  did  not  authorize 

we   fail   to   see   any   juri.sdictional   ob-  him    to    bring   the    action,    the    siirro- 

jection    to    the    court's    limiting    the  gate's   power  to  insert  the   limitation 

effect    of    letters    granted    by    it    in    a  was   upheld, 

proper     case,     according     to     English  90  See  §  .30.3,  ante. 

practice.     In  !\rartin  v.  Drv  Dock,  etc.,  91  Co.  Civ.  Proc,  §  26(11.  as  amended 

R.   R.   Co.    (02   X.   Y.   70)."  the  letters  1893.  incorporating  2  R.  S.  7.i.   §   32; 

granted   power  "with   the   powers  ex-  as  amended  L.   1830.  c.  320,  §   18;   L. 

pressed   in   the   margin."   and   on   the  1803.  c.  302:   L.   1807,  c  782,  §  2. 

margin    was    written.    ''  These    letters  92  Co.  Civ.  Proc.  §  208.5. 

are   issued   with   liinited   authority   to  93  Coope  v.  Lowerre.  1  Rarb.  Ch.  45. 

prosecute    only;   and    not    with    power  Pee   Coggshal   v.   Creen.   9   Hun,   471; 

to  collect  or  compromise."     In  an  ac-  Matter  of  Cutting,  5  Dem.  456. 


§§  362-36-i.     Letteks  of  Administration  in  Intestacy.     30O 

"wliom  that  law  lias  given  priority;  lience  indebtedness  to  the 
estate  or  personal  interest  in  its  administration  are  not  of  them- 
selves,'^* nor  are  old  age  and  physical  inhrmity,  per  se,  disqualifi- 
cations for  the  office.'''*  The  fact  that  the  person  having  the 
right  to  a  grant  of  letters  claims  to  own  the  property  alleged 
to  belong  to  the  estate,  is  not  a  bar  to  such  grant.^^  A  corpora- 
tion cannot  be  administrator,  unless  so  authorized  by  its  charter; 
which  is  the  case  of  several  trust  companies.'*^ 

§  362.  Administrator's  oath. —  The  official  oath  or  affirmation  of 
an  administrator,  to  the  effect  that  he  will  well,  faithfully,  and 
honestly  discharge  the  duties  of  his  office,  describing  it,  must  be 
filed  with  the  surrogate  before  letters  are  issued  to  him.  AVliere 
his  appointment  and  qualifying  are  brought  in  question  in  a  col- 
lateral action,  he  will  be  presumed,  in  the  absence  of  proof  to 
the  contrary,  to  have  taken  the  oath  of  office.^^ 

§  363.  Administrator's  bond. —  An  administrator  must  before  let- 
ters are  issued  to  him,  besides  filing  his  official  oath,  execute  to 
the  people  of  the  State,  and  file  with  the  surrogate,  the  joint  and 
several  bond  of  himself,  and  two  or  more  sureties,  in  a  penalty, 
fixed  by  the  surrogate,  not  less  than  twice  the  value  of  the  per- 
sonal property  of  which  the  decedent  died  possessed,  and  of  the 
probable  amount  to  be  recovered  by  reason  of  any  right  of  action, 
granted  to  an  executor  or  administrator,  by  special  provision  of 
law.^''  The  regulations  for  ascertaining  the  amount  of  penalty, 
etc.,  are  reserved  for  consideration  in  the  chapter  on  official  bonds. 

TITLE  FIFTH. 

EFFECT  OF  GRANT  OF  LETTERS. 

§  364.  The  letters  as  authority. —  The  consideration  of  the  effect 
of  the  grant  of  letters  of  administration  properly  involves  the 
general  question  of  the  effect  of  surrogates'  decrees  —  a  topic  which 
has  been  to  some  extent  discussed  in  the  chapter  oil  probate,  and 
"U'ill  be  further  discussed  in  another  chapter.^ 

Unlike  an  executor,  who  may  assume  some  of  the  duties 
of    his    trust    before    probate,    the    rule,    with    respect    to    an 


94  Estate  of  Morcran,  2  How.  Pr.  (N.  97  Thompson's  Estate.  33  Barb.  334. 
S.)  194;  Churchill  v.  Prescott,  2  98  Johnston  v.  Smith.  25  Hun.  171; 
Bradf.   304.  Dayton  v.  Johnson.  69  X.  Y.  419. 

95  Matter  of  Berrien.  3  Dem.  2fi3.  99  Co.  Civ.  Proc.  §  2604,  as  amended 
90Hayward   v.    Place.    4   Dem.    489;  1893    (former  §  2067). 

Matter  of  Facundi,  N.  Y.  Law  J.,  Nov.  I  See  §  247,  ante,  and  c.  XXI,  j)ost, 
20,   1890. 


301     Letteks  of  Admixi.stuatiox  in  Intestacy.     §§  3G4-a,  305. 

iidministrator,  is,  that  a  party  entitled  to  administration  can 
do  nothing  before  letters  are  granted  to  him,  inasmuch  as  he 
derives  his  authority,  not  like  an  executor  from  the  will,  but 
•entirely  from  the  appointment  of  the  court.  Upon  the  issue  of 
letters,  however,  the  j)ersonal  property  of  the  intestate  vests  in  the 
administrator,  by  relation,  from  the  death  of  the  intestate,^  so 
that  one  who  has  taken  possession  wrongfully  is  a  trespasser  ah 
initio.^  Upon  the  same  principle,  a  contract  entered  into,  after 
the  intestate's  death,  but  before  the  issuing  of  letters,  by  one  sub- 
sequently appointed  administrator,  is  rendered  valid  by  the  ap- 
pointment.'* The  authority  conferred  by  the  letters  has  reference 
■exclusively  to  the  personal  property  of  the  intestate.^ 

§  364a.  Priority  among  different  letters. —  The  person  or  persons 
to  whom  letters  of  administration  are  first  issued  from  a  Surro- 
gate's Court  having  jurisdiction  to  issue  them,  have  sole  and  ex- 
<?lusive  authority  as  administrators,  pursuant  to  the  letters,  until 
the  letters  are  revoked  as  prescribed  by  law ;  and  they  are  entitled 
to  demand  and  recover  from  any  person,  to  whom  letters  upon 
the  same  estate  are  afterward  issued  by  any  other  Surrogate's 
Court,  the  decedent's  property  in  his  hands.  »But  the  acts  of  a 
person  to  whom  letters  were  afterward  issued,  done  in  good  faith 
l3efore  notice  of  the  letters  first  issued,  are  valid ;  and  an  action 
or'special  proceeding  commenced  by  him  may  be  continued  by  and 
in  the  name  of  the  person  or  persons  to  whom  the  letters  were 
first  issued.^ 

§  365.  Effect  of  grant,  by  way  of  estoppel. —  Where  letters  of  ad- 
m'inistration  are  granted  to  a  person,  his  acts,  in  the  course  of 
the  proceedings  to  obtain  the  grant,  are  held  to  operate  upon  him, 
in  various  ways,  as  an  estoppel.  Thus,  the  administrator  and  the 
sureties  on  his  bond  are  estopped  from  denying  that  the  surro- 
gate had  juj-isdiction  t(^  grant  the  letters,  in  an  action  upon  the 
liond,"^  or  in  any  proceeding  to  recover  assets  which  the  appoint- 
ment and  the  bond  enabled  the  administrator  to  obtain  ;*  and 
Avhere  one  made  application  for  administration  on  the  estate  of 

2Whitlock  V.  Bowery  Sav.  Bank,  36  5  See  Hillman  v.  Stephens.  16  N".  Y. 

Hun.  460.  and  cases  cited.  27S;    Brevoort   v.    McTimsey.    1    Edw. 

3  Rockwell    V.    Saunders,    If)    Barb.  ."551;  Griffith  v.  Beecher.  lo"  Barb.  432. 

473.      Where    there    are    no    creditors.  For  a  consideration  of  tlie  riphts  and 

the  widow   and  daughter  of  an  intes-  liabilities  of  administrators  generally, 

tate,  his  only  next  of  kin,  may  settle  see  c.  XVII.  post. 

his  estate,  without  taking  out  letters.  6  Co.  Civ.  Proc.  §  2502. 

(Herrington  v.  Lowman.  22  App.  Div.  V  Field    v.    Van    Cott,    5    Dalv,    308. 

260;   47  N.  Y.  Supp.  863.)  See  c.  XV.  post. 

4Allea  V.  Eighmie,  9  Hun,  201.  8  Johnston  v.  Smith,  25  Hun.  171. 


§§  366,  367.     Letters  of  Administration  in  Intestacy.     302 

his  deceased  wife,  alleging,  under  oath,  that  she  died  possessed 
of  personal  property,  and  received  letters  and  afterward  filed  his. 
account,  in  which  certain  moneys  were  returned,  as  constituting 
the  whole  estate,  it  was  held  that  he  was  estopped,  as  against  a 
creditor  of  the  estate,  from  claiming  the  moneys  as  his  own  in- 
dividual property.^ 

§  366.  Letters  as  evidence  of  authority. —  Subject  to  the  rule  of 
priority  among  different  letters,  above  mentioned,  it  is  provided 
that  letters  of  administration,  granted  by  a  court  or  officer  having- 
jurisdiction  to  grant  them,  are  conclusive  evidence  of  the  author- 
ity of  the  persons  to  whom  they  are  granted,  until  the  decree 
granting  them  is  reversed  upon  appeal,  or  the  letters  are  revoked. ^^ 
This  rule  protects  the  decree  and  letters,  in  general,  from  collateral 
impeachment ;"  but  it  is,  of  course,  subject  to  the  exception  which 
exists  with  reference  to  the  adjudication  of  all  other  tribunals,  viz., 
that  where  the  court  had  no  jurisdiction  the  decree  is  void,  and 
its  character  may  be  shown  in  a  collateral  proceeding.  Where 
the  validity  of  the  appointment  of  administrators  is  attacked,  the 
burden  of  proof  is  upon  the  attacking  party,  to  show  a  want  of 
jurisdiction  in  the  surrogate.^^  The  statute  does  not  require  the 
facts  conferring  jurisdiction  to  be  proved  in  any  particular  way, 
nor  the  proofs  to  be  filed  or  reduced  to  ^\Titing,  and,  therefore,  a 
failure  to  find  such  proofs  on  file  in  the  surrogate's  oflfice  is  not 
evidence  that  no  such  proofs  were  adduced  before  him ;  the  pre- 
sumption is  that  they  were.^^  The  production  of  the  letters,  or 
the  record,  or  the  exemplification  of  the  record  thereof,  establishes, 
prima  facie,  the  representative  character  of  an  administrator,  in 
an  action  brought  by  him.-^^  A  formal  defect  in  the  letters  may, 
it  has  been  held,  be  remedied  after  the  commencement  of  the  action 
in  which  they  are  offered  as  evidence. ^^ 

§  367.  Record,  etc.,  of  letters  as  evidence. —  The  surrogate  is  re- 
quired to  record,  in  a  book  kept  for  that  purpose,  all  letters  of  ad- 

SGarvey    v.    McCiie.    3  Redf.    313;    Welch  v.  N.  Y.  Cent.  R.  R.  Co.,  53  id. 
revd.  on  another  point.   14  Him,   562.    610. 

10  Co.   Civ.   Proc,   §    2591:    Leonard        13  Farley   v.    McConnell.   supra. 

V.    Columbia    Steam   Nav.   Co.,    84   N.  i^  Belden     v.     Meeker,     and     cases 

Y.   48:    Kelly  v.   West.    80    id.     139:  supra.     See  Flinn  v.  Chase,  4  Den.  85. 

Roderigas  v."  East  River  Sav.  Inst.,  63  15  Maloney  v.  Woodin,  11  Hun,  202 ; 

id.  460;  Parhan  v.  Moran.  4  Hun.  717:  where  an  administrator,  plaintiff,  was 

More   v.    Finch,   65   id.   404;    c.    XXI,  allowed    to    cavise    the    letters     to     be 

post.  sealed,  pending:  the  trial  of  the  action 

11  Kelly  V.  Jay,  79  Hun,  535 ;   29  N.  upon   which    they   had   been   excluded,. 
Y.  Supp.  933.  for  the  want  of  sealing,  when  oflfered 

12  Belden  v.  Meeker,  47  N.  Y.  307 ;  in  evidence. 
Farley    v.     McConnell,     52     id.     630; 


303     Letters  of  ADMixi^TUATrox  in  TxTKSTAfY.      §§  368,  309. 

ministration  issued  out  of  his  court. ^"^  A  transcript  of  the  record 
of  the  letters  duly  certified  is  evidence,  as  if  the  originals  were 
produced.  ^^ 

TITLE  SIXTH. 

ADMINISTRATION    DE    BONIS    NON. 

§  368.  When  will  be  granted. —  The  distinction  between  an  ad- 
ministrator with  the  will  annexed  (being  one  who  succeeds  to  or 
takes  the  place  of  an  executor),  and  an  administrator  of  the  goods, 
etc.,  left  unadniinistered  by  a  former  administrator,  has  been 
])()inted  out.  Where  an  administrator  dies,  or  becomes  incapaci- 
tated to  act,  by  revocation  of  his  letters,  or  otherwise,  a  successor 
will  not  ordinarily  be  appointed,  unless  he  was  a  sole  administrator 
or  survivor.^^  But  where  all  the  administrators  to  whom  letters 
have  been  issued  die,  become  lunatic,  are  convicted  of  an  infamous 
offense,  or  otherwise  become  incapable  of  discharging  the  trust 
reposed  in  them,  or  the  letters  are  revoked  as  to  all  of  them,  the 
surrogate  must  grant  letters  of  administration  to  one  or  more  per- 
sons as  their  successors,  in  like  manner  as  if  the  former  letters  had 
not  been  issued. ^^  Notwithstanding  this  mandatory  language, 
yet  where  the  administrator,  before  his  letters  were  revoked,  had 
fully  administered  the  estate,  his  accounts  may  be  settled,  with- 
out appointing  a  successor ;  moreover,  the  prosecution  of  his  bond 
does  not  require  such  appointment.^*^  The  Code  does  not  expressly 
state  which  surrogate  has  jurisdiction  to  grant  the  new  letters  ;^^ 
but,  in  another  section,^^  treating  of  revocation  of  letters,  the 
power  to  appoint  a  successor  is  conferred  upon  the  Surrogate's 
Court  which  granted  the  decree  of  revocation. 

§  369.  His  powers. —  The  successor  to  an  administrator,  whose 
letters  have  been  revoked,  may  complete  the  execution  of  the  trust 
committed  to  his  predecessor :  he  may  continue,  in  his  oAvn  name, 
a  civil  action  or  special  proceeding  pending  in  favor  of  his  prede- 
cessor ;  he  may  enforce  a  judgment,  order,  or  decree  in  favor  of 
the  latter  ;^^  and  he  mav  maintain  an  action  against  the  suretv 


i«Co.  Civ.  Proc,  §  2498.  subd.  2.  22  Co.  Civ.  Proc.  §  2r>0il. 

17  Co.  Civ.  Proc,  §  9.33.  23  Co.    Civ.   Proc,    §    2(i0.^).      An   ad- 

is  See  Co.  Civ.  Proc.   S  2692.  ministrator     dc     bonift     )wn     has     no 

if>  Co.  Civ.  Proc,  §   2693.  greater    rights    than    his    predecessor; 

20  Prentiss  v.  Weatherly.  6S  Hun,  and  a  payment  which,  by  relation  back 
114;  22  N.  Y.  Supp.  6S0':  aflfd.,  144  and  ratification,  is  protected,  is  a  de- 
N.  Y.  707.  fense  as  against  an  action  by  the  s\ic- 

21  The  original  statute  (2  R.  S.  78.  cessor  as  well  as  against  the  one  who 
§  4;5)  specified,  "the  surrogate  hav-  received  it.  fWhitlock  v.  Bowery 
ing  authoritv  to  grant  letters  origin-  Sav.  Bank,  36  Hun,  460.) 

allv." 


§§  370,  371.     Letters  of  Admhstistration  in  Intestacy.     304 

of  his  predecessor  for  moneys  received  by  him.^*  And  there 
■\voukl  seem  to  be  no  doubt  that  this  is  true  in  all  cases  of  suc- 
<?ession.'"'' 

§  370.  Petition  for,  and  form  of,  letters. —  The  proceedings  to 
■obtain  such  letters  are  the  same  as  upon  an  original  application, 
and  the  same  rules  in  regard  to  priority  obtain,^''  except  that  a 
person  who  has  been  removed  for  incompetency,  etc.,  and  not  for 
3.  mere  failure  to  give  sureties,  cannot  apply  again  for  letters. 
The  petition  should  state  the  same  facts  as  on  an  application  for 
original  administration,  and  also  the  facts  showing  a  proper  case 
for  the  grant  of  letters  de  bonis  non,  as  the  death  of  all  the  ad- 
ministrators, or  their  removal,  etc.,  and  that  there  are  assets  left 
unadministered,  stating  their  value,  etc.  In  all  other  respects 
the  petition  and  the  subsequent  proceedings  are  the  same  as  upon 
an  original  application.  The  Code  says,  briefly,  "  the  proceedings 
to  procure  the  grant  of  such  letters  are  the  same  as  in  a  case  of 
intestacy."  ^^  The  form  of  letters  is  in  all  respects  the  same  as 
on  an  original  grant,  except  that  they  recite  the  revocation  of  let- 
ters, or  death,  etc.,  of  the  former  administrator,  and  commit  to 
the  new  administrator  the  administration  of  all  and  singular  the 
goods,  chattels,  and  credits  of  the  deceased  left  unadministered 
by  him, 

TITLE    SEVENTH. 

ANCILLARY    LETTERS    OF    ADMINISTRATION. 

§  371.  Jurisdiction,  when  possessed. —  The  statute  makes  provi- 
sion for  the  recognition,  by  the  Surrogates'  Courts  of  this  State, 
of  a  grant  of  administration  upon  the  estate  of  an  intestate  non- 
resident, made  by  a  court  of  hi?  domicile,  by  the  issuimi'  of  an- 
cillary letters  in  accordance  therewith.^^  The  application  for 
ancillary  letters  of  administration  upon  the  estate  of  such  a  non- 


24  Dunne  v.  American  Surety  Co..  ri^ht  to  letters  de  bonis  non  over  a 
34  Misc.  584;  70  N.  Y.  Supp.  .391.  creditor.     (Matter  of  Hine.  X.  Y.  Law 

25  The  Revised  Statutes  enacted  that  .J..  .Jan.  26.  1893.) 

the  "  administrator  shall  give  bonds  2T  Co.  Civ.  Proc,  §  2693.  The  sur- 
in  the  like  penalty  with  like  sureties  rotate  may  fix  as  the  penalty  of  the 
and  conditions  as  heretofore  required  bond  to  be  given  a  sum  not  less  than 
of  administrators,  and  shall  have  the  twice  the  value  of  the  assets  remain- 
like  power  and  authority."  (2  R.  S.  ing  unadministered.  (Id.,  as  amended 
78.  §  4.5.)  1889.) 

26  Matter  of  Place,  3  St.  Rep.  210;  28  As  to  when  letters  are  ancillary 
9  Civ.  Proc.  Rep.  435.  The  pui)lic  ad-  and  when  principal,  see  Hendrickson 
jninistrator  mav  be  appointed.  (Ket-  v.  Ladd.  2  Dem.  402;  5  Civ.  Proc.  Rep. 
chum  V.  Morreli.  2  N.Y.  Leg.  Obs.  58.)  50;  Black  v.  Woodman,  5  Redf.  363. 
A  nephew  of  decedent  has  priority  of 


305    Letters  of  Administration  in  Intestacy.     §§  372,  373. 

residGut  intestate  is  required  to  be  made  "  to  a  Surrogate's  Court 
having-  jurisdiction  of  the  estate."  ^"  In  order  to  decide  which 
Surrogate's  Court  has  jurisdiction  in  any  particular  case,  it  is 
necessary  to  consult  the  sections  of  the  Code  already  discussed  in 
this  chapter,  prescrilnns:  in  general  the  jurisdiction  of  the  Sur- 
rogates' Courts  in  cases  of  intestacy.""^'  So  much  of  those  sec- 
tions and  of  such  discussion  as  relates  to  nonresidents  of  the  State 
will  be  pertinent  to  the  determination  of  the  question  suggested. 

§  372.  To  whom  the  letters  issued. —  A  grant  of  ancillary  letters 
of  administration  will  only  be  made  to  the  person  named  in  the 
foreign  letters,  or  to  the  person  otherwise  entitled  to  the  posses- 
sion of  the  decedent's  personal  property,  unless  another  person 
applies  therefor,  and  files  with  his  petition  an  instrument  exe- 
cuted by  the  foreign  administrator,  or  person  otherwise  entitled 
as  aforesaid,  or,  if  there  are  two  or  more,  by  all  who  have  quali- 
fied and  are  acting,  and  also  acknowledged  or  proved,  and  cer- 
tified, in  like  manner  as  a  deed  to  be  recorded  in  the  county,  au- 
thorizing the  petitioner  to  receive  such  ancillary  letters ;  in  which 
case  the  surrogate  must,  if  the  petitioner  is  a  fit  and  competent 
person,  issue  such  letters  directed  to  him.  Where  two  or  more 
persons  are  named  in  the  foreign  letters,  or  in  an  instrument  exe- 
<'utcd  as  above  prescribed,  the  ancillary  letters  may  be  directed  to 
either  or  any  of  them,  without  naming  the  others,  if  the  others 
fail  to  qualify,  or  if,  for  good  cause  shown  to  the  surrogate's  sat- 
isfaction, the  decree  so  directs.^^  The  statute  declares  the  cases 
in  wliicli  letters  shall  not  be  issued,  to  wit :  "  ].  ^Miere  ancillary 
letters  have  been  previously  issued,  as  prescribed  in  the  Code. 
2.  Where  an  application  for  letters  of  administration  upon  the 
estate  has  been  made  by  a  relative  of  the  decedent,  who  is  legally 
competent  to  act,  to  a  Surrogate's  Court  of  this  State  having  ju- 
risdiction to  grant  the  same ;  and  letters  have  been  granted  a^^- 
oordingly,  or  the  ap]>lication  has  not  been  finally  disposed  of."  ^" 

§  373.  The  application  for  letters. —  The  application  must  be 
made  by  the  written  petition,  either  of  the  party  who  is  entitled 
to  letters,  or  of  his  duly  authorized  attorney  in  fact,  accompanied 
—  in  case  decedent,  at  his  death,  resided  out  of  the  State,  but  in 
the  Ignited  States  —  by  a  duly  authenticated  copy  of  letters  of  ad- 
ministration upon  his  estate  granted  in  the  place  of  his  residence. 

2f»Co.  Civ.  Proc.  §  2696.  Willett.  76  Hun,  211;   27  X.  Y.  Supp. 

30  Co.    Civ.    Proc,    §§    2476,    2477;    78.5. 

§   .S.3S.  ante.  32  Co.  Civ.  Proc,  §  2696. 

31  Co.    Civ.    Proc,    §    2697 ;    Ross   v. 

20 


§  373.       Letteks  of  Administkation  in  Intestacy.  306^ 

In  case  decedent,  at  the  time  of  his  death,  resided  without  the 
United  States,  ^'  satisfactory  proof  "  must  be  furnished  the  court. 
"  that  the  party  so  applying,  either  personally  or  by  such  attor- 
ney in  fact,  is  entitled  to  the  possession,  in  the  foreign  country^ 
of  the  personal  estate  of  such  decedent."  ^^  As  the  proceedings 
for  a  grant  of  ancillary  letters,  whether  of  administration  or  tes- 
tamentary, are  identical,  and  as  the  powers  under  both  kinds  of 
letters  are  the  same,  the  reader  is  referred  to  the  page  treating  of 
ancillary  letters  testamentary,  where  they  are  detailed.^* 

33  Co.  CiA-.  Proc,   §  2696.     In  Weed  State.     Held,  that  principal  letters  on 

V.  Waterbury  (5  Redf.  114),  after  the  first  application  should  be  granted, 
principal  letters  had  been  applied  for        34  See     §     312,     ante.      As     to     the 

here,  on  the  ground  that  the  decedent  amount   of   the   penalty   of   the   bond, 

was  a  resident  of  the  county,  another  see    Sutton    v.    Weeks,    .5    Redf.    353; 

application    was    made    for    ancillary  Matter    of    Govan,    2  Misc.    291 ;     23 

letters    on    the    ground    that    the    de-  N.  Y.  Supp.  766,  and  §  316,  ante,  and 

cedent  was  an  inhabitant  of  another  c.  XV,  post. 


CHAPTER  XII. 

PUBLIC  ADMINISTRATORS. 


TITLE    FIRST. 


NATUEE  AND  OBJECT  OF  OFFICE. 


§  374.  In  general. —  Public  administrators  are  the  officers  —  one 
of  whom  exists  in  each  county  in  the  State  —  charged  by  law 
with  the  duty  of  collecting,  preserving,  and  administering  the 
estates  of  persons  dying  intestate,  in  cases  where  no  other  admin- 
istrator is  appointed.  The  object  for  which  the  office  is  estab- 
lished is  that  the  estates  of  decedents  shall  not  be  wasted,  but  col- 
lected and  preserved  for  those  entitled  thereto,  or  to  remain  in 
the  public  treasury  if  no  rightful  claimant  appears.  In  all  the 
counties,  except  those  of  Nev/  York,  Kings,  and  Richmond,  and 
except  in  those  counties  wherein  the  office  of  county  treasurer 
has  been  abolished,  the  county  treasurer  is,  by  virtue  of  his  office, 
public  administrator  of  the  county.^  It  may  be  stated,  generally, 
that  the  powers  and  duties  of  a  public  administrator  are  (1)  such 


1  The  sixth  title  of  chapter  6  of 
part  2  of  the  Revised  Statutes,  de- 
voted to  the  subjeet  of  public  admin- 
istrators, was  repealed  by  L.  1803, 
c.  686.  So  much  of  it  as  related  to 
the  public  administrator  in  the  city 
of  New  York  had  already  been  super- 
seded by  the  Consolidation  Act  of 
1882,  c.  410,  which  adopted,  without 
material  amendment,  the  first  article 
of  title  6,  relating  to  that  officer. 
In  1895  (L.  1895.  c.  827)  the  office 
was  made  independent  of  the  law  de- 
partment of  the  city,  and  a  general 
act  was  then  passed  (L.  1898,  c.  230; 
regulating  his  ])owers  and  duties. 
The  second  article  of  the  sixth  title 
of  the  Kevised  Statutes  so  rejiealed. 
relating  to  public  administrators  in 
the  several  counties  other  than  New 
York  county,  has  been  readopted  as 
sections  2065,  2606,  2007,  and  2008  of 
the    Code    of    Civil    Procedure.      The 


laws  creating  the  office  of  public  ad- 
ministrator of  Kings  county  ( L.  1871, 
c.  335;  L.  1882,  c.  124)  were  likewise 
repealed  by  L.  1893,  c.  080,  and  their 
provisions  substantially  readopted  as 
section  2609  of  the  Code  of  Civil  Pro- 
cedure. In  Richmond  county  the 
office  of  public  administrator  was  cre- 
ated in  1899  (L.  1899.  c.  480).  and 
the  powers  of  a  county  treasurer, 
when  acting  as  public  administrator, 
conferred  upon  him.  Provision  is  also 
made  for  the  appointment  of  a  public 
administrator  in  counties  where  tlie 
office  of  county  treasurer  has  been 
abolislied.  (L."l900.  c.  501.)  As  the 
cases  arising  under  the  original  stat- 
utes necessarily  refer  to  them,  we 
have,  for  the  better  understanding  of 
such  references,  cited  the  original 
statutes  as  well  as  the  sections  of  the 
Code  where  their  provisions  may  now 
be  found. 


[307] 


§§  375,  37G.  Public  Administrators.  308 

as  devolve  upon  him  bv  virtue  of  his  office,  without  any  formal 
investiture  of  authority  in  a  particular  case,  and  (2)  such  addi- 
tional powers  and  obligations  as  he  acquires  and  is  subject  to, 
after  receiving  letters  or  his  becoming  otherwise  duly  clothed  with 
the  character  of  administrator  of  an  estate.  He  has,  virtutc 
officii,  without  any  appointment  by  the  surrogate,  or  its  equiva- 
lent, authority  to  act,  in  the  cases  specified  in  the  statute,  in  the 
capacity  of  temporary  administrator  of  an  estate, —  i.  e.,  to  ''  col- 
lect and  take  charge  of  the  assets,"  including  the  right  to  sue  for 
such  purposes.^  The  provisions  of  the  statute,  defining  the  pow- 
ers and  obligations  of  the  officer,  are  not  to  be  understood  as  ex- 
haustive, but  are,  throughout,  to  be  taken  wdth  the  qualification 
that  the  public  administrator  is  an  administrator  as  well  as  a 
public  officer.^ 

§  375.  Extent  of  authority — The  powers  which  the  public  ad- 
ministrator hits,  hy  virtiip  of  his  office,  do  not  extend  further  than 
to  allow  him  to  pay  the  funeral  expenses  of  the  deceased,  to  col- 
lect debts,  to  take  possession  of  and  secure  the  effects,  to  sell  such 
as  may  be  perishable,  and  to  defray  the  expenses  of  the  proceed- 
ings required  by  law.^ 

§  376.  Collecting  and  preserving  estate. —  General  authority  is 
conferred  upon  public  administrators^  when  authorized  to  take 
charge  of  an  intestate's  property,  "  to  take  the  same  proceedings 
which  an  administrator,  etc.,  may  have  or  be  entitled  to  take, 
(1)  for  the  discovery  of  any  property  of  the  intestate  which  may 
be  concealed  or  withheld,  and  (2)  for  the  sale  of  any  that  may 
be  perishable."  ^      The  court  may  authorize  him  (if  its  authority 


2  2  R.  S.  129,  §  47;  L.  1871,  c.  335,  (Dayton  v.  Johnson.  69   X.   Y.  419.) 

§  5 :  Co.  Civ.  Proc,  §  2665,  as  amended  See  Co.  Civ.  Proc,   §  2607. 

1893.      He    may    maintain    an    action  3  Miller  v.  Franklin  Bank,  1  Paige, 

to    annul    a    fraudulent    transfer    of  444. 

the  property  of  the  deceased  and  to  4  2  R.  S.  123,  §  28;  L.  1882,  c.  410, 
recover  the 'same  or  its  avails,  for  the  §  233;  2  R.  S.  131,  §  65;  Co.  Civ. 
benefit  of  simple  contract  creditors.  Proc,  §  2666,  as  amended  1893. 
(Hangen  v.  Hachemeister,  53  Super.  5  2  R.  S.  129,  §S  50.  51;  Co.  Civ. 
Ct.  [J.  &  S.]  532.)  But  if  he  seizes  Proc,  §  2665,  as  amended  1893.  The 
property  of  a  third  person,  as  a  mort-  proviso  of  original  statute,  that  sales 
gagee  of  chattels,  in  possession  after  of  perishable  property  could  be  made 
default,  although  in  good  faith,  and  "  on  obtaining  an  order  for  that  pur- 
believing  it  to  belong  to  the  intes-  pose,"  is  omitted  in  the  Code  enact- 
tate's  estate,  he  is  liable  to  an  action  ment.  {§  2665.)  But  the  same  pro- 
therefor.  (Levin  v.  Russell.  42  N.  Y.  viso  in  the  original  statute,  relating 
251.)  Where  he  is  appointed  succes-  to  the  public  administrator  of  New 
sor  to  a  temporary  administrator,  and  York  county  (2  R.  S.  121,  §  15).  was 
the  latter's  bond  has  been  assigned  to  preserved  in  the  Consolidation  Act  of 
him  by  the  surrogate,  he  may  bring  1882,  §  226.  and  was  continued 
»n  action  thereon,  in  his  own  name,  in    L.    1898,   c.    230,    §    11.      By   the 


309  Public  Admixistrators.  *^  §  377. 

is  necessary  at  all)  to  sell  a  lot  of  household  furniture,  in  order 
to  save  the  cost  of  storage."  And  in  certain  cases,  where  there 
is  danger  of  the  waste  or  embezzlement  of  the  estate,  the  surro- 
gate may  authorize  him  to  take  charge  of  and  secure  the  effects, 
even  though  there  is  resident  in  the  county  a  person  who  is  en- 
titled to  administer."  In  order  to  obtain  the  power  to  pay  debts, 
and  dispose  of  the  surplus,  he  must  have  letters  of  administration 
granted  to  him,  or  must  file  the  affidavit,  the  filing  of  which,  in 
certain  minor  cases,  is  equivalent  to  the  issue  of  letters.  When 
he  has  acquired  this  authority,  he  acts  by  virtue  of  his  letter;-;, 
not  merely  by  virtue  of  his  office,*^  and  is  subject,  in  general,  to 
all  the  duties  and  obligations  of  an  ordinary  administrator.^ 

§377.  Authority,  how  evidenced. —  In  all  cases  of  death  occur- 
ring under  such  circumstances  that  the  public  administrator  may 
idtinuTtely  become  entitled  to  be  fully  invested  with  the  rights 
and  powers  of  administrator  of  the  estate,  intestacy  is  presumed 
until  a  will  is  ]:troved  and  letters  testamentary  are  issued  thereon. ^'^ 
And  where  letters  are  issued  to  him,  such  letters,  the  record 
thereof,  and  a  duly  certified  copy  of  such  record,  are  made  con- 
clusive evidence  of  his  authority  to  act,  in  all  cases  within  the 
statute.^^ 

original  statute    (2  R.   S.   120,   §   ^^0) .  lo  2  R.  S.  118.  §  4 ;  L.   1882,  c.  410, 

the   county   treasurer   was   entitled   to  §    219;    L.    18P8.   c.    2.30,    §    4    [relat- 

the  same  process  to  discover  concealed  in?   to   New   York   public   administra- 

and  withheld  efTects.  as  the  public  ad-  tori:   and  2  R.   S.   129.   §  47:   To.  Civ. 

niinistrator  of  New  York:    by  section  Proc,   §   2665.   as   amended    189.3    [re- 

2065.  as  amended  1893.  he  is  entitled  latino    to    county    treasurers].      It    is 

to  take  the  same  proceedin<is  as  a  gen-  difficult   to   see   how   intestacy   can   be 

eral  administrator,  that  is.  under  Co.  presumed   after   a    will    is   proved,   al- 

Civ.  Proc,    §   2707.   as  amended   1893.  though     letters    testamentary     should 

The     ptiblic     administrator     in     New  never  issue,  c.  (/..  where  letters  of  ad- 

Yiirk,  however,  when  acting  by  virtue  ministration    with    the    will    annexed 

of  his  office  merely,  must  proceed  un-  ore    granted.      Another    peculiarity    of 

der  2  R.   S.   120.  i  S  cf  scq.;  L.   1882,  llic  statute  may  al^o  be  noticed  in  this 

c.    410.    §§    222-224.      See    L.    1898,   c.  connection,  viz.,  that  although  the  au- 

230.   §   7.  thority  conferred  upon  the  public  ad- 

6  Public  Adm'r  v.  Burdell,  4  Rradf.  niinistrator  by  the  Revised  Statutes 
252.  is    expressly   stated    to    relate    to    the 

7  2  R.  S.  119.  §§  6.  7:  L.  1882.  c.  estates  of  "persons  dving  intestate" 
410.  §  221:  L.  1898.  c.  230.  §  6  fre-  (2  R.  S.  118.  §  34: 'id.  129.  §  47), 
lating  to  public  administrator  of  New  they  in  terms  provide  for  issuing  to 
York]:  and  2  R.  S.  129.  §  49:  Co.  hini,  in  certain  cases,  letters  of  admin- 
Civ.  Proc.  §  2665.  as  amended  1893  istralion  with  the  will  annexed  (2  R. 
[relating  to  county  treasurersl.  S.   122,  §  23:   id.   131.   §   61:   L.   1898, 

8  Miller  v.  Franklin  Bank,  1  Paige,  c  230.  §  15).  as  does  also  Co.  Civ. 
444.  Proc,  §  2643.  as  amended  1881.     Mat- 

9  The  mode  of  obtaining  the  general  ter  of  Blank  (2  Redf.  443).  and  'NTat- 
power  of  administration  is  difTerent  ter  of  Hanover  (3  id.  91).  are  rulings 
in  the  county  of  New  York,  and  the  under  the  Revised  Statutes. 

other   counties,  and  will   be   stated   in        "2    R.    S.    122.    §    23:    L.    1882.    c 

connection  with  the  powers  and  duties  410.  §  230:  2  R.  S.  131.  §  63:  L.  1898, 

of  the  public  administrators  in  those  c  230.  §  15:  Co.  Civ.  Proc,  §  2666,  as 

places.  amended  1893. 


§§  378-380.  Public  Administrators.  310 

§  378.  Application  for  letters  in  right  of  priority. —  Public  ad- 
ministrators are  included  in  the  enumeration  of  those  who  hav(^ 
a  right,  in  the  order  of  their  priority,  to  a  grant  of  letters  of  ad- 
ministration upon  intestates'  estates.  In  New  York  county  the 
public  administrator  has  a  preference  for  appointment,  after  the 
next  of  kin^  and  after  the  executor  or  administrator  of  a  sole 
legatee  named  in  a  will,  etc.,  over  creditors  and  all  other  persons ; 
in  other  counties  (except  Kings),  the  county  treasurer  has  the 
preference,  next  after  creditors,  over  all  other  persons. ^^  In 
Kings  county,  the  public  administrator  has  the  "  prior  right  and 
authority,"  after  the  next  of  kin.^^ 

§  379.  Authority,  how  superseded. —  When  his  power  to  act  is 
superseded  in  the  instances  prescribed  by  statute — e.  g.,  by  the 
production  to  him  of  letters  granted  to  any  other  person  upon  the 
same  estate  —  he  must  deliver  to  the  person  producing  such  let- 
ters all  the  assets  of  the  deceased  in  his  hands,  after  deducting 
his  commissions  and  expenses.  ^^  But  the  fact  that  his  powers 
have  ceased,  or  that  he  has  been  superseded,  does  not  cause  any 
suit  commenced  by  him  to  abate ;  but  the  same  may  be  continued 
by  the  person  who  succeeds  to  his  powers  in  regard  to  the  estate.  ^^ 

§  380.  Annual  statement. —  Every  public  administrator  is  re- 
quired, under  penalty  of  fine  and  forfeiture  of  office,  to  publish 
annually  a  statement,  showing  among  other  things,  each  case  in 
which  he  shall  have  taken  charge  of  and  collected  any  effects,  or 
in  which  he  shall  have  administered  on  any  estate  during  the  pre- 
ceding year,  with  the  name  of  the  deceased,  the  place  of  his  resi- 
dence at  the  time  of  his  death,  if  the  same  be  known,  and  the 
place  from  which  he  came,  if  he  was  not  a  resident  of  this  State 
at  the  time  of  his  death. ^®  Having  taken  this  general  view  of 
the  statutes  and  principles  applicable  to  the  functions  of  public 


12  Co.  Civ.  Proc.  §  2660,  as  amended  §  237 ;  2  R.  S.  132.  §67;  L.  1898,  c. 
1893.  See  §  344,  ante.  The  public  ad-  230,  §  22;  Co.  Civ.  Proc,  §  2667,  as 
ministrator  may  be  appointed  admin-  amended  1893. 

istrator   de  bonis  non.      (Ketchum  v.        15  Id. ;  L.   1898,  c.  230,  §  23.     After 

Morrell,   2   N.   Y.   Leg.   Obs.   58.)      In  he  is  invested  with  the  powers  of  an 

New^  York  city,  if  the  relatives  having  administrator,   he   is   within   the   pro- 

a  prior  right  to  letters  make  no  appH-  visions  of  Co.  Civ.  Proc,  §§  1828.  760. 
cation,  within  a  reasonable  time,  it  is        1^2  R.  S.   127.  §§   39,   40;   L.   188?, 

the  duty  of  the   public  administrator  c.  410,  §  242;   L.   1898,  c  230.  §§  27, 

to  apply  for  letters.     (Matter  of  Page,  28    [relating  to  N.  Y.   public  adm'r]  ; 

107  N.  Y.  266.)  and  2  R.   S.   132,  §§   72.  7? ;   Co.  C-'-. 

13  Co.  Civ.  Proc,  §  2669.  See  §  401,  Proc,  §  2668,  as  amended  1893  [re'-+- 
post;  Matter  of  Gilchrist,  37  Misc.  ing  to  county  treasurers] ;  2  R.  S.  ].ys,. 
543;  7.5  N.  Y.  Supp.  1055.  §§  72,  73. 

14  2  R.  S.  125,  §  33;  L.  1882,  c.  410, 


311  Public  Admixistkatoks.  §  381. 

administrators,  we  may  pass  to  the  consideration  of  their  author- 
ity and  proceedings  in  particular  counties. 

TITLE  SECOND. 

THE   COUNTY  TREASURER  AS   PUBLIC   ADMINISTRATOR. 

§  381.  Powers  of  treasurer  before  grant  of  letters. —  In  counties 
other  than  Xew  York,  Kings,  and  Kichuiond,  the  duties  of  public 
administrator  devolve  upon  the  county  treasurer,^'^  who,  by  virtue 
of  his  office,  is  empowered  to  collect  and  take  charge  of  the  assets 
of  every  person  dying  intestate,  where  such  assets  shall  amount 
to  one  hundred  dollars  or  more,  upon  which  no  letters  of  admin- 
istration have  been  granted,  in  the  following  cases:  "1.  When 
such  persons  leave  assets  in  the  county  of  the  treasurer,  and  there 
is  no  widow  or  relative  in  the  county,  entitled  or  competent  to 
take  letters  of  administration  on  the  estate.  2.  When  assets  of  any 
such  person,  after  his  death,  come  into  the  county  of  the  treasurer, 
and  there  is  no  person  in  the  county  entitled,  or  competent,  to 
take  administration  of  the  estate."  In  Richmond  county  the  pub- 
lic administrator  possesses  the  powers  and  jurisdiction,  and  is 
subject  to  the  liabilities  of  a  county  treasurer.^^  Under  the  Code, 
therefore,  he  has  no  power  to  act  as  public  administrator  in  any 
case  in  which  the  public  administrator  in  the  city  of  Xew  York 
has  jurisdiction.^^  If  (or  although)  there  is  a  widow  or  a  relative 
in  the  county  who  is  entitled  to  administration,  the  surrogate  may 
authorize  the  county  treasurer  to  seize  and  secure  the  effects,  upon 
proof  that  there  are  creditors  or  relatives  of  the  deceased,  residing 
more  than  one  hundred  miles  distant  from  the  residence  of  such 
surrogate,  who  are  interested  in  the  distribution  of  the  estate,  and 
that  the  effects  of  the  deceased  are  in  danger  of  waste  or  embezzle- 
ment ;  and  the  granting  of  such  order  vests  him  with  all  the 
powers  which  he  has,  by  virtue  of  his  office,  as  above.^*^  Until 
letters  of  administration  are  granted  to  him,  the  county  treasurer 
cannot  proceed  further  than  to  pay  the  funeral  charges  of  the 
deceased,  collect  and  secure  the  effects,  to  sell  such  things  as  are 
perishable  and  defray  the  expenses  of  the  proceedings  required 

1"  Tn  those  rnnnties  wheroin  the  of-  is  L.  1899,  c.  486. 

fice  of  county  treasurer  has  been  ahol-  19  Co.  Civ.  Proc,  §  266.5.  as  amended 

ished,  the  statute  provides  for  the  ap-  189.3;  adopting!;,  ^with  verbal  chanpes,  2 

pointment   of   a    public    administrator  R.  S.  120.  §  47.     See  Sutton  v.  Public 

who  shall  possess  all  the  powers  of  a  Adm'r.  4  Dem.  3.3. 

countv  treasurer  relating  to  the  office  2o  Co.  Civ.  Proc,  §  266.5,  a3  amended 

of  public  administrator.      (L.   1900,  c.  1893  (2  R.  S.  129,  §  49). 
501.) 


§  382.  Public  Administrators.  312^ 

by  law.^^  Upon  taking  jDOSsession,  he  must  cause  an  inventory 
to  be  made  by  appraisers  appointed  by  the  surrogate,  executed 
by  him  and  tiled  with  the  surrogate,  within  ten  days  after  he 
Takes  charge,  unless  the  surrogate,  for  good  cause  shown,  extends 
the  time  ten  days  longer.  For  neglect  to  make  the  return  within 
the  time  prescribed,  he  will  forfeit  one  hundred  dollars  for  the  use 
of  the  poor  of  his  county,  and  will  forfeit  his  office."^ 

§  382.  Granting   letters   to   treasurer,    or   other   person When 

the  inventory  is  returned,  the  county  treasurer  must  give  the  bond 
required  by  law  to  be  given  by  a  temporary  administrator  ap- 
pointed by  a  surrogate,  with  such  sureties  and  in  such  penalty  as 
the  surrogate  approves,  and  the  surrogate  must  then  issue  letters 
to  such  county  treasurer,  authorizing  him  to  collect  and  preserve 
the  estate  of  the  deceased.  '"  The  surrogate  must  immediately 
thereafter  cause  notice  thereof  to  be  published  once  in  each  week 
for  three  months,  in  a  newspaper  printed  in  his  county,  and  in  the 
official  State  paper,  requiring  all  persons  claiming  a  right  to  ad- 
minister on  such  estate  to  appear  and  interpose  such  claim  be- 
fore the  surrogate  within  a  certain  time  to  be  therein  specified, 
not  less  than  six  months  after  the  first  publication  of  such  notice 
in  the  official  State  paper.  If  before'such  time  any  person  entitled 
to  administer  appears  and  claims  the  same,  the  surrogate  must 
cause  ten  days'  notice  of  such  claim  to  be  served  on  the  county 
treasurer,  and  may,  at  the  expiration  of  such  time,  grant  letters  to 
such  person  unless  it  appear  that  he  is  not  entitled  thereto ;  and 
thereon  the  publication  of  the  notice  must  be  discontinued.  At 
the  time  appointed,  if  letters  have  not  been  previously  granted, 
any  person  entitled  to  administration  on  such  estate  and  duly 
qualified  and  competent,  who  appears  and  claims  the  same,  shall 
be  entitled  to  letters  testamentary  or  of  administration,  as  the  case 
may  be."  ^ 

"  If  letters  testamentary  or  of  administration  be  not  granted  by 
the  surrogate  to  any  person  at  or  before  the  expiration  of  the 
time  specified  in  the  notice,  then,  unless  it  appear  that  such  let- 
ters have  already  been  granted  by  some  other  surrogate,  the  surro- 
gate must  grant  letters  of  administration  thereon  to  the  county 
treasurer  as  in  other  cases,  on  receiving  the  like  bond,  w4th  the 
like  sureties,  and  in  the  like  penalty,  as  administrators  are  re- 
quired to  give.     The  county  treasurer  must  accept  of  such  letters 

21  Td..  §  2f)0f.   (2  E.  R.  131.  §  65).  2.3  Co.  Civ.  Proc.  §  2666,  as  amended 

22  Co.  Civ.  Proc,  §  266o.  as  amended    1893    (2  R.  S.  130,  §§  57-59). 
1893   (2  R.  S.  130,  §§  52-55). 


old  Public  Admixistkatoks.  §§  383-'385. 

and  give  the  bond  above  required.  Such  letters  and  the  record 
thereof,  and  a  transcript  of  such  record,  duly  certified,  are  con- 
clusive evidence  of  the  authority  of  the  county  treasurer  in  all 
rases  in  which  the  surrogate  has  jurisdiction  under  this  article. 
The  surrogate  must  immediately  transmit  to  the  comptroller  a 
certified  copy  of  all  such  letters  granted  by  him  to  the  county 
treasurer,  the  expense  of  which  must  be  paid  to  him  out  of  the 
State  treasury,  on  the  warrant  of  the  comptroller."  ^'^ 

^  383.  Powers  and  duties  under  letters. —  Upon  receiving  letters 
of  administration,  the  county  treasurer  becomes  vested  with  all  the 
powers  and  rights  of  other  administrators,  and  subject  to  the 
same  duties  and  obligations,  except  as  otherwise  provided  by  the 
statute.""^  He  acts  in  each  case  by  virtue  of  his  letters  chiefly; 
and  \w  is  subject  to  the  supervision  of  the  surrogate  in  the  same 
manner  and  to  the  same  extent  as  other  administrators,  except  so 
far  as  the  provisions  of  the  statute  may  exclude  that  responsibility, 
or  may  prescribe  a  wholly  inconsistent  rule."^ 

§  384.  Accounting  and  compensation. —  He  must  account,  and 
may  be  compelled  to  account,  in  the  same  manner  as  other  ad- 
ministrators, at  the  instance  of  any  person  interested,  or  of  the 
attorney-general,  or  the  comptroller.^^  On  the  settlement  of  his 
accounts,  he  is  allowed  for  his  expenses  as  other  administrators, 
and  double  their  commissions.  The  balance  of  moneys  in  his  hands 
must  be  paid  into  the  State  treasury  for  the  benefit  of  such  per- 
sons as  shall  be  entitled  thereto."^ 

§  385.  Superseding  treasurer's  letters. —  Upon  letters  being 
granted  to  an  authorized  claimant,  the  authority  of  the  county 
treasurer  ceases,  and  he  must  deliver  to  the  person  appointed, 
the  assets  in  his  hands,  after  deducting  certain  expenses,  and  a 
reasonable  compensation  for  his  services,  not  exceeding  three  dol- 
lars for  each  day  necessarily  employed,  to  be  allowed  and  taxed 

24  Co.  Civ.  Proc,  §  2GGG  (2  R.  S.  28  Co.  Civ.  Proc,  §  2668,  as  amended 
131.  §§  61-04).  180.3    (2  R.  S.  1.32.  §  71).     The  oiifii- 

25  Co.  Civ.  Proc,  §  2008.  as  amended  nal  statute  (2  R.  S.  13.3.  §  74.  L.  1877, 
1803.  c.   4.'>G),  now   repealed,   provided   that 

21!  Thus  his  appointment  as  adminis-  any  person  claimin<r  any  moneys  that 

trator,  in  a  particular  case,  is  subject  have  been  paid  into  the  Rtate  treasury 

to   revocation,   on  the   ground  that   it  as  so  provided,  mirrht  petition  the  Su- 

was  obtained  upon  a  false  suggestion,  preme  Court  that  such  moneys  be  paid 

or  under  mistake  of  fact,  as  would  be  to  him.     No  such   provision  is   in   the 

the  appointment  of  any  other  adminis-  present  statute,  though  the  remedy  un- 

trator.    (Proctor  v.  Wanmaker.  1  Barb,  doubtedly     is     available,     on     general 

Ch.  302.)  principles. 

27  Co.  Civ.  Proc,  §  2608.  as  amended 
.1893   (2  R.  S.  132,  §§  09,  70). 


§  38G.  Public  Administrators.  314 

bj  the  surrogate.^  The  statute  provides  that  the  "  powers  and 
authority  of  the  county  treasurer,  in  relation  to  the  estate  of  any 
deceased  jjerson,  shall  be  superseded  —  1.  By  the  production  of 
any  letters  testamentary,  granted  before  or  subsequently  to  his 
becoming  vested  with  the  authority  of  an  administrator,  on  the 
same  estate ;  2.  By  the  production  of  any  letters  of  administration 
granted  to  any  other  person,  on  the  same  estate,  before  the  said 
county  treasurer  became  vested  with  the  powers  of  an  adminis- 
trator thereon ;  3.  By  the  production  of  letters  of  administration, 
issued  by  the  surrogate  of  a  county  in  this  State,  of  which  the  de- 
ceased was  a  resident  at  the  time  of  his  death,  gTanted  after  the 
•county  treasurer  became  vested  with  the  powers  of  an  adminis- 
trator upon  the  estate  of  such  deceased."  On  his  authority  being 
so  superseded,  ho  must  deliver,  to  the  one  producing  letters,  all  the 
assets  in  his  hands,  after  deducting  his  expenses  and  allowance. 
All  acts  done  by  the  county  treasurer  in  good  faith,  previous  to 
the  time  when  his  authority  was  superseded,  are  declared  valid, 
and  all  suits  commenced  by  him  may  be  continued  by  his  suc- 
•cessor.^^ 

TITLE  THIRD. 

PUBLIC    ADMINISTRATORS    IN    NEW    YORK   AND    KINGS. 

§  386.  Public  administrator  in  New  York  county. —  Pre\dous 
to  1895,  the  public  administrator  in  the  city  of  New  York  was 
•chief  officer  of  a  bureau  in  the  law  department  of  the  corporation.^^ 
In  that  year  the  bureau  was  made  independent  of  the  law  depart- 
ment, and  his  appointment  and  removal  vested  in  the  surrogates 
of  the  county. ^^  Upon  the  enactment  of  the  new  city  charter,  he 
was  continued  as  a  count  officer.^^  He  receives  a  regular  salary,^'* 
and  is  required  to  pay  all  commissions  which  he  receives  into  the 
city  treasury,  and  to  make  monthly  reports  to  the  comptroller, 
which  must  be  published  in  the  City  Record.^^  Although  a  county 
officer,  he  is  answerable  for  his  acts  to  the  municipal  corporation  of 
the  city,  which  is  made  the  conservator  of  the  effects  of  strangers 
who  die  within  the  city  or  port,  or  who  die  abroad,  leaving  effects 
therein,  and  where  no  relative  or  executor  appears  to  administer 

29  Co.  Civ.  Proc,  §  2666,  as  amended  power  to  appoint  and  remove  his  sub- 
1893   (2  R.  S.  131.  §  60).  ordinates. 

30  Co.  Civ.  Proc,  §  2667,  as  amended  33  L.  1897,  c.  378.  §  1.585;  L.  1901, 
1893   (2  R.  S.  131.  §§  66-68).  c.  466,  §  1585. 

31  L.  1873,  c.  335,  §  38;  L.  1882,  e.  34  L.  1898,  c.  230,  §  31. 

410,  §  216.  35  L.   1873.  c.  335,   §  38 ;   L.   1882,  c. 

32  L.   1895,  c.  827;   L.   1898,  c.   230,    410,  §  216;  L.  1898,  c.  230,  §  3. 
5    2.      The    public    administrator    has 


{315  Public  Admixistrators.  §  387. 

such  cffects.^^  To  compensate  the  corporation  for  undertaking 
this  duty,  in  addition  to  the  commissions  allowed,  the  public  ad- 
ministrator, upon  the  settlement  of  his  accounts,  is  required  to 
pay  the  balance  of  the  fund  into  the  city  treasury,  where  it  re- 
nuiins  until  the  rightful  owner  aj)pears,  and  such  balance  may  be 
used  by  the  city  without  the  payment  of  interest."  The  corpora- 
tion is  responsible  for  his  official  acts.^* 

§  387.  Powers  in  right  of  office. —  His  powers  and  duties  differ 
in  some  respects  from  those  of  the  public  administrator  of  Kings 
county,  and  those  of  the  county  treasurers  of  other  counties  when 
acting  as  public  administrators.  The  powers  which  he  has  by  virtue 
of  his  office,  and  before  any  letters  of  administration  have  been 
granted  to  him,  are  declared  by  the  statute  as  follows :  "  In  the 
right  of  his  office,  he  shall  have  authority  to  collect  and  take  charge 
of  the  goods,  chattels,  personal  estate,  and  debts,  of  persons  dying 
intestate,  and  for  that  purpose,  to  maintain  such  suits  as  public 
administrator,  as  any  executor  might  by  law,  in  the  following  cases : 
1.  Whenever  any  person  shall  die  intestate,  either  within  this 
State  or  out  of  it,  leaving  any  goods,  chattels,  or  effects  wdthin  the 
county  of  'New  York ;  2.  Whenever  any  goods,  chattels,  or  effects 
■of  any  person  who  shall  have  died  intestate,  shall  arrive  within  the 
county  of  New  York  after  his  death ;  3.  Whenever  any  person, 
coming  from  any  place  out  of  this  State,  in  a  vessel  bound  to  the 
port  of  l^ew  York,  and  arriving  at  the  quarantine,  near  the  city 
of  New  York,  shall  there  die  intestate,  and  shall  leave  any  effects 
cither  at  the  said  quarantine  or  in  the  county  of  New  York,  or 
elsewhere ;  4.  Whenever  any  effects  of  any  such  person  so  arriving 
and  dying  intestate  at  the  said  quarantine,  shall,  after  his  death, 
arrive  either  at  the  said  quarantine  or  within  the  county  of  New 
York ;  .5.  Whenever  any  person,  coming  from  any  place  out  of 
this  State  in  a  vessel  bound  to  the  port  of  New  York,  shall  die 
intestate  on  his  passage,  and  any  of  his  effects  shall  arrive  at  the 
•said  quarantine."  ^^ 

36  See  Suarez  v.  Mavor.  2  Sandf.  Ch.  statutes,  see  2  R.  S.  US.  S  4:  L.  1882. 

19.3-200.                          '  c.   410.   §    211).      But   the   powers   oon- 

•17  2  R.   S.    12.5,   §   .3.5,   subd.   14;    id.  ferred   hv  this   section   do   not   extend 

127,  §  43:  L.  1882.  c.  410.  §  239,  subd.  his  authoiitv  to  the  estate  of  any  per- 

14,   and   id.,    §    244;    L.    1898,   c.   230,  son  not  a  citizen  of  this  State,  "dying 

f  24,  subds.  14,  16;   Suarez  v.  Mayor,  within  or  outside  of  this  State,  or  on 

■supra;    Sullivan    v.    Herrera,    7    Hun,  board  of  any  foreign  vessel  within  the 

309.  harbor  of  New  York,  unless,  "  1.  Such 

•'^8  2  R.  S.  127,  §§  42,  43;  L.  1882,  c.  person    shall    have   landed   within   the 

410,  §  244;  L.  1898,  c.  230,  §  29.     See  county  of  New  York,  or  at  the  quar- 

5  398,  post.  antine   near    the   said   county;    or,    2. 

38  L.  1898,  c.  230,  §  4.    For  previous  Unless  the  effects  of  8uch  person,  or 


§§  388,  389.  Public  Administrators.  31^ 

The  public  administrator  has  like  power  in  the  foregoing  cases, 
where  an  executor  named  in  a  will  refuses  or  neglects  to  act  or  has 
died.^^ 

He  also  has  power,  by  virtue  of  his  office,  to  receive  and  sell 
at  pnblic  auction,  all  property  (except  cash),  not  exceeding  twenty 
dollars  in  value,  which  may  be  delivered  to  him,  of  persons  dying, 
and  reported  to  him  by  any  other  person,  when  the  same  is  un- 
claimed for  a  period  of  three  months;  the  proceeds  of  such  sale 
must  be  paid  into  the  city  treasury.^^ 

§  388.  Information  of  death  of  strangers. —  In  order  that  he  may 
have  full  information  in  regard  to  those  w^ho  die  intestate,  pro- 
vision is  made  for  the  report  to  him  by  keepers  of  hotels  and  board- 
ing and  lodging-houses,  of  the  names  of  strangers  dying  in  their 
houses ;  by  coroners,  of  the  names  of  those  on  whom  they  hold 
inquests,  and  by  undertakers  of  those  whom  they  bury ;  and  a 
failure  to  comply  with  this  requirement  is  made  punishable  by 
fine  or  imprisonment.  It  is  his  duty  to  send  a  copy  of  this  stat- 
ute to  all  boarding  and  lodging-houses.^^  In  order  to  aid  him  in. 
securing  the  property  which  is  committed  to  his  custody,  it  is 
made  the  duty  of  the  health  officer  of  the  port  of  Xew  York  to  take- 
charge  of  and  secure  all  decedent's  effects  at  quarantine,  and  to- 
account  therefor  to  the  public  administrator  ;'^^  although  this  is 
modified  by  the  provision  allowing  the  board  of  health,  etc.,  to  re- 
move from  the  city  to  quarantine,  or  destroy,  property  in  certain 
cases. '*^ 

§  389.  Where  letters  may  be  dispensed  with. —  In  cases  where  the 
property  does  not  exceed  in  value  one  hundred  dollars,  the  public 
administrator  is  required  immediately  to  give  notice,  in  the  mode 
prescribed  by  the  statute,  that  the  effects  of  the  deceased  in  his 


some  part  of  them,  shall  have  been  so  or  consular  officers."     (L.  1898.  c.  230,. 

landed;   and  when  any  effects  of  such  §  5;  former  statutes.  2  R.  S.  119,  §  5; 

person  shall  have  been  so  landed,  the  L.   1882.  c.  410,   §   220.)      See  2  R.   S. 

authority  of  the  public  administrator  74,  §  27   (now  Co.  Civ.  Proc,  §  2660)  ; 

shall  extend  to  such  effects  only;   or,  Matter  of  Page,  107  N.  Y.  266. 

3.  Unless    the    decedent    died     leaving  40  L.  1898,  c.  230,  §  4,  last  clause. 

personal    property   within    the   countv  •*!  L.  1898.  c.  230.  §  18.  in  part. 

of    New    York;     or    leaving    persona'l  42  2  R.  S.  128.  §§  45.  46;  L.  1866,  c. 

property   which   has,   since   his   death,  802,  §  1 ;  L.  1882,  c.  410,  §§  246,  247; 

come  into  the  countv,  and  remains  un-  L.   1898,  c.  230,  §   33. 

administered."     And  he  has  "no  au-  43  L.  1898,  c.  230,  §  10;  former  stat- 

thority  to  collect  and  take  charge  of  utes,  2   R.   S.   121,   §   14;    L.    1863,  p. 

the  wages  and  effects  of  seamen  dying  580,  c.  358,  §  27,  subd.  4,  as  amended 

on    board    the    vessels    of    a    foreign  by   L.   1865,   p.   1207,   c.   592,   §   5;   L. 

country,   whose  laws   intrust  the  cus-  1882,  c.  410,  §  225. 

tody    and    disposition    of    such    wages  44  Id.  and  L.  1856,  c.  147,  §  4. 

and  effects  to  their  respective  consuls 


S17  Public   Ad.mixistkatoks.  §  390. 

liantls  will  be  administered  and  disposed  of  by  liim  according  to 
law,  unless  the  same  be  claimed  by  some  lawful  executor  or  ad- 
ministrator of  the  deceased,  by  a  certain  day.  Notice  to  the 
widow  and  relatives  of  the  deceased  must  be  given.  If,  at  the 
time  api)ointed  in  the  notice,  no  claim  has  Ijeen  made  as  therein 
recinired,  the  ])nblic  administrator,  upon  tiling  in  the  surrogate's 
office  an  affidavit  stating  the  value  of  the  property,  the  giving  of 
notice,  the  failure  of  any  claimant  to  a})pear,  and  that  he  has 
taken  upon  himself  the  administration  of  the  estate  of  the  de- 
ceased, becomes  thereby  vested  \vith  all  tlie  rights  and  powers, 
and  subject  to  all  the  duties  of  an  administrator  of  the  estate 
of  the  deceased,  in  the  same  manner  as  if  letters  of  administra- 
tion had  been  granted.  The  affidavit,  or  a  certified  copy,  is 
presumptive  evidence  of  the  facts  it  contains,  and  that  adminis- 
tration of  the  deceased  has  been  committed  to  the  public  admin- 
istrator according  to  law."*^ 

§  390.  Powers  before  grant  of  letters. —  Until  vested  \^'itli  the 
powers  of  an  administrator  by  the  issuing  of  letters  to  him,  or 
the  filing  of  an  affidavit  as  above,  he  has  no  power  to  proceed  in 
the  administration  of  the  estate,  further  than  to  pay  funeral 
charges,  and  to  do  such  acts  as  are  necessary  for  the  collection 
and  preservation  of  the  estate,  and  to  clothe  himself  with  the 
full  powers  of  an  administrator.'*^  He  may,  how^ever,  at  any 
time,  advance  to  any  relative  such  a  portion  of  his  share  of  the 
estate  to  which  he  may  be  entitled  as  in  the  opinion  of  the  sur- 
rogate may  be  necessary  for  the  support  of  such  relative,  not 
exceeding,  however,  fifty  dollars. ^^  Although  the  public  admin- 
istrator cannot  interfere  with  the  estate,  where  he  has  notice 
that  any  one  who  is  entitled  to  a  distributive  share  is  a  resident 
of  the  city  of  l^ew  York,  the  surrogate  may,  nevertheless,  au- 
thorize his  taking  charge  thereof,  upon  it  appearing  by  affidavit 
that  the  effects  of  the  deceased  are  in  danger  of  waste  or  em- 
bezzlement, or  that  for  any  other  reason  it  would  be  for  the 
henefit  of  the  estate  to  have  the  same  or  any  part  thereof  seized 
and  secured.'*^ 

After  grant  of  letters,  the  public  administrator  is  in  charge  of 
the  estate,  not  rirtute  officii,  but  by  investiture  of  letters  of  ad- 


•m  2  "R.  S.  123,  §§  24-27:  L.  18S2.  c.  47  2  R.  S.  127.  §  38:  L.  1882.  c.  410, 

410.  §§  2.31.  232:  L.  ISflS.  o.  230.  §§  Ifi.  §  241;  L.  1898.  c.  230.  §  20. 

17.  48  2  R.   S.   110.   §§  6.  7:   L.   1882,  c. 

412  E.  S.  123.  8  28:  L.  1882.  c.  410,  410,  §  221;  L.  1898,  c.  230,  §  6. 
5  233:  L.  1898,  c.  230,  §  18.  in  part. 


§  391.  Public  Administrators.  318 

ministration  issued  to  him  by  the  surrogate.  His  proceeding- 
for  the  discovery  of  property  of  his  intestate's  estate  claimed  ta 
be  concealed  or  withheld  is  then  fixed  by  the  Code,  and  not  hj 
the  Consolidation  Act.^^ 

§391.  Letters  of  administration,  when  to  be  applied  for. —  In 
case  the  property  of  which  he  is  authorized  to  take  charge  ex- 
ceeds in  value  one  hundred  dollars,  the  public  administrator  must 
immediately  give  notice  of  his  intention  to  apply  for  letters  of 
administration;  and  the  notice  (the  contents  of  which  are  pre- 
scribed by  the  statute)  must  be  served  on  the  widow  and  relatives 
entitled  to  share  in  the  estate. ^'^  In  case  the  widow  and  relatives 
of  the  deceased  cannot  be  found  in  the  city  of  New  York,  the 
service  may  be  made  by  publication,  in  the  cases  and  manner 
directed  by  the  statute.^^  If  the  deceased  was  a  foreigner,  un- 
naturalized, or  one  who  had  never  taken  any  step  for  that  pur- 
pose, the  notice  must  be  served  on  the  consul  of  the  nation  of 
which  the  deceased  was  a  citizen,  if  there  be  one  in  the  city  of 
]^ew  York,  or  upon  his  deputy,  in  the  same  manner  as  upon  the 
relatives  of  the  deceased. ^^  Xotice  need  be  given  only  to  such 
relatives  of  the  intestate  within  the  city  as  are  actually  entitled 
to  a  distributive  share  of  his  personal  estate.  The  court  ob- 
tains jurisdiction  by  the  presentation  of  the  application  and  by 
the  existence  of  the  jurisdictional  facts,  and  failure  to  give  no- 
tice of  such  application  to  any  party  whose  right  to  letters  was 
superior  to  the  applicant's,  and  who  was  entitled  to  notice,  is  a 
mere  irregularity,  which  does  not  vitiate  the  proceedings,  and 
of  which  advantage  can  be  taken  only  by  the  party  failing  to 
receive  notice. ^^  The  facts  upon  which  the  jurisdiction  depends 
are  the  death  of  the  decedent,  his  intestacy,  and  the  presence 


49  Public  Adm'r  v.  Elias,  4  Dem.  his  representative  may  appear  in  per- 
139.  The  proceeding  for  the  dis-  son  or  by  attorney,  on  behalf  of  any 
covery  of  concealed  effects  which  the  person  interested  who  is  then  a  resi- 
public  administrator  is  authorized  to  dent  of  the  country  which  such  consul 
institute,  before  he  applies  for  letters,  represents,  and  citations  may  be 
is  by  a  subpoena,  and  is  regulated  by  served  upon  him  on  behalf  of  such 
L.  1808.  c.  2.30.  §§  7.  8.  and  9  (former  nonresident,  but  infants  must  be  rep- 
statutes.  2  R.  S.  120,  §§  8-13:  L.  1882,  resented  by  a  special  or  general  guard- 
o.  410.  §§  222-224).  ian.     (lb.) 

ROSee   Matter   of   Page,    107   N.    Y.  53  Matter  of  Brewster.   5  Dem.  259. 

266.  It  was  held,  further,  in  that  case  that 

512  R.  S.   121,   §§   16,   17:   L.   1882,  notice  of  the  application  need  only  be 

c.  410.  §  227:  L.  1898,  c.  230,  §  12.  given  to  such  relatives  within  the  city 

52  2  R.  S.  124,  §  29;  L.  1882,  c.  410,  as    are    actually    entitled    to    a    dis- 

§  234;  L.  1898.  c.  230,  §   19.     In  any  tributive   share   of   the   intestate's   es- 

action  or  proceeding  affecting  the  ad-  tate. 
ministration  of  the  estate,  a  consul  or 


310  Public  Admi.mstkators.  §§  31)2-304. 

iu   the   surrogate's  county,   at  the  time  of   his  death,  or  after- 
ward, of  effects  belonging  to  his  estate.^^ 

§392.  Hearing  upon  application. —  At  the  time  of  the  applica- 
tion, any  one  interested  in  the  estate  of  the  deceased  may  appear 
and  contest  the  granting  of  letters  to  him,  and  he  is  entitled 
to  compulsory  process  for  the  attendance  of  witnesses.  If,  upon 
such  application,  it  appears  that  the  deceased  has  disposed  of  his 
personal  property  by  will,  and  therein  appointed  an  executor  com- 
})eterit  and  qualified  to  act,  or  if  there  is  a  widow  or  any  relative 
of  the  deceased  entitled  to  a  share  in  the  estate,  who  is  willing,, 
competent,  and  qualified  to  act,  the  application  will  be  denied, 
and  letters  will  be  granted  to  such  person;"^  otherwise  they  wnll 
be  issued  to  the  public  administrator,  ^^'ithout  his  being  required 
to  file  any  further  or  other  official  oath  or  bond.^^ 

§  393.  Cessation  of  authority  on  denial  of  application. —  Upon 
the  granting  of  letters  testamentary  or  of  administration  to  any 
other  person,  the  authority  of  the  public  administrator  ceases,, 
and  every  order  granted  to  him  in  relation  to  the  estate  is  re- 
voked;^' and  he  must  turn  over  to  the  executor  or  administrator 
thereby  appointed,  the  effects  of  the  deceased  in  his  hands.  If^ 
at  any  time,  before  he  becomes  vested  with  the  power  of  admin- 
istering, any  executor  or  administrator  appears  and  produces  let- 
ters testamentary  or  of  administration,  he  is  entitled  to  receive 
the  property  in  the  public  administrator's  hands,  after  deducting 
his  expenses  as  taxed  and  allowed. ^^ 

§  394.  Superseding  letters. —  The  cases  in  which  the  powers  and 
authority  of  the  public  administrator,  in  relation  to  the  estate 
of  the  deceased,  may  be  superseded,  are  enumerated  as  follows: 
"  1.  Where  letters  testamentary  shall  lie  granted  to  any  execu- 
tor of  a  'will  of  any  deceased  person,  either  before  or  after  the 
public  administrator  shall  have  taken  letters,  or  become  vested 
with  the  powers  of  an  administrator  upon  such  estate;  2.  "WTiere 
letters  of  administration  of  such  estate  shall  have  been  granted 
to   any   other  person,    before   the   public   administrator  became 


fi4  Matter  of  Brewster.  sj/;)rff.  Wheth-  ^^5  2    R.    S.    122.    §§    IS.    10.   20:    L. 

pr  at   the  time  of  his  death   decpflent  1SS2.  c.   410.   §   228:   L.   ISOS.   c.   230. 

was  or  was  not  a  citizen  of  this  State  §  13. 

is  irrolpvant  to  the  inquiry  rpspectinj;  r,r,  L.  1882.  c.  410,  §  230;  L.  1898,  c. 

tlio  snrrocrate"s  jurisdiotion.     The  fact  230.  §  15. 

that  the  proccpdinjr  was  instituted  hv  ^'"^  Tb. 

a  petition  made  upon  information  and  •'^s  2  R.  S.  124.  §  30:  L.  1882,  c.  410, 

hcliof.   docs   not    affect    the   regularity  §  235;  L.  1898,  c.  230,  §  20. 
of  the  proceedings.     (lb.) 


§  395.  Public  Administkators.  320 

vested  with  the  powers  of  an  administrator  upon  the  same  es- 
tate; 3.  Where  letters  of  administration  shall  be  granted  upon 
such  estate,  by  any  surrogate  having  jurisdiction,  at  any  time 
^vithin  six  months  after  the  public  administrator  became  vested 
with  the  powers  of  an  administrator  upon  such  estate."  '''"^ 

xlny  -relative  of  the  deceased,  entitled  to  administer,  upon  mak- 
ing application  to  the  surrogate  within  three  months,^^  after 
the  public  administrator  has  become  vested  with  power  to  admin- 
ister, may  have  letters  of  administration  granted  to  him,  upon 
proof  (1)  that  he  did  not  reside  in  the  county  of  !New  York  at 
the  time  of  the  death  of  the  intestate;  or,  (2)  that,  residing  in 
the  said  county,  no  notice  was  served  on  him  as  required  by 
the  statute.  And  upon  his  giving  notice  to  the  public  adminis- 
trator of  the  granting  of  such  letters,  and  producing  to  him  duly 
attested  copies  thereof,  he  is  entitled  to  a  delivery  of  the  prop- 
erty of  the  deceased  in  the  hands  of  the  public  administrator, 
after  deducting  his  charges  and  commissions.^^  But  no  suit  or 
proceeding  that  shall  have  been  commenced  by  him  shall  abate 
on  account  of  his  authority  having  ceased  for  any  cause;  but 
the  same  may  be  continued  by  his  successor.®^ 

§  395.  General  statutory  powers  under  letters. —  The  rights, 
powers,  and  obligations  of  the  public  administrator,  upon  his  be- 
coming vested  with  the  right  to  administer  upon  any  estate,  are 
specifically  set  forth  in  the  statute.  Space  mil  not  permit  their 
statement  in  the  precise  phraseology  of  the  act,  but,  in  sub- 
stance, they  are  as  follows:  1.  He  shall  have  all  the  rights,  powers, 
and  authority  given  by  law  to  any  administrator  except  as  qualified 
by  the  pro\asions  of  the  statute.     2.  He  may  sue  and  be  sued. 

3.  He  shall  make  and  return  an  inventory  in  all  cases  and  in 
the  same  manner  as  is  required  by  law  of  other  administrators 
and  the  same  proceedings  may  be  had  to  compel  such  return. 

4.  He  may  sell  the  property  either  at  public  auction,  after  pub- 
lishing notice  thereof  three  days  daily,  or  at  private  sale,  or 
in  such  other  manner  as  the  surrogate  may  direct.  5.  He  shall 
sell  public  stock,  or  stock  or  bonds  of  anv  incorporated  company, 
or  other  security,  within  two  months  after  the  issue  of  letters, 
unless  he  is  directed  bv  the  surrogate  to  hold  the  same  for  a 


59  2  "R.  R.  124.  S  .31 :  L.  1882.  c.  410,  Inte.  (Tuohay  v.  Public  Adm'r.  2  Dem. 
^  2.3fi:  L.  1898.  c.  230.  §  21.  412.) 

60  Consequently,  an  applioation  by  a  "^i  L.  1808.  c.  230.  §  22  (former  stat- 
Telativp  to  supersede  a  publie  adminis-  utes.  2  R.  S.  12.5.  §§  32,  33:  L.  1892, 
trator.  made  more  than  three  months  c.  410.  §  237). 

after  the  latter  became  vested,  is  too        '52  L.  1898,  c.  230,  §  23. 


321  Public  AuAiiM.sTii.vTOKS.  §  395. 

longer  period,  or  unless  the  same  have  no  market  value,  in  which 
case  he  may  hold  them  until  his  accounting  or  until  a  sale  is 
directed.  G.  In  all  cases  where  the  estate,  after  the  payment  of 
funeral  expenses,  is  less  than  fifty  dollars,  he  may  make  distri- 
bution, without  notice  to  creditors  or  legatees  to  present  their 
respective  claims;  in  other  cases,  he  shall  give  such  notice  hy 
publication  once  in  each  week  for  twelve  weeks,  requiring  cred- 
itors and  persons  interested,  to  present  their  claims  ^Hthin  twelve 
weeks  from  the  date  of  the  tirst  notice;  if  a  suit  be  brought  by 
any  creditor  or  person  interested,  on  a  claim  not  presented  within 
six  months  from  the  date  of  his  letters,  he  shall  not  be  charge- 
able with  any  money  he  may  have  paid  in  satisfaction  of  lawful 
claims  or  legacies  or  in  making  distribution  before  such  suit  was 
brought,  provided  he  shall  have  given  such  notice.  7.  He  may 
]U'oceed,  as  other  administrators,  to  discover  assets  and  obtain 
delivery  and  possession  of  same ;  and  the  surrogate  may,  although 
an  answer  be  filed  as  provided  in  section  2709  of  the  Code,  direct 
the  person  cited  to  be  examined  as  to  any  knowledge  he  may 
have  as  to  the  property  sought  to  be  discovered.  8.  He  shall 
adjust  and  pay  all  demands  against  the  estate  and  may  refer  all 
disputes  respecting  such  demands.  9.  Six  months  after  lie  shall 
become  vested  with  the  right  to  administer,  and  except  in  the 
cases  ^mentioned  in  subdivision  16,  he  shall  account  to  the  sur- 
rogate for  all  assets  received  by  him  and  for  the  application 
thereof;  and  such  accounting  may  be  compelled  as  in  the  case 
of  other  administrators.  10.  He  may,  in  his  discretion,  after 
the  expiration  of  six  months,  have  a  final  settlement  of  his  ac- 
counts. 11.  In  the  settlement  of  his  accounts  he  shall  not  be 
allowed  for  any  pavments  made  by  him,  unless,  in  addition  to 
the  other  vouchers  therefor,  it  shall  appear  that  the  same  was 
made  on  a  check,  signed  by  himself,  upon  the  bank  in  which  his 
deposits  are  required  to  be  made,  except  that  he  may  be  allowed 
for  current  expenses  authorized  by  law,  expenses  of  administra- 
tion, claims  of  creditors,  distributive  shares  and  legacies  not  ex- 
ceeding twenty  dollars.  12.  Upon  the  settlement  of  his  accounts,  he 
shall  not  be  allowed  for  any  demand  he  may  have  against  the  es- 
tate, unless  such  demand  was  specified  in  writing  to  the  surrogate 
at  the  time  of  applying  for  letters,  or  of  filing  the  affidavit  required 
to  vest  him  with  the  rights  of  administrator,  or  unless  it  appears 
that  such  demand  existed  previous  to  the  death  of  the  intestate. 
13.  He  shall  pay  all  legacies  and  shares  according  to  the  decree  of 
the  surrogate;  but  he  may,  in  his  discretion,  pay  a  legacy  or 

21 


g  39G.  Public  Administrators.  322" 

share  of  an  infant,  having  no  general  guardian  appointed  by  a 
court  of  this  State,  to  his  father,  or,  if  his  father  be  dead,  to 
his  mother;  and  if  both  be  dead,  to  the  person  with  whom  the 
infant  resides,  for  the  use  of  such  infant,  but  the  aggregate  of 
such  payments  shall  not  exceed  two  hundred  and  fifty  dol- 
lars. 14.  The  balance  of  any  moneys  in  his  hands,  on  the 
adjustment  of  his  accounts,  shall  be  paid  into  the  city  treas- 
ury, and  he  shall  transfer  to  the  city  corporation  all  se- 
curities belonging  to  the  estate  then  unsold,  15.  AVben- 
ever  in  the  performance  of  his  duty  he  shall  take  an 
appeal  from  any  decision  affecting  the  estate,  an  undertaking  is 
not  necessary  to  perfect  the  appeal,  or  stay  execution.  16.  When 
the  estate  is  not  claimed  by  creditors  or  other  persons  interested 
for  one  year  after  the  estate  passes  into  his  possession,  and,  af- 
ter paying  the  debts  and  expenses  of  administration,  the  balance- 
is  less  than  two  hundred  and  fifty  dollars,  he  shall  pay 
such  residue  imclaimed  into  the  city  treasury;  the  rights 
and  remedies  of  all  persons  interested  in  the  estate  to  com- 
pel an  accounting  by  him  are  not  affected,  but  the  decree 
of  distribution  shall  provide  that  payments  therein  directed, 
shall  be  made  by  the  comptroller.  17.  Where  the  estate 
in  his  hands  is  claimed  by  creditors  or  other  persons  in- 
terested, and,  after  paying  the  debts  and  expenses  of  ad- 
ministration, the  balance  is  less  than  two  hundred  and  fifty 
dollars,  service  of  the  citation  upon  his  accounting  shall  be 
made  upon  those  persons  only  whose  places  of  residence 
are  kno^^•n;  the  order  for  the  service  of  the  citation  by 
publication  upon  nonresidents  shall  direct  the  deposit  of  copies 
of  the  citation  and  of  said  order  in  the  post-office  at  least  forty 
days  before  the  return  day,  directed  to  the  persons  to  be  ser^-ed 
at  the  places  specified  in  such  order;  he  shall  pay  the  shares  of 
unknown  persons,  or  of  persons  whose  residence  is  unknown,  into 
the  city  treasury,  but  the  right  of  any  persons  to  compel  an  ac- 
counting is  not  affected  thereby,  but  the  decree  of  distribution 
shall  direct  payments  to  be  made  by  the  comptroller.''^ 

§  396.  Deposit  of  moneys. —  He  is  required  to  deposit  all  moneys 
by  him  collected  and  received,  except  a  sum  for  current  expenses 

63  L.  1898,  c.  230,  §  24  (former  stat-  Court,  under  Co.  Civ.  Proc,  §  2717. 
utes,  2  R.  S.  125,  §  35;  as  amended  L.  (Matter  of  Conway,  5  Dem.  290.) 
1882,  c.  410,  §  239).  The  money  so  Such  application  must,  however,  be 
deposited  may  be  obtained  by  any  per-  preceded  by  chiim  and  demand,  under 
son  entitled  thereto,  whether  in  his  section  261  of  the  City  Charter.  (Mat- 
own  riprht.  or  as  an  assisnee.  by  means  ter  of  Rnoney,  26  Misc.  106;  56  N.  Y. 
of    a    pr'oceeding    in    the    Surrogate's  Supp.  855.) 


o23  rum, ic   Ad.mixistkatoks.  §  397. 

not  exceeding  twenty  dollars  in  any  one  case,  within  two  days 
after  the  receipt  thereof,  in  a  bank  designated  by  law,  to  the 
crt'dit  of  himself,  and  to  be  drawn  out  upon  his  own  check.''* 
AVhere  the  bank  aUows  interest  on  moneys  so  deposited,  it  be- 
longs to  the  next  of  kin,  on  the  distribution  of  the  estate,  and 
not  to  the  city.  But  after  the  settlement  of  the  administrator's 
account,  and  the  payment  of  the  balance  remaining  in  his  hands 
into  the  city  treasury,  to  be  there  preserved  awaiting  an  applica- 
tion for  it  by  its  lawful  but  undiscovered  owner,  no  interest  on 
such  balance  is  chargeable  against  the  city.*^^  The  object  of  the 
])rovision  requiring  such  a  deposit  in  a  designated  bank  is  to  secure 
the  funds  against  loss  through  conversion  by  the  administrator, 
or  his  indiscreet  selection  of  a  bank.  But  Avhere  only  the  bank- 
book representing  a  deposit,  in  a  savings  bank,  of  moneys  be- 
longing to  the  decedent,  came  to  the  hands  of  the  public  admin- 
istrator, the  money  was  held  not  to  be  collected  and  received  by 
him  within  the  meaning  of  the  statute.''^ 

^  397.  Commissions  and  expenses. —  If  the  public  administrator's 
application  for  letters  is  denied,  he  is  entitled  nevertheless  to  re- 
tain, out  of  the  effects  in  his  hands,  certain  necessary  expenses 
which  have  been  incurred,  the  amount  thereof  to  be  taxed  and 
allowed  by  the  surrogate,  but  no  commissions  are  allowed  him. 
And  if  there  are  no  effects  of  the  deceased  in  his  hands  to  pay 
such  expenses,  and  they  are  allowed  and  taxed,  then  they  are 
to  be  paid  by  the  executor  or  administrator,  and  are  given  a 
l^reference  over  all  other  claims,  except  funeral  charges,  and  he 
is  allowed  to  maintain  an  action  therefor  in  his  own  name.*^'  In 
case  letters  were  granted  to  him,  he  is  entitled  to  retain,  on  the 
settlement  of  his  accounts,  in  addition  to  his  expenses,  a  commis- 
sion of  five  per  cent,  on  all  sums  not  exceeding  twenty-five  hun- 
dred dollars,  and  two  and  one-half  per  cent,  on  all  sums  in  ex- 
cess thereof;  and  such  commissions  may  be  retained  in  preference 
to  any  debt  or  claim,  except  funeral  charges. ^^ 


^4  L.  ISOS.  0.  230.  §  2.5  (former  ptat-  troller,  in  cases  where  by  law  the  pub- 

\ites.  2  R.  S.   120.  §§  30,  37:  L.  1882.  lie   administrator    is   required   to    pay 

0.  410.  §240).    The  disposal  of  moneys  out     moneys.        (Lockhart     v.     Public 

in  his  hands   is  a   subject  upon  which  Adm'r,  4  Bradf.  21.) 

the   surrofiate   may   direct,    as    in   the  •'•'»  Sullivan  v.   Herrera,  7  Hun,   309. 

cases    of    other    administrators,    not-  '^"j  Sheerin  v.  Public  Adm'r,  2  Redf. 

withstandinp  the  provision   in  case  of  421. 

•the  pub'ic  administrator  of  New  York,  C7  2  R.  S.  122,  §§  21,  22;  L.  1882,  c. 

that  monevs  shall  be  drawn  from  his  410;  L.  1898,  c.  2.30.  §  14. 

bank   only"  on   the   joint  check   of   the  «8  2  R.  S.  118.  §  3:  L.  1882.  c.  410, 

public    administrator   and   the    corap-  §  218;  L.  1898..  c.  230,  §  3,  in  part. 


§§  398-400.  Public  Administkatoks.  324: 

§  398.  City  corporation  liable  for  acts  of  public  administrator. — 
The  corporation  of  New  York  city,  as  above  stated,  is  responsible 
for  the  faithful  performance  of  his  duties,  and  the  application  of 
all  moneys  received  by  him,  and  for  stock  transferred,  dividends 
thereon  received,  and  moneys  paid  into  the  city  treasury  by  him, 
or  which  should  be  so  transferred  or  paid  in  by  him,  after  de- 
ducting his  commissions,  but  not  for  any  interest  on  such  moneys 
or  dividends  on  stock.  And  the  persons  aggrieved  have  the  same 
remedies  against  the  corporation  as  they  would  have  against  any 
executor.*^^  The  corporation  is  liable  not  as  a  surety  and  col- 
laterally, but  primarily  and  in  the  first  instance,  for  the  due  and 
faithful  performance  of  all  the  duties  of  his  office;  and,  there- 
fore, where  the  public  administrator,  without  reasonable  cause 
therefor,  brought  an  action  for  an  alleged  conversion  of  the  goods 
of  the  deceased,  and  was  defeated,  and  a  judgment  for  costs  ob- 
tained against  him,  it  was  held  that  the  party  in  whose  favor  it 
was  obtained  could  maintain  an  action  of  debt  on  it  against  the 
corporation."*^  The  intent  of  the  statute  is  to  give  the  aggrieved 
person  a  direct  remedy  by.  action  against  the  city,  and  not  to 
require  him  to  seek  an  accounting  in  the  Surrogate's  Court. '^ 

§  399.  His  personal  liability. —  This  responsibility  of  the  corpo- 
ration for  his  acts  does  not  take  away  his  personal  liability,  and 
he  has  been  held  liable  personally  for  the  wrongful  taking  or 
detention  of  personal  property  of  a  stranger,  although  he  had 
acted  in  his  ofiicial  capacity  and  in  good  faith,  and  in  the  belief 
that  the  property  belonged  to  the  intestate  at  the  time  of  his 
death.'^^  In  case  of  his  death,  removal  or  resignation,  the  papers, 
money,  and  effects  are  to  be  delivered  to  his  successor  in  office, 
without  the  reissuance  of  any  letters  to  him,  and  such  delivery 
may  be  compelled  in  the  same  way  as  in  the  case  of  other  public 
officers.'^^ 

§  400.  Public  administrator  in  Kings  county. —  The  statute  pro- 
vides for  the  appointment  of  a  public  administrator  in  the  county 
of  Kings;  and  declares  "that  all  provisions  of  law  conferring 
jurisdiction,  authority,  or  power  on,  or  otherwise  relating  to,  the 
office  of  public  administrator  of  the  city  of  New  York,  and  to  the 
office  of  public  administrator  in  the  several  counties  of  this  State, 


69  2  R.  S.  127,  §§  42,  43;  L.  1882,  e.  T2  Levin  v.  Russell,  42  N.  Y.  251. 
410.  §  244;  L.  1898.  c.  230.  §  29.  73  2  R.  S.  128,  §  44;  L.  1882,  c.  410, 

70  Matthews  v.  Mayor.  1  Sandf.  132.  §  245;  L.  1898,  c.  230,  §  32. 

71  Glover  v.  Mayor,  7  Hun,  232. 


325  Public  Administratoes.  §§  401, 402. 

so  far  as  applical)!*',  apjily  to  and  are  conferred  upon  the  office 
liereby  created."  '"* 

g  401.  His  authority. —  In  Xew  York  county,  as  will  have  been 
noticed,  tlie  st acute  s]>ecities  certain  cases  of  intestacy  in  which 
ilie  public  administrator  has,  in  right  of  his  office,  power  to  act 
at  once  as  a  collector  and  conservator  of  decedent's  cflFects,  while 
provision  is  made  for  conlirming  or  superseding  his  powers  ac- 
cording to  fadts  subsequently  appearing.  But  in  Kings  county, 
absolute  and  sole  authority  is  conferred  upon  the  public  admin- 
istrator, not  only  to  collect  and  secure,  but  also  to  administer 
u]jon,  an  intestate's  estate  in  enumerated  cases,  unless  certain 
relatives  entitled  to  share  therein,  and  entitled  and  willing  to  ad- 
minister thereupon,  reside  in  the  State.  It  is  enacted,  that  ''he 
shall  have  the  prior  right  and  authority  to  collect,  take  charge  of 
and  administer  upon  the  goods,  chattels,  personal  estate,  and  debts 
of  persons  dying  intestate,"^  and  for  that  purpose  to  maintain 
suits  as  such  public  administrator,  as  any  executor  or  adminis- 
trator might  by  law,  in  the  following  cases:  1.  Whenever  such 
])erson  shall  die  leaving  any  assets  or  effects  in  the  county  of 
Kings,  and  there  is  no  widow,  husband,  or  next  of  kin  entitled 
to  a  distributive  share  in  the  estate  of  such  intestate,  resident  in 
the  State,  entitled,  competent,  or  Avilling  to  take  out  letters  of 
administration  on  such  estate.  2.  \Mienever  assets  or  effects  of 
any  ]~»erson  dying  intestate  shall,  after  his  death,  come  into  the 
county  of  Kings,  and  there  is  no  such  person  entitled,  competent, 
or  willing  to  take  administration  of  the  estate.  In  such  cases, 
intestacy  shall  be  ]iresumed  until  a  will  is  proven,  and  letters  tes- 
tamentary issued  thereon."  ''^ 

§  402.  His  commissions. —  He  is  allowed  the  commissions  of  ex- 
ecutors and  administrators,  besides  the  necessary  expenses  in- 
curred by  liim  in  administering  the  estate.  The  surrogate  may 
also  issue  letters  of  temporary  administration  to  him  without 
special  security." 


'■t  Co.  Civ.  Proc.  §  2000.  as  amended  jnibliL'  administrator  has  a  rifrht  prior 

ISnn.  adoptinpr  L.  1871.  c.  335,  §  5;  as  to    the    Brooklyn    Trust    Company,    to 

amended  L.  1882.  c.  124.  whieh.  before  the  act  of   1882.  letters 

"•'i  This  provision  of  the   statute  re-  mipht    issue,    in    the    surrogate's    dis- 

lates   solely  to   nonresident   decedents,  cretion.      (Goddard  v.  Public  Adm'r,  1 

(Taylor  v.' Public  Adm'r.  0  Dem.  158.)  Dem.  480:  affd..  04  X.  V.  544.) 

76  Co.  Ciy.  Proc.,  §  2000,  as  amended  "7  Co.  Civ.  Proc,  §  2GG9,  as  amended 

1893.     See  §  377,  note  10,  ante.    The  1893. 


CHAPTER  XIII 

TEMPORARY  ADMINISTRATION. 

§  403.  Jurisdiction  to  grant  letters. —  Wliere  the  appointment  of 
an  executor  or  administrator  is  delayed,  it  often  becomes  neces- 
sary that  some  immediate  stej)S  should  be  taken  for  the  preserva- 
tion of  the  estate,  as  well  as  for  the  collection  of  debts  and  other 
assets.  Grave  inconvenience  has  sometimes  arisen,  also,  in  re- 
spect to  the  right  to  collect  the  assets,  and  otherwise  manage  the 
l)vo]ierty  of  a  person  who  has  disappeared  and  is  unheard  from, 
where  there  is  no  sufficient  evidence  of  death.  In  each  of  these 
cases,  the  statute  authorizes  the  appointment  of  a  temporaiy  cus- 
todian of  the  property,  who  has  heretofore  received  the  various 
appellations  of  collector,  special  administrator,  receiver,  and  trus- 
tee, but  by  the  Code  of  Civil  Procedure  is  uniformly  styled  a 
temporary  administrator.^  Power  is  conferred  on  the  surrogate 
to  grant,  in  his  discretion,  such  letters  —  "1.  Where,  for  any 
cause,  delay  necessarily  occurs  in  the  granting  of  letters  testa- 
mentary or  letters  of  administration,  or  in  probating  a  will. 
"  2.  Where  a  person,  of  whose  estate  the  surrogate  would  have 
jurisdiction,  if  he  was  shown  to  be  dead,  disappears  or  is  missing, 
so  that,  after  diligent  search,  his  abode  cannot  be  ascertained,  and 
imder  circumstances  which  afford  reasonable  ground  to  believe 
cither  that  he  is  dead,  or  that  he  has  become  a  lunatic,  or  that 
he  has  been  secreted,  confined,  or  otherwise  unlawfully  made 
away  with ;  and  the  appointment  of  a  temporary  administrator  Is 
necessary  for  the  protection  of  his  property,  and  the  rights  of 
creditors,  or  of  those  who  will  be  interested  in  the  estate,  if  it  is 
found  that  he  is  dead."  ^ 


1  Under  the  English  ecclesiastical  (that  is,  for  letters  testamentary  or 
law,  several  different  sorts  of  limited  of  administration),  and  the  words, 
or  temporary  administrations  are  rec-  "  or  in  consequence  of  the  absence  from 
ognized, —  e.  g.,  administration  durante  the  State  of  an  executor  named  in  the 
minore  cetate,  pendente  lite,  durante  will,  or  for  any  other  cause."  As  to 
absentia,  etc.  See  Wms.  on  Exrs.  collectors  and  special  administrators 
(7th  ed.)   479.  appointed    before   the    date    when    the 

2  Co.  Civ.  Proc,  §  2670,  as  amended  provisions  of  the  Code  relating  to  tem- 
1901  (L.  1901,  c.  21).  The  amend-  porary  administrators  took  effect 
ment  consisted  mainly  in  striking  out  (Sept.  1,  1880),  see  Co.  Civ.  Proc, 
the  words  "  in  consequence  of   a  con-  §  2683. 

test    upon    an    application    therefor " 

[326] 


327  Temporary  Admixistration.  §§  404,  405. 

It  is  expressly  provided^  that  pending  a  proceeding  for  the 
giant  of  letters  of  administration,  on  giving  a  limited  bond,  no 
temporary  administrator  shall  be  appointed,  except  upon  peti- 
tion of  the  next  of  kin,  ^vho  consent  to  the  giving  of  a  limited 
bond. 

Prior  to  the  amendment  of  1001,  it  was  said  that  the  ''  delay  " 
referred  to  in  the  first  clause  as  one  necessarily  occurring  in  a 
contested  proceeding  for  letters  in  chief,  implied  that  such  a  pro- 
ceeding was  pending,  and  hence,  if  no  such  proceeding  was  pend- 
ing, an  original  independent  proceeding  by  a  creditor  to  procure 
temporary  letters,  to  enable  him  to  eollect  his  debt,  was  unau- 
tiiorizod."*  '  It  is  believed  that  the  amendment  has  not,  in  this  re- 
spect, enlarged  the  powers  of  the  surrogate ;  for  it  is  still  pro- 
vided that  notice  of  the  application  for  letters  must  first  be  given 
''  to  each  party  to  the  proceeding  who  has  appeared."  The  ruling, 
before  the  adoption  of  the  present  Code,  that  the  authority  of  the 
surrogate  was  not  confined  to  cases  where  the  contest  as  to  pro- 
bate, etc.,  was  pending  before  him,  but  extended  to  any  contest, 
whether  before  him  or  on  appeal  from  his  decision,^  holds  good, 
under  the  present  statute,  provided  a  grant  of  letters  is  delayed 
by  the  appeal.  The  controlling  fact  now  is,  not  merely  whether 
ihere  is  a  contest,  but  whether  there  is  a  delay  in  the  granting  of 
letters;  and  letters  being  once  granted,  an  appeal  from  such  grant 
is  not  cfood  ground  for  temporary  administration.*' 

§  404.  Who  may  apply  for  temporary  administrator. —  A  cred- 
itor, or  any  person  interested  "  in  the  estate,  may  apply  to  the  sur- 
rogate to  grant  letters  of  temporary  administration ;  and,  if  the 
■estate  is  that  of  an  absentee,  the  county  treasurer  of  the  county 
[or  the  public  administrator  in  ISTew  York  and  Kings  counties] 
where  he  last  resided,  or,  if  he  was  not  a  resident  of  the  State, 
of  the  county  where  any  of  his  property,  real  or  personal,  is 
>ituated,  may  make  the  application,  with  like  effect  and  in  like 
manner  as  n  creditor.^ 

§  405.  Mode  of  application. —  The  manner  of  proceeding  to  ob- 
tain a  grant  of  temporary  letters  is  different  in  the  case  of  a  de- 

3  Co.  Civ.  Proc,  §  2664.  as  amended  5  Hicks  v.  Hicks.  12  Barb.  .*?22.  See 
1893.  This  provision  does  not  apply  !Mootrie  v.  Hunt,  4  Bradf.  173-  Law- 
to  an  administrator  with  the  will  an-  rence  v.  Parsons,  27  How.  Pr.  26; 
nexed,  as,  in  that  case,  the  next  of  kin  Crandall  v.  Shaw.  2  Redf.  100. 

mav   have   no   interest  in   the   matter.        c  Tooker  v.  Bell.   1   Dem.  .52. 
(Matter  of  Le  Rov,   1   Connolv,  491.)         T  See  Co.   Civ.    Proc,   §   2.514.   subd. 

4  Saw  Mill  Co.  V.  Dock.  3  Dem.  .5.5;-  11.  and  (tntc.   §   98. 

Matter  of  Colton,  X.  Y.  Law  .7.,  Mav        8  Co.  Civ.  Proc,  §  2670,  as  amended 
1,  1891;  Matter  of  Xichols,  N.  Y.  Surr'.,    1893. 
MS.  Dec   (1890)    163. 


§  406.  Temporary  Administration.  328 

cedent's  estate  from  that  in  the  case  of  the  estate  of  an  absentee. 
In  the  former  case,  the  application  is  a  step  taken  in  a  special 
proceeding  already  commenced  before  the  surrogate/'*  and  unde- 
termined, while,  in  the  latter,  an  original  and  distinct  special 
jirocccding  is  instituted  for  that  purpose.  Accordingly,  where 
a  decedent's  estate  is  in  question,  no  formality  is  prescribed  by 
the  Code,  which  merely  directs  that  the  appointment  "  must  be 
made  by  an  order,"  at  least  ten  days'  notice  of  the  application 
for  which  must  be  given  to  each  party  to  the  special  proceeding 
who  lias  appeared,  unless  the  surrogate  is  satisfied,  by  proof, 
that  the  safety  of  the  estate  requires  the  notice  to  be  shortened, 
in  Avhich  case  he  may  shorten  the  time  of  service  to  not  less  than 
two  days.^^  In  many  cases,  the  facts  upon  which  the  application 
IS  based  will  be  obvious  to  the  court,  so  that  it  will  take  judicial 
notice  of  them  without  proof.  Where  it  is  necessary  to  furnish 
proof,  it  may  be  made  by  affidavit,  or  petition,  or  oral  examina- 
tion.^^ On  the  other  hand,  an  application  for  temporary  admin- 
istration of  the  estate  of  an  absentee  "must  be  made  by  petition, 
in  like  manner  as  where  an  application  is  made  for  administration 
in  a  ease  of  intestacy,"  and  the  proceedings  are  the  same  as  upon 
such  an  application.-^^ 

^  406.  Petition,  etc.,  in  cases  of  absentee. —  The  onlv  guide  as 
to  the  contents  of  the  petition,  and  the  details  of  the  subsequent 
proceedings  before  decree,  where  letters  are  asked  for  upon  the 
estate  of  an  absentee,  is  the  succinct  provision  of  the  Code,  that 
"  the  proceedings  are  the  same  as  prescribed  in  article  fourth  of 
this  title,  relating  to  such  last-mentioned  application,"  i.  e.,  an 
application  for  permanent  letters  in  cases  of  intestacy. -^^  But 
at  the  threshold  of  an  attempt  to  elaborate  the  scheme  thus  indi- 
cated, Ave  are  confronted  with  the  difficulty  that  the  manner  of 
procedure  to  obtain  permanent  letters  upon  an  intestate's  estate 
is  dependent  upon  the  question  of  priority  of  right  to  administer; 
while  no  statutory  rules  of  priority  exist  in  reference  to  the  right 


s  When  the  surroorate  of  Xew  York  may  be  allowed  his  compensation  and 

c-otmty   transfers   the    proceedings   for  expenses.      (Crandall  v.  Shaw,  2  Redf. 

the  probate  of  a  will  to  another  court,  100.) 

he  is  not  deprived  of  power  to  appoint  n  Much   slighter   proof   of   death   is 

a   temporary  administrator.      (Matter  sufficient    than    upon    application    for 

of    Blair,    GO    Hun,    52.3;    39    St.    Rep.  letters    of     permanent    administration. 

502.)  (Czech  v.  Bean,  35  Misc.   729:   72  N. 

10  Co.  CiA-.  Proc,  §  2670,  as  amended  Y.  Supp.  402.) 

1893.     An  appointment  made  without  12  Co.  Civ.  Proc,  §  2670,  as  amended 

due   notice    is    irregular,   and   will   be  1893. 

vacated   on   application;     but   the   ap-  13  Co.  Civ.  Proc,  §  2670,  as  amended 

pointee    having    acted    in    good    faith  1893. 


329  Temporary  Admixistkatiox.  §  407. 

of  temporary  administration  upon  the  estate  of  either  a  decedent 
or  an  absentee,  the  letters  being  apparently  issuable  to  any  per- 
son c<>ni])etent  to  be  an  execute ir,  who  will  duly  qualify.  It  is. 
deal',  however,  that  the  iK'tithm  must  set  forth  (1)  the  petitioner's 
title, —  /.  ('.,  must  show  that  he  is  a  creditor,  or  person  interested, 
or  the  county  treasurer  of  the  proper  county;  and  (2)  the  juris- 
dictional facts,  such  as  tlie  disappearance  of  tlie  owner  of  the 
estate,  under  the  prescribed  circumstances,  the  unsuccessful  search 
for  his  alx)do,  the  necessity  for  the  appointment  to  protect  prop- 
erty, and  the  rights  of  creditors  and  others,  and  such  additional 
facts  concerning  residence,  and  the  location  of  property,  etc.,  as 
would  give  jurisdiction  to  the  surrogate  applied  to,  if  the  ab- 
sentee ^vas  shown  to  be  dead.  The  assumption  being  that  there 
is  no  ground  for  the  formal  legal  presumption  of  death,  it  is  not 
very  clear  how  certain  clauses  of  the  Code,^'*  relating  to  the  place 
of  death  and  the  residence  at  the  time  of  death  of  an  intestate,, 
should  be  applied  to  the  case  in  hand.  A  citation  should  issue 
Avherever  it  is  impossible,  for  reasons  already  indicated,  to  de- 
termine whether  there  is  ground  for  dispensing  therewith. ^^  The 
remaining  proceedings,  to  procure  the  decree  and  letters,  suffi- 
ciently resemble  those  already  set  forth  under  the  topic  of  admin- 
istration in  intestacy. 

§  407.  Power,  discretionary  and  summary. —  The  statute  pro- 
vides that  the  surrogate  may  grant  temporary  administration, 
in  his  discretion.  The  propriety  of  the  exercise  of  the  surro- 
gate's discretion  in  the  grant  of  such  letters  is  plainly  dependent 
u])on  the  exigencies  of  the  estate,  the  value  and  situation  of  the 
property,  and  other  circumstances  which  require  to  be  judged 
summarily.     Consequently,  his  decision  upon  an  application  made 

14  Co.  Civ.  Proc.  §  247(5.  date,  liad  been  neither  seen  nor  heard 

15  See  Co.  Civ.  Proc,  §  2002.  Mat-  of  by  the  petitioner,  nor  by  any  rela- 
ter  of  Cohen  (N.  Y.  Law  J..  Mar.  20,  tive  or  friend.  The  petitioner  em- 
18i)l)  was  an  ex  parte  application  for  jiloyed  detectives  to  search  for  her, 
a  decree  by  tlie  father  of  the  absentee,  and  kept  them  so  employed  for  np- 
who  was  also  her  creditor;  her  only  wards  of  one  month.  He  corresponded 
]>roperiy  beinji  a  distributive  share  in  with  the  justices  of  the  peace  of 
the  estate  of  another,  to  which  she  had  numerous  villafjes;  he  advertised  for 
become  entitled  after  her  disappear-  her  repeatedly  in  the  New  York  Her- 
ance.  A  1  the  next  of  kin  made  atfida-  aid.  and  wrote  letters  to  many  per- 
vits  sustaining  the  petition.  No  cita-  sons,  in  many  places,  wherever  he  had 
tion  was  required  to  be  issued.  In  the  faintest  hope  she  might  have  been 
that  case,  the  petition  showed  that  seen  or  heard  of,  but  has  never  re- 
eight  years  before,  the  absentee,  then  ccived  the  slightest  clue  of  her  where- 
seventeen  years  old.  left  her  liome  in  abouts.  She  always  lived  hapjiily  at 
New  York  city,  where  she  resided  with  liouu^  with  the  petitioner  and  her 
the  petitioner,  stating  that  she  would  brothers  and  sister.  She  had  never 
return  at  supper  time,  and  since  that  been  married,  was  not  betrothed,  nor 


§  408.  Temporary  Administration.  330 

to  him  is  not  subject  to  review  upon  appeal,  or  to  collateral  at- 
tack.^*'     TTis  determination  is  summary  and  exclusive.^^ 

§  408.  Competency,  eligibility,  and  qualification  of  administrator. 
—  It  is  provided  that  the  letters  can  be  issued  only  "  to  one  or 
more  persons  competent  and  qualified  to  serve  as  executors."  ^^ 
The  word  "  qualified,"  here,  would  seem  to  be  expletive,  since,  a 
temporary  administrator  must  qualify,  as  the  Code  prescribes 
with  respect  to  an  administrator  in  cliief.  It  was  formally  held 
that  one  named  as  executor  should  not  be  appointed  temporary  ad- 
ministrator, pending  a  contest  over  the  probate  of  the  will, 
against  the  objection  of  the  contestant,  especially  where  he  had 
an  interest  in  any  degree  hostile  to  the  estate  ;^^  and  also  that  no 
party  to  the  litigation  should  be  appointed.^^  But  it  is  now  well 
settled  that  whether,  pending  a  contested  probate,  one  of  the  ex- 
ecutors will  be  selected  as  temporary  administrator,  rests  in  the 
discretion  of  the  surrogate.^^  The  court  would  be  justified,  there- 
fore, in  refusing  to  appoint  the  nominated  executor,  where  he  is 
the  largest  beneficiary  under  the  will ;  is  the  principal  proponent 
thereof ;  is  charged  with  having  influenced  decedent ;  has  large 
unsettled  transactions  with  the  estate,  and  is  unfriendly  with  tes- 
tator's family.^^  Indeed,  in  every  case  Avhere  the  interests  in- 
A''olved  are  conflicting,  a  disinterested  person  should  be  appointed.^^ 
Ordinarily,  considerations  of  economy  will  justify  the  appoint- 
ment of  a  ])erson  named  in  the  disputed  will  as  executor;  and  the 
fact  that  he  is  charged  with  exercising  undue  influence  upon  tes- 
tator will  not  prevent  such  appointment,  where  the  allegations  of 
such  influence  are  vague,  and  the  appointment  is  opposed  by  but 
a  small  interest  of  the  estate.^*  Where,  however,  such  appoint- 
ment would  be  of  advantage  to  the  estate,  and  a  majority  of  the 
parties  so  request,  it  will  be  made  almost  as  a  matter  of  course."^ 
The  court  is  certainly  not  required  to  make  his  selection  from 

had  any  preference  for  any  man  among  20  Crandall  v.  Shaw,  2  Redf.  100. 

her  acquaintances,  so  far  as  petitioner  21  Jones  v.  Hamersley,  2  Dem.  286 ; 

had  been   able  to  ascertain.     Held,   a  Matter  of  Bankard,  10  Week.  Dig.  452. 

proper   case   for   appointing   a   tempo-  Compare   Matter  of  Wanninger,   .3   X. 

rarv  administrator.  Y.   Supp.   137. 

16  Czech  V.  Bean,  35  Misc.  729;  72  22  Matter  of  Stearns,  31  St.  Rep. 
N.  Y.  Supp.  402.  960 :   9  N.  Y.   Supp.  748. 

17  McGregor  v.  Buel,  24  K  Y.  166.  2.3  Matter  of  Eddy,  10  Misc.  211; 
AndseeMootricv.  Hnnt,4  Bradf.   173;  31  N.  Y.  Supp.  423. 

Buffalo  Catholic  Inst.  v.  Bitter,  87  N.        24  Haas  y.  Childs.  4  Dem.  137.     But 
Y.  255;  Matter  of  Cha.se.  32  Hun,  318.    compare  Matter  of  Sterns,  2  Connoly, 

18  Co.  Civ.  Proc,  §  2670,  supra  (for-    272. 

merly  §  2668).  .  25  Matter   of   Hilton,   29  Misc.   532; 

19  Howard    v.    Dougherty.    3    Redf.    61  X.  Y.  Supp.   1073. 
535;  Cornwell  v.  Cornwell.  1  Dem.  1. 


531  Temporary  Administration.  §§  409,  410. 

anioiiii;  the  relatives  wlio  wonM  ho  entitlcfl,  nr.der  the  statute, 
to  a  grant  of  i)ermanent  letters  iu  a  case  of  intestacy.^"  In  cases 
arising  in  Kir.'gs  county,  the  surrogate  is  given  a  discretion  to  ap- 
])oint  the  public  administrator  of  that  county,  without  requiring 
him  to  give  further  security  than  liis  official  bond.^^ 

§  409.  Form  and  eifect  of  letters. —  The  Code  contains  no  special 
provisions  relating  to  the  form  of  letters  of  temporary  adminis- 
tration. Those  granted  upon  the  estate  of  a  decedent  may  be  in 
the  same  form  as  pemianent  letters  of  administration;  but  those 
granted  upon  the  estate  of  an  absentee  "will  naturally  vary  some- 
what from  the  former,  inasmuch  as  the  administrator,  in  the 
latter  case,  has,  in  right  of  his  office,  certain  powers  in  respect  to 
real  property,  which  the  administrator  of  the  estate  of  a  decedent 
possesses  only  by  special  grant  from  the  surrogate.  In  either 
■case,  the  letters  are  subject  to  the  general  provisions  of  the  Code, 
prescribing  the  manner  in  which  surrogates'  letters  must  be  tested, 
signed,  sealed,  and  recorded,  and  specifying  their  effect  as  evi- 
dence of  the  authority  of  the  persons  to  whom  they  are  granted. ^^ 
'The  Code  contains  a  general  provision  to  the  effect,  that  where 
the  law  requires  or  permits  an  act  relating  to  the  estate  of  a  de- 
cedent to  be  done  within  a  specified  time  after  letters  testamentary 
or  of  administration  are  issued,  and  successive  or  supplementary 
letters  are  issued  upon  the  same  estate,  the  time  so  specified  must 
be  reckoned  from  the  issuing  of  the  first  letters.^^  But  it  de- 
■clares,^°  substantially,  that  letters  testamentary  or  of  adminis- 
tration in  chief  are  not  deemed  successive  or  supplementary  to 
temporary  letters  previously  issued  upon  the  same  estate,  within 
the  meaning  of  the  foregoing  provision,  except  as  otherwise  pre- 
scribed in  two  sections  of  the  Code,^^  relating  to  advertisement 
for  claims  and  payment  of  debts. 

§  410.  Certain  notices,  how  served. —  The  Code  provides  that  no- 
tices required  to  be  given,  as  prescril)ed  in  the  article  thereof  con- 
cerning the  appointment,  etc.,  of  a  temporary  administrator,  "  to 

2n  So  held   in   IMfttter  of   Plath    ("lO  of  administration.      As  to  amount  of 

"Hun,  223;    31    St.   Rep.   101:    9  N.   Y.  bond,  and  actions  thereon,  see  c.  XV, 

Supp.  2.51),  -where  the  petitioner,  the  pofit. 

decedent's  only  relative,  was  disquali-        29  Co.  Civ.  Proc,  §  2;i03. 
fied.  and  a  lartre  creditor  of  the  estate        ^o  Co.   Civ.   Proc.   §  2()S2.     Such,  at 

<'laimed  the  appointment  —  the  public  least,    is   the   purport   of   this    section, 

administrator    not    hnvinfjr    intervened,  as  we  interpret  its  provisions,  though 

27  Co.  Civ.  Proc,  §  2609,  as  amended  it  is  not  entireh'  clear. 
1893.  ii  §§    2673,    2674.      See    c.    X\^II, 

2S  See  §  301.  antr.  for  general  repu-  post, 
lations  as  to  the  form,  eto.,  of  letters 


§§  411,  412.  TEMroKARY  Admixistration.  332 

a  party  other  than  that  officer,  must  be  served  upon  the  attorney 
of  the  party  to  whom  notice  is  to  he  given ;  or,  if  he  has  not  aj)- 
pearod  hy  an  attorne}-,  upon  the  party,  in  like  manner  as  a  notice 
]iiay  he  served  upon  an  attorney  in  a  civil  action,  brought  in  the^ 
Su]U'eme  Court.  But  where  the  attorney  or  party  to  be  served 
does  not  reside  in  the  surrogate's  county;  or  where  the  attorney 
for  a  party  has  died,  and  no  other  appearance  for  that  party  has. 
been  filed  in  the  surrogate's  office;  the  surrogate  may,  by  order^ 
dispense  with  notice  to  that  party;  or  may  require  notice  to  be 
given  to  him,  in  any  manner  which  he  thinks  proper."  '^^ 

§411.  Authority  as  to  personalty. —  The  temporary  administra- 
tor has  authority  to  take  into  his  possession  personal  property, 
to  secure  and  preserve  it,  and  to  collect  choses  in  action.  The 
surrogate  may,  by  an  order,  made  \\\)on  ten  days'  notice,  or  shorter 
notice  (not  less  than  two  days),  to  all  the  parties  who  have  ap- 
peared in  the  special  proceeding,  authorize  the  temporary  admin- 
istrator to  sell,  after  appraisal,  such  personal  property,  specify- 
ing it,  of  the  decedent,  or  of  the  absentee,  whom  he  represents, 
as  it  appears  to  be  necessary  to  sell,  for  the  benefit  of  the  estate.^* 

§  412.  Authority  over  decedent's  realty. — A  special  administra- 
tor or  collector,  appointed  under  ,the  former  statutes,  had  no 
]")owor  in  reference  to  the  real  property,  his  sole  function  being 
that  of  a  receiver  of  the  assets  during  a  period  of  controversy  as 
to  the  right  of  administration  or  of  executorship.  But  it  is 
provided  in  the  Code,  that  "  where  a  temporary  administrator 
is  appointed,  and  a  proceeding  is  pending  for  the  probate  of  a 
Avill  of  real  property,  or  there  is  a  delay  in  the  grantino;  of  let- 
ters testamentary  or  administration  on  such  a  will,  or  in  the  quali- 
fication of  a  trustee  named  therein,  the  order  appointing  him  m-ay 
confer  upon  him  authority  to  take  possession  of  real  property, 
in  the  same  or  another  county,  which  is  affected  by  the  will,  and 
to  receive  the  rents  and  profits  thereof.  The  surrogate  may,  by 
an  order,  confer  upon  him  authority  to  lease  any  or  all  of  the- 
real  property,  for  a  term  not  exceeding  one  year;  or  to  do  any 
other  act  with  respect  thereto,  except  to  sell  it,  which  is,  in  the 

"2  Co.  Civ.  Proc.  §  2681.  change,  owned  bv  the  firm  composed 
-3  Co.  Civ.  Proc.,  §  2072.  While  he  of  himself  and  the  testator  as  part- 
would  not  be  justified  in  makinjr  a  ners,  could  be  allowed  on  his  account- 
sale  of  property,  if  it  was  the  sole  ins,  and  he  was  entitled  to  prove  the 
pronertv  of  the  decedent,  without  the  fact  of  such  ownership  by  legal  evi- 
order  of  the  court,  where  he  Avas  also  dence.  (Matter  of  Grant,  49  N.  Y. 
p-'-ecntor  under  the  will,  a  sale,  pp"d-  Supp.  574.) 
ing  probate,  of  a  seat  in  the  Stock  Ex- 


333  Temporary  Admixistration.  §§  413,  414. 

surrogate's  opinion,  necessary  for  the  execution  of  the  will,  or 
the  preservation  or  benefit  of  the  real  property."  "*  The  powers 
■of  the  administrator  are  limited  to  those  thus  conferred.  They 
are  confined  to  the  preservation  of  the  estate;  he  cannot  be  au- 
thorized to  administer  it.'*^ 

§  413.  Authority  over  absentee's  realty. — A  temporary  adminis- 
trator, appointed  upon  the  estate  of  an  absentee,  has  the  same 
powers  and  authority  (enumerated  above),  with  respect  to  the 
real  property  of  the  absentee,  without  any  s])eeial  delegation  from 
the  surrogate.  His  acts,  done  in  pursuance  of  that  authority, 
bind  the  absentee,  if  he  is  living,  or  his  heir  or  devisee,  if  he  is 
dead,  in  the  same  manner  as  the  acts  of  an  executor  or  admin- 
istrator bind  his  successor.^'' 

§  414.  Authority  to  pay  certain  claims. —  The  surrogate  may,  by 
order,  authorize  him  to  ])ay  funeral  expenses,  or  any  expenses  of 
the  administration  of  his  trust,^^  including  stenographer's  or 
referee's  fee'=;  on  the  contest  of  a  will  or  administration.  lie  may 
also  direct  the  payment  of  a  legacy  or  other  pecuniary  provision 
under  a  will,  or  a  distributive  share,  or  just  proportionate  part 
thereof,  as  though  the  temporary  administrator  were  an  executor 
or  administrator.^^  A  surrogate  has  no  power  to  direct  a  tem- 
porary administrator  to  pay  smns  to  enable  the  proponents  of  a 
wdll  to  procure  expert  witnesses,^^  nor  has  he  authority  to  direct 
payment  out  of  the  estate,  of  the  costs  of  the  proceeding  for  the 
probate  of  an  alleged  will  of  the  decedent.  The  decree  in  such 
case  should  award  costs  and  provide  for  the-ir  payment  by  the 


•^  Co.  Civ.  Proc.  §  2675.  as  amended  ter   of   Coorswell.   4   Redf.   241.      Upon 

IflOl     (L.    1901.    c.    21).    substantially  an  application   for  an  order  directing 

adopting  L.   1870,  c.  .3.59,  §   13,  which  a  temporary  administrator  to  pay  to 

related,  however,  to  the  county  of  New  the  ap])licant  a   sum  of  money  on  ac- 

York  only.  count  of  a  legacy  or  distributive  share 

35  Riegelman  v.  Riegelman.  4  Redf.  to  which  he  is  entitled,  a  citation  is 
492.  Accordingly,  an  application,  properly  addressed  to  and  served  upon 
pending  a  contest  over  probate,  for  a  the  administrator  alone.  (Rank  v. 
direction   to   the  collector   to   pay   her  Camp.  3  Dem.  278.) 

one-third  of  the  rents  and  profits  of  39  Kruse  v.  Fricke.  2  Dem.  264; 
the  estate,  both  real  and  personal,  and  Matter  of  Marcellin.  supra.  In  Mat- 
also  to  pay  to  her.  for  her  two  infant  ter  of  Moderno  ( X.  Y.  Law  .J..  July 
children,  one-sixth  each  of  the  residue  16,  1891),  the  widow  claimed  her  ex- 
of  said  rents  and  profits,  and  that  he  penses  from  the  Island  of  Madeira  to 
be  ordered  to  pay  all  interest  on  mort-  Xew  York  and  returning,  for  the  pur- 
gages,  ground  rent,  taxes,  and  insur-  pose  of  proving  decedent's  death  and 
ance,  was  denied.      (lb.)  rendering  assistance  in  and  about  the 

36  Co.  Civ.  Proc.  §  2676.  probate  of  the  will.    The  court  ordered 

37  See  Matter  of  Marcellin,  25  Misc.  proof  to  be  taken  of  the  necessity  of 
260;   55  N.  Y.  Supp.  425.  the  expenses  thus  incurred. 

38  Co.  Civ.  Proc,  §  2672.     See  Mat- 


§§  415-417.  Tempokaky  Admi>'istkatiox.  334 

person  to  whom  letters  of  administration  or  letters  testamentary" 
shonld  thereafter  be  granted."*'^ 

§415.  Same;  in  case  of  absentee. —  Where  the  temporary  ad- 
ministrator was  ai)pointed  upon  the  estate  of  an  absentee,  and 
satisfactory  proof  is  furnished  to  the  surrogate,  that  the  wife  or 
any  infant  child  of  the  absentee  is  in  such  circumstances  as  ta 
require  provision  to  be  made  out  of  the  estate,  for  his  or  her  7nain- 
tenance,  clothing,  or  education,  the  surrogate  may  make  an  or- 
der, directing  the  temporary  administrator  to  make  such  pro- 
vision therefor,  as  the  surrogate  deems  proper,  out  of  any  per- 
sonal property  in  his  hands,  not  needed  for  the  payment  of  debts.^^ 

§  416.  Advertising  for  creditors. — "  After  six  months  have 
elapsed  since  letters  were  issued  to  a  temporary  administrator,. 
appointed  upon  the  estate,  of  either  a  decedent  or  an  absentee,  he 
has  the  same  power,  as  an  administrator  in  chief,  to  publish  a 
notice  requiring  creditors  of  the  decedent  or  absentee,  to  exhibit 
their  demands  to  him.  The  publication  thereof  has  the  same 
effect,  with  respect  to  a  temporary  administrator,  and  also  an 
executor  or  administrator  subsequently  appointed  upon  the  same 
estate,  as  if  the  temporary  administrator  was  the  executor  or  an 
administrator  in  chief,  and  the  person  to  whom  the  subsequent 
letters  are  issued  was  his  successor."  ^^ 

§  417.  Payment  of  debts. —  The  surrogate's  authority  to  direct 
a  temporary  administrator  to  pay  debts  is  derived  wholly  from 
the  statute,  and  must.be  exercised  strictly  according  to  its  pro- 
visions.^^ After  the  lapse  of  a  year,  since  the  issue  of  letters. 
"  the  surrogate  may,  upon  the  application  of  the  temporary  ad- 
ministrator, and  upon  proof  to  his  satisfaction,  that  the  assets 
exceed  the  debts,  make  an  order  permitting  the  applicant  to  pay 
the  whole  or  any  part  of  a  debt  due  to  a  creditor  of  a  decedent  or 
absentee ;  or,  upon  the  petition  of  such  a  creditor,  he  may  issu>^/ 
a  citation  to  the  temporary  administrator,  requiring  him  to  show 
cause  why  he  should  not  pay  the  petitioner's  debt."  ^*  When 
such  a  petition  is  presented,  the  proceedings  are,  in  all  respects, 
the  same  as  where  a  creditor  presents  a  petition,  praying  for  a 
decree  directing  an  executor  or  administrator  in  chief  to  pay  his;- 
debt,  as  prescribed  in  the  Code.^^ 

40  Matter    of    Aaron,    5    Dem.  362;        43  Matter  of  Haskett.  3  Eedf.  165. 
Matter  of  Marcellin,  supra.  44  Co.  Civ.  Proc,  §  2674. 

41  Co.  Civ.  Proc,  §  2677.  45  Co.  Civ.  Proc,  §  2674.    See  §  2717, 

42  Co.  Civ.  Proc,  §  2673.  c  XVII,  post. 


335  Teah'okaicy  Aumixistkatiox.  §§  41b,  41'J. 

If  he  proceeds  without  such  aiitliority  to  pay  the  debts  of  the 
estate,  relying  upon  the  adequacy  of  the  realty,  the  personalty 
being  insufficient,  his  accounts  will  be  surcharged  with  the  excess^ 
and  interest/*" 

g  418.  Actions,  etc.,  by  and  against  administrator. —  The  tempo- 
rary administrator  ha^  power  tu  maintain  any  action  or  special 
l)roceeding  for  the  purpose  of  taking  possession  of,  securing  and 
preserving  the  personal  estate,  and  collecting  choses  in  action  ;^^ 
also  to  maintain  or  defend  any  action  or  special  proceeding  in  the 
exercise  of  authority  conferred  upon  him  by  the  surrogate  over 
the  real  property  of  a  decedent,  or  possessed  in  right  of  his  office 
over  the  real  property  of  an  absentee.^^  Like  other  administrators, 
he  is  the  judge  of  the  propriety  of  his  own  course  in  respect  to  the 
institution  of  suits,  subject  to  his  liability  when  the  administra- 
tion is  terminated  and  his  accounts  settled. ^^  An  action  may  be 
maintained  against  him,  by  leave  of  the  surrogate,  upon  a  debt 
of  the  decedent,  or  of  the  absentee  whom  he  represents,  in  like  man- 
ner and  Avith  like  effect  as  if  he  were  an  administrator  in  chief. ^ 

§  419.  Duty  as  to  depositing  moneys. — A  special  administrator 
has  no  authority  as  such  to  make  investments.'^^  A  statutory  pro- 
vision, still  in  force,  directs  that  all  interest  received  by  any  spe- 
cial administrator  on  any  moneys  which  may  come  to  his  hands, 
shall  be  accounted  for  and  paid  over  by  him  in  the  same  manner 
as  the  principal  sum  in  his  hands.^^  He  is  required,  within  ten 
days  after  any  money  belongiuir  to  the  estate  comes  into  his  hands, 
to  deposit  it  as  follows:  (1)  Where  he  is  appointed  by  the  Surro- 
gate's Court  of  any  county  except  Xew  York,  with  a  person  or 
with  a  bank,  or  in  a  domestic  incorporated  trust  company,  dcsig- 

40  ^Matter  of  Philp.  20  3Iisc.   263.  suit   in   inflictincr   upon   hif?   advorsarr 

4"  Co.   Civ.    Proc,    §    2072.      Thus    a  s'n  injury  far  greater  tlian  he  himself 

temporary  administrator  has  power  to  would   probably   suffer   if    his   applica- 

present  notiee  and  proofs  of  loss  based  tion  were  denied.     The  proponents  and 

on  a   fire  oeourrinfr  after  the  death  of  lej,'atees    should    have    an    opportunity 

the  insured  and  to  brinj;  an  aetion  to  to    resist    the    claim    with    the    aid    of 

recover   for    such   loss.      (Matthews  v.  counsel  of  their  own  choosing,  and  in 

American  Central   Ins.   Co.,   1.54  N.  Y.  an  action  the  defense  of  which  will  be 

449;    48    N.    E.    7.51.)       His  right  to  under  their  own  control.      (Matter  of 

sue  cannot  be  questioned   collaterally.  Fleming.  5  Dem.   .336.) 

where   the   surrogate   had    jurisdiction  -^l  Raskin  v.  Baskin.  4  Lans.  90. 

to   appoint   him.      (Czech  v.   Bean,   35  52  L.  18C4.  c.  71,  S  12.     As  to  duties 

Misc.  720:  72  N.  Y.  Supp.  402.)  and  powers  of  a  special  administrator 

•isCo.    Civ.    Proc.     §§    2672.    267.5,  prior   to   the   Code,   see   Westervelt   v. 

2676.  Cregg,  1  Barb.  Ch.  478:  Smith  v.  Yan 

49  Delafield  v.  Parish,  4  Bradf.  24.  Kuren.    2   Barb.    Ch.   473 :    Buchan    v. 

50  Co.  Civ.  Proc,  §  2672.  But  the  Bintoul,  70  X.  Y.  1:  Campbell  v. 
surrogate's  discretion  should  not  be  Bruen.  1  Bradf.  224 :  Matter  of  Doug- 
exercised  where  its  exercise,  at  the  in-  las.  3  Kedf.  538 ;  Berdell  v.  Schell,  2 
stance  of  one  of  the  parties,  might  re-  Dem.  292. 


§  4.20.  Temporary  Administration.  336 

nated  by  the  surrogate;  but  a  natural  person,  so  designated  as  de- 
positary, must  first  file  in  the  surrogate's  office  a  bond  to  the  surro- 
gate, in  a  penalty  fixed  by  him,  executed  by  the  depositary  and 
two  sureties,  and  conditioned  to  render  a  faithful  account,  and 
jjay  over  all  moneys  received  by  him,  upon  the  direction  of  any 
court  of  competent  jurisdiction.  (2)  Where  he  is  appointed  by  the 
surrogate  of  the  county  of  New  York,  in  a  domestic  incorporated 
trust  company,  having  its  principal  office  or  place  of  business  in 
the  city  of  New  York,  and  either  specially  approved  by  the  surro- 
gate, or  designated,  in  the  general  rules  of  practice,  as  a  depositary 
of  funds  paid  into  court.^^  Money  so  deposited  cannot  be  with- 
drawn, except  upon  the  order  of  the  surrogate,  a  certified  copy 
of  which  must  be  presented  to  the  depositary.  Such  an  order  may 
1)0  made  upon  two  days'  notice  of  the  application  therefor,  given 
to  all  the  parties  to  the  special  proceeding,  in  which  the  temporary 
administrator  was  appointed,  who  appeared  therein ;  but  not  other- 
wise."* 

§420.  Liability  for  neglect  to  deposit  funds If  he  neg-lects  to 

make  a  deposit  within  the  times  so  limited,  the  surrogate  is  re- 
quired, upon  the  application  of  a  creditor,  or  person  interested  in 
the  estate,  accompanied  with  satisfactory  proof  of  the  neglect,  to 
make  an  order  directing  the  administrator  to  do  so  forthwith,  or 
show  cause  why  a  warrant  of  attachment  should  not  issue  against 
him.""  If  a  warrant  of  attachment  issues  and  is  returned  not 
served,  the  surrogate  must  revoke  the  administrator's  letters."*'  The 
remedy  against  the  administrator  is  not  limited  to  proceedings 
by  attachment.  Where  he  has  deposited  the  funds  of  the  estate, 
first  with  his  firm  and  thereafter  in  his  own  name  in  bank,  he 
should  be  charged,  on  his  accounting,  wuth  interest  at  the  highest 
rate,  for  the  time  the  funds  were  so  deposited  f^  but  no  more,  un- 
less he  has  been  guilty  of  misconduct."^  He  may,  however,  keep 
on  hand  a  reasonable  sum  to  pay  current  expenses."^ 

53  Co.  Civ.  Proc,  §  2678.  manner  as  the  surrogate  directs.     In 

54  Co.  Civ.  Proc.,  §  2680.  any   other   county,    it   must    be   made 

55  Co.  Civ.  Proc,  §  2679.  In  the  returnable  within  a  reasonable  time, 
county  of  New  York,  the  order  must  not  exceeding  fifteen  days  after  issu- 
be  made  returnable  three  days  after  ing  it;  and  it  must  be  served,  in  like 
issuing  it;  and  it  must  be  served  upon  manner,  at  least  ten  days  before  the 
the  temporary  administrator,  at  least  return  day  thereof.      (lb.) 

two  days  before  the  return  day  thereof,        56  Co.  Civ.  Proc,  §  2691,  subd.  4. 
either  personally  or  by  leaving  a  copy        57  Matter  of  Mairs,  4  Redf.  160. 
thereof  within  the   State,  at  his  dwell-        58  Matter   of    Philp,    29   Misc    263; 

ing  place,  or  his  office  for  the  regular  citing  Livermore  v.  Wortman,  2.5  Hun, 

transaction  of  business,  in  person;  or,  341. 

if  it  cannot  be  served  in  either  of  those  59  Harrington  v.  Libby,  6  Daly,  259. 
methods,  by  serving  it  in  such  other 


:;337  Temi'okakv   Administration.  §§  421,  422. 

g  421.  Revocation  of  letters. — The  statute  provides  that  the  let- 
ters of  the  teiupuniry  atliiiinistrator  of  the  estate  of  an  absentee 
may  be  revoked  upon  the  petition  of  a  creditor  or  person  inter- 
ested in  the  estate*''^  (inchiding,  it  is  presumed,  the  returned  al>- 
sentee),  where  it  is  i-hown  that  the  absentee  has  returned;  or  that 
he  is  living,  and  capable  of  returning  and  resuming  the  manage- 
ment of  his  aifairs ;  or  that  an  executor  or  administrator  in  chief 
has  been  appointed  upon  his  estate;  or  that  a  committee  of  his 
property  has  been  appointed  by  a  competent  court  of  the  State.*^ 
And  the  surrogate  is  recpiired  to  make  a  decree,  on  his  own  motion, 
revoking  the  administrator's  letters,  where  an  order  has  been  made 
and  served,  as  already  specified,  directing  him  to  deposit  money, 
or  show  cause  why  a  warrant  of  attachment  should  not  issue  against 
him,  and  a  warrant  of  attachment  issued  thereupon  has  been  re- 
turned not  served  upon  him.*^^  His  letters  ar.e,  of  course,  revoked 
where  he  resigns  and  the  resignation  is  accepted  by  the  surrogate.^' 
Where  permanent  letters  are  issued  on  a  decedent's  estate,  a  formal 
order  revoking  the  temporary  letters  is  not  necessary ;  the  issuance 
of  such  letters,  of  itself,  effects  the  retirement  of  the  temporary 
administrator  from  office,  and  a  discontinuance  of  his  administra- 
tion of  the  estate.^'*  Where  he  is  superseded,  he  may  be  compelled 
to  deliver,  to  the  person  succeeding  to  the  administration,  all  the 
property  belonging  to  the  est'ate  in  his  hands ;  hut  where  he  him- 
self claims  leasehold  property,  by  virtue  of  a  title  acquired  prior. 
to  his  appointment,  the  surrogate  has  no  power  to  pass  upon  the 
question.^''  The  events  upon,  and  the  manner  in,  which  the  au- 
thority of  a  temporary  administrator  of  the  estate  of  an  absentee 
is  terminated  have  already  heen  specified. 

§  422.  Accounting. —  The  Surrogate's  Court  may  compel  a  ju- 
dicial settlement  of  the  accounts  of  a  temporary  administrator  at 
any  time.^^  The  persons  interested  in  the  estate,  a?  well  as  the 
executor  of  the  will,  are  proper  parties  to  the  accounting,  and  have 

™Co.    Civ.    Proc.    §    2fiSo,    subd.    S.  Feb.    14.    180.3.       The    formpr    statute 

This  section  confines  the  ripht  to  ])eti-  contained  an  express  provision  to  that 

tion   to   "a   creditor   or   person   inter-  effect   (2  R.  S.  77.  §  40). 

ested  in  the  estate  of  o  dccrdcut ;"  hut  ^-^  Gottsberper  v.  Sniitli.  2  Bradf.  SO. 

this    appears    to    be    due    to    an    inad-  <"'>  Co.  Civ.  Proc.  §  272(1.  as  amended 

vertence.     The  proceedinffs  to  procure  180.3.  incorporatinjj  former  §  272.').    It 

the  revocation  are  detailed  in  chapter  is  error  to  charfre  a  temporary  admin- 

XIV.  post.  istrator  on  his   final   account inar   witli 

61  Co.  Civ.  Proc.  S  208.5.  moneys  which   the  executrix   collected 

^  Co.  Civ.  Proc.  §  2001,  subd.  4.  and  refused  to  pav  over  to  him.    (Dee- 

63  Td..  §§  2080.  2000;  L.  1870,  c  400.  {jan  v.  Von  Glahn.  7o  Hun.  .30:  20  N. 

64  Matter  of  Lewis,  17  Week.  Dio;.  Y.  Supp.  080.)  For  the  proceedincrs 
311;  Matter  of  Eisner.  5  Dem.  383;  to  settle  his  account,  see  chapter  on 
Matter   of   Hotchkiss,   N.   Y.   Law   J.,  Accountings,  post. 

22 


§  423. 


Temporary   Ad.mixistuation. 


338 


the  right  to  make  such  objections  to  the  account  as  the  circum- 
stances require.'"  AVliere  his  letters  are  revoked,  he  may  be  called 
to  account  by  his  successor,^  who  may  also  prosecute  his  official 
bond,  on  its  assignment  to  him.^^  Where  he  is  also  an  executor  of 
the  will,  the  surrogate  will  not,  upon  the  decree  settling  his  ac- 
counts, in  the  former  capacity,  insert  a  provision  canceling  his 
official  bond.'" 

§  423.  Compensation  of  temporary  administrator. —  The  former 
statute  '^  ])rovided  for  payment  of  the  expenses,  but  not  of  com- 
pensation for  the  services,  of  a  temporary  administrator ;  but  it 
was  held  that  he  was  mthin  the  equity  of  the  statute  relating  to 
executors  and  administrators,  and  entitled  to  the  same  commissions, 
which  were  to  be  based  not  simply  on  the  money  actually  received 
and  paid  out,  but  upon  the  value  of  the  whole  estate  received  and 
passed  over  by  him, "to  his  successor.'^^  The  present  Code  seems 
clearly  to  contemplate  the  payment  of  the  same  commissions  to 
him  as  to  a  permanent  administrator ;  and  the  settled  practice  is  to 
regard  the  statutory  commissions  of  executors  and  administrators 
as  the  measure  of  the  remuneration  of  a  temporary  administrator."^ 


67  Matter  of  Lane,  N.  Y.  Surr..  MS. 
Dec.  (1891)  388.  In  Matter  of  Hotrh- 
kiss  (N.  Y.  Law  J.,  Feb.  17,  189.3), 
contestant  claimed  an  interest  in  the 
estate  as  next  of  kin,  but  her  claim 
had  been  adjudged  against  her  by  the 
probate  decree,  from  which  she  had 
appealed.  Held,  no  bar  to  her  right 
to  appear  and  contest  the  accounting; 
but  the  trial  of  the  objections  was 
staved  pending  the  appeal. 

68  Co.  Civ.  Proc,  §  2605. 

f9  Dayton  v.  Johnson,  69  N.  Y.  419. 
See  the  same  case,  as  to  the  effects  of 
recitals  in  the  bonds  in  an  action 
against  the  sureties.  The  sureties  in 
the  bond  are  liable  for  property  be- 
longing to  the  estate  received  by  the 
temporary  administrator  before  his 
appointment,  and  as  agent  of  a  former 
administrator,  or  in  anv  other  capac- 
itv.  (Co.  Civ.  Proc.  §  2.596:  Gotts- 
berser  v.  Tavlor,  19  X.  Y.   150.) 

70  [Matter  of  Eisner,  5  Dem.  .38.3.  Co. 
Civ.  Proc,  §  2731, —  conferring  upon 
tlie  Surrogate's  Court  authority  to  de- 
termine a  disputed  claim  by  or  against 
an  accounting  party, —  applies  to  tem- 
porary administrators  and  includes 
the  right  to  adjudicate  upon  a  claim 
of  the  estate  against  a  firm  of  which 
such  temporary  administrator  is  a 
member.     ( lb. ) 


71  L.  1837,  c.  460,  §  24. 

72  Green  v.  Sanders.  18  Hun,  308. 

73  Green  v.  Sanders,  18  Hun.  308; 
Matter  of  Duncan.  3  Redf.  153:  Mat- 
ter of  Eisner,  5  Dem.  384;  Matter  of 
Campbell.  X.  Y.  Surr.,  Dec  (1890) 
444.  In  Matter  of  Lane  (N.  Y.  Law 
J.,  Oct.  22,  1891),  it  was  held  that 
section  2736  (now  part  of  section 
2730,  as  amended  1893),  providing 
for  the  apportionment  of  commis- 
sions among  two  or  more  executors 
and  administrators,  applied  to  tem- 
porary administi'ators.  "  The  '  com- 
pensation '  mentioned  in  this  section 
evidently  refers  to,  and  has  always 
been  held  to  be,  the  usual  statu- 
tory commissions.  Section  2738  [now 
incorporated  in  section  2730].  con- 
sidered in  connection  with  section 
2736,  is  relieved  of  any  ambiguity 
or  uncertainty  which  it  otherwise 
might  be  claimed  to  present.  The 
'  compensation  '  mentioned  in  section 
2738.  in  connection  with  a  temporary 
administrator,  is  evidently  the  same 
as  that  specified  in  section  2736.  I 
conclude  that  a  temporary  administra- 
tor is  to  be  considered  as  an  adminis- 
trator within  the  meaning  of  section 
2730  and  is  entiUed  only  to  such  com- 
pensation as  can  be  awarded  to  an 
executor  or    administrator."     A  tem- 


339 


T  K  M  I '( »  |;a  l;  V     A  DM  I  X I8TKATIOX. 


§  423. 


An  allowance  to  him  of  a  <:^ross  sum  for  liis  services  will  not  be 
reversed  on  that  ground,  if  it  appears  not  to  exceed  the  amount  of 
the  statutory  fees.""*  Where,  however,  permanent  letters  are  sub- 
sequently issued  to  him,  he  is  entitled  to  compensation,  in  one 
capacity  only,  at  his  election;  except  that  where  he  has  received 
compensation  in  one  capacity,  he  is  entitled  to  the  excess,  if  any, 
of  the  compensation  allowed  by  law  above  the  sum  which  he  has 
already  received  in  the  other  capacity.^^ 


porary  administrator  is  entitled  to 
coiiiiiiissions  du  jjioperty  specifically 
becpicathed  which  is  received  by  him 
and  delivered  over  in  kind  on  the  ter- 
mination of  his  olTice.  (Estate  of 
Ejran.  7  Misc.  262:  27  N.  Y.  Supp. 
100!).)  As  to  allowance  of  salary  as 
manager  of  decedent's  business,  see 
Matter  of  Moriarity,  27  Misc.  161; 
58  N.  Y.  Supp.  380. 


74  Green  v.  Sanders,  supra.  The 
surrogate  has  no  power  in  the  order 
appointing  a  temporary  administrator 
to  make  an  allowance  to  such  admin- 
istrator to  compensate  him  for  ex- 
j)enseg  to  be  incurred  in  the  course  of 
the  application  for  his  appointment. 
(Matter   of   Bankard,    19   Week.    Dig. 

75  Co.  Civ.  Proc,  §  2730,  as  amended 
1893,  consolidating  former  §  2738. 


CHAPTER  XIV. 

RKVOCATION  OF  AUTHORITY  OF  EXECUTORS,  AD- 
MINISTRATORS, AND  TESTAMENTARY  TRUSTEES. 


TITLE  FIRST. 

INCIDENTAL   REVOCATION    OF   LETTERS. 

§  424.  Revocation  of  probate  by  action. —  As  the  authority  to  is- 
sue letters  testamentary,  or  of  administration,  is  vested  solely  in 
the  Surrogates'  Courts,  those  courts  alone  have  the  power  to  re- 
call and  revoke  such  letters.  But,  indirectly,  the  letters  may  be 
revoked  or  rendered  inoperative  by  the  vacating  of  the  decree  upon 
which  the  letters  were  granted.  We  shall  have  occasion  hereafter 
to  speak  of  the  effect  of  surrogates'  decrees,  and  the  method  in 
which  they  may  be  impeached  in  a  collateral  action.^  When  it  is 
said  that  equity  will  not  interfere  to  set  aside  a  will  and  its  pro- 
bate for  fraud,  it  is  not  meant  that  there  is  an  absolute  want  of 
jurisdiction  in  a  court  of  equity  to  set  aside  a  probate  and  the  will 
itself,  but  only  that  there  is  no  occasion  for  the  exercise  of  such 
jurisdiction,  if  the  party  aggrieved  has  an  adequate  remedy  at 
law  or  in  the  court  of  probate.^     The  new  powers  of  Surrogates' 

1  See  e.  XXI.  post.  in   equity  to   set   aside  a   will   on   the 

2  De  Bussierre  v.  Holladay  (4  Abb.  usual  grounds,  the  complaint  alleged 
N.  C.  Ill)  was  an  action  to  set  aside  that  in  a  probate  proceeding  the  plain- 
a  probate  as  having  been  obtained  by  tiff  had  interposed  an  answer,  con- 
fraudulent  contrivance  and  collusion,  testing  the  validity  of  the  will  upon 
and  by  an  imposition  upon  the  court  the  same  grounds,  and  that  the  pro- 
which  granted  it.  At  that  time  the  ceeding  was  still  pending,  it  was  held 
Surrogate's  Court  which  granted  the  that  the  action  could  not  be  main- 
probate  had  not  power  to  open  a  de-  tained,  as  the  plaintiff,  as  soon  as  the 
cree  on  such  grounds,  and  the  remedy  will  was  admitted  to  probate,  had  a 
by  ejectment  was  not  clear  and  ade-  perfect  remedy  at  law  under  Code, 
quate.  It  was  held  that  the  action  S  26.5.3a.  for  determining  whether 
could  be  maintained,  and  that  since  the  writing  was  the  last  will  of  the 
the  transfer  of  the  powers  of  the  Court  testatrix. 

of  Chancery  to  the  Supreme  Court,  it        As   to   the    reluctance    of   courts   of 

could  not  be  successfully  urged,  as  an  equity  to  interfere  in  such  cases,   see 

objection   to    maintaining    an     action,  Bradv    v.    McCosker.    1    N.    Y.    214; 

that   the  remedy  of  the  plaintiff  was  Clark  v.  Sawyer,  2  id.  498 ;   Colton  v. 

at  law  and  not  in  equity.     But  in  Wa'-  Ross,  2  Paige.  .396;  Booth  v.  Kitchen, 

lace  v.  Payne  (9  App.  Div.  34;  41  N.  7  Hun,  255,  and  cases  cited. 
Y.  Supp.   Ill),  which  was  an  action 

[340] 


341  Eevocation  ok  Althokity,  Etc.       §§  425,  42G. 

Courts  to  open,  vacate,  and  set  aside  their  decrees  for  any  suffi- 
cient cause  furnish  so  adecjuate  a  remedy  against  fraud,  error,  and 
mistake,  tliat  there  is  k*ss  occasion  now  than  ever  to  resort  to  other 
courts  for  relief  against  them.  The  power  to  revoke  administra- 
tion, granted  here,  is  confined  to  our  own  courts,  and  a  court  of 
another  State  can  have  no  jurisdiction  to  revoke  letters  of  admin- 
istration granted  in  this.^ 

§425.  Revocation  of  probate  on  motion. —  Among  the  incidental 
powers  of  Surrogates'  Courts  is  the  power  "  to  open,  vacate,  modify, 
or  set  aside  its  decrees  or  orders,"  and  to  grant  a  new  trial  or 
hearing  "  for  fraud,  newly-discovered  evidence,  clerical  error,  or 
other  sufficient  cause ;"  ^  and  a  decree  revoking  probate  is  expressly 
required' to  contain  a  revocation  of  the  letters  issued  upon  it,  though 
it  is  obvious  that  the  revocation  of  a  decree  of  probate,  or  of  a 
decree  of  administration  in  intestacy,  will,  of  itself,  effect  a  revoca- 
tion of  any  letters  which  may  have  been  issued  upon  it.  In  gen- 
eral, it  may  be  stated  that  Surrogates'  Courts  may  vacate  or  modify 
their  orders  and  decrees  in  like  cases,  and  in  the  same  manner,  as 
other  courts  of  record,^  and  in  the  exercise  of  the  jurisdiction  con- 
ferred by  law,  they  may  issue  letters  of  various  descriptions,  to 
executors,  administrators,  and  other  officers,  all  of  which  are  re- 
vocable for  the  causes,  and  in  the  methods  specified  in  the  statutes 
relating  thereto. 

§  426.  Incidental  recall  of  authority. —  All  letters  are  subject  to 
revocation  in  one  way  or  another ;  but  the  statute  provides,  in  the 
case  of  two  of  them,  to  wit :  the  letters  of  executors  and  those  of 
administrators, —  a  particular  special  proceeding  to  effect  that  pur- 
]^()^o  directly.  Besides  this  direct  method,  the  authority  of  the 
several  kinds  of  appointees,  as  evidenced  by  the  letters  issued 
from  the  Surrogate's  Court,  may  be  recalled  indirectly  in  some 
other  proceeding  instituted  nominally  for  another  purpose.  Such, 
a  proceeding  is  one  instituted  by  a  creditor,  or  person  interested 
in  the  estate,  to  compel  an  executor  (where  he  has  given  a  bond), 
or  an  administrator,  to  give  a  new  bond  in  a  larger  penalty  or 
"with  new  or  additional  sureties ;  in  which  the  surrogate  may,  in  a 
proper  case,  make  an  order  granting  such  pra^^er  and  directing 
that,  in  default  of  obedience  thereto,  the  letters  be  revoked ;  and 
if  a  bond  is  not  approved  and  filed  as  required  by  the  order,  the 

3  Chapman  v.  Fish,  0  Hill,  .'J54.'  5  See   Bailey  v.   Hilton.    14    Hun.   .3. 

*Co.  Civ.  Proe.,   §   2481,  subd.  6.        See  Pettigrew  v.  Foshay,  12  Hun,  483; 

and  also  §§  54,  276.  ante. 


§§  427,  428.       Eevocatio:^  of  Authority,  Etc.  342 

surrogate  is  required  to  make  a  decree  removing  the  delinquent 
from  office  and  revoking  the  letters  issued  to  him.*'  Again,  the 
sureties  in  an  executor's  or  administrator's  bond,  may  present  a 
petition  praying  to  be  released  from  responsibility  on  account  of 
any  future  breach  of  the  condition  of  the  bond,  and  that  the  prin- 
cipal may  be  required  to  file  a  bond  with  new  sureties,  whereupon, 
unless  a  bond  with  new  sureties,  satisfactory  to  the  surrogate,  is 
duly  filed,  he  is  required  to  make  a  decree  revoking  the  delinquent's 
letters.^ 

§  427.  Revocation  where  will  proved,  after  letters. —  It  may  hap- 
pen that,  after  letters  of  administration  on  the  ground  of  intestacy 
have  been  granted,  a  will  is  admitted  to  probate  and  letters  are 
issued  thereupon;  or  that,  after  letters  have  been  issued  upon 
a  ^vill,  the  probate  thereof  is  revoked,  or  a  subsequent  will  is 
admitted  to  probate,  and  letters  are  issued  thereupon.  In  either 
of  such  cases,  the  decree  granting  or  revoking  probate  must  re- 
voke the  former  letters.^  Where  a  decree  declares  a  will  void, 
and  letters  of  administration  are  granted,  but  all  proceedings  on 
those  letters  are  stayed  pending  an  appeal,  the  letters  should  be 
revoked,  in  order  to  permit  a  grant  of  temporary  administration 
for  the  protection  of  the  personal  property,  until  the  appeal  is 
decided.^ 

§  428.  Summary  revocation  for  defaults  in  certain  proceedings. — 
The  Code^^  requires  the  surrogate  to  make  a  decree  revoking  let- 
ters testamentary  or  of  administration^^  issued  from  his  court, 
without  a  petition  or  the  issuing  of  a  citation,  for  certain  inexcus- 
able acts  of  misconduct  on  the  part  of  the  executor  or  adminis- 
trator, as,  where  he  refuses  to  account,  or  evades  service  of 
process,  or  otherwise  so  acts  as  to  render  it  manifestly  unfit  that 
he  should  longer  remain  in  ofiice,  even  for  a  brief  period.  The 
cases  enumerated  are:  1.  Where  the  person,  to  whom  the  letters 
were  issued,  is  not  a  resident  of  the  State,  or  is  absent  there- 


6  Co.  Civ.  Proc,  §  2.599.  See  c.  XV,  revoked  upon  an  unproved  allegation 
post.  But  a  surrogate  has  no  au-  that  a  will  exists,  or  that  a  will  which 
thority,  in  proceedings  for  the  vaca-  had  been  executed  has  been  lost  or 
tion  of  a  decree,  on  an  accounting,  on  fraudulently  destroyed.  ( Holland  v. 
the  ground  of  a  false  suggestion  of  Ferris,  2  Bradf.  334.)  And  see  Bulk- 
fact,  to  revoke  the  letters  of  admin-  ley  v.  Redmond,  id.  281;  Matter  of 
istration.  (Matter  of  Patterson,  79  Cameron,  47  App.  Div.  120;  aflFd.,  166 
Hun,  371;  29  N.  Y.  Supp.  451;   affd.,  N.  Y.  610. 

146  N.  Y.  327.)  lo  Co.  Civ.  Proc,  §  2691. 

7  Co.  Civ.  Proc,  §  2601.  "The    expression    "letters    of    ad- 

8  Co.  Civ.  Proc,  §  2684.  ministration,"  includes  letters  of  tem- 

9  Newhouse  v.  Gale.  1  Redf.  217.  porary  administration.  (Co.  Civ. 
Letters  of  administration  will  not  be  Proc,  §  2514,  subd.  5.) 


343'  Revocatiox  or  Aitiiokity,  Etc.  §429. 

from;  and,  upon  Ix'ino-  <lnly  cited  to  account,  neglects  to  appear 
upon  the  return  of  the  citation,  without  shinviiig  a  satisfactory 
excuse  therefor;  and  the  surrogate  has  not  sutticient  reason  to 
believe  that  such  an  excuse  can  be  made.  2.  Where  a  citation, 
issued  to  such  a  person,  in  a  case  prescribed  by  law,  cannot  be 
personally  served  upon  him,  by  reason  of  his  having  absconded 
or  concealed  himself.  3.  AVhere,  by  reason  of  his  default  in 
returning  an  inventory,  such  a  person  has  remained  for  thirty 
days  committed  to  jail,  under  the  surrogate's  order,  granted  in 
proceedings^^  to  compel  him  to  return  an  inventory  or  a  further 
inventory.  4.  In  the  case  of  a  temporary  administrator,  where 
an  order  has  been  made  and  served  directing  him  to  deposit 
money,^^  or  show  cause  why  a  warrant  of  attachment  should  not 
issue  against  him;  and  a  warrant  of  attachment,  issued  there- 
iipon,  has  been  returned  not  served  upon  him. 

TITLE  SECOND. 

DIRECT  REVOCATIOX   BY  PROCEEDING  OR   ON   RESIGNATION. 

ARTICLE  FIRST. 

REVOCATION    OF    LETTERS    OF    EXECUTORS    AND    ADMINISTRATORS. 

§  429.  Grounds  of  petition. —  The  section  of  the  Code  which 
defines  the  general  jurisdiction  of  Surrogates'  Courts  confers  on 
them  authority  "  to  grant  and  revoke  letters  testamentary  and  of 
administration,  and  to  appoint  a  successor  in  place  of  a  person 
whose  letters  have  been  revoked."  ^^  The  power  to  revoke  let- 
ters necessarily  implies  that  they  have  previously  been  issued; 
hence  where  a  person  acts  as  executor,  without  qualifying  or  re- 
ceiving letters,  no  court  can  remove  him  or  accept  his  resigna- 
tion.^^ A  proceeding  to  revoke  by  a  direct  proceeding  may  be 
instituted  by  the  representative  himself,  as  where  he  wishes  to 
resign,  or  by  another  who  has  a  legal  interest  to  procure  his 
removal.  The  latter  kind  of  proceeding  is  here  first  considered. 
Before  stating  the  statutoiy  causes  for  removal,  it  vriW  be  well 
to  state  the  general  principle,  that  Surrogates'  Courts  have  no 
power  to  revoke  letters  except  for  the  causes,  and  on  the  grounds, 
stated  in  the  statute,  no  matter  how  gross  a  bi-eacli  of  duty  the 

12  See  Co.  Civ.  Proc,  §  2715;  and  l*  Co.  Civ.  Proc.  §  2472.  subd.  2. 
-c.  XVI.  post.  See  §  44.  ante. 

13  See  Co.  Civ.  Proc.,  §  2679;  and  is  Matter  of  Richardson,  8  Misc. 
§  419,  ante.  140;  29  N.  Y.  Supp.  1079. 


§§  430,  431.      Eevocation  of  Authority,  Etc.  344 

representative  may  be  guilty  of.^^  Another  rule  worth  noticing- 
is,  that  if  the  evidence  tends  to  establish  any  one  or  more  of 
the  causes  for  removal,  specified  in  the  statute,  the  question  of 
removal  is  one  resting  in  the  discretion  of  the  surrogate  ;^^  and 
while  his  decision,  in  favor  of  removal,  is  subject  to  review,  on 
appeal  to  the  General  Term,  it  is  not  reviewable  in  the  Court  of 
Appeals,  if  there  is  any  evidence  to  sustain  it.^^ 

§  430.  Incompetency    and    disqualification The    first    of    the 

causes  enumerated  is:  "Where  the  executor  or  administrator  was, 
when  letters  were  issued  to  him,  or  has  since  become,  incompe- 
tent, or  disqualified  by  law  to  act  as  such;  and  the  grounds  of  the 
objection  did  not  exist,  or  the  objection  w^as  not  taken  by  the 
petitioner,  or  a  person  whom  he  represents,  upon  the  hearing  of 
the  application  for  letters."  ^^  The  facts  constituting  incompe- 
tency —  or  disqualification,  which  appears  to  amount  to  the  same 
thing  —  to  administer,  having  been  already  detailed  and  discussed 
under  another  head,^'  it  will  be  unnecessary  to  renew  their  con- 
sideration here.  The  foregoing  rule  enlarges  the  previous  stat- 
ute by  permitting  revocation  for  a  ground  existing  before  ap- 
pointment, but  not  then  made  a  basis  of  objection,  instead  of 
confining  it  to  the  super\'ening  causes. 

§431.  Malfeasance,  dishonesty,  and  general  unfitness. —  Other 
grounds  enumerated  are:  "  AVhere,  by  reason  of  his  having  w^asted 
or  improperly  applied  the  money  or  other  assets  in  his  hands,  or 
invested  money  in  securities  unauthorized  by  law,  or  otherwise 
improvidently  managed  or  injured  the  property  committed  to  his 
charge;  or  by  reason  o,f  other  misconduct  in  the  execution  of  his 
office,  or  dishonesty,  drunkenness,  improvidence,  or  w^ant  of  un- 
derstanding; he  is  unfit  for  the  due  execution  of  his  office."  ^^  An 
executor  or  testamentary  trustee  may  now  be  removed  for  gross 
negligence  or  bad  faith  in  failing  to  sell  real  estate  as  empowered 
and  directed  bv  the  will.^^     Although  the  mere  fact  that  an  ex- 


16  Emerson  v.  Bowers.  14  N.  Y.  449;  administration  should  not  be  revoked 
Wood  V.  Brown,  .34  id.  337.  These  because,  prior  to  the  appointment,  a 
cases  were  decided  under  the  former  renunciation  of  a  rijjht  to  administer 
statute,  which  was  not  so  comprehen-  had  been  executed,  where  it  was  with- 
sive  in  its  enumeration  of  causes  as  drawn  bv  permission  of  the  court, 
the  Code.  (Matter  "of  Treadwell,   37   Misc.   584; 

17  Matter  of  Keinz,  88  Hun.  298;  34  7.5  N.  Y.  Supp.   1058.) 

N.  Y.  Supp.  339:   sub  nom.  Matter  of  21  Co.   Civ.    Proc,    §    2685,    subd.   2, 

Rettip,  G8  St.  Bep.  264.  See  Matter  of  Treadwell.  supra. 

18  Matter  of  McGilli^Tay,  138  N.  Y.  22  Haifrht  v.  Brisbin,  100  N.  Y.  219, 
308.  on  former  hearinfr.  96  id.   132.     Com- 

19  Co.  Civ.  Proc..  §  2685,  subd.  1.  pare  Matter  of  Moss,  N.  Y.  Law  J., 

20  See  §§   303,  361,  ante.     Letters  of  Jan.  27,  1892. 


345 


Revocatkjx   <jf  AiTiioinTY,  Etc. 


§431. 


ecutor,  administrator,  or  trustee  has,  without  lawful  authority^ 
borrowed  funds  intrusted  to  his  charge,  does  not,  ipso  facto,  call 
for  his  removal,  nevertheless  when  his  conduct  has  been  such 
as  to  endanger  the  trust  property,  or  to  show  a  Avant  of  honesty,, 
or  of  proper  capacity,  or  of  reasonable  fidelity,  he  must  be  pro- 
nounced ''  unfit  for  the  due  execution  of  his  office,"  and  must 
accordingly  be  dei)rived  of  it.'^  The  representative's  refusal  to 
bring  an  action  to  set  aside  a  fraudulent  conveyance  is  not  nec- 
essarily a  ground  for  removal;'"*  nor  is  the  mere  delay  of  an  execu- 
tor to  convert  real  estate  into  personalty,  when  the  same  has 
increased  in  value. ^^  But  where  an  executor  or  administrator 
fails  to  assert  his  decedent's  title  to  property  and  connives  at  a 
suit  to  divest  it,^'  or  wrongfully  claims  ownership  of  a  large 
portion  of  the  estate  and  insists  upon  receiving  all  benefits  there- 
from,"^ he  is  guilty  of  misconduct  and  should  be  removed.  So, 
too,  an  executor  will  be  removed  on  the  application  of  his  co- 
executor  where  he  fails  to  do  his  part  in  the  management  of  the 
estate,  and  there  are  constant  dissensions  between  the  executors, 
where  it  is  evident  that  his  continuance  in  office  will  prejudice  the 
best  interests  of  the  estate."*  Although  dishonesty  is  a  ground 
of  objection  to  appointment  only  in  the  case  of  an  executor,  it 


23  Matter  of  Petric,  5  Dcm.  352.  In 
Matter  of  Stanton  (18  St.  Rep.  807  | . 
the  executrix  was  removed  for  a 
wasteful  and  improvident  manage- 
ment vi  the  estate.  In  Denton  v.  San- 
ford  (.30  Hun,  487).  the  court  refused 
to  remove  an  executor  on  account  of 
tlie  fact  that  he  had  invested  moneys 
of  tlie  estate  in  the  purchase  of  real 
estate  situated  in  anotlier  State  in 
fulfil'mcnt  of  testator's  agreement  for 
such  ])urchase  made  in  his  lifetime, 
although  by  reason  of  a  defect  in  title 
a  loss  was  sustained  by  the  estate; 
where  at  the  time  of  the  purchase  the 
land  was  apparently  worth  the  amount 
paid  and  the  title  apparently  good. 
The  t;iking  title  to  sucli  laud  in  the 
individual  names  of  tlie  executors,  will 
not  justify  their  removal,  where  it  was 
done  as  an  act  of  prudence  and  the 
land  was  held  for  the  benefit  of  the 
estate.  In  Matter  of  West  (40  Hun, 
2fll),  the  administrator  had  resisted 
all  attempts  to  inventory  the  property, 
and  had  refused  to  produce  a  hirge 
portion  of  it  for  that  purpose,  and  had 
treated  the  administrator  first  en- 
titled in  a  disrespectful  and  unbecom- 
ing manner.  Held,  "  misconduct  in 
the  execution  of  his  office."     See  Mat- 


ter of  Hood.  104  X.  Y.  103;  :Matter  of 
Kerrigan,  42  App.  Div.  1 ;  58  X.  Y. 
Supp.  920;  aflfd..  lUO  X.  Y.  (589; 
Matter  of  Hickey,  34  Misc.  360; 
09  X.  Y.  Supp.  844.  In  Matter 
of  Leavitt  (28  Abb.  X.  C.  457),  an 
executor  was  not  removed  for  retain- 
ing in  his  business  money  belonging 
to  the  estate,  but  was  required  to  give 
bonds  to  secure  tlie  estate  against  loss, 
where  it  appeared  tliat  the  petitioner* 
for  his  removal  had  assented  to  the 
retention  of  the  money  in  the  business, 
and  its  immediate  withdrawal  would 
embarrass  the  business  and  involve  a 
loss  to  the  estate.  In  Matter  of  Have- 
meyer  (3  App.  Div.  519),  an  exec- 
utor and  trustee  was  removed  for  de- 
fiance of  tlie  directions  of  a  will,  and 
for  making  improper  investments. 

24  Matter  of  Moulton,  32  St.  Rep. 
031  :   10  X.  Y.  Supp.  717. 

25  Wileox  V.  Quinby,  20  X.  Y.  Supp. 
5.     See  Haight  v.   Rrisbin,  supra. 

20  Matter  of  Jacob.  5  App.  Div.  508; 
38  X.  Y.  Supp.   1083. 

2"  Matter  of  Gleason.  17  !Misc.  510; 
41    X.  Y.   Supp.  418. 

2S  Matter  of  Wheaton,  37  Misc.  184; 
74  X.  Y.  Supp.  938. 


§§  432,  433.      Revocation  of  Authority,  Etc.  346 

is  made,  by  this  subdivision,  a  reason  for  removal  of  an  admin- 
istrator also.^^  There  can  be  no  doubt  that  the  rule,  in  respect 
to  grounds  of  objection  to  the  appointment,  should  be  the  same 
as  in  respect  to  causes  for  revoking  the  letters  of  the  represen- 
tative of  a  decedent.  This  subdivision  practically  supersedes  a 
decision  whereby  a  gross  breach  of  duty  was  held  not  a  cause 
for  removing  an  executor.^*' 

§  432.  Willful  violation  of  law,  etc. —  He  may  also  be  removed 
■"  where  he  has  willfully  refused,  or,  without  good  cause,  neg- 
lected, to  obey  any  lawful  direction  of  the  surrogate  contained  in 
a  decree  or  order;  or  any  provision  of  law  relating  to  the  dis- 
charge of  his  duty."  ^^ 

§  433.  False  suggestion  of  fact —  "  Where  the  grant  of  his  let- 
ters was  obtained  by  a  false  suggestion  of  a  material  fact,"  they 
may  be  revoked.^"  Where  the  consent  of  an  administrator  who 
is  entitled  to  sole  letters,  had  been  obtained  to  the  appointment 
of  a  coadministrator  by  false  representations  that  there  was  no 
conflict  of  interest  between  them,  when  in  fact,  after  the  grant- 
ing of  such  letters,  such  coadministrator  sets  up  an  adverse  claim 
to  most  of  the  property  which  was  in  the  possession  of  the  intes- 
tate at  the  time  of  her  death, —  this  'is  obtaining  a  grant  of  letters 
'"  by  a  false  suggestion  of  a  material  fact."  ^^  Independently 
of  statute,  the  surrogate  has  power  to  revoke  letters  of  adminis- 
tration, obtained  upon  a  false  suggestion  of  a  matter  of  fact, 
and  without  due  notice  to  the  party  rightfully  entitled  to  admin- 
istration.^'* The  false  suggestions  need  not  be  fraudulent,  ;'.  e., 
known  to  have  been  false,  when  made.  It  is  enough  that  they 
were  false,  even  though  they  were  made  by  mistake. ^^ 


29  See  §  307,  ante.  consisted  in  a  false  affidavit  of  ser^^ce 

30  Emerson  v.  Bowers,  14  N.  Y.  449.  of  citation  —  which  affidavit  was  not 
And  see  Wood  v.  Brown,  34  id.  337 ;  made  by  the  person  to  whom  the  let- 
Coggshall  V.  Green,  9  Hun.  471.  ters  were  issued.     Held,  that  the  sur- 

31  Co.  Civ.  Proc,  §  258.5.  subd.  3.  rogate  had  power  to  revoke,  although 
The  nonfiling  of  an  inventory,  if  the  the  statute  then  specified,  as  a  ground 
omission  is  satisfactorily  explained,  of  -revocation,  only  the  false  fepre- 
Avill  not,  of  itself,  justify  a  removal,  sentations  made  by  the  person  to 
(Matter  of  George,  N.  Y.  Law  J.,  Jan.  whom  the  letters  were  granted.  See 
16,   1890.)      In  Matter  of  Arkenburgh  §  54.  ante. 

(11    App.   Div.    193:    42   N.   Y.    Supp.        35  Per  ley    v.    Sands,    3    Edw.    325; 

965),  an  oral  stipulation  in  open  court  Kerr  v.  Kerr,  41  X.  Y.  272.     In  Oram 

to  file  an  accoimt  was  held  equivalent  v.    Oram     (3    Redf.    300).    letters    had 

to  an  order  imder  this  section.  been  granted  to  one  claiming  to  be  the 

32  Co.  Civ.  Proc,  §  2685,  subd.  4.  widow  of  the  intestate,  and   who  had 

33  Matter  of  West,  40  Hun,  291:  in  fact  been  married  to  him  before 
afld..  Ill   N.  Y.  687.  his  death,  in  good  faith  supposing  that 

34  In  Proctor  v.  Wanmaker  ( 1  Barb,  he  had  been  divorced  from  his  fir.st 
Ch,     302),     the     false     representation  wife.     The  surrogate,  however,  having 


347  Revocation  of  Al'thouity,  Etc.  §  434. 

g  434.  Particular  grounds  against  an  executor. —  It  is  obviou.s 
that,  as  an  executor  is  not  usually  re([uired  to  give  a  ijond,  like  an 
administrator,  certain  grounds  of  objection  to  him  are  pertinent, 
Avhich  would  not  he  in  the  case  of  an  administrator.  An  apjdi- 
-cation  is,  therefore,  allowed  against  an  executor  for  the  following, 
among  other,  causes:.  "  Where  his  circumstances  are  such  that 
they  do  not  afford  security  to  the  creditors,  or  persons  interested, 
for  the  due  administration  of  the  estate."^*'  The  former  statute 
read:  "  Where  his  circumstances  are  so  precarious  as  not  to  atiVn-d 
adequate  security  for  the  due  administration  of  the  estate."  What 
circumstances  will  be  so  considered,  must,  of  course,  depend 
upon  the  facts  of  each  case  as  it  arises.  The  surrogate  must 
■decide  each  case  on  its  own  features  and  circumstances.^^  The 
main  point  in  every  case  is,  whether  there  is  a  reasonable  doubt 
that  the  trust  fund  is  safe  in  the  executor's  hands,  to  be  admin- 
istered as  directed.^^  It  does  not  necessarily  follow  that  the 
fund  is  not  safe  from  the  fact  that  the  executor  does  not  own 
property  to  the  full  value  of  the  estate  ;^^  but  where  the  execu- 
tor's only  property  consisted  of  an  unliquidated  demand,  and  he 
was  about  to  remove  from  the  State,  and  the  trust  created  by 
the  will  was  to  continue  for  many  years,  it  was  held  a  proper 
<3ase  in  which  to  require  him  to  give  security. ^*^  The  fact  that 
the  executors  are  "  men  of  inconsiderable  means,  not  transacting 
business  or  having  any  place  of  business,"  does  not  show  that 
their  "circumstances  are  such  that  they  do  not  afford  adequate 
security  for  the  due  administration  of  the  estate,"  within  the 
meaning  of  the  provision.*^  The  allegation  that  an  executor's 
circumstances  are  insufficient   for  the   administration   of  the   cs- 


<ieoidod   that    the   divorce    which    had  of    letters    of    administration    on    the 

been  obtained  in  Indiana  was  void  for  jjround    that    the    administratrix    was 

Avant  of  jurisdiction,   revoked  the  let-  not  the  widow  of  the  intestate,  being 

ters,    and    granted    administration    to  previously   a    divorced   woman    forbid- 

thc  first  wife.     In   Matter  of   Hether-  den    to    marry    in    the    State    of    New 

ington    (25  Week.   Dig.   4),  the   appli-  York,    she    was    permitted    to    prove   a 

■cation   was   made  on   tlie  ground   that  ceremonial  or  nonceremonial  marriage 

the   letters  were   issued   to  one  claim-  to  the  intestate,  without    the  State. 
ing   to   be   a    widow   of   the   deceased,        "^fi  Co.  Civ.  Proc,  §  ■208,").  subd.  5.   , 
whereas    her    marriage    with    deceased        37  See  '  Shields    v.    Shields,    60    Barb- 

was  void  by  reason  of  her  having  con-  5C):    Hovey   v.    McLean,    1    Dem.    306; 

tracted  a   previous  marriage  with  an-  I?allard  v.  Char'eswortii.  id.  ^Ol. 
other   person   still    living.      Held,   that        ■■?«  Cotterell   v.    Brook.    1    Bradf.    148. 
the     court     might     inquire     into     the        ^9  ^Vlandeville  v.  Mandevillc.  8  Paige, 

validity  of  fiich  first  marriage  for  the  47.5. 

purpose  of  ascertaining  whether  it  was        40  Wood  v.  Wood.  4  Paige,  209.  And 

absolutely     void,     and     the     marriage  see  Holmes  v.   Cock,  2   Barb.  Ch.  426. 
with    decedent,    therefore,    valid.       In        41  Postley   v.    Cheyne,    4    Dem.    492, 

Matter    of    Gerlach     (29    Misc.     90),  494. 
■which  was  a  proceeding  for  revocation 


§§  435-437!      Revocation  of  Authokity,  Etc.  348 

tate,  is  not  enough  to  justify  his  removal  f^  nor  is  the  fact  of 
his  insolvency/''  It  is  not  material  to  inquire  whether  the  tes- 
tator was  awai-e  of  the  want  of  responsibility  at  the  time  of 
making  the  will.'*'* 

g  435.  Removal  from  State. —  The  other  grounds  for  revoking 
an  executor's  letters  are:  "  Where  he  has  removed  or  is  about 
to  remove  from  the  State,  and  the  case  is  not  one  where  a  non- 
resident executor  would  be  entitled  to  letters  without  giving  a 
bond;  "  and  "  where,  by  the  terms  of  the  will,  his  othce  was  to 
cease  upon  a  contingency,  which  has  happened.'*^  The  provision 
with  regard  to  the  executor's  removal  from  the  State  has  no  ap- 
plication to  the  case  of  one  who  was  a  nonresident  when  his 
letters  were  issued. ^^ 

§  436.  Grounds  against  temporary  administrator  of  absentee. — An. 
application  is  allowed  against  a  person  appointed  temporary  ad- 
ministrator upon  the  estate  of  an  absentee,  according  to  wliat 
appears  to  be  a  correct  construction  of  the  Code,  not  only  in  the 
cases  above  mentioned  as  applying  to  administrators,  but  also,  in 
addition  thereto,  '^  where  it  is  shown  that  the  absentee  has  re- 
turned; or  that  he  is  living  and  capable  of  returning  and  resum- 
ing the  management  of  his  affairs;  or  that  an  executor,  or  an 
administrator  in  chief,  has  been  appointed  upon  his  estate;  or 
that  a  committee  of  his  property  has  been  appointed  by  a  com- 
petent court  of  the  State."  ^^  A  liberal  construction  is  neces- 
sary, in  case  the  application  for  revocation  of  letters  is  made  by 
a  person  interested  in  the  estate  of  an  absentee  who  ''  has  re- 
turned," or  "  is  living,"  e.  g.,  by  the  absentee  himself,  inasmuch 
as  the  opening  clause  of  the  section  mentions  only  a  person  inter- 
ested in  the  estate  of  a  decedent. 

§  437.  By  whom  and  how  application  made. —  The  application 
for  revocation  of  letters  testamentary  or  of  administration,  in 
the  various  cases  mentioned,  may  be  made  by  a  creditor  or  person 
interested  in  the  estate  of  a  decedent,  to  the  Surrogate's  Court 
from  which  the  letters  were  issued,  upon  a  written  petition  duly 
verified,  praying  for  a  decree  revoking  the  same,  and  tliat  the 


42  Gnibb  V.  Hamilton.  2  Dem.  414.  Rep.    373.      And    see    Co.    Civ.    Proc.^ 

43  Matter  of  Hart,  6   St.  Rep.   535;  §  2038;   §  292.  ante. 

Martin  v.  Duke.  5  Redf.  COO;  46  Postley  v.   Cheyne.   4   Dem.   492; 

44  Wood    V.    Wood.    4    Paige.    299;  Matter  of  Prime.  N.  Y.  Law  J.,  Sep. 
Freeman  v.  Kellogg,  4  Redf.  218.  8.  1892. 

45  Co.   Civ.    Proc.,   §   2685.    subds.   6  47  Co.  Civ.  Proc,  §  2685,  subd.  8. 
and    7;    Sohn's   Estate,    1    Civ.    Proc. 


349  Revocatiox  of  Authority,  Etc.  §  438. 

executor  or  administrator  may  be  cited  to  show  cause  why  a 
decree  should  not  be  made  accordingly.**  The  fact  that  an  ac- 
tion is  pending  for  his  removal  in  the  Supreme  Court  is  no  bar 
to  such  action  by  the  surrogate.*^  A  creditor  of  a  firm  of  which 
the  executor,  as  such,  is  a  partner  is  not  a  creditor  of  the  estate.^'^ 
Though,  formerly,  a  prima  facie  valid  claim  against  the  estate, 
established  a  sufficient  interest  to  authorize  the  court  to  pro- 
ceed on  his  application,^^  it  is  now  settled  that  where  the  rep- 
resentative, whose  removal  is  sought,  denies  that  the  petitioner 
is  a  creditor,  the  surrogate  has  not  jurisdiction  to  try  the  issue.®^ 
An  executor  who  applies  for  the  revocation  of  letters  granted 
to  his  coexecutor  ^'^  is  a  *' person  interested,"  but  the  executor  of 
a  deceased  coexecutor,  not  having  any  rights  as  against  the  sur- 
viving executor,  cannot  apply  for  the  latter's  removal.^  A 
debtor  to  the  estate  of  a  testator  is  not  a  person  interested 
therein,  entitling  him  to  apply  for  the  revocation  of  letters  is- 
sued to  th^  executor.*^^  A  parent,  as  the  natural  guardian  of 
a  child  beneficially  interested,  cannot  make  the  application,^"  nor 
can  the  widow  of  a  son  of  decedent's  husband  by  a  former  wife.^' 
An  executor,  however,  who  is  also  a  legatee,  under  an  alleged 
will  of  a  later  date  than  that  already  admitted  to  probate,  is 
such  a  person,  pending  proceedings  on  the  probate  of  the  paper 
propounded  by  liini.^^ 

§  438.  The  petition  and  citation. —  The  petition  must  set  forth 
the  facts  and  circumstances,  showing  that  the  case  is  within  the 
statute. ^^  Besides  the  allegations  of  interest  or  creditorship,  it 
must  specify  the  acts  or  omissions  of  the  executor  or  adminis- 
trator, or  other  grounds,  upon  which  the  prayer  for  revocation 
of  his  letters  is  based.  These  will  vary,  according  to  the  clause 
of  the  statute  under  which  the  applicant  proceeds.  AVhere  an 
executor's  removal  is  asked  for  on  the  ground  that  his  circum- 
stances are  so  precarious  as  not  to  afford  adequate  security  for 
the  due  administration  of  the  estate,  the  petition  should  set  forth 

48  Co.  Civ.  Proc.  §  2685.  53  Hassey  v.  Keller,  1  Dem.  ,577. 

49  Hood  V.   Hood.   2   Deni.   58.3;   cit-  54  Shook    v.    Shook.    10    Barb.    053; 
ing   Wood    V.    Brown.   .34    N.    Y.    .337;  Fosdick  v.  Delafield.  2  Redf.  302. 
Quackenboss  v.  Southwick,  41  id.   117.  55  Drexel  v.   Bernev.   1  Dem.   163;   3 

50  Matter  of  Stern.  20  St.  Rep.  210;  Civ.  Proc.  Rep.  122.' 

9  N.  Y.  Siipp.  445.  5.!Quin  v.  Hill.  0  Dem.  39. 

51  Cotterell  v.   Brock.   1    Bradf.   148.        57  Stapler  v.  HoflFraan.  1  Dem.  63. 
See  Co.  Civ.   Proc,   §   2514.  subd.   11,        58  Cunningham    v.    Souza,    1    Redf. 
and  §  00.  nute.  402. 

52  Matter  of  ^Vheeler.  40  Hiin.  64 ;        59  Co.  Civ,  Proc,  §  2686. 
Estate  of  Gillineham.  10  St.  Rep.  804; 

Susz  v,  Forst,  i  Dem.  346. 


§  439.  Revocation  of  Authority,  Etc.  350' 

particulars,  as  to  the  situation  and  value  of  the  estate,  and  the 
pecuniary  circumstances  of  the  executor,  so  as  to  make  a  prima 
facie  case  of  doubt  whether  the  estate  is  safe  in  his  hands;  air 
allegation  following  the  words  of  the  statute,  and  verified  upon 
information  and  belief  merely,  is  insufficient.'^     The  proceeding 
contemplated   by   this   statute  is   a  separate  proceeding,   asking 
for  no  other  relief.     Hence,  a  creditor's  application  to  compel 
an  administrator  to  file  an  intermediate  account  should  not  in- 
clude an  application  for  a  revocation  of  his  letters,®^  though,  on 
appearance  and  consent,  an  order  of  removal  may  be  made.^^    The 
Code  does  not  provide,  as  it  does  in  most  cases,  that  a  citation 
shall  issue  upon  the  presentation  of  the  petition,  but  requires,, 
in  the  first  instance,  proof  by  affidavit  or  oral  testimony,  satis- 
factory to  the  surrogate,  of  the  truth  of  the  allegations  contained 
in  the  petition.     If  the  surrogate  is  satisfied,  he  must  issue  a 
citation  according  to  the  prayer  of  the  petition;  except  that  where 
the  petitioner's  case  is  based  on  the  alleged  precarious  circum- 
stances of  the  executor,  and  the  latter  has  given  a  bond  to  obvi- 
ate that  objection,  before  the  issuing  of  letters  to  him,  the  sur- 
rogate may,  in  his  discretion,  entertain  or  decline  to  entertain 
the  application.^^     Except  in  the  cases  where  the  power  of  re- 
moval may  be  summarily  exercised,  a  surrogate  has  no  jurisdic- 
tion to  revoke  letters  upon  an  ex  parte  application,  and  if  he  pro- 
ceeds to  do  so,  he  may  be  restrained  by  writ  of  prohibition.^*     It 
is  not  enough  to  serve  the  citation  upon  the  executor  only,  as. 
he  is  not  "  united  in  interest  "  A\ith  the  legatees  ^\4thin  the  mean- 
ing of  the  Code,  section  2517. '^^ 

§  439.  Proceedings  upon  the  hearing. —  The  executor  should  file 
a  verified  answer  to  the  allegations  of  the  petition,  if  he  desires 

fio  Colegrove    v.    Horton,    11    Paige,  Where    the    acting    surrogate,     in    a 

2G1;  Atkinson  v.  Striker,  2  Dem.  261;  proceeding    to    remove    administrators- 

Moorhouse  v.  Hutchinson,  id.  429.  on  the  charge  of  conspiring  to  swindle 

61  Matter  of  Meyers,  N.  Y.  Law  J.,  the    estate,    dismissed    the    charge    as- 

Feb.    21,    1893;    Matter   of   Patterson,  to    conspiracy,    but    ordered    that    the- 

79    Hun,    .371;    29    N.    Y.    Supp.    451;  petitioner    should    have    the    right    tO' 

affd..   140  N.  Y.  327.  make  an  ex  parte  application  to   the 

<'2  Matter  of  Hernandez,  N.  Y.  Law  court  for  the  immediate  removal  of 
J.,  Nov.  2.5,  1892.  A  successor,  how-  the  administrators,  if  they  should 
ever,  can  only  be  appointed  on  a  new  disregard  the  provisions  of  the  de- 
application  on  notice  to  all  parties  in-  cree  lequiring  them  to  take  certain 
terested.      (lb.)  measures  in  another  action,  and  apply 

'J3  Co.  Civ.  Proc,   §  2686.     See  Peo-  for   the   appointment   of  petitioner   as. 

pie  V.  Hartman,  2  Sweeny,  576;    Ste-  administratrix. — Held,  that  such  order 

Yens  V.  Stevens,  3  Redf.  507.  was  void.      (Matter  of  Engelbrecht.  1.5 

(^4  People  ex  rel.  Sprague  v.  Fitz-  App.  Div.  541:  44  N.  Y.  Supp.  551.) 
gerald,   15   App.   Div.    539:    44   N.   Y.        '»  Fountain  v.  Carter,  2  Dem.  313; 

Supp.    556;     affd.,    156    X.    Y.    689.  §  70,  ante. 


351  Revocatiox  of  AuxiioitixY,  Etc.  §  440. 

To  contest  the  aj)i)lieatioii.  The  burden  of  proof  then  rests  upon 
the  petitioner;*'*'  the  lines  of  evidence  have  been  indicated  alxjve. 
The  validity  of  the  complainant's  demand,  and  the  plea  of  lim- 
itations, should  not  be  tried  ui)on  the  application.*'"  To  justify 
the  removal  of  an  executor,  proof  of  his  incapacity  should  be  very 
strong.^® 

§  440.  Dismissing  proceedings,  notwithstanding  proof. —  Upon  the 
return  oi  the  citation,  and,  of  course,  after  the  introduction  <'>f 
the  evidence,  the  surrogate  may,  in  his  discretion,  although  an 
objection  is  established  to  his  satisfaction,  dismiss  the  proceed- 
ings u])on  such  terms,  as  to  costs,  as  justice  requires,  and  allovr 
the  letters  to  remain  unrevoked,  in  either  of  the  following  cases: 
1.  AVhere  the  executor  or  administrator  has  disobeyed  a  direc- 
tion of  the  law  or  of  the  surrogate,  as  to  the  discharge  of  his  du- 
ties ;  if  he  obeys  it  and  makes  suitable  amends  to  the  injured  per- 
sons. 2.  ^Miere  the  executor's  or  administrator's  letters  wero 
obtained  by  a  false  suggestion  of  fact ;  if  they  ought  to  have  is- 
sued notwithstanding.  3.  Where  the  proceedings  are  against 
an  executor,  and  his  circumstances  afford  inadequate  security ; 
if,  within  a  reasonalde  time,  not  exceeding  five  days,  he  gives  a 
bond  such  as  he  would  have  been  required  to  give  to  procure  let- 
ters, in  case  a  like  objection,  made  before  they  were  issued,  had 
lieen  sustained.*'^  Such  a  bond  must  be  the  same  as  would  be  ex- 
acted of  an  administrator  upon  the  estate  of  an  intestate,  that  is,, 
not  less  than  twice  the  value  of  the  personal  estate  ;'^°  subject, 
however,  to  the  qualification  that,  in  fixing  the  penalty  thereof, 
the  surrogate  must  take  into  consideration  the  value  of  the  real 
l)roperty  which  may  come  to  the  hands  of  the  executor  by  virtue 
of  any  provision  contained  in  the  will.^^  In  such  a  case,  as  in  all 
others,  where  the  surrogate  or  the  statute  requires  a  bond  of  an 
executor,  the  surrogate  may  direct  securities  to  be  deposited  with 
him  to  reduce  the  penalty  of  the  bond.^~  The  sureties  in  a  bond 
given  by  an  executor  under  the  foregoing  provision,  cannot  limit 
their  liability  to  deficiencies  or  defalcations  of  the  executor,  oc- 
currins:  after  the  c:iving  of  the  bond.'"^ 


eeCotterell  v.  Brook.  1  "Rradf.  14S.  Kasson.   4G   App.   Div.   348:    CA    X.   Y. 

"Matter   of   Wheeler.   40   Hun.  64;  Siipp.  5G9. 

Estate  of  Gillingrham,  10  St.  Rep.  864.  70  See   Co.   Civ.   Proc.   §   2667;    also 

•*;Matter    of    Johnson,    lo    St.    Rep.  c.  W.  post. 

7.i2;    Matter   of  Wood.   70   Hun.   2.30;  vi  Co.  Civ.  Proc..  §  2645. 

24  N.  Y.  Supp.  64.  72  Co.  Civ.  Proc..  §  2.50.5. 

•••9  Co.  Civ.  Proc.  §  2687 ;   Matter  of  7.3  So  held,  under  the  Revised    Stat- 

Learitt,  28  Abb.  N.  C.  457;  Matter  of  utes.  in  Scofield  v.  Churchill  (72N.  Y. 

565).     It  has  been  held   that,   where 


Jg  441,  442.      Revocation  of  Authority,  Etc.  352 

§441.  Decree,  where  proceedings  not  dismissed. —  "Where  the  ob- 
jections of  the  creditor,  or  person  interested,  or  any  of  them,  are 
established  to  the  surrogate's  satisfaction,  and  he  does  not  dis- 
miss the  proceedings  as  above  mentioned,  he  must  make  a  decree 
revoking  the  letters  issued  to  the  person  complained  of."*  The 
■decree  must  be  recordcd.^^  The  costs  of  the  application,  if 
granted,  shouhl,  as  a  general  rule,  be  charged  on  the  fund;^^  but, 
if  denied,  ought  to  be  paid  by  the  petitioner  personally."^  Pend- 
ing an  appeal  from  the  decree,  the  court  will  not  appoint  a  tem- 
porary administrator,  unless  in  a  peculiar  case,'^  as  an  appeal  does 
not  stay  the  execution  of  such  a  decree.'^ 

§  442.  Revocation  upon  resignation. —  The  statute  has  changed 
the  common-law  rule  forbidding  the  resignation  of  an  executor 
or  administrator  who  has  once  assumed  the  duties  of  the  office, 
and  now  he  has  the  right,  upon  reasonable  cause  shown,  to  re- 
sign his  trust,  and  the  surrogate  is  empowered  to  accept  it,  and 
to  discharge  him  from  the  further  execution  thereof. ^°  It  is 
provided  that  ''  an  executor  or  administrator  may,  at  any  time, 
present  to  the  Surrogate's  Court  a  written  petition,  duly  verified, 
praying  that  his  account  may  be  judicially  settled;  that  a  decree 
may  thereupon  be  made,  revoking  his  letters,  and  discharging 
him  accordingly.*^  It  does  not  follow  that  the  surrogate  is  bound 
to  entertain  the  petition.  On  the  contrary,  he  may,  in  his  dis- 
cretion, decline  to  entertain  the  application.*^     Thus,  the  court 

the  executor  is  empowered  to  sell  the  'S  Matter  of  Dunn,  3  Law  Bui.  65. 
real  property,  the  security  required  of  See  generally  as  to  the  power  of  the 
him  should  be  for  double  the  amount  surrogate  pending  an  appeal,  Matter 
of  the  proceeds  which  may  come  into  of  Angevine,  1  Tuck.  245 ;  Vreeden- 
his  hands  for  the  benefit  of  others,  burgh  v.  Calf,  9  Paige,  128;  Matter 
unless  they  are  very  large,  in  which  of  Hancock,  27  Hun,  575. 
case  security  to  a  limited  amount  be-  '9  Co.  Civ.  Proc,  §  2583. 
yond  the  fund  should  be  deemed  suffi-  80  For  the  former  rule  as  to  admin- 
cient.  (Holmes  v.  Cock,  2  Barb.  Ch.  istratcrs,  .see  Flinn  v.  Chase,  4  Den. 
426.)  So,  where  a  clear  vested  in-  85;  Matter  of  Dyer,  5  Paige,  534.  In 
terest  in  a  part  or  all  of  the  fund  is  Matter  of  Curtiss  (9  App.  Div.  285), 
shown  to  exist  in  the  trustee,  security  it  is  said  that  an  executor  cannot  re- 
will  be  required  only  for  the  residue,  sign;  he  must  apply  to  have  his  let- 
(Cotterell  v.  Brock,   1    Bradf.   148.)  ters  revoked,  but   this  would  seem  to 

74  Co.  Civ.  Proc,  §  2687.  Notwith-  be  a  mere  refinement  of  expression, 
standing  the  reversal  of  the  surro-  As  to  resignation  by  a  testamentary 
gate's  decree  admitting  a  will  to  pro-  trustee,   see  §   450,  post. 

bate,  the  executor  remains   such,  and  81  Co.    Civ.    Proc,    §§    2689,    2690. 

is  entitled  to  possession  of  the  prop-  These  sections  of  the  Code  superseded, 

erty  until  his  letters   are   revoked   by  so  far  as  executors  and  administrators 

the  surrogate.  are    concerned,    the    provisions    of    L. 

75  Co.  Civ.  Proc,  §  2498,  subd.  5;  1879,  c  406,  although  that  act  was 
%  2499.  not  expressly  repealed  until  1893. 

7«  Holmes  v.  Cock,  2  Barb.  Ch.  426.        82  Co.   Civ.   Proc,   §   2689,   last  sen- 
77  Shook  v.  Shook,  19  Barb.  653.  t:nce. 


353  li KVocATiox  OF  AuTjioKiTv,   Etc.       §§  443,  444. 

will  not  revoke  an  executor's  letters  on  his  own  request,  upon 
allegations  that  he  has  interests,  as  surviving  partner  of  the 
decedent,  antagonistic  to  his  duties  as  executor,  necessitating  re- 
sort to  another  tribunal  where  the  estate  should  be  represented 
by  a  disinherited  person,  the  surrogate  having  ample  power  to 
adjust  the  equities  of  the  case.^'^ 

g  443.  The  petition  ahd  order. —  If  the  surrogate  decides  to  en- 
tertain the  application,  "  the  proceedings  must  be,  in  all  respects, 
the  same  as  upon  a  petition  for  a  judicial  settlement  of  the  peti- 
tioner's account;  except  that,  upon  the  hearing,  the  surrogate 
must  first  determine  whether  sufficient  reasons  exist  for  grant- 
ing the  prayer  of  the  petition.  If  he  determines  that  they  ex- 
ist, he  must  make  an  order  accordingly,  and  allov;ing  the 
petitioner  to  account,  for  the  purpose  of  being  discharged."  **■* 
The  petition  should,  therefore,  set  forth  ''  the  facts  upon  which 
the  application  is  founded,"  that  is,  'some  reason  for  the  desire 
of  the  executor  or  administrator  to  be  relieved,  though,  gener- 
ally, w^e  should  think  that  a  statement  of  such  causes  as  ill 
health,  contemplated  absence  from  the  State,  want  of  harmony 
between  coexecutors  or  administrators,  or  betw^een  the  represen- 
tatives and  the  beneficiaries,  and  the  like,  would  be  held  to  be 
sufficient.  In  all  other  respects,  the  petition  "  must  conform 
to  a  petition,  praying  for  a  judicial  settlement  of  the  account 
of  an  executor  or  administrator."*''  It  should- recite  the  names 
of  the  same  persons,  who  are  required  to  be  cited  upon  an  ordi- 
nary settlement  of  an  executor's  or  administrator's  account.  Ci- 
tation should  be  served  upon  such  persons  in  the  same  manner 
as  in  an  ordinary  accounting.  The  petitioning  executor  or  ad- 
ministrator, having  fully  accounted  and  paid  over  all  money  which 
is  found  to  be  due  from  him  to  the  estate,  and  delivered  over 
all  books,  papers,  and  other  property  of  the  estate  in  his  hands, 
either  into  the  Surrogate's  Court,  or  in  such  manner  as  the  sur- 
rogate directs,  is  entitled  to  a  decree,  revoking  his  letters  and 
discharging  liini  accordingly.^^ 

§  444.  Accounting  on  revocation  of  letters. —  Upon  the  revoca- 
tion of  the  letters,  the  Surrogate's  Court  may  comjiel  a  judicial 
settlement  of  the  accounts  of  the  executor,  administrator,  or  tes- 


83  Becker   v.   Lawton,   4    Dem.    341;  s-*  Co.  Civ.  Proc,  §  2000. 

citing   Matter    of    Saltus.    3    Abb.    Ct.  85  Co.  Cov.  Proc..  §  2689. 

App.  Dec.  243;    Marre  v.   Ginocbio,  2  8(1  Co.  Civ.  Proc.  §  2600.     See  Mat- 

Bradf.    165;    Matter   of   Stouvenell,    1  ter  of  Bernstein,  3  Redf.  20. 
Tuck.  241. 

23 


§  445.  Kevocation  of  Authority,  Etc.  354r 

tamentary  trustee,  as  the  case  may  be.^'^  In  its  discretion,  the 
court  may,  by  its  decree  of  revocation,  include  an  order  requir- 
ing the  person,  whose  letters  are  revoked,  to  account  for  all 
money  and  other  property  in  his  hands,  and  to  pay  and  deliver  the 
same  into  the  Surrogate's  Court,  or  to  his  successor  in  office,  or 
to  such  other  person  as  is  authorized  by  law  to  receive  the  same; 
or  it  may  be  made  without  prejudice  to  an  action  or  special  pro- 
ceeding for  that  purpose,  then  pending  or  thereafter  to  be 
brought.^  The  Surrogate's  Court  has  the  same  jurisdiction,  upon 
the  petition  of  the  successor,  or  of  a  remaining  executor,  ad- 
ministrator, or  trustee,  to  compel  the  person,  whose  letters  have 
been  revoked,  to  account  for,  or  deliver  over  money  or  other 
property,  and  to  settle  his  account,  which  it  would  have  upon 
the  petition  of  a  creditor  or  person  interested  in  the  estate,  if 
the  term  of  office,  conferred  by  the  letters,  had  expired  by  its 
o^vn  limitation.'"^  The  sm-rogate  has  no  power  to  compel  the 
committee  of  a  lunatic  trustee,  who  has  been  removed,  to  ac- 
count for  its  ward's  administration  as  executor  and  trustee  and 
deliver  up  the  property  of  the  trust  to  his  cotrustee  or  to  his 
successor.  Recourse  should  be  had  to  the  tribunal  which  ap- 
pointed the  committee.^^ 

§  445.  Appointment  and  powers  of  successor. —  The  Surrogate's- 
Court,  making  the  decree  of  revocation,  has,  except  in  a  case 
where  it  is  otherwise  specially  prescribed  by  law,  the  same  power 
to  appoint  a  successor  to  the  person  Avhose  powers  have  ceased  as 
if  the  letters  had  not  been  issued.^^  And  where  letters  of  all 
the  executors  or  all  the  administrators,  to  whom  letters  have 
been  issued,  are  revoked  as  to  all  of  them,  the  surrogate  is  ex- 
pressly required  to  grant  letters  of  administration  to  one  or  more 
persons,  as  their  successors,  in  like  manner  as  if  the  former  let- 


87  Co.  Civ.  Proc,  §§  2726,  as  90  Matter  of  Fisher,  N.  Y.  Law  J., 
amended  1893,  2807.  May   20,    1891.      "  Sections   234.5-2348 

88  Co.  Civ.  Proc,  §  2G03.  But  a  de-  of  the  Code  provide  a  way  to  procure 
cree  which  discharges  the  representa-  a  conveyance  of  real  estate  held  as 
tive  should  not  direct  him  to  retain  trustee  by  one  who  has  become  a  luna- 
certain  assets  pending  a  litigation  tic;  and  section  2339  seems  to  confer 
concerning  them.  (Matter  of  01m-  exclusive  jurisdiction  over  the  com- 
stead,  24  App.  Div.  190;  49  N.  Y.  mittee  upon  the  court  appointing  it. 
Supp.   104.)  I  regard  the  omission  in  section  2606 

89  Co.  Civ.  Proc,  §  2605.  See  Dun-  of  a  provision  for  calling  such  a  com- 
ford  V.  Weaver,  21  Hun,  349;  Casoni  mittee  to  account  in  the  same  manner 
V.  Jerome,  58  N.  Y.  315;  Matter  of  as  the  representative  of  a  deceased 
Seitz,  16  Misc.  522;  40  N.  Y.  Supp.  executor  or  administrator  as  signifi- 
206:  affd.,  sub  nom.  Matter  of  Man-  cant."'  (Per  Ransom,  S.,  lb.) 
hardt,  17  App.  Div.  1.  9i  Co.  Civ.  Proc,  §  2605. 


355  Revocation   of  Ai  thokity,   Etc.       §§446-448. 

tors  had  not  been  issned.''"  The  appointment  of  sneh  a  snceessor 
to  an  executor  is  considered  nnder  the  head  of  administration 
with  the  will  annexed;  that  of  a  successor  to  an  administrator, 
under  the  head  of  administration  de  bonis  non;  and  that  of  a 
successor  to  a  testamentary  trustee,  under  the  head  of  letters 
testamentary.'*^ 

§  446.  Effect  on  powers  of  executor,  etc.,  as  trustee. —  "  AVhere 
au  executor  <>r  administrator  is  also  a  testaujontary  trustee,  a 
decree,  revokini:'  his  letters,  does  not  affect  his  power  or  authority 
as  testamentary  trustee,"  except  as  specially  provided  in  the 
Code  in  relation  to  the  latter  officer.®^ 

§  447.  Right  to  reappointment. —  The  removal  of  an  adminis- 
trator, for  failure  to  furnish  sureties,  does  not  disqualify  the 
person  removed  from  1)eing  reappointed;  therefore  he  is  entitled 
to  notice  of  an  application  for  letters  made  by  one  having  a 
right  inferior  to  his.^^  But  if  another  person  is  thereafter  duly 
a]ipointed,  his  preference  is  lost.^^ 

g  448.  Cessation  of  powers. — Upon  the  entry  of  a  decree  re- 
voking letters  issued  to  an  executor  or  administrator,  his  powers 
cease."'*'  An  appeal  from  the  decree  does  not  stay  its  execution.'"*^ 
J>ut  the  revocation  does  not  affect  the  validity  of  any  act,  within 
the  powers  conferred  by  law  upon  the  executor  or  administrator, 
done  by  him  before  the  service  of  the  citation  where  the  other 
party  acted  in  good  faith;  or  done  after  the  service  of  the  cita- 
tion, and  before  entry  of  the  decree,  where  his  powers,  with 
respect  thereto,  were  not  suspended  by  service  of  the  citation,  or 
Avhere  the  surrogate,  in  a  ease  prescribed  by  law,  permitted  him 
to  do  the  same,  notwithstanding  the  pendency  of  the  special 
l)roceedings  against  him;  and  he  is  not  liable  for  such  an  act 
done  in  good  faith. ^^     This  is  substantially  the  rule  at  common 


f2  Co.    Civ.    Proc,    §    200.3.      An   ad-  is  also  a  testamentary  trustee,  may  be 

iiiiiiistrator     with     the    will     annexed  removed    in    both    capacities    by    one 

should     not    be    appointed    upon     the  decree. 

resignation  of  the  executors  and  trus-  9."<  Barber   v.  Converse,   1   Redf.   330. 
tees,   where   the  amount  of  the   resid-  9i5  Matter   of  Williams.   IS   Abb.  Pr. 
uary   estate   has   been   ascertained   for  3.50.     There  is  no  provision  of  law  au- 
tlie    purposes   of    the   trust.      (Matter  thorizing  the  reissue  of  letters  to  one 
of   Curtiss,    15    Misc.    54.5;    37    N.    Y.  whose    letters   have    been    revoked    be- 
8upp.  586;   afTd.,  9  App.  Div.  285.)  cause  he  was  adjudged  insane,  and  who 
•13  See  ante.  8§  322,  32(i.  308.  has  since  become  competent,  and  been 
^*  Co.  Civ.   Proc,  §   2088:   supersed-  discharged  from  his  committee.    (Mat- 
ing Matter  of  Crossman,  20  How.  Pr.  ter  of  Bearing,  4  Dem.  81.) 
350,  and  confirming  INfatter  of  Bull,  45  97  Co.  Civ.  Proc,  S   2003. 
Barb.   334;    31    How.   Pr.   00.     See  Co.  9S  Co.  Civ.  Proc.   §  2583.   • 
Civ.   Proc,   §   2810,   for  the  cases  and  ^  Co.  Civ.  Proc.  §  2003.     This  pro- 
manner  in  which  a  representative,  who  vision  is  manifestly  framed  in  refer- 


§  449.  Revocation  of  Authority^  Etc.  356 

law,  though  as  to  the  effect  of  a  revocation  of  letters  on  the 
intermediate  acts  of  the  former  representative, .  a  distinction  is 
made  between  grants  of  letters  which  are  void  and  those  which 
are  merely  voidable.  But  whether  the  probate  or  letters  of 
administration  be  void  or  voidable,  if  the  grant  be  by  a  court  of 
competent  jurisdiction,  a  bona  fide  payment  to  the  executor  or 
administrator,  of  a  debt  due  to  the  estate,  will  be  a  legal  discharge 
to  the  debtor.^  But  the  person  to  whom  any  payment  of  money 
or  delivery  of  property  is  made,  whether  as  husband,  wife,  next 
of  kin,  or  legatee  of  the  decedent,  is  nevertheless  liable  to  re- 
spond therefor,  to  the  proper  person,  upon  the  revocation  of  the 
letters,  whether  the  revocation  is  made  because  a  supposed  de- 
cedent is  living,  or  because  a  will  is  discovered  after  administra- 
tion granted  in  a  case  of  supposed  intestacy,  or  which  revokes  a 
prior  will  upon  which  the  letters  in  question  were  granted.^ 

AETICLE  SECOND. 

REVOCATION    OF    AUTHORITY    OF    TESTAMENTARY    TRUSTEES. 

§  449.  Surrogate's  jurisdiction — In  speaking,  on  a  previous 
page,  of  the  issue  of  letters  testamentary  to  executors,  Avho  are 
also,  by  the  terms  of  the  will,  trustees  of  the  estate  or  any  part 
of  it,  for  a  particular  purpose,  we  pointed  out  the  distinction 
between  the  functions  of  the  two  offices  of  executorship  and 
trusteeship,  and  stated,  incidentally,  that  where  the  offices  were 
intended  by  the  testator  to  be  essentially  distinct,  whether  held 
by  the  same  person,  or  by  different  persons,  the  Surrogate's 
Court  had  no  authority  to  issue  letters  of  trusteeship,  separately 
from  letters  testamentary,  except  that,  in  the  case  of  the  death, 
resignation,  or  removal  of  a  testamentary  trustee,  the  court  had 

ence  to  a  decree  in  a  special  proceed-  that  "when  he  shall  have  paid  over  the 

ing  adverse  to  the  executor  or  admin-  sum  "  "  found  due  from  him  as  afore- 

istrator,  commenced  for  the  purpose  of  said,"'  to  his  successor,  his  resignation 

procuring  a  revocation,   and   in   which  be   accepted    and    he    be    discharged. — 

a  citation  issued;  yet  it  has  appeared,  Held,  that  this  did  not  deprive  him  of 

in  the  present  chapter,  that  a   decree  the    right    to    the    possession    of    the 

of    revocation    may    be    issued    under  securities  of  the  estate,   and  he  could 

many  different  circumstances.    But  the  maintain  an  action  therefor  against  a 

provision    cited    expressly    applies    to  bank    with    which    he    had    deposited 

any  revocation  effected  by   "  a   decree  them  before  the  decree  was  rendered, 

made   as  prescribed   in   this   chapter"  (Van    Buren   v.    First    Xat.    Bank    of 

(c.  18  of  the  Code).     In  a  decree  en-  Cooperstown,  53  App.  Div.  80:   65  N. 

tered   upon   an   executor's   petition  to  Y.  Supp.  703.) 

resign,   charging  him   with   a   balance,  1  Wms.  on  Exrs.    {6th  Am.  ed.)  659. 

and   without  directing  him  to  deliver  2  Co.  Civ.  Proc,  §  2604. 
it   to   his   successor,   it   was   provided 


;]r)7  TvKvoc'ATiox  OF  AuTHOKiTY,  Etc.  §  450. 

power  to  appoint  "  a  successor  "  to  such  trustee.""*  Unlike  a  person, 
named  as  executor,  a  testamentary  trustee,  having  renounced, 
and  k'tters  having  issued  to  others,  cannot,  on  his  subsequent 
retraction,  be  restored  as  trustee.'*  The  jurisdiction  of  the  Sur- 
rogate's Court,  in  regard  to  testamentary  trustees,  is  Hmited  to 
tiie  cases  of  "•  trust  created  by  the  will  of  a  resident  of  the 
State,  or  relating  to  real  property  situated  within  the  State," 
and  this  without  regard  either  to  the  residence  of  the  trustee 
or  the  date  of  the  will.'^  It  has  power  to  accept  the  resignation 
of  such  a  testamentary  trustee,  and,  in  a  proper  case,  to  require 
him  to  give  security  in  the  same  cases  as  an  executor  may  be 
required  to  do;  also  to  remove  him  from  office  upon  substantially 
the  same  grounds  as  will  warrant  the  removal  of  an  executor; 
and  in  case  of  his  resignation,  removal,  death,  or  lunacy,  to  ap- 
point a  successor. 

^  450.  When  trustee  is  also  executor,  etc. —  It  is  expressly  pro- 
vided, however,  that  where  the  same  person  is  a  testamentary 
trustee,  and  also  the  executor  of  the  will,  or  an  administrator 
upon  the  same  estate,  proceedings  taken  by  or  against  him,  for 
his  resignation,  or  removal,  or  to  require  him  to  give  security, 
do  not  affect  him  as  executor  or  administrator,  or  the  creditors 
of,  or  persons  interested  in,  the  general  estate,^  except  in  one 
of  the  following  cases:  1.  "  Where  he  presents  a  petition  pray- 
ing for  the  revocation  of  his  letters,  he  may  also,  in  the  same 
])etition,  set  forth  the  facts,  upon  sho^^'ing  which  he  would  be 
allowed  to  resign  as  testamentary  trustee;  and  may  thereupon 
pray  for  a  decree  allowing  him  so  to  resign,  and  for  a  citation 
accordingly.  2.  Where  a  })erson  presents  a  petition  praying  for 
the  revocation  of  letters  issued  to  an  executor  or  administrator; 


^>  Where  a  trustee,  named  in  a  will,  trnstees  will  be  considered  in  ehapter 

refuses  or  neglects  to  accept  the  trust,  XVII.    For  the  old  rule  as  to  inability 

and  qualify  as  trustee,  for  a  period  of  of    a    trustee   to    resign    after    having 

twenty  years,   he   must   be  deemed   to  undertaken   the   trust,    see    Cruger    v. 

have     renounced     the     trust,     and     a  Halliday,    11     Paige,    314;    Wood    v. 

vacancy  is  therebj-  created  which  may  Wood.     5     id.     oiXi ;     Craig    v.     Craig, 

he    filled    by    the    court.       (Matter    of  3  Barb.  Ch.  7G;  Re  Wadsworth,  2  id. 

Kobinson,    37    N,   Y.    201  ;    which   was  381  ;    Matter   of    Robinson,    37    N.    Y. 

the    case    of    an    appointment    by    the  2t)l ;   Matter  of  Bernstein,  3  Redf.  20. 

Supreme    Court.)       And    see    Ross    v.  « Co.     Civ.     Proc,     §     2S1!),     which 

I'voberts,    2    Hun.   90 ;    affd.,   G3    X.   Y.  adopts  the  rule   prevailing   before  the 

(152 ;   Dunning  v.  Ocean  Nat.  Bank,  0  Code.     See  Wood  v.  Brown.  34  X.  Y, 

Lans,  2<)();  affd.,  61  X'.  Y.  497;  Green  339;    Leggett  v.   Hunter.    19   id.    44.t  ; 

v.  Green,  4  Redf.  357.  25  Barb.  81  ;   Craig  v.  Craig,  3   Barb. 

4  See  §  321,  ante.  Ch.   70;   Matter  of   Wadsworth,   2   id. 

5  Co.   Civ.   Proc.,   §   2820.     Tlie  gen-  381. 
eral  duties  and  powers  of  testamentary 


§  i51.  Revocatiox  of  Al'thority,  Etc.  358 

and  any  of  the  facts  set  forth  in  the  petition  are  made,  by  the 
provisions  of  this  title,  sufficient  to  entitle  the  same  person  to 
present  a  petition  praying  for  the  removal  of  a  testamentary 
trustee;  the  petitioner  may  pray  for  a  decree  removing  the  per- 
son complained  of  in  both  capacities,  and  for  a  citation  accord- 
ingly." In  either  case,  proceedings  for  the  resignation  or 
removal  of  the  testamentary  trustee,  and  for  the  judicial  settle- 
ment of  his  account,  may  be  taken  in  connection  with,  or  sep- 
arately from,  the  like  proceedings  upon  the  petition  for  the  revo- 
cation of  the  letters,  as  the  surrogate  directs. 

§  451.  Petition  for  leave  to  resign. —  A  testamentary  trustee 
may,  at  any  time,  apply  to  the  Surrogate's  Court  for  leave  to 
resign  his  trust.  The  application  must  be  by  the  verified  petition 
of  the  trustee.  It  is  always  a  condition  of  the  acceptance  of 
such  resignation  that  his  accounts  be  first  judicially  settled  and 
that  he  pay  over  all  money  belonging  to  the  trust  and  deliver 
all  books,  papers,  and  other  property  of  the  trust  in  his  hands, 
either  into  the  Surrogate's  Court,  or  as  the  surrogate  directs. 
Upon  such  petition,  an  order  to  show  cause  may  be  granted, 
directed  to  all  persons  who  are  entitled,  absolutely  or  contin- 
gently, by  the  terms  of  the  will  or  by  operation  of  law,  to  share 
in  the  funds  or  estate,  or  the  proceeds  of  any  property  held  by 
the  trustee.^  The  petition  must  set  forth  the  facts  upon  which, 
the  application  is  founded,  conforming  to  the  petition  of  an 
executor  for  a  judicial  settlement  of  his  accounts,  and  should, 
state  some  reasons,  such  as  ill  health,  contemplated  absence  from 
the  State,  disagreement  with  cotrustee,  dissatisfaction  of  the 
cestui  que  trust,  or  the  like.  The  fact  that  the  trustee  is  "  too 
busy  with  his  own  matters  "  to  continue  in  the  service,  is  not  a 
"  sufficient  reason  "  for  permitting  him  to  resign,  especially  where 
the  beneficiaries  of  the  trust  are  opposed  to  such  a  course.^  The 
surrogate  has  a  discretion  to  entertain  or  to  decline  to  entertain 
the  petition,^  and  should  require  proof  of  the  allegations  of  the 

7  Co.  Civ.  Proc,   §  2814.  sign.     A  provision   in   a   will   for   the 

SBaier   v.    Baier,   4   Dem.    162.      In  exigency  of  a  resignation  of  an  execu- 

Tilden  v.  Fiske    (4  id.   357),  an  exec-  tor  may  be  considered  in  determining 

utor    and    testamentary    trustee    who  the  propriety  of  allowing  such  resigna- 

had  been  engaged  for  sixteen  years  in  tion. 

the  execution  of  a   trust,   the   admin-  » Co.  Civ.  Proc.  §  2814.     In  Matter 

istration    of    which    was    nearly    com-  of   Foster    (7   Hun,    129),   the   trustee 

pleted,    and    who    intended    to    make  was  relieved  from  his  trust,  upon  his 

changes   in    his   manner   of  life   which  own  petition,  by  an  order  of  the  Su- 

would  involve  prolonged  absence  from  preme     Court;     but     the     order     was 

the  United  States,  was  allowed  to  re-  opened,    on    the    application    of    the 


359  Revocation  of  Authokitv,  Etc.  §  452. 

petition,  where  they  are  put  in  issue.^'^  If  the  application  is 
entertained,  the  surrogate  may  impose  reasonable  conditions  npon 
granting  it,  as,  for  example,  that  the  trustee  waive  all  right  to 
i'ommissions.^^  If  he  determines  that  sufficient  reasons  exist  there- 
for, he  may  allow  the  trustee  to  account;  and  having  accounted, 
and  i)aid  and  delivered  over  the  fund,  and  the  books  and  papers 
of  the  trust,  a  decree  will  be  granted  accepting  the  resignation, 
and  discharging  him  accordingly.^" 

§  452.  Requiring  trustee  to  give  security. —  As  in  the  ease  of 
executors,  testamentary  trustees  may  be  required  to  furnish  a 
bond  for  the  faithful  performance  of  their  duties.  In  general, 
where  the  executor,  as  such,  is  also  trustee,  his  bond  as  executor 
is  security  for  the  faithful  performance  of  his  duty  as  trustee; 
but  where  the  will  contemplates  that  the  two  offices,  though 
held  by  the  same  person,  are  to  be  distinct  and  separate,  then, 
it  is  said,  the  executor's  bond  is  not  security  for  the  trustee.^* 
In  such  a  case,  or  wdiere  the  trustee  is  a  person  other  than  the 
executor,  any  person,  beneficially  interested  in  the  execution  of 
the  trust,  may  present  to  the  Surrogate's  Court  a  verified  peti- 
tion "  setting  forth,  either  upon  his  knowledge,  or  upon  his  in- 
formation and  belief,  any  fact,  respecting  a  testamentary  trustee, 
the  existence  of  which,  if  it  was  interposed  as  an  objection  to 
granting  letters  testamentary  to  a  person  named  as  executor  in  a 
will,  would  make  it  necessary  for  such  a  person  to  give  security, 
in  order  to  entitle  himself  to  letters."  ^'*  The  petition  should 
pray  for  a  decree,  directing  the  testamentary  trustee  to  give 
security  for  the  performance  of  his  trust;  and  that  he  may  be 

cestui  que   trust,   upon   allegations   of  12  See  ante.   §  444. 

improvident      and     improper      invest-  13  See  §  320.  ante. 

inents.  in  respect  of  which  she  claimed  14  Co.  Civ.  Proc,  §  281.T.     Tlie  court 

an    accountinjf.    and    a    reference    was  is  not  confined  to  a   proceedinj;   insti- 

ordered,    pendinj;    which    the    trustee  tuted   by   a    petition   filed   under    this 

died.     The  court  thereui)on  granted  an  section,    but   may   make    an    order    to 

order   bringing   in   the    representatives  such    effect,    where    objection    is    duly 

of  the   trustee   as  parties   to   the  pro-  taken,   on   a   motion   to  open   a   decree 

(■ceding,  wliich  order  was  sustained  by  leiulei'ed     npon     an     accounting,     and 

tiie    General    Term,    holding    that    the  modify    it    by    delivering    property    to 

trustee's  proceeding  was  not  purely  a  the   applicant  who   occupies   the    posi- 

personal  one,  but  such   as  directly  af-  tion  of  trustee  under  a  will.      (Kelsey 

fccted   his  estate  in  the  hands  of  his  v.  Van  Camp.  .3  Dem.  .5.30.)      An  ap- 

representatives.  plication  to  compel  a  trustee,  of  ample 

!•>  Matter   of  Cutting,   4!)   App.   Div.  means,    against    whom    no    charge    of 

388 ;   03  X.  Y.  Supp.  240.  misconduct  is  made,  and  who  has  re- 

11  Matter  of  Curtiss,   lo   ]\risc.   54.");  linquished  his  cnvn  business  so  as  to  de- 

affd.,    on   opinion   below.    0    App.    Div.  vote  his  entire  attention  to  the  estate, 

28.1.     See  Matter  of   Allen,   96   N.   Y.  slionld   be   denied.       (Matter   of   Weil, 

327.  49  App.  Div.  52;  133  N.  Y.  Supp.  088.) 


§  453.  Revocatio:n^  of  Authority,  Etc.  360 

cited  to  show  cause  \vhy  such  a  decree  should  uot  be  nuide.  Upon 
the  presentation  of  the  petition,  a  citation  will  issue.  "  Upon 
the  return  of  the  citation,  a  decree,  requiring  the  testamentary 
trustee  to  give  such  security,  may  be  made,  in  a  case  where  a  per- 
son so  named  as  executor  can  entitle  himself  to  letters  testamen- 
tary only  by  giving  a  bond;  but  not  otherwise."  ^'^  The  security 
to  be  given  must  be  a  bond  to  the  same  effect,  and  in  the  same 
form,  as  an  executor's  bond.  All  the  provisions  of  the  Code, 
applicable  to  the  bond  of  an  executor,  or  to  the  rights,  duties, 
and  liabilities  of  the  parties  thereto,  including  the  release  of  the 
sureties,  and  the  giving  of  a  new  bond,  apply  to  the  bond  so 
given,  and  to  the  parties  thereto."  ^® 

§  453.  Grounds  for  removal  of  trustee. —  The  Surrogate's  Court 
has  jurisdiction,  likewise,  to  remove  a  testamentary  trustee,  upon 
the  petition  of  any  person  beneficially  interested  in  the  execu- 
tion of  the  trust,  in  the  following  cases  :^^  1.  AVhere,  if  he  was 
named  in  the  will  as  executor,  letters  testamentary  would  not 
be  issued  to  him,  by  reason  of  his  personal  disqualification  or 
incompetency.  2.  Where,  by  reason  of  his  having  wasted  or  im- 
properly applied  the  money  or  other  property  in  his  charge,  or 
invested  money  in  securities  unauthorized  by  law,  or  othermse 
imj^rovidently  managed  or  injured  the  property  connnitted  to 
his  charge,  or  by  reason  of  other  misconduct  in  the  execution 
of  his  trust,  or  dishonesty,  drunkenness,  improvidence,  or  want 
of  understanding,  he  is  imfit  for  the  due  execution  of  his  trust. 
3.  ^\^iere  he  has  failed  to  give  a  bond,  as  required  by  a  decree, 
made  as  prescribed  in  the  last  two  sections  [sections  2815,  2816] ; 
or  has  willfully  refused,  or  Avithout  good  cause  neglected,  to 
obey  a  direction  of  the  surrogate,  contained  in  any  other  decree, 
or  in  an  order,  made  as  prescribed  in  this  title;  or  any  provision 
of  law,  relating  to  the  discharge  of  his  duty."  The  removal 
may  be  made  upon  the  petition  of  a  single  beneficiary,  but  the 
surrogate  may  in  his  discretion  require  notice  to  other  parties 
in  interest,  in  order  that  they  may  be  heard  in  respect  to  the  se- 


15  Co.  Civ.  Proc,  §  2815.  c.  482,  prior  to  the  passage  of  which, 
if'Id.,  §  2816.  See  e.  XV,  post.  surrogates,  generally,  had  no  power  to 
17  Co.  Civ.  Proc,  §  2817.  See  Mat-  remove  a  testamentary  trustee.  (Bet- 
ter of  Morgan,  66  N.  Y.  618;  Bronson  zell  v.  Barber.  6  Hun,'53.5.)  That  act, 
V.  Bronson,  48  How.  Pr.  481:  Matter  however,  conferred  such  power,  even 
of  Wadsworth,  2  Barb.  Ch.  381:  Mat-  where  the  title  to  real  estate  vests  in 
ter  of  McKeon,  37  Misc.  6.58 :  Matter  the  trustee  bv  the  terms  of  the  will, 
of  Mallon.  38  id.  27.  The  foregoing  (Clapp  v.  Brm\-n,  4  Redf.  200.) 
section  revises  a  provision  of  L.  1871, 


noi 


ReVOCATIOX    CM'    AlTlloKITV,     KtC. 


§  453. 


Ipction  of  a  new  tnistco  ami  the  i)r(>i)ricty  »>f  exacting  a  bond.^** 
It  is  better  ]iractiee,  if  not  essential,  to  have  a  citation  in  all  cases, 
to  be  served  at  least  upon  the  trustee  whose  removal  is  sought.^* 
When  it  appears  that  efforts  to  serve  it  would  be  futile,  the 
Court  will  grant  the  relief  immediately  after  the  issuance  of  the 
citation.""  The  authority  thus  conferred  upon  Surrogates'  Courts^ 
in  resi)ect  to  the  removal  of  a  testamentary  trustee,  is  not  sa 
broad  as  that  possessed  by  the  Supreme  Court,  which  may  make 
a  removal  where  ''  for  any  cause "  the  incumbent  ''  shall  be 
deemed  an  unsuitable  person  to  execute  the  trust."  ^  But  the 
surrogate  may  remove  a  testamentary  trustee  for  the  same  causes 
for  which  executors  are  removable,^^  which  have  already  been 
detailed.  It  is  only  necessary  here  to  cite  some  cases  which 
are  particularly  applicable  to  testamentary  trustees.  A  trustee 
who  delegates  to  another  the  active  duties  of  the  trust,  allow- 
ing his  partner  to  manage  the  estate  for  his  own  benefit,  taking 
second  mortgages,  converting  good  securities,  and  lending  the 
proceeds  in  worthless  or  inadequate  mortgages,  and  exposing  the 
funds  to  risks  of  loss  for  his  own  profit,  is  not  only  improvident 
and  incompetent,  but  dishonest,  for  Avhich  he  is  liable  to  removal 
by  the  surrogate."^     It  is  a  good  ground  for  removing  a  testa- 


is  Lane  v.  Lewis,  4  Dem.  468 ;  citing 
Matter  of  Whitehead,  3  id.  227; 
Tompkins  v.  Mosenian,  5  Eedf.  403 ; 
People  V.  Norton,  9  N.  Y.  176;  Mil- 
bank  V.  Crane,  25  How.  Pr.  193;  Mat- 
ter of  Stuvvesant.  3  Edw.  Ch.  299; 
Matter  of  Jones.  4  Sandf.  Ch.  015: 
Matter  of  Robinson,  37  X.  Y.  2G1. 
But  compare  Riissak  v.  Tobias,  12  Civ. 
Proc.  Rep.  390;  Matter  of  Reiniseli, 
2(1  App.  Div.  416;  41!  X.  Y.  Supp.  902; 
Matter  of  Welch.  20  App.  Div.  412; 
46  X.  Y.  Supp.  689;  aflTd.,  154  X.  Y. 
774. 

lit  Hamilton  v.  Faber,  33  Misc.  64. 

20  Matter  of  Haussman,  N.  Y.  Law 
J.,  May  9,  1891. 

21  1  k.  S.  730,  §  70;  L.  1896,  e.  547, 
§  92.  See  Quackenboss  v.  Southwick, 
41  X.  Y.  117;  Blake  v.  Sands,  3  Redf. 
168;  Trask  v.  Sturges,  31  Misc.  195; 
atld.,  'i()  App.  Div.  625;  revd.,  on 
1  ther  points,  170  X.  Y.  482;  Matter 
of  Hovsradt,  20  :\Iise.  265 ;  Disbrow  v. 
Disbrow,  46  App.  Div.  Ill;  affd.,  167 
X.  Y.  606. 

22:Matter  of  Cadv,  36  Hun.  122; 
affd..   103  X.  Y.  67S! 

23  Savage   v.    Gould,    60     How.     Pr. 


234.  See  Matter  of  Roosevelt,  5  Redf. 
601.  One  of  two  executors  had  re- 
fused to  join  in  a  deed  of  land  di- 
rected to  ije  sold  and  the  proceeds  dis- 
tributed. Held,  that  the  power  to  sell 
and  distribute  was  so  connected  with 
that  of  an  executor  that  no  separate 
])roceeding  could  be  brought  to  remove 
him  as  trustee,  but  that  his  action  had 
been  so  llagrant  that  in  this  case  the 
l)etiti(in  should  be  granted.  (Oliver 
V.  Frisbie,  3  Dem.  22. )  The  court 
should  not  remove  a  testamentary 
trustee  on  account  of  ill-feeling  to- 
ward him  on  the  part  of  a  cotrus- 
tee, engendered  by  his  making  a 
lawful  claim  for  commissions.  ( Rus- 
sak  V.  Tobias,  12  Civ.  Proc.  Rep.  390.) 
As  to  the  essentials  of  a  priina  facie 
ease  justifying  the  removal  of  a  trus- 
tee, see  Ferris  v.  Ferris,  2  Dem.  336. 
Where  the  circumstances  of  one  of  two 
testamentary  trustees  are  such  as  not 
to  afTord  adequate  security  for  the 
proper  discharge  of  his  duties,  he  can- 
not be  relieved  from  furnishing  a 
bond  merely  by  establishing  that  his 
cotrustee  is  solvent  and  responsible. 
(Matter  of  Sears,  5  Dem.  497.) 


:§  453.  Revocation  of  Authority,  Etc.  362 

mentary  trustee  that  he  is  a  nonresident  alien,  npon  which  ground 
he  was  refused  letters  testamentary,  although  he  had  never  acted 
as  such,  nor  signified  his  acceptance  of  the  office.^  But  in  or- 
•der  to  justify  the  removal  of  a  testamentary  trustee,  upon  the 
ground  that,  by  an  improper  application  of  trust  moneys  or  an 
investment  in  securities  unauthorized  by  law,  he  has  demon- 
strated his  unfitness  for  the  due  execution  of  his  trust,  it  must 
appear  that  his  acts  have  been  such  as  to  endanger  the  trust 
property,  or  to  show  a  want  of  honesty,  or  of  proper  capacity, 
or  of  reasonable  fidelity.^^  Thus,  the  investment  of  trust  funds 
in  securities  unauthorized  by  law  is  not,  of  itself,  ground  for  the 
removal  of  the  trustee,  w^here  the  trust  fund  is  not  endangered 
and  want  of  honesty  or  capacity  is  not  shown.^^  On  general 
principles,  an  application  to  remove  a  trustee,  upon  the  ground 
that  he  has  converted  a  portion  of  the  trust  property  to  his 
own  use,  will  not  be  defeated  by  proof  that  he  has  made  a  set- 
tlement with  those  of  the  beneficiaries  whose  property  he  had 
converted,  and  that  the  residue  of  the  trust  property  is  then 
in  possession  of  and  properly  invested  by  his  eotrustees.^^ 
Where,  however,  the  cestui  que  trust  has,  for  more  than  twenty 
years,  acquiesced  in  the  trustee's  retention  of  the  trust  fund  in 
the  investments  in  which  it  came  into  his  hands,  though  unques- 
tionably in  violation  of  his  duty,  and  has  received  interest  thereon 
in  excess  of  what  would  have  been  realized  from  investment  se- 
curities, it  cannot  be  said  that  the  trustee  has  been  improvident 
or  is  unfit  for  the  execution  of  his  trust.^^  But  whatever  may 
be  the  ground  urged  for  the  trustee's  removal,  he  is  entitled  in 
every  case  to  have  the  issues  raised  by  his  answer  determined 
npon  common-law  evidence. ^^ 

24  Lane  v.  Lewis,  4  Dein.  468;  s.  c.  Supp.  327.)  So  the  omission  to  charge 
as  Estate  of  Brick,  9  Civ.  Proc.  Rep.  herself  with  rents  collected  after  the 
397.  Compare  Farmers'  Loan  &  Trust  death  of  her  father  when  she  knew 
Co.  V.  Hughes,  11  Hun,   130.  that    they    constituted    assets    of    his 

25  Morgan  v.  Morgan,  3  Dem.  612;  estate,  of  which  she  was  executrix,  is 
Dow  V.  Dow,  45  St.  Rep.  5;  18  N.  Y.  carelessness  and  inattention  sutficient 
Supp.  222.  to  warrant  her  removal.     The  fact  of 

2J  Matter  of  O'Hara,  62  Hun,  531;  her    good    faith    and    honesty    is     not 

17  X.  Y.  Supp.  91;  Elias  v.  Schweyer,  enough  to  prevent  her  removal.     (lb.) 

13  App.  Div.  336;  43  N.  Y.  Supp.  55.  See  Wilcox  v.  Quinby,  42  St.  Rep.  159; 

Evidence   that   a    trustee   had   omitted  16  X.  Y.   Supp.  699. 

to  charge  herself  with  rents  collected,  2T  ]\ratter  of  Wiggins,  29  Hun,  271. 

with  an  intent  to  conceal  them  from  28  Matter    of    Seymour,    N.    Y.   Law 

those   interested  and  to  convert  them  -T..  June  5,  1891. 

to   her    own   use    is    dishonesty,    suffi-  29  :Matter    of    Scott,    49    App.    Div. 

cient  to  warrant  her  removal.      (^Mat-  130;   62  N.  Y.  Supp.   1059. 
ter  of  Smith,  26  St.  Rep.  235 ;  7  X.  Y. 


S63  Revocatiox  of  Authokitv,   Etc.  §  454. 

§  454.  Appointment  of  successor. —  "  When  a  sole  testamentary 
trustee  dies  or  becomes  a  lunatic,  or  is  by  a  decree  of  the  Sur- 
rogate's Court  removed  or  allowed  to  resign,  and  the  trust  has 
not  been  fully  executed,  the  same  court  may  aj)point  his  suc- 
cessor, unless  such  an  appointment  would  contravene  the  express 
terms  of  the  will.  When  one  of  two  or  more  testamentary  trus- 
tees dies  or  becomes  a  lunatic,  or  is,  by  decree  of  the  Surrogate's 
Court,  removed  or  allowed  to  resign,  a  successor  shall  not  be 
.appointed,  except  where  such  appointment  is  necessary  in  order  to 
xjomjdy  with  the  express  terms  of  the  will,  or  unless  the  same  court, 
or  the  Supreme  Court,  shall  be  of  the  opinion  that  the  appoint- 
ment of  a  successor  would  be  for  the  benefit  of  the  cestui  que 
trust.  Unless  and  until  a  successor  is  appointed,  the  remaining 
trustee  or  trustees  may  proceed  and  execute  the  trust  as  fully 
as  if  such  trustee  or  trustees  had  not  died,  become  lunatic,  been 
removed  or  resigned."  ^'^  It  is  not  in  every  such  case  that  a  suc- 
cessor ^\'ill  be  appointed,  for  where  no  duties  remain  to  be  per- 
fornuMl,  except  to  make  certain  payments,  there  is  no  need  of 
a  new  trustee  as  the  executor  of  the  deceased  trustee  may  be 
required  to  make  them.^^  The  power  to  appoint  a  successor  is 
not  confined  to  the  case  of  a  single  or  sole  trustee,  but  the  court 
may  appoint  one  or  more  successors  to  several  trustees  who  have 
resigned.^^  It  is  the  better  practice  not  to  appoint  the  successor 
until  the  completion  of  the  accounting  of  the  present  trustee 
and  an  order  entered  directing  the  turning  over  of  the  estate; 
otherwise,  some  difficulty  may  be  encountered  in  fixing  the  pen- 
alty of  the  new  trustee's  bond.^^  But,  as  a  matter  of  jurisdic- 
tion, the  surrogate  has  the  power  to  make  such  appointment  even, 
before  the  entry  of  the  order  discharging  the  predecessor.^'*  It 
should  also  be  noted  that  when  a  person,  who  is  also  executor 
and  trustee,  resigns  his  authority  as  trustee,  and  his  resignation 
is  accepted,  this  does  not  affect  the  exercise  of  his  function  as 
executor.     His  powers  in  the  latter  capacity,  including  a  power 


30  Co.  Civ.  Prop..  §  2818.     An  exec-  oossor.    see   People   ex   rel.    Collins    v. 

utor  required  by  the  terms  of  the  will  Donuhue.  70  Hun.  317;   Losey  v.  Han- 

to    pay    the    income    of    a    fund    semi-  ley.    i47   X.   V.   .ItiO. 

annually   to   a   beneficiary   durin<r   his  31  Boyer  v.  Decker,  5  App.  Div.  62.3; 

life    is   a    testamentary   trustee;    upon  40  X.  Y.  Supp.  469. 

his   death   the   appointment   of   a   sue-  32  Royce  v.   Adams,   123  X.  Y.  402 ; 

■cessor  is  neeessarv.  and  the  surrojrate  33  St.  Rep.  622. 

mav   make   it   under   Code   Civ.   Proc.,  3.3  See   :Matter   of  IMcWhaley.   X.   Y. 

§   2818.      (Matter   of  Heeht.    71    Hun.  Law  J..  April  8.  1802. 

iVl:   24  X.  Y.  Snpp.  ."UO.)      As  to  the  34  Conant  v.   Wright.   22   App.   Div. 

appointment  of  the  beneficiary  as  sue-  216,:  48  X.  Y,  Supp.  422. 


§  455.  Revocation  of  Authority^  Etc.  364r 

in  trust  to  sell  real  estate,  remain  in  him,  and  are  not  vested 
in  the  new  trustee  appointed  in  his  place.^^ 

§  455.  Qualification  of  successor. —  Where  a  decree  removing  a 
trustee,  or  discharging  him  on  his  resignation,  does  not  name 
his  successor,  or  the  person  designated  therein  does  not  qualify, 
the  successor  must  be  appointed  and  must  qualify  in  the  manner 
prescribed  for  the  appointment  and  qualification  of  an  adminis- 
trator with  the  will  annexed.^*' 


35  Greenland  v.  Waddell,  116  N.  Y.  Tompkins   v.   Moseman,   5   Redf.   402; 
234.  Lane  v.  Lewis,  4  Dem.  468 :  Matter  of 

36  Co.  Civ.  Proc,  §  2818.  as  amended  Whitehead,  3  id.  227;  1  How.  Pr.   (N^ 
1884.     He  must  give  a  bond.     (Russak  S.)    90.) 

V.    Tobias,    12    Civ.    Proc.    Rep.    390; 


CHAPTER  XV; 


OFFICIAL  BONDS  OF  OFFICERS  SUBJECT  TO  THE 
SURROGATE'S  JURISDICTION;  RIGHTS  AND  LIA- 
BILITIES OF  SURETIES. 


TITLE  FIRST. 


GENERAL    TROVISIOXS    RELATING    TO    OFFICIAL    BONDS. 

§  456,  General  requisites  of  official  bonds. —  We  have  alreadv 
given  the  statute  which  requires  a  surrogate,  after  his  election  or 
appointment,  to  make  and  file  a  bond.^  The  Surrogate's  Court, 
in  the  exercise  of  the  jurisdiction  conferred  upon  it  by  statute, 
mav  compel  the  filing  of  an  official  bond  by  any  of  several  descrip- 
tions of  officers,  including  executors,  administrators,  guardians, 
and  other  trustees,  and  may  exercise  certain  supei^visory  powers 
in  respect  to  the  security  so  to  be  given.  The  statutory  regula- 
tions, with  regard  to  the  bonds  of  all  or  most  of  such  officers,  are 
given  here;  those  not  generally  applicable  are  separately  consid- 
ered,^ Every  official  bond,  given  as  prescribed  in  the  Code,  must 
be  acknowledged  or  proved,  and  certified,  in  like  manner  as  a 
deed  to  be  recorded.^  The  clerk  of  the  Surrogate's  Court  has  the 
power  to  take  acknowledgment  or  proof  of  the  execution  of  anv 
bond  to  be  filed  in  the  court  of  which  he  is  clerk.'*     A  bond  re- 


1  See  ante,  §  28. 

2  It  may  be  remarked  here  that  the 
provisions  of  the  present  Code  relat- 
ing; to  the  bonds  of  executors,  admin- 
istrators, etc.,  and  the  ritjhts  and  lia- 
bilities of  sureties,  apply  to  repre- 
sentatives, guardians,  etc.,  to  whom 
letters  were  issued  before  or  after  the 
1st  of  September,  ISSO.  but  the  Code 
does  not  affect  the  liabilities  of  the 
sureties  in  the  bond  executed  before 
this  date.  (Co.  Civ.  Pro.,  §  2(510.) 
The  chanpe  wroujzht  by  Co.  Civ.  Proc, 
§  200(1.  in  reference  to  the  method  of 
est.ablishinfi  a  devastainf,  in  an  action 
upon  the  bond  of  a  deceased  admin- 
istrator,   merely    affects    the    remedy, 


not  the  liability,  and  so  is  not  witliin 
the  exception  contained  in  section 
2010.  Accordintjly,  section  200(5  is 
applicable  to  a  case  where  the  bond 
was  fifiyen  before  its  enactment,  and, 
therefore,  a  decree  against  an  admin- 
istrator of  tlic  deceased  administrator, 
rendered  ujjon  his  accounting,  had  the 
same  effect  "  as  if  an  execution  issued 
upon  a  surrogate's  decree  against  the 
property  of  decedent  had  been  returned 
unsatisfied  during  decedent's  lifetime." 
(Potter  y.  Ogden,  UC^  N.  Y.  384.) 

3  Co.  Civ.  Proc,  §  810;   id.,   §  2500, 
as  amended  ISO."?. 

4  Co.  Civ.  Proc,  §  2509,  subd.  5, 


[365] 


§  457.  Official  Bonds,  Etc.  366 

quircJ  to  be  given  by  or  in  behalf  of  a  person  does  not  necessitate 
his  joining-  with  the  sureties  in  the  execution  thereof,  unless  the 
statute  requires  him  to  execute  the  same.  The  execution  thereof 
by  one  surety  is  sufficient,  although  the  word  "  sureties  "  is  used^ 
unless  the  provision  expressly  requires  two  or  more  sureties,, 
and  a  bond  executed  by  any  surety  or  fidelity  company,  authorized 
by  law  to  transact  business,  is  equivalent  to  an  execution  by  two 
sureties."'* 

jj  457.  Number  and  qualifications  of  sureties. —  A  bond,  executed 
by  a  surety  or  sureties,  as  prescribed  in  the  Code,  must,  where  two 
or  more  persons  execute  it,  be  joint  and  several  in  form;  and,  un- 
less otherwise  expressly  prescribed,  it  must  be  accompanied  with 
the  affidavit  of  each  surety,  subjoined  thereto,  to  the  eftect  that  he 
is  a  resident  of,  and  a  householder  or  a  freeholder  within,  the 
State,  and  is  worth  the  penalty  of  the  bond,  over  all  the  debts  and 
liabilities  which  he  owes  or  has  incurred,  and  exclusive  of  property 
exempt  by  law"  from  levy  and  sale  under  an  execution. *"' 

Where  the  penalty  of  the  bond  is  five  thousand  dollars  or  up- 
wards, the  surrogate  may  in  his  discretion  allow  the  sum,  in  which 
a  surety  is  required  to  justify,  to  be  made  up  by  the  justification  of 
tw^o  or  more  sureties,  each  in  a  smaller  sum,  but,  in  that  case,  a 
surety  cannot  justify  in  a  sum  less  than  five  thousand  dollars ; 
and  where  two  or  more  sureties  are  required  by  law^  to  justify, 
the  same  person  cannot  so  contribute  to  make  up  the  sum  for  more 
than  one  of  them.'^ 

Each  surety  should  justify  in  the  required  penalty,  that  is,  the 
penalty  must  be  twice  made  up,  either  (1)  by  two  persons,  each 
fully  qualified,  or  (2)  by  one  such  person  and  two  or  more  persons 
else,  unitedly  sufficient,  or  (3)  by  two  distinct  sets  of  persons,  eacli 
set  being  unitedly  worth  the  full  penalty.® 

5  Co.   Civ.  Proc.   §   811,   as  amended  that  case  a  testamentary  trustee,  hav- 

1895    (L.   189.5.  c.  510).  ing  been  required  to  give  security  by  a 

GCo.    Civ.    Proc.    §    812.      As    to   a  bond  in  a  penalty  of  $95,000.  with  two 

husband's   being   surety  on   his   wife's  sureties,    one   of   whom   justified   in   a- 

bond    and    vice    versa,    see    Matter    of  sum   greater   than   the   penalty,   while 

Grove,    13   Civ.   Proc.  Rep.   267;   Mat-  the  other  fell  far  short  of  the  statu- 

ter  of  McMaster,   12  id.   177.  tory  standard,  it  was  contended  that 

7  Co.  Civ.  Proc,  §  81.3,  as  amended  the   deficiency   in   the   justification   of 

1885.     Before  the  amendment  of  1885.  one  was  supplied  by  the  excess  in  that 

the  penalty  of  the  bond  was  required  of  the  other.     Held,  that  the  bond  was 

to   be    $20,000,   to    authorize    it   to   be  insufficient,  and  that  the  second  surety 

made  up  by  the  justification  of  two  or  should  be  replaced  by  one  capable  of 

more  sureties.     See  Matter  of  Thomp-  justifying   in   $95,000,    or    by    two   or 

son.  0  Dem.  56;  19  St.  Rep.  900;  Mat-  more,  each  worth  at  least  $1*0.000,  and 

ter  of  Hart,  2  Redf.  156.  capable      together     of     justifying     in 

STrask  V.  Annett,  1  Dem.  171.     In  $95,000.     In  New  York  county  a  special 


3f;7  OiF'.ciAi,   l](KMJSi,  Etc.  §§  458-460. 

§  458.  Bond  by  a  surety  company —  It  is  now  provided  that  tL& 
ext'cutiou  of  any  bontl  i'e(|uirLMl  hy  the  Code  to  be  given  may  be 
executed  by  any  fidelity  or  surety  company  authorized  by  the 
laws  of  this  State  to  transact  business.  Its  execution  of  such  bond 
is  ('(piivalent  to  the  execution  of  tlie  bond  by  two  sureties,  pro- 
videil  the  same  is  a]>j)r(iv('(l  by  a  judge  of  the  court  in  which  such 
l)ond  is  given;  and  such  company,  if  excepted  to,  shall  justify 
through  its  officers  or  attorney  in  the  manner  required  by  law. 
Any  such  company  may  execute  such  bond  as  surety,  by  the 
liand  of  its  officers,  or  attorney,  duly  authorized  thereto  by  resolu- 
tion of  its  board  of  directors,  a  certified  copy  of  which  resolution 
miller  the  seal  of  said  company  shall  be  filed  with  each  bond  or 
undertaking.^ 

^  459.  Bonus  to  sureties. —  It  was  held,  before  1892,  that  a  fee^ 
])aid  by  a  representative  to  a  surety  company  as  a  consideration 
f(ir  becoming  his  surety,  was  not  a  necessary  or  reaspnable  ex- 
])ense,  which  would  be  allowed  him  on  his  accounting ;^^  but,  now, 
he  "  may  include,  as  part  of  his  lawful  expenses,  such  reasonable 
sum,  not  exceeding  1  per  cent,  per  annum  upon  the  amount  of 
such  bond  paid  his  sureties  thereon,  as  such  court  or  judge 
allows."" 

§  460.  Deposit  of  securities  to  reduce  penalty  of  bond. —  In  ac- 
cordance with  a  practice  which  prevailed  to  some  extent  before  the 
Code,  of  reducing  the  penalty  of  a  bond  by  a  deposit  of  securities, 
or' the  funds  belonging  to  the  estate,  in  a  trust  company,  to  the 
credit  of  the  proceeding,  to  be  withdrawn  only  upon  the  order  of 
the  court,  the  Code  ^~  now  prescrilies  that  where  a  bond,  or  new 
sureties  to  a  bond,  are  "  reqtiired  by  a  stirrogate  from  an  executor, 
administrator,  guardian,  or  other  trustee,  if  the  value  of  the  estate 
or  fund  is  so  great  that  the  surrogate  deems  it  in(\x]iedient  to  re- 
(piire  security  in  the  ftill  amount  prescribed  by  law,  he  may  direct 
that  any  securities  for  the  payment  of  money,  belonging  to  the 
estate  or  fund,  be  deposited  with  him,  to  be  delivered  to  the  county 
treasurer,  or  be  deposited,  subject  to  the  order  of  the  trustee^ 
countersigned  by  the  surrogate,  with  a  trust  company  duly  author- 
ized by  law  to  receive  the  same.     After  such  a  deposit  has  been 

rule  (No.  17,  March,  1888)   is  adopted        lo  Jenkins  v.  Shaffer,  6  Dem.  59. 
for  the  examination  of  sureties  in  an        n  Co.  Civ.  Proc,  §  .3320.  as  amended 

official    bond    cominf:   within   the   cog-  1892.      See   Matter   of   Gill,    21    Misc. 

nizance  of  the  surrogate.  281. 

9  Co.  Civ.  Proc.,   §  811,  as  amended        12  Co.  Civ.  Proc.  §  259.5,  as  amended 

1886.  1885.     See  Rule  15,  N.  Y.  Surr.  Ct. 


§§  -1:61,  462.  Official  Bonds,  Etc.  368 

mado,  the  surrogate  may  fix  the  amount  of  the  uond,  with  respect 
to  the  value  of  the  remainder  only  of  the  estate  or  fund. 

A  security  thus  deposited  shall  not  be  withdrawn!  from  the 
custody  of  the  county  treasurer  or  trust  company,  and  no  person, 
other  than  the  county  treasurer  or  the  proper  officer  of  the  trust 
company,  shall  receiye  or  collect  any  of  the  principal  or  interest 
secured  thereljy,  without  the  sjjecial  order  of  the  surrogate,  en- 
tered in  the  appropriate  book.  Such  an  order  can  be  made  in  fayor 
of  the  trustee  appointed,  only  where  an  additional  bond  has  been 
given  by  him,  or  upon  proof  that  the  estate  or  fund  has  been 
so  reduced,  by  payments  or  otherwise,  that  the  penalty  of  the  bond 
originally  given  will  be  sufficient  in  amount  to  satisfy  the  pro- 
visions of  law  relating  to  the  penalty  thereof,  if  the  security  so 
withdrawn  is  also  reckoned  in  the  estate  or  fund." 

§  461.  Approval  and  filing  of  bond. —  The  bond  is,  in  every  case, 
subject  to  the  approval  of  the  surrogate,  to  be  indicated  by  his 
indorsement  thereupon,  to  that  effect,^^  and  must  be  filed  with  the 
surrogate  or  the  clerk  of  his  court.^^  Every  bond  filed  in  his  office 
must  be  carefully  preserved  by  him  and  delivered  to  his  successor 
when  his  term  expires. -^^ 

§  462.  Petition,  by  person  interested,  for  new  bond  or  new  sureties. 
—  Any  person,  interested  in  the  estate  or  fund,  may  present  to 
the  Surrogate's  Court  a  written  petition,  duly  verified,  setting  forth 
that  a  surety  in  any  bond,  taken  as  prescribed  in  the  eighteenth 
chapter  of  the  Code,  "  is  insufficient,  or  has  removed,  or  is  about 
to  remove,  from  the  State,  or  that  the  bond  is  inadequate  in 
amount,  and  praying  that  the  principal  in  the  bond  may  be  re- 
quired to  give  a  new  bond,  in  a  larger  penalty,  or  new  or  additional 
sureties  as  the  case  requires;  or,  in  default  thereof,  that  he  may  be 
removed  from  his  office,  and  that  letters  issued  to  him  may  be 
revoked.  Where  the  bond  so  taken  is  that  of  a  guardian,  the  peti- 
tion may  also  be  presented  by  any  relative  of  the  infant.  When 
the  bond  is  that  of  an  executor  or  administrator,  the  petition  may 
also  be  presented  by  any  creditor  of  the  decedent.  If  it  appears  to 
the  surrogate  that  there  is  reason  to  believe  that  the  allegations  of 
the  petition  are  true,  he  must  cite  the  principal  in  the  bond  to 
«how  cause  why  the  prayer  of  the  petition  should  not  be  granted. "^^ 

13  Co.  Civ.  Proc,  §  812.  15  Co.  Civ.  Proc,  §  2.500. 

l4Co.  Civ.  Proc,  §  816.     But  failure  1*5  Co.  Civ.  Proc,  §  2.597.     Service  of 

to  file  it  is  no  defense  to  the  sureties  the   citation   out    of   the    State,    on    a 

in    an   action   thereon.      (Haywood    v.  nonresident  principal,  is   orood.      (Ste- 

Townsend.  4  App.  Div.  246; '38  N.  Y.  vens    v.    Stevens.    3    Redf^    .507.)       A 

Supp.  517.)  surety's   dying   is   not   removing   from 


369  Official  Bonds,   Etc.  §§463,404. 

The  only  persons  who  can  apply  are,  oitlui-  tliose  interested  in 
the  estate  or  fund,  under  this  section,  or  one  or  more  of  the  sureties, 
under  section  2600;  the  i)rincipai  cannot  apply  for  an  order  re- 
leasing one  of  the  sureties.  ^^ 

^  463.  Order  granting  or  denying  application. —  Upon  the  returii 
of  such  a  citation,  ''the  surroi^ate  must  hear  the  allegations  and 
proofs  of  the  parties;  and  if  the  ohjections,  or  any  of  them,  are 
found  to  be  valid,  he  must  make  an  order,  requiriuo-  the  principal 
in  the  bond  to  iiive  new  or  additional  sureties,  or  a  new  bond  in 
a  larger  penalty,  as  the  case  requires,  within  such  a  reasonable 
tiuie,  not  exceeding  five  days,  as  the  surrogate  fixes;  and  directing 
that,  in  default  thereof,  his  letters  be  revoked."  ^^ 

"'  If  a  bond  with  new  or  additional  sureties,  or  in  a  larger  pen- 
alty, is  approved  and  filed  in  the  surrogate's  office,  as  required  by 
such  an  order,  the  surrogate  must  make  a  decree  dismissing  the 
proceedings  upon  such  terms,  as  to  costs,  as  justice  requires;  other- 
wise, he  must  make  a  decree,  removing  the  delinquent  from  office, 
and  revoking  the  letters  issued  to  him."  ^^ 

§  464.  Petition  by  sureties  to  be  released Anv  or  all  of  the 

sureties  in  any  bond,  taken  as  prescribed  in  the  eighteenth  chapter 
of  the  Code,  "may  present  a  petition  to  the  Surrogate's  Court,, 
praying  to  be  released  from  responsibility,  on  account  of  any 
future  breach  of  the  condition  of  the  bond;  and  that  the  principal 
in  the  bond  be  required  to  give  new  sureties  and  to  render  and 
settle  his  account,  and  that  a  citation  issue  to  said  principal  to 
attend  on  such  application.  The  surrogate  must  thereupon  issue 
a  citation  accordinelv."  "'^ 


the  State,  witliin  the  meaning  of  this  able  to,  the  Supreme  Court,     •     •     * 

section.      The    statute   makes   no    pro-  or  to  a  County  Court,"  was  authorized 

vision  for  the  renewal  of  the  bond  on  to  apply  to  those  courts,  to  be  relieved, 

the   death   cf   a    surety.      (Stevens    v.  etc.,  and  the  course  and  method  of  the 

Stevens,   2   Dem.   409.)  proceeding    were    prescribed.      By    L. 

17  Matter  of  Haug,  N.  Y.  Law  J.,  1892.  c.  .jliS.  the  substance  of  this'stat- 
Feb.  2(i,   1892.  ute   was   tacked   on    to   Co.   Civ.    Proc, 

18  Co.  Civ.  Proc,  §  2.598.  §  t>i2,  as  an  amendment  thereof:   but 

19  Co.  Civ.  Proc,  §  2,599.  A  bond,  the  remedy  is  given  to  "  the  surety  or 
reciting  the  former  bond  and  executed  sureties,  or  the  representatives  of  any 
by  the  single  new  surety,  is  in  proper  surety  or  sureties  upon  the  bond  of 
form.  (Matter  of  Patullo,  1  Tuck,  any  trustee,  committee,  guardian,  as- 
140.)  signee,  receiver,  or  executor,"  to  peti- 

20  Co.  Civ.  Proc,  §  2G00,  as  amended  tion  "the  court  that  appointed  him, 
1901  (L.  1901,  c.  524).  As  to  appli-  or  that  approved  or  accepted  such 
cability  of  this  section  to  a  bond  given  bond,"  etc  We  do  not  think  this  see- 
in  1878,  see  Shook  v.  Goddard.  2  Dem.  tion  of  the  Code  applies  to  the  case  of 
201.  By  L.  1881,  c.  654,  "the  surety  bonds  taken  and  approved  by  a  Sur- 
er sureties  of  any  trustee,  committee,  rogate's  Court;  a  special  remedy  for 
or  guardian  appointed  by,  or  account-  the   relief  of   sureties  on  such  bonds 

24 


§  465.  Official  Bokds,  Etc.  370 

It  will  be  noted  that  this  provision  is  only  applicable  to  such 
bonds  as  are  "  prescribed  "  by  the  eighteenth  chapter;  consequently 
a  surety  in  a  bond  not  so  jirescribed  —  e.  g.,  a  bond  given  by  ii 
life  tenant  to  secure  the  preservation  of  the  fund  audits  distribu- 
tion among  the  remaindermen,  required  by  the  court  under  its 
incidental  power  to  protect  those  ultimately  entitled  to  the  fund  — 
cannot  avail  himself  of  this  means  to  secure  a  release.^^ 

The  fact  that  the  surety  and  his  relatives  are  indebted  to  the 
estate,  and  that  his  object  in  making  the  application  is  to  procure 
the  administration  to  be  transferred  to  a  person  who  will  refrain 
from  enforcing  payment  of  such  debts  by  him  and  them,  are  not 
grounds  for  refusing  the  application.^"  It  is  improper  to  combine 
a  petition  of  a  surety  to  be  released,  with  a  petition  of  the  next  of 
kin  for  a  new  bond  or  removal.  The  practice  in  the  two  cases  is 
different. ^^ 

§  465.  Releasing  sureties  on  filing  new  bond. —  Upon  the  return 
of  such  a  citation,  "  if  the  principal  in  the  bond  does  not  file  a  new 
bond  in  the  usual  form,  with  new  sureties  to  the  satisfaction  of  the 
surrogate,  the  surrogate  must  make  an  order  requiring  said  prin- 
cipal to  file  such  new  bond  within  such  reasonable  time  not  exceed- 
ing five  days  as  the  surrogate  fixes.  Should  the  principal  file  such 
new  bond  upon  the  return  of  such  citation  or  within  the  time  fixed 
by  such  order,  the  surrogate  must  thereupon  make  a  decree,  releas- 
ing the  petitioner  from  liability  upon  the  bond  for  any  subsequent 
act  or  default  of  the  principal,  and  requiring  the  j^rincipal  to  ren- 
der and  settle  his  account  to  and  including  the  date  of  such  decree 
and  to  file  such  account  mthin  a  time  fixed,  not  exceeding  twenty 
days  from  such  date;  otherwise  he  must  make  a  decree,  revoking 
the  delinquent's  letters."  ^ 


being  furnished  by  section  2600,  above.  Rep.  579.     The  right  of  a  surety  upon 
[Special  provision  is  likewise  made  for  the  bond  of  an  administrator  in  pro- 
the  enforcement  of  their  liability,   no  ceedings  to  sell  real  estate  for  the  pay- 
other    than    which    can    be    pursued,  ment  of  debts,  was  questioned  in  Mat- 
Hence  section  814   has   no  application  ter  of  McCormick,  25  Misc.    136. 
to    an    executor's    bond.       (Haight    v.  22  Lewis  v.  Watson.  3  Redf.  43.     Nor 
Brisbin,   100  N.  Y.  219.)  can  a  guardian  of  an  infant  interested 
21  Matter    of    Hein,    N.    Y.    Law    J.,  in  the  estate,  object  to  the  release  of 
May  27,   1892.     It  seems,  that  the  re-  sureties   on   the   administrator's   bond,, 
maindermen  have  the  right   to   apply  on  the  ground  of  an  error  overcharg- 
to  a  court  of  equity  to  compel  the  life  ing  him  on  the  accounting,   where   he 
tenant  to  give  security  for  the  safety  has  received  more  than  the  amount  of 
of  the  proceeds  of  the  sale  of  realty  such  overcharge  in  excess  of  what  was 
in  the  liands  of  such  life  tenant,  and  due   to   his   ward.      (Altman   v.   Wile, 
for     its     forthcoming    at    the    proper  141  N.  Y.  574:   60  St.  Rep.  324.) 
time.      (Matter  of  Blauvelt,  131  N.  Y.  23  Rick  v.  Murphy,  2  Dem.  251. 
249;  43  St.  Rep.  285.)     Compare  Mat-  24  Co.  Civ.  Proc,  §  2601,  as  amended 
ter  of  Shipman.  53  Hun.  511;   Matter  1901    (L.   1901,  c.  524). 
of  McDougall,    141   N.   Y.   21;    56   St. 


nn 


Official  Boxds,  Etc. 


4G6. 


§466.  Extent  of  liability  on  bond. — "  A  person  to  whom  letters 
are  issued  is  liable  for  iiuniey  or  other  personal  property  of  the 
estate,  which  was  in  his  hands,  or  under  his  control,  when  his  let- 
ters were  issued;  in  whatever  capacity  it  was  received  by  him,  or 
came  under  his  contrcd.  Where  it  was  received  by  him,  or  came 
under  his  control,  by  virtue  of  letters  previously  issued  to  him, 
in  the  same  or  another  capacity,  an  action  to  recover  the  money, 
or  damaii'cs  for  failure  to  deliver  the  property,  may  be  maintained 
ii])on  both  otlicial  bonds;  but,  as  between  the  sureties  upon  the 
official  bond  given  upon  the  prior  letters,  and  those  u]K)n  the 
official  bond  given  upon  the  subsequent  letters,  the  latter  are  liable 
over  the  former."  ^^ 

The  sureties  remain  liable  until  they  can  show  payment  by  their 
])rincipal  to  the  parties  legally  entitled  to  receive  the  assets, 
ilenco  when  the  sole  defense  to  an  action  upon  an  administrator's 
bond  is  a  technical  and  constructive  transfer  of  liability  from  him- 
self, as  such,  to  himself,  as  guardian,  this  must  be  clearly  estab- 
lished, so  as  to  leave  no  doubt  of  the  liability  of  the  sureties  upon 
his  bond  as  guardian.^^ 


25  Co.  Civ.  Proc,  §  2596.  See  id., 
§  2593;  ante,  §  324.  This  is  an  adop- 
tion of  the  nile  established  bv  Gotts- 
])erfrer  v.  Taylor  (19  N.  Y.  150).  that 
the  sureties  of  a  special  administrator 
were  liable  for  money  belon<,'infr  to  the 
estate,  received  by  him  before  his  ap- 
pointment, and  as  the  agent  of  a 
j)revious  administrator  to  whom  he 
succeeded.  See  also.  Williams  v. 
Kiernan,  25  Hun,  355;  Haines  v. 
Mever,  id.  414;  Trust  &  Deposit  Co. 
V.  Pratt,  id.  23;  Hood  v.  Hood.  85  N". 
Y.  5G1,  cases  under  the  Revised  Stat- 
utes. In  Scofield  V.  Churchill  (72  N. 
Y.  565),  the  bond  was  conditioned, 
among  other  things,  that  the  executor 
should  "obey  all  orders  <if  the  surro- 
gate touching  the  administration  of 
the  estate  committed  to  him."  Held, 
that  the  sureties  could  not  limit  their 
liability  to  deficiencies  or  defalcations 
of  the  executors  occurring  after  the 
giving  of  the  bond.  The  surety,  how- 
ever, was  held,  where  the  condition 
of  the  bond  was  that  the  representa- 
tive shall  account  for  all  moneys 
"  tiiat  slinll  come  into  his  hands." 
(Thomson  v.  American  Surety  Co., 
170  N.  Y.  109.)  Where  the  adminis- 
trator personally  owed  his  intestate, 
l)ut  was  not  able  to  pay,  such  debts 


are  not,  as  to  his  bondsmen,  assets  of 
the  estate  for  which  they  would  be 
liable,  nor  are  such  sureties  bound  by 
recitals  in  a  decree,  on  such  admin- 
istrator's accounting,  that  he  .should 
have  accounted  for  such  debts  and  was 
able  to  pay  them.  (Keegan  v.  Smith, 
33  Misc.  74;  07  N.  Y.  Supp.  281;  afTd., 
(iO  App.  Div.  KiS.)  Where  the  evi- 
dence did  not  show  that  interest  had 
been  received  by  a  trustee,  and  the 
substituted  trustee  was  authorized,  by 
the  order  appointing  him,  to  receive 
the  principal  only  of  the  fund, —  Held, 
that  he  could  not  recover  interest 
from  the  surety  on  the  trustee's  bond 
from  the  date  of  the  former  trustee's 
appointment.  (People  ex  rel.  Collins 
v.  Donohue,  70  Hun,  317;  24  N.  Y. 
Supp.  437.) 

2t!  Potter  V.  Ogden,  136  N.  Y.  384. 
Upon  due  proof  being  made  that, 
upon  the  settlement  of  the  accounts 
of  defendant's  principal,  an  amount 
of  money  remaimxl  in  his  hands  which 
he  had  failed  to  pay  over,  the  burden 
is  upon  the  defendant  to  show  that 
this  has  been  y>aid  over.  The  pre- 
sumption is  that  it  has  not  been  paid, 
and,  to  escape  liability,  the  presump- 
tion must  be  rebutted  by  proof  that  it 
has  been.     (Dayton  v.  Jolinson,  09  N, 


§  467.  Official  Bonds,  Etc.  372 

The  sureties  on  the  bond  of  co-principals  will  become  liable  for 
the  joint  acts  of  the  principals,  as  well  as  for  the  individual  defaults 
of  each;  tlie  bond  being  considered  as  if  each  principal  had  exe- 
cuted a  separate  bond,  with  the  same  sureties.^^ 

§  467.  Remedies  available  on  the  bond. —  Three  successive  sec- 
tions of  the  Code  (§§  2607,  2608,  2609)  provide  for  three  classes  of 
actions  upon  the  official  bonds  of  representatives,  guardians,  and 
testamentary  trustees.  The  remedies  given  are  distinct,  and  are 
governed,  in  some  respects,  by  different  rules.  The  first  is  an 
action  provided  for  by  section  2607,  which  may  be  maintained  upon 
the  bond,  by  and  in  the  name  of  any  person  in  whose  favor  the 
decree  was  made,^*  provided  an  execution  issued  upon  a  surrogate's 
decree  has  been  returned,  wholly  or  partly  unsatisfied. 

The  second  is  an  action  provided  for  by  section  2608,  which  may 
be  maintained  by  the  successor  of  an  executor,  administrator,  or 
guardian,  whose  letters  have  been  revoked;  in  which  action  "  he 
may  recover  any  money,  or  the  full  value  of  any  other  property, 
received  by  the  principal  in  the  bond,  and  not  duly  administered 
by  him ;  and  to  the  full  extent  of  any  injury  sustained  by  the  estate 
of  the  decedent  or  of  the  infant,  as  the  case  may  be,  by  any  act  or 
omission  of  the  principal."  ^^ 

It  is  not  made  a  condition  of  such  right  of  action  that  an  execu- 
tion, issued  against  the  principal,  on  a  surrogate's  decree,  should 
be  first  returned,  wholly  or  in  part  unsatisfied.^*^ 

The  third  remedy  is  an  action  under  section  2609  "  by  any  per- 
son aggrieved,"  where  the  principal's  letters  have  been  revoked, 
but  no  successor  has  been  appointed.  Such  an  action  can  only  be 
maintained  "  upon  obtaining  an  order  from  the  surrogate  grant- 
ing him  leave  to  do  so."     It  is,  likewise,  not  a  condition  of  main- 

Y.    419.)       Compare    Matter    of    Noll,  an  action  is  regarded  as  part  of  the 

10  App.  Div.  356;  41  N.  Y.  Supp.  765 ;  estate   in   the  hands   of  the   plaintiff, 

affd..  154  N.  Y.  765.  and  must  be  distributed  or  otherwise 

27Xanz  V.  Oakley,  120  N.  Y.  84;  30  disposed   of   accordingly;   except  that, 

St.  Rep.  885.     An  administrator  may,  a  recovery  for  an  act  or  omission  re- 

therefore,   bring   action    against    sure-  specting   a   right   of   action,   or   other 

ties  on  the  joint  bond  of  himself  and  property,  appropriated  by  law  for  the 

a   defaulting    coadministrator,    in   his  benefit   of  the  husband,   wife,   family, 

representati\Te    capacity.       ( Sperb    v.  or  next  of  kin  of  a  decedent,  or  dis- 

McCoun,  110  N.  Y.  605.)  posed  of  by  a  will  for  the  benefit  of 

28  See  Prentiss  v.  Weatherly,  68  any  person,  is  for  the  benefit  of  the 
Hun,  114;  22  N.  Y.  Supp.  680;  affd.,  person  or  persons  so  entitled  thereto." 
144   N.   Y.   707.      See  Allen   v.   Kelly,  (Co.  Civ.  Proc,  §  2608.) 

171  id.  1.  30  Co.   Civ.   Proc,  §   2606;   Hood  v. 

29  Flanagan  v.  Fidelity,  etc.,  Co.,  32  Hayward,  124  N.  Y.  1;  26  Abb.  N.  C. 
Misc.  424;  Dunne  v.  American  Surety  271;  Van  Zandt  v.  Grant.  67  App. 
Co.,  43  App.  Div.  91;   59  N.  Y.  Supp.  Div.  70;  73  N.  Y.  Supp.  600. 

429.      "  The  money  recovered  in  such 


373  Official  Bonds,  Etc,  §  468. 

taining;  such  an  action,  that  an  execution  should  have  been  issued 
on  a  surrogate's  decree  and  been  returned  unsatisfied.  As  in  the 
action  1»y  tlie  successor  of  a  removed  representative  or  guardian, 
the  ])huntiff  in  this  action  "  may  recover  any  money,  or  the  full 
value  of  any  other  property,  received  by  the  principal  in  the  bond, 
and  not  duly  administered  by  him,  and  to  the  full  extent  of  any 
injury  sustained  by  the  estate  of  the  decedent,  by  any  act  or  omis- 
sion of  the  principal ;"  and  the  money  recovered  "  must  be  paid 
by  the  sheriff  or  other  officer  who  collects  it,  into  the  Surrogate's 
Court;  and  the  surrogate  must  distribute  it  to  the  creditors  or 
other  persons  entitled  thereto."  ^^ 

§  468.  Condition  of  surety's  liability. —  But  whichever  of  these 
remedies  is  sought  to  be  availed  of,  the  rule  is  settled,  with  few 
excc]itions,  that  the  default  of  the  principal  must  be  established 
in  a  proper  proceeding  against  him,  in  the  Surrogate's  Court,  be- 
fore the  sureties  on  his  bond  can  be  prosecuted,  and  that,  as  the 
statutes  have  prescribed  the  steps  necessary  to  be  taken,  the  right 
of  action  against  the  sureties  only  arises  upon  compliance  with 
those  requirements.  Xo  action  at  law  can  be  maintained  on  the 
bond,  save  in  case  of  the  principal's  disobedience  of  some  order  of 
the  surrogate;  nor  can  the  requirement  of  the  statute  be  disre- 
garded, even  in  an  equitable  action,  w'here  the  statutory  remedies 
can  be  pursued.^^ 

But  the  order  disobeyed  must  have  been  one  touching  the  ad- 
ministration of  the  estate,  under  which  the  principal  was  obligated 
to  pay  a  certain  sum  of  money  or  the  like  to  a  party.  A  mere  order 
imj^osing  a  fine,  as  for  a  contempt,  upon  an  administrator  for  not 
apj)caring  when  cited,  in  a  proceeding  to  compel  his  accounting,  is 
not  such  an  order.'^^ 


31  Co.  Civ.  Proc,  §  2G09.     The  pro-  pie  v.   Corlies,   1   Sandf.   228;    Annett 

cec'diiijTs   for    such    a   distribution   are  v.  Kerr,  28  How.  Pr.   324.      Compare 

the  same  as  prescribed  for  the  distri-  Scharmann   v.    Schoell,    23    App.    Div. 

butiou    of    the    proceeds    of    a    sale    of  .'{DS ;    48   X.  Y.   Supp.   30(3;    also  s.   c, 

real    property   of    a   decedent,    for    the  38  App.  Div.  528 ;  56  N.  Y.  Supp.  408 ; 

j)aynunt   of   his   debts   or   funeral   ex-  Otto    v.    Van    Riper,    104    X.    Y.    536 

pcnses.       (lb.)       This   section   has   no  (where    previous   accounting:   was   im- 

application  to  an  action  brought  by  a  possible)  ;   BischofT  v.  Engel.  10  App. 

guardian  on  the  administrator's  bond.  Div.  240;   41  X.  Y.  Supp.  815;   Yates 

(Prentiss  v.  Weatherlv.  08  Hun,  114;  v.    Thomas.    35    Misc.    552;    71    X.    Y. 

aiTd..  144  X.  Y.  707.)',  Supp.  1113.      The  right  of  action  does 

"2    Hood    V.    Hood,    85    X.    Y.    561  ;  not  accrue  until  failure  to  pay  in  the 

Haight     V.     Brisbin,      100     id.     219;  manner   and   at   the   time   directed   by 

Perkins     v.     Stimmel,     114     id.     359.  the  decree.       (Betts  v.  Averv.  46  App. 

See   Stilwell   v.   Mills.    19   Johns.   .304;  Div.  342;    61   X.  Y.   Supp.  .525.) 

People  V.  Barnes.  12  Wend.  492;  Salis-  33  Loop    v.    Xorthup.    59    Hun.    75: 

bury  v.  Van  Hoesen,  3  Hill,  77;  Peo-  35    St.    Rep.   522.      So    an   executor's 


§  469.  Official  Bonds,  Etc.  374 

It  is,  however,  a  general  rule  that  all  final  decrees'  of  a  surro- 
gate adjudging  moneys  of  the  estate  in  the  hands  of  a  representa- 
tive or  guardian,  due  and  payable  to  parties  entitled,  run  against 
him  personally  and  de  bonis  propriis.  All  that  is  necessary  in 
order  to  hold  the  sureties  upon  his  bond,  is  that  the  proceedings 
show  that  the  judgment  was  rendered  for  an  official  default.^* 

It  is  only  in  regard  to  the  third  class  of  actions,  above  referred 
to,  that  the  surrogate's  leave  is  made  a  condition  of  the  right  to 
sue  on  the  bond.^^  The  provision  of  the  former  statute  providing 
for  an  assignment  of  the  bond  by  an  order  of  the  surrogate  for 
the  purpose  of  being  prosecuted,  is  omitted  from  the  present 
statute.-'^^ 

S  469.  Defenses  of  sureties. —  The  statute  declares  that  an  action 
against  the  sureties  is  not  barred,  suspended,  or  otherwise  affected 
by  the  levy,  upon  the  principal's  property,  of  an  execution,  or  by 
his  imprisonment  in  contempt  proceedings  under  a  surrogate's 
decree  rendered  against  him  by  reason  of  the  default."" 

The  ignorance  of  the  sureties,  when  they  executed  the  bond,  of 
the  real  nature  of  the  administration,  is  not  available  as  a  defense 
in  an  action  upon  the  bond;  nor  is  the  fact  that  they  were  misled 
or  deceived  by  those  at  whose  request  they  executed  it,  as  against 
one  who  was  in  no  w^ay  connected  with  the  deception;  nor  will  an 
unauthorized  insertion,  in  the  recital  of  the  bond,  by  the  clerk, 
after  its  execution,  of  words  descriptive  of  the  ofhee  of  the  prin- 
cipal obligor,  change  the  legal  force  and  character  of  the  bond,  so 
as  to  relieve  the  obligors  from  liability  under  it,  as  originally 
executed.^^ 

sureties  are  not  liable  for  his  failure,  66    Barb.    336;    Thayer    v.    Clark,    48 

through    inability,    to    pay    over    the  Barb.  243 ;  affd.,  4  Abb.  Ct.  App.  Dec. 

amount  of  his  debt  due  to  the  testator,  391;    Field  v.   Van   Cott,    1.5  Abb.   Pr. 

as    so    much    money    in    his    hands.  (X.  S.)    349;   Matter  of  Van  Eps,  56 

(Baucus  V.  Barr,  45  Hun,  582.)  N.  Y.  599;  People  v.  Struller,  16  Hun, 

34  Power  V.  Speckman,  126  N.  Y.  234;  Bramley  v.  Forman.  15  id.  144; 
354;  37  St.  Rep.  474.  Liability  of  People  v.  Falconer,  2  Sandf.  81;  Peo- 
sureties  for  costs  in  a  decree  (Phillips  pie  v.  Downing,  4  id.  189;  People  v. 
V.    Liebmann,    10    App.    Div.    128;    41  Barnes,  12  Wend.  492. 

N.  Y.  Supp.  1020;  Matter  of  Gall,  42  37  Co.  Civ.  Proc,  §  2555,  last  clause. 

App.  Div.  255;  59  N.  Y.  Supp.  254)  ;  38  Casoni  v.  Jerome,  58  N.  Y.  315. 

for     allowance     to     special     guardian  In  Brewster  v.  Balch   (41  N.  Y.  Supr. 

(Beckett   v.   Place,    12   Misc.    323;    33  63),   upon  the   appointment   of   C.    as 

N.  Y.  Supp.  634).  administratrix,  and  D.  as  administra- 

35  Scofield  v.  Adriance.  1  Dem.  196;  tor,  of  the  estate  of  an  intestate,  they 
3  Civ.  Proc.  Rep.  323 ;  Hood  v.  Hay-  having  executed  a  bond,  with  two 
ward,  supia.  .sureties,  conditioned  that  "  the  above 

3f!  For  some  cases  under  the  former  bounden    C.    and    D.    shall    faithfully 

statute,  see  Gerould  v.  Wilson,  16  Hun,  execute   the  trust   reposed   in   her,   as 

530;   affd.,  81   N.  Y.   573;   Baggott  v.  administratrix    and    administrator    of 

Boulger,  2  Duer,  160;  Cridler  v,  Curry,  all  and   singular  the  goods,"    etc.,  of 


375  Official  Bonds,  Etc.  §  469. 

In  the  absence  of  fraud  or  collusion  between  the  plaintiff  and 
the  principal,  the  decree  of  the  surrogate  is  conclusive  in  the 
action  upon  the  sureties  in  the  bond.  By  their  contract  they  have 
made  themselves  privy  to  the  proceedings  against  their  principal, 
and  when  he  is  concluded,  they,  in  the  absence  of  fraud  or  collu- 
sion, are  concluded  also,^'"*  even  though  they  may  not  have  been 
made  ])arties  thereto.^'^ 

The  sureties  are  estopped  even  from  denying  the  jurisdiction  of 
the  surrogate  to  render  the  decree,  for  the  disobedience  of  which 
the  action  on  the  bond  is  brought.'*^ 

The  appointment,  letters,  and  oath  of  the  principal  may,  of 
course,  be  proved  by  the  record;  but,  irrespectively  of  this,  they 
may  be  proved  by  a  recital  in  the  bond,  of  an  intent  to  apply  for 
letters,  with  evidence  that  the  principal  acted  as  if  he  had  been 
appointed  and  liad  qualified.'*" 

If  judginent  is  recovered  in  the  action,  upon  pajTnent  of  the 
judgment  by  one  of  the  sureties,  he  becomes  subrogated  to  the 
decree,  and  has  the  right  to  have  the  same  assigned  to  himself,  or 
to  some  other  person  desigTiated  by  him ;  and,  upon  such  assign- 
ment, may  enforce  the  decree  against  the  principal;'*"  and  may 
also  compel  a  contribution  by  his  co-surety.'*^ 

the  decedent,  "  and  obey  all  orders  of  tate,  and  reserve  recourse  against  the 

the   surrogate,   touching   the   adminis-  estate   thereon,   or   allow   the    sureties 

trution    ot    the    estate    committed    to  on  the  administrator's  bond  to  set  it 

her,"  the  sureties  were  held  liable  for  up   against    their   liability.        (Matter 

a  breach  of  the  condition  of  the  bond  of  Lawson,  42  App.  Div.  377;  59  N.  Y. 

by  D.  Supp.  152.) 

'  39   Scofield   V.    Churchill,    72    N.   Y.  40  McMahon  v.  Smith,  24  App.  Div. 

505;    Casoni    v.    Jerome,    58    id.    315,  25;    49    N.    Y.    Supp.    93;    Eberle    v. 

322 ;  Thayer  v.  Clark,  4  Abb.  Ct.  App.  Schilling,  32  Misc.  195 ;  Go  N.  Y.  Supp. 

Dec.  391;  Harrison  v.  Clark,  87  N.  Y.  728. 

572;    Beams   v.   Gould,   8   Daly,    384;  41   Field  v.   Van  Cott,    15   Abb.   Pr. 

77  N.   Y.  455;   Johnston  v.  Smith,  25  (N.  S.)   349.      But  compare  Browning 

Hun,    171;    Martin  v.   Hann,   32   App.  v.    Vanderhoven,    4    Abb.    N.    C.    IGG; 

Div.  U02;  53  N.  Y.  Supp.   180;   McMa-  ]\Iahoney  v.  Gunter.  10  Abb.  Pr.  431; 

hon    V.    Smith,    24    App.    Div.    25;    49  Behrle    v.     Sherman,     10    Bosw.    292; 

N.   Y.   Supp.   93;    Eberle  v.   Scliilling,  Brewster  v.  Balch,  41  N.  Y.  Supr.  63. 

32   Misc.    195;    affg.   Same  v.    Bryant,  42  Dayton  v.  Johnson.  G9  N.  Y.  419. 

31  id.  814;  Keegen  v.  Smith,  GO  App.  Compare  People  v.  Hascall.  22  id.  188; 

Div.    1G8;    70  N.   Y.   Supp.  2G0.      See  Howe  v.  Parsons,  G  Hun,  338;  Gerould 

Douglass   V.    Howland,   24   Wend.    35;  v.  Wilson,  IG  id.  530. 

Jackson  v.  Griswold,  4  Hill,  522;   An-  43  Townsend  v.   Whitney,  75   X.   Y. 

nett  v.  Terry,  35  N.  Y.  25G ;  Douglass  425. 

V.    Ferris,    138    id.    192.       The   decree  44  And    where   the   co-.surety    is   de- 

on  a  judicial  settlement  of  the  account  ceased,     his     representatives    may    be 

of  a  deceased  administrator,  in  favor  compelled   to  contribute.      See  Cornes 

of    the    administrator    dc    bonis    non,  v.  Wilkin.  14  Hun,  428;  affd..  79  X.  Y. 

should  take  cognizance  of  a  note  made  129;  Boyle  v.  St.  John,  28  Hun,  454. 
in  favor  of  the  former,  by  the  intes- 


§  470.  Official  Bonds,  Etc.  376 

TITLF  SECOND. 

PARTICULAR  CLASSES  OF  BONDS. 

§  470.  Bond  of  administrator. —  A  person  appointed  an  adminis- 
trator must,  Lef  ore  letters  are  issued  to  him,  "  execute  to  the  people 
of  the  State,  and  file  with  the  surrogate,  the  joint  and  several  bond 
of  himseK  and  two  or  more  sureties,  in  a  penalty,  fixed  bv  the 
surrogate,^^  not  less  than  twice  the  value  of  the  personal  property 
of  which  the  decedent  died  possessed,  and  of  the  probable  amount 
to  be  recovered  by  reason  of  any  right  of  action,  granted  to  an 
executor  or  administrator,  by  special  provision  of  law.  The  sum, 
to  be  fixed  as  the  amount  of  the  penalty,  must  be  ascertained  by 
the  surrogate,  by  the  examination,  upon  oath,  of  the  applicant  for 
the  decree  granting  letters,  or  any  other  person,  or  otherwise,  as 
the  surrogate  thinks  proper. ^*^  The  bond  must  be  conditioned  that 
the  administrator  will  faithfully  discharge  the  trust  reposed  in 
him  as  such,  and  obey  all  lawful  decrees  and  orders  of  the  Surro- 
gate's Court,  touching  the  administration  of  the  estate  committed 
to  him.'.'  ^" 

The  provision  prescribing  the  minimum  penalty,  twice  the  value 
of  the  decedent's  personal  property,  embraces  property  personally 
possessed,  as  well  as  choses  in  action,  and  all  other  property  to  the 
actual  possession  of  which  the  decedent  was  entitled  as  the  legal 
owner  thereof;  but  cannot  be  intended  to  cover  any  property  of 
which  he,  in  his  lifetime,  had  divested  himself  of  the  legal  title, 
whether  the  transfer  was  procured  by  fraud  or  otherwise.*^ 

45  In   Matter   of   Fattosini  (33  Misc.  two   of  four   obligors   therein.       It   is 

18;   67  N.  Y.  Supp.  1119),  the  surro-  no  longer  necessary  to  bring  the  action, 

gate  of  Westchester  county  dispensed  against  either  one  or  all.      (Cridler  v. 

with  a  bond  upon  granting  letters  of  Curry,   06   Barb.   336.)       The  sureties 

administration   to  the   consul-general,  upon  an  administrator's  bond  only  in- 

upon  the  property   of  an  alien  intes-  sure   his   faithful   management   of   the 

tate :    but   the   precedent   was  not  fol-  personal  effects   of   the   intestate,    and 

lowed  in  Matter  of  Logiorato,  34  Misc.  their   liability   cannot  be   extended   to 

31    (X.  Y.  Surr. ).      In  Matter  of  Lo-  his  acts  in  reference  to  a  fund  which 

brasciano   (38  Misc.  415),  the  former  in  law  is  to  be  deemed  real  property, 

surrogate  adhered  to  his  previous  rul-  (Matter  of  Woodworth,  5  Dem.   156.) 

ing.  in  a  well-considered  opinion.  The   penalty  of   the   bond  may  be   in- 

4*5  The  amount  of  an  administrator's  creased  by  the  surrogate  so  as  to  in- 
bond  is  to  be  fixed  not  with  regard  to  elude  property  not  embraced  in  the 
the  debts  of  the  estate  but  the  value  inventory,  but  which  is  claimed  to 
of  the  personaltv.  (Matter  of  Govan,  belong  to  the  estate.  (Matter  of  Goun- 
2  Misc.  291:  23' X.  Y.  Supp.  76G.)  dry,  57  App.  Div.  232;  68  N.  Y.  Supp. 

4"  Co.  Civ.  Proc.  §  2604.  as  amended  155.)      See  also  Berkeley  v.  Kennedy, 

1893.  being  former   §   2067.      The  ad-  02  App.  Div.  009;  70  X.*Y.  Supp.  762. 
ministrator's  bond  being  joint  and  sev-        48  Peck  v.  Peck,  3  Dem.  548. 
eral,  an  action  thereon  will  lie  against 


377  Official  Bonds,  Etc.  §§  471-473. 

§  471.  Modified  security  on  limited  letters. — "•  Whore  a  rij^ht  of 
action  is  granted  to  an  executor  or  administrator  by  special  pro- 
vision of  law,^®  if  it  appears  to  be  impracticable  to  give  a  bond 
sufficient  to  cover  the  probable  amount  to  be  recovered,  the  sur- 
rogate may,  in  his  discretion,  accept  modified  security  and  issue 
letters  limited  to  the  prosecution  of  such  action,  but  restraining 
the  executor  or  administrator  from  a  compromise  of  the  action 
and  the  enforcement  of  any  judgment  recovered  therein,  until 
tlie  further  order  of  the  surrogate  on  additional  further  satisfac- 
tory security."  ^^ 

§  472.  Modified  security  on  consent  of  next  of  kin. — "  In  cases 
where  all  the  next  of  kin  to  the  intestate  consent,  the  penalty  of 
the  bond  need  not  exceed  double  the  amount  of  the  claims  of 
creditors  against  the  estate  presented  to  the  surrogate,  pursuant 
to  a  notice  to  be  published  twice  a  week  for  four  weeks  in  the 
official  State  paper,  and  in  two  newspapers  published  in  the  city 
of  Xew  York,  and  once  a  week  for  four  weeks  in  two  newspapers 
])ublished  in  the  county  where  the  intestate  usually  resided,  and 
in  the  county  where  he  died,  reciting  an  intention  to  apply  for 
letters  under  this  provision,  and  notifying  creditors  to  present 
their  claims  to  the  surrogate  on  or  before  a  day  to  be  fixed  in  such 
notice,  which  shall  be  at  least  thirty  days  after  the  first  publica- 
tion thereof;  but  no  bond  so  given  shall  be  for  a  less  sum  than 
five  thousand  dollars;  and  such  bond  may  be  increased  by  order 
of  the  surrogate  for  cause  sho^^^l.  Pending  such  application,  no 
temporary  administrator  shall  be  appointed,  except  on  petition 
uf  such  next  of  kin."  ^^ 

vj  473.  Bond  of  erecutor.-^  Unlike  an  administrator,  an  executor 
is  not,  in  general,  required  to  give  bonds,  unless  the  will  so 
direct?;,'''" —  the  maxim  being  that  whom  the  testator  trusted  the 
court  may  trust  also.  But  there  are  certain  exceptions  to  the 
rub".  Thus,  a  person  named  as  executor  in  a  will  can  entitle 
himself  to  letters  testamentary  only  by  giving  a  bond  where  either 

40  Soo    ^fatter    of    Mallon.    13    Civ.  mise,"  cannot  issue  a  valid  execution, 

Proc.  Rep.  205 ;  Kirwin  v.  Malone,  45  though    her    power    be    afterward    ex- 

App.   Div.  93;   61  N.  Y.   Supp.  844.  tended.        (Lambert    v.     Metropolitan 

r.OCo.  Civ.  Proc,  §  2GG4.  as  amended  St.   Ry.   Co.,   33   Misc.  579;    68   X.   Y. 

1893.      See  Matter  of  Malloy.  1   Dem.  Supp.' 877.) 

421,   and  ante.   §    360.     Tlio' provision  51  Co.  Civ.  Proc.,  S  2664.  as  amended 

as  to  further  satisfactory   security  is  1893    (former  §  2667).      See  Curtis  v. 

directory  only.     (Murzvnowski  v.  Del.,  Williams,  3  Dem.  63;    §  332,  note  35, 

L.   &   W.  R.."  39   St.   Rep.   299.)       An  ante. 

administratrix  having  power  to  "  pros-  52  See  Sullivan's  Estate,  1  Tuck.  94. 
ecute,''  but  not  "  to  collect  or  compro- 


§  474.  Official  Bonds,  Etc.  378 

of  the  following  objections  have  been  established  against  him  to 
the  satisfaction  of  the  surrogate:     (1)  That  his  circumstances  are 
such  that  they  do  not  afford  adequate  security  to  the  creditors  or 
persons  interested  in  the  estate,  for  the  due  administration  of  the 
estate;  or  (2)  That  he  is  not  a  resident  of  the  State,  although  he 
is  a  citizen  of  the  United  States.^^     ''  But  a  person  against  whom 
there  is  no  objection,  except  that  of  nonresidence,  is  entitled  to 
letters  testamentary  without  giving  a  bond,  if  he  has  an  office 
within  the  State,  for  the  regular  transaction  of  business  in  person; 
and  the  will  contains  an  express  provision  to  the  effect  that  he 
may  act  without  giving  security."  ^*     And  where,   after  letters 
testamentary  have  issued,   it  appears,   upon  the   application   for 
revocation  of  the  letters,  made  by  a  creditor  or  person  interested, 
that  the  circumstances  of  an  executor,  who  has  not  given  a  bond, 
are  such  as  not  to  afford  adequate  security  for  the  due  adminis- 
tration of  the  estate,  he  can  prevent  a  revocation  only  by  giving  a 
bond.^^     Where  a  bond  is  required  from  an  executor,  pursuant 
to  the  statute,  he  must,  before  letters  are  issued  to  him,  qualify 
as  prescribed  by  law,  with  respect  to  an  administrator  upon  the 
■estate  of  an  intestate ;  except  that,  in  fixing  the  penalty,  thereof, 
the  surrogate  must  take  into  consideration  the  value  of  the  real 
property  or  of  the  proceeds  thereof,  which  may  come  to  his  hands 
by  virtue  of  any  provision  contained  in  the  will.^^    The  surrogate 
has  no  authority  to  exact  from  an  executor  a  bond  or  impose  on 
him  any  condition,  neither  directed  by  law  nor  by  the  will.    Thus, 
where  the  Surrogate's  Court  directed  an  executor  to  pay  to  him- 
self, as  life  tenant,  the  residuary  estate,  on  his  gi'V'ing  security  to 
protect  the  interests  of  the  remaindermen,  and,  also,  that  in  case 
oi  his  refusal  to  do  so,  he  should  give  a  bond  as  executor  for  re- 
taining it,  or  in  default  thereof,  he  should  deposit  the  wliole  /fund 
with  the  city  chamberlain,  it  was  held  error,  as  the  court  had  no 
right  to  impose  any  such  condition.^' 

§  474.  Bond  of  administrator  with  will  annexed —  An  adminis- 
trator with  the  will  annexed,  inasmuch  as  no  confidence  has  been 
reposed  in  him  by  the  testator,  stands,  as  regards  security,  in  the 
position  of  an  administrator  in  intestacy;  and,  accordingly,  it  is 
required  that  he  should,  in  all  cases,  before  letters  are  issued  to 

53  Co.  Civ.  Proc,  §  2G38.  See  §  302,  57  Matter  of  Shipman,  53  Hun,  511. 
<inte.  See  §   464,  note  21,  ante.     As  to  how 

54  Co.  Civ.  Proc,  §  2638.  last  clause,    far  the  bond  of  a  nonresident  executor 
65  See  Co.  Civ.  Proc.  §  2685,  subd.    is  affected  by  a  subsequent  statute  ex- 

5 ;  id.,  §  2687,  subd.  3.  tending?   surrogate's   powers,   see  Hood 

56  Co.  Civ.  Proc,  §  2645.  v.  Hayward,  48  Hun,  330;  124  N.  Y.  1. 


379  Official  Bonds,  Etc.  §§  475-477. 

liini,  give  a  bond  such  as  is  required  from  an  executor  who  is  com- 
pelled to  give  security  pursuant  to  the  statute.''^ 

§  475.  Bond  of  temporary  administrator.—  A  temporary  adminis- 
trator, appointed  ui)on  the  estate  either  of  a  decedent  or  of  an 
absentee,  is  required,  before  letters  are  issued  to  him,  to  qualify 
in  the  same  manner  as  an  administrator  in  chief  in  a  case  of 
intestacy.^* 

§  476.  Bond  of  administrator  de  bonis  non. —  An  administrator 
dc  bonis  non. —  i.  e.,  a  person  a])])ointed  to  complete  the  adminis- 
tration of  the  estate  of  an  intestate,  where  all  the  administrators, 
to  whom  letters  have  been  issued,  die  or  become  incapable,  or  the 
letters  are  revoked  as  to  all  of  them, —  is  required  to  qualify  in 
the  same  manner  as  if  he  were  an  original  administrator  in  chief, 
and  give  the  same  security,  except  that  the  surrogate  may,  in  his 
discretion,  in  case  where  the  estate  has  been  partially  administered 
U])on  by  the  former  administrator,  fix  as  the  penalty  of  the  bond 
a  sum  not  less  than  twice  the  value  of  the  assets  remaining  unad- 
ininistered.^'^ 

§  477.  Bond  of  ancillary  executor  or  administrator. —  A  person  to 
whom  ancillary  letters  testamentary,  or  of  administration,  are 
issued  from  a  Surrogate's  Court  of  this  State,  is  required,  before 
the  letters  are  issued,  to  qualify  in  the  same  manner  as  a  domestic 
iidministrator  upon  the  estate  of  an  intestate;  "except  that  the 
penalty  of  the  bond  may,  in  the  discretion  of  the  surrogate,  be  in 
such  a  sum,  not  exceeding  twice  the  amount  which  appears  to  be 
<lue  from  the  decedent  to  residents  of  the  State,  as  will,  in  the 
surrogate's  opinion,  effectually  secure  the  payment  of  those  debts; 
or  the  sums  which  the  resident  creditors  will  be  entitled  to  re- 
ceive, from  the  persons  to  whom  the  letters  are  issued,  upon  an 
accounting  and  distribution,  either  within  the  State,  or  witliin  the 
jurisdiction  where  the  principal  letters  were  issued."  ^^  Where  an 
ancillary  administrator  has  qualified  by  giving  a  bond  in  an  amount 
<»xceeding  the  assets  here,  he  will  not  be  required  to  give  additional 
security,  in  a  penalty  of  double  the  amount  of  the  debts  due  resi- 
dent creditors.''" 

58  Co.  Civ.  Proc.  §  2645.     See  §  332,  <u  Co.  Civ.  Proc,  §  2699.    See  5  316, 

•ante.  ante. 

'>9  Co.  Civ.  Proc,  §  2670,  supersed-  ''.2  Matter  of  Govan.  2  Misc.  291 ;  23 

ins  §  2671.  X.  Y.  Supp.  766. 

•»  Co.  Civ.  Proc.  §  2693,  as  amended 
1889. 


§§  478-481.  Official  Bonds.  Etc.  380 

§  478.  Bond  of  general  guardian  of  infant's  property. —  Before 
letters  of  guardianship  of  an  infant's  property  are  issued,  the  per- 
son appointed  must  "  execute  to  the  infant,  and  file  with  the  sur- 
rogate, his  bond,  with  at  least  two  sureties,  in  a  penalty,  fLxed  by 
the  surrogate,  not  less  than  t^\'ice  the  value  of  the  personal  prop- 
erty and  of  the  rents  and  profits  of  the  real  property;  conditioned 
that  the  guardian  will,  in  all  things,  faithfully  discharge  the  trust 
reposed  in  him,  and  obey  all  lawful  directions  of  the  surrogate 
touching  the  trust;  and  that  he  will,  in  all  respects,  render  a  just 
and  true  account  of  all  money  and  other  property  received  by  him, 
and  of  the  application  thereof,  and  of  his  guardianship,  whenever 
he  is  required  so  to  do  by  a  court  of  competent  jurisdiction;  but 
the  surrogate  may,  in  his  discretion,  limit  the  amount  of  the  bond 
to  not  less  than  twice  the  value  of  the  personal  property  and  of 
the  rents  and  profits  of  the  real  property  for  the  term  of  three 
years."  *^^ 

§  479.  Amount  of  security  on  limited  letters. —  In  a  case  where 
it  appears  "  to  be  impracticable  to  give  a  bond  to  cover  the  whole 
amount  of  the  infant's  personal  property,  the  surrogate  may,  in 
his  discretion,  accept  security,  to  be  approved  by  him,  not  less 
than  twice  the  amount  of  the  particular  portion  of  the  infant's 
property  which  the  guardian  will  be  authorized  under  the  letters 
to  receive."  In  that  case,  the  surrogate  may  issue  letters  thereon, 
hut  "  limited  to  the  receiving  and  administering  only  such  personal 
property  for  which  double  the  security  has  been  given,  and  re- 
straining the  guardian  from  receiving  any  other  personal  prop- 
erty of  the  infant  until  the  further  order  of  the  surrogate,  on  addi- 
tional further  satisfactory  security."  ^ 

§  480.  Continuation  of  sureties'  liability. —  Where  the  general 
guardian  of  an  infant  is  discharged  upon  his  own  resignation,  the 
sureties  in  his  official  bond  continue  to  be  liable,  with  respect  to 
all  matters  connected  with  his  trust,  until  his  account  is  judicially 
settled  at  the  instance  of  his  successor  or  of  the  ward.*"^ 

§481.  Bond  of  guardian  of  infant's  person. —  Before  letters  of 
guardianship  of  an  infant's  person  are  issued,  "  the  surrogate  may 

fi3  Co.  Civ.  Proc,  §  2830,  first  clause,  sureties  on  a  guardian's  bond,  for  the 

See  Rieck  v.  Fish,  1  Dem.  75.      A  gen-  proceeds  of  realty  sold  in  proceedings 

eral  guardian  who  has  given  the  bond  brought  for  that  purpose,  and  paid  to> 

required    by    Co.    Civ.    Proc,    §    2830,  the  guardian,   see  Allen  v.   Kelly,   171 

must,  before  receiving  a  legacy  or  dis-  X.  Y.   1 ;  63  N.  E.  528. 

tribntive   share   of   the   estate   coming  '"4  Co.  Civ.  Proc,  §  2830,  as  amended 

to  the  minor,  also  execute  a  bond  un-  1802. 

der  section  2746.      (Matter  of  :Milier,  '5  Co.  Civ.  Proc,  §  2837.    See  §466, 

29  Misc.  272.)     As  to  liability  of  the  ante. 


:?81  Official  Bonds,  Etc.  §§482,483. 

roqiiire  the  person  appointed  to  execute  to  the  infant  a  bond,  in 
ii  penalty  fixed  by  the  surrogate,  and  with  or  without  sureties, 
as  to  the  surrogate  seems  proper;  conditioned  that  the  guardian 
will  ill  all  things  faithfully  discharge  the  trust  reposed  in  him, 
and  duly  account  for  all  money  or  other  property  which  may 
come  into  his  hands,  as  directed  by  the  Surrogate's  Court."*"' 

i;  482.  Bond  of  guardian  by  will  or  deed. —  Where  a  guardian  of 
an  infant's  person  or  property  has  been  duly  appointed  by  the 
will  or  deed  of  the  father  or  mother  of  the  infant,  the  Surrogate's 
Court  in  Avhich  the  will  was  admitted  to  probate,  or  of  the  county 
in  which  the  deed  was  recorded,  is  authorized,  upon  the  petition 
of  the  infant  or  any  relative  or  other  person  in  his  behalf,  to 
make  a  decree  requiring  the  guardian  to  give  security  for  the 
performance  of  his  trust,  in  any  case  where  a  person  named  as 
executor  in  a  will  can  entitle  himself  to  letters  testamentary  only 
l)y  giving  a  bond.''^  The  security  to  be  given  by  such  a  guardian, 
when  required,  must  be  a  bond  to  the  same  eifect  and  in  the  same 
form  as  the  bond  of  a  general  giiardian  appointed  by  the  Surro- 
^•ate's  Court.  Each  provision  of  the  eighteenth  chapter  of  the 
Code,  applicable  to  the  bond  of  a  general  guardian  so  appointed, 
iind  to  the  rights,  duties,  and  liabilities  of  the  parties  thereto,  or 
any  of  them,  including  the  release  of  the  sureties  and  the  giving 
of  a  new  bond,  applies  to  the  bond  given  by  a  guardian  appointed 
by  will  or  deed,  and  the  parties  thereto.*'*  If  the  guardian  fails 
to  give  a  bond  as  required  by  the  decree  of  the  surrogate,  it  is  a 
ground  for  his  removal.*'^ 

§  483.  Special  guardians,  or  guardians  ad  litem The  Code  con- 
tains a  provision  in  respect  to  the  guardian  ad  litem  appointed 
for  an  infant  party  to  an  action,  to  the  eifect  that  such  a  guardian 
shall  not  be  permitted  to  receive  money  or  property  of  the  in- 
fant, other  than  costs  and  expenses  allowed  to  the  guardian  by  the 
court,  until  he  has  given  sufficient  security  approved  by  a  judge 
of  the  court  or  a  county  judge;  and  prescribing  the  form  of  the 
security,  to  wit,  a  bond,  with  at  least  two  sureties;  and  permitting 
]>roceedings  to  be  taken  for  a  renewal  of  the  bond."'^*'  But  there 
appear  to  be  no  corresponding  pro\'isions  relating  to  special 
guardians  of  infants,  appointed  by  a  surrogate  in  proceedings  in 
his  court,  although  he  has  authority  to  appoint  such  officers.^^ 


6G  Co.  Civ.   Proc.  §   2831.  68  Co.  Civ.  Proc,  §  28.58. 

67  Co.  Civ.  Proc.  §  2853.  70  Co.  Civ.  Proc.  §§  474.  475. 

68  Co.  Civ.  Proc.  §  2854.  7i  See  Co.  Civ.  Proc,  §§  2527,  2530. 


§§  484, 485.  Official  Bonds,  Etc.  38^ 

§484.  Bond  of  testamentary  trustee. —  Upon  the  petition  of  any 
person  beneliciallj  interested  in  the  execution  of  a  trust  created 
by  will,  the  surrogate  is  authorized  to  make  a  decree  requiring^ 
a  testamentary  trustee  to  give  security  for  the  performance  of  his 
trust,  in  any  case  where  a  person  named  as  executor  in  a  will  can 
entitle  himself  to  letters  testamentary  only  by  giving  a  bond.^^ 
The  security  to  be  given  by  a  testamentary  trustee,  when  required, 
must  be  a  bond  to  the  same  effect  and  in  the  same  form  as  an 
executor's  bond.  Each  provision  of  the  eighteenth  chapter  of  the 
Code,  applicable  to  the  bond  of  an  executor,  or  to  the  rights,  duties, 
and  liabilities  of  the  parties  thereto,  or  any  of  them,  including  the 
release  of  the  sureties,  and  the  giving  of  a  new  bond,  applies  to 
the  bond  so  given  and  to  the  parties  thereto.^^  If  the  testamentary 
trustee  fails  to  give  a  bond  as  required  by  the  decree  of  the  surro- 
gate, it  is  ground  for  his  removal.^*  Notwithstanding  that  by  the 
Code  (§  2514)  "testamentary  trustee"  is  declared  to  include  a 
person  designated  by  a  will,  or  by  any  competent  authority,  to  exe- 
cute a  trust  created  by  will,  the  provision  of  section  2815,  allowing 
a  surrogate  to  require  security  from  a  testamentary  trustee,  in 
the  cases  therein  specified,  applies  only  to  one  named  in  a  will.^^ 
The  surrogate  can  compel  a  testamentary  trustee  to  give  a  bond 
only  in  a  case  where  an  executor  may  be  required  to  give  security ;. 
a  breach  of  the  trustee's  trust  is  not  sufficient  ground."^ 

§  485.  Bond  on  selling  real  property  to  pay  debts. —  The  statutory 
provisions  in  regard  to  the  giving  of  a  bond  by  the  person,  whether 
executor,  administrator,  or  other  person,  who  is  directed  by  the- 
surrogate's  decree  to  sell,  mortgage,  or  lease  a  decedent's  real  es- 
tate, will  be  found  in  the  chapter  which  treats  of  the  special  pro- 
ceeding in  which  such  a  decree  is  obtained. ^^ 


"2  Co.  Civ.  Proc,  §  2815.  75  Matter  of  Whitehead,  3  Dem.  227. 

"3  Co.  Civ.  Proc,  §  2816.  76  Matter  of  Lawrence,  6  Dem.  342. 

74  Co.  Civ.  Proc,  §  2817.   "  77  See  c  XVIII,  post. 


CHAPTER  XVI. 

INVENTORY  AND  APPRAISAL  OF  ASSETS. 


TITLE  FIRST. 

DUTY    TO    MAKE    AND    FILE    IXVENTORY. 

§  486.  "  Property  "  and  "  assets  "  defined. —  Strictly  speaking^ 
the  word  "  assets,"  which  is  coniinonly  used  in  connection  with  the 
duty  of  a  representative  to  make  and  file  an  inventory  of  his  de- 
cedent's estate,  has  a  more  restricted  meaning  than  "  personal 
property,"  the  former  signifyinc;  personal  property  applicable  to 
the  payment  of  the  debts  of  the  decedent,^  and  thus  not  including 
the  property  which  is  exempt  from  seizure  by  creditors,  and  which, 
is  to  be  set  apart  for  the  use  of  the  widow  and  minor  children. 
But,  as  we  shall  have  occasion  to  point  out  hereafter,  all  the  per- 
sonal property  of  the  decedent,  whether  exempt  from  seizure  or 
otherwise,  passes  to  the  executor  or  administrator,  who  is  entitled 
to  its  possession  and  custody,  in  order  to  inventory  the  articles  and 
set  aside  those  which  are  exempt.  It  is  said  to  be  the  duty  of  such 
a  representative  to  make  an  inventory  of  the  personal  estate,  be- 
cause, first,  it  is  his  interest  that  he  should  know,  at  the  outset 
of  his  administration,  with  what  property  (and  so  far  as  possible 
its  value)  he  is  likely  to  be  charged  on  the  debtor  side,  when  he  is 
called  upon  to  make  up  his  account.  If  he  sees  fit  to  postpone  the 
ascertaining  of  the  sum  for  which  he  is  chargeable,  as  the  value 
of  the  personal  property  coming  into  his  hands,  until  he  is  called 
upon  to  account,  he  is  at  liberty  to  do  so,  unless  (and  this  is  the 
second  ground  of  duty),  he  is  called  upon  by  the  court,  at  the  in- 
stance of  some  party  interested,  to  make  and  file  an  inventory ; 
in  other  words,  the  making  and  filing  of  an  inventory  is  either 
voluntary  or  compulsory.  It  is  said,  however,  to  be  a  strong 
circumstance  to  show  improper  conduct,  that  the  representative 
failed  voluntarilv  to  make  and  return  an  inventorv.^ 


1  See  Co.  Civ.  Proc.  §  2514.  subd.  2.    62;    revd.    on   another   point,    1    Cow. 

2  Hart   V.   Ten   Eyck,   2   Johns.   Ch.    743. 

[383] 


§§  487-489.      Inventory  and  Appraisal  of  Assets.  384 

§  487.  Penalty  for  not  joining  in  inventory —  The  statute  ex- 
pressly provides,  however,  that  where  there  are  several  representa- 
tives (any  one  or  more  of  whom,  on  the  neglect  of  the  others,  may 
return  an  inventory)  those  of  them  who  so  neglect,  cannot  there- 
after interfere  with  the  administration,  or  have  any  power  over  the 
personal  estate  of  the  deceased ;  but  the  executor  or  administrator 
so  returning  an  inventory  has  the  whole  administration,  until  the 
delinquent  return  and  verify  an  inventory  as  provided  by  the 
statute.^ 

§  488.  Statutory  enumeration  of  assets. —  Whether  the  inventory 
is  made  voluntarily  or  on  compulsion,  the  statute  declares  that  cer- 
tain property,  enumerated  in  nine  distinct  classes,  shall  be  deemed 
assets,  and  shall  go  to  the  executors  or  administrators,  to  be  ap- 
plied and  distributed  as  part  of  the  personal  estate,  and  shall  be 
included  in  the  inventory.^  It  does  not  follow,  however,  that  no 
other  kinds  of  property  than  those  thus  enumerated  are  to  be  in- 
ventoried and  accounted  for  by  the  executor  or  administrator.  The 
revisers  of  the  original  statutes  reported  to  the  Legislature  that 
the  object  of  the  enumeration  was  to  apprise  executors,  etc.,  of  the 
description  of  property  which  was  committed  to  their  charge,  and 
to  settle  the  law  upon  some  disputed  points,  and  that  all  those 
articles  which  were  likely  to  occasion  doubt  were,  therefore,  enu- 
merated. The  present  design  is  to  consider  assets  only  with  refer- 
ence to  the  duty  of  the  representative,  at  the  outset  of  his  admin- 
istration, to  make  an  inventory  of  them,  and  to  cause  an  appraisal 
of  their  value.  Questions  as  to  the  nature  and  quantity  of  the 
representative's  estate,  what  property  is  distributable  by  him  and 
what  not, —  the  conversion,  in  equity,  of  real  property  into  money, 
and  of  money  into  real  property,  which  frequently  arise  during 
the  course  of  the  administration,  or  on  the  judicial  settlement  of  the 
representative's  accounts,  are  more  pertinent  to  subjects  treated  on 
subsequent  pages. 

§489.  Interests  in  land — The  first  three  classes,  which  require 
no  particular  comment,  embrace  certain  interests  in  the  lands  which 
do  not  amount  to  a  freehold,  and  which  are  designated  in  the  stat- 
ute to  be:  "  (1)  Leases  for  years ;  lands  held  by  the  deceased  from 
year  to  year ;  and  estates  held  by  him  for  the  life  of  another  per- 
son.    (2)  The  interest  remaining  in  the  deceased,  at  the  time  of 

•'5  Co.  Civ.  Proc,  §  271.5.  as  amended  4  Co.  Civ.  Proc.  §  2712,  as  amended 
189.3;  adopting  2  R.  S.  86.  §  23.  See  1893;  adopting  2  R.  S.  82,  §§  6,  1,  8. 
Jeroms  v.  Jeroms,  18  Barb.  24. 


385  Inventory  and  Appraisal  of  Assets.  §  490. 

his  death,  in  a  term  of  years,  after  the  expiration  of  any  estate 
for  years  therein,  granted  by  him  or  any  other  person.  (3)  The 
interest  in  hinds  devised  to  an  executor  for  a  term  of  years,  for 
the  payment  of  debts."  ^  The  interest  of  a  decedent  in  a  churcli- 
pe\v,  l)eino-  limited  and  nsiifnietiiary  merely,®  is  not  within  the 
statute,  but  is  real  estate  wliieh  the  heir  or  devisee  takcs.^  The 
proceeds  of  property  in  which  the  decedent  had  a  base  or  deter- 
minable fee  is  likewise  real  estate.^  But  where  the  decedent, 
shortly  before  his  death,  rented  premises  for  three  years,  by  parol, 
a  lease  being  drawn  but  not  sigried,  and  he  entered  and  made  im- 
provements, the  whole  term  is  an  asset. ^  And  where  jiremises 
are  leased  for  the  term  of  one  year  and  an  indefinite  period  there- 
after, at  an  annual  rent  wliieh  the  lessee  agrees  to  pay,  and  he 
enters  and  occupies  for  several  years,  he  is  the  owner  of  an  estate 
as  tenant  from  year  to  year,  which,  on  his  death,  passes  to  his 
personal  representatives,  who  hold  it  by  virtue  of  the  demise  to 
liim.^*^  The  law  treats  as  personal  property,  and,  therefore,  within 
the  power  of  the  representative,  any  interest  in  the  proceeds  of 
real  property,  which  was  sold  by  authority  of  law  before  the  de- 
cedent's death,  and  after  he  had  become  of  full  age.''^ 

§  490.  Fixtures. —  Fixtures  constitute  the  fourth  class  of  assets 
specified  in  the  statute ;  that  is,  "  things  annexed  to  the  freehold 
or  to  any  building,  for  the  purposes  of  trade  or  manufacture,  and 
not  fixed  into  the  wall  of  a  house  so  as  to  be  essential  to  its  sup- 
port." Except  fixtures  falling  within  this  description,  things  an- 
nexed to  the  freehold  or  to  any  building,  do  not  go  to  the  executor, 
but  pass  with  the  freehold  to  the  heirs  or  devisees.^^  Notwithstand- 
ing the  apparent  intention  of  the  Legislature  to  abolish,  by  this 
section,  the  well-established  distinction  between  the  rights  of  a 
tenant  to  remove  certain  kinds  of  fixtures  which  he  had  himself 
annexed  to  the  freehold,  and  those  of  the  heirs  or  devisees,  the 
courts  have  found  it  necessary  to  resort  to  the  principles  of  the 

5  Co.  Civ.  Proc,  §  2712,  as  amended  ton   v.    ^rcCov.   47    X.   Y.   21:    Sweezv 

1803.  V.   Thayer,   l' Duer.   286:    Foreman   v. 

<j  Froligh  V.  Piatt,  5  Cow.  494.     See  Foreman.  7  Barb.  215;  Davi.^on  v.  De 

Heenev  v.  St.  Peter's  Church.  2  Edw.  Freest.    3    Sandf.   Ch.   4.")6 :     Hoev    v. 

nOS:    Vielie   v.   Osgood.   8   Barb.    130;  Kinney,   10   Abb.   Pr.   400.     As  to  the 

Wheaton  v.  Gates,  IS  N.  Y.  30.t.  proceeds     of     a     partition     sale,     see 

7:\IcXabb  V.  Pond,  4  Bradf.  7.  Robinson  v.  McGregor,   10  Barb.  .531; 

SStillwcll  V.  ]\Ielrose.   1;>  TTnn,  378.  Shumwav  v.   Cooper,   id.   .556:   [Matter 

9  Green  v.  Green.  2  Redf.  408.  of   Gedn^v,    33    Misc.    160;    68   N.   Y. 

loPugsley  V.  Aikin.  11  N.  Y.  404.  Supp.  €,2i. 

11  See  Bogert  v.  Fnrnian,   10   Paige,        12  Co.  Civ.  Proc,  §  2712,  as  amended 

406:  Sweezey  v.  Willis.  1  Bradf.  405:  1893,  subds.  4  and  9. 
Cox  V.  McBurnev,  2  Sandf.  561;  Hor- 

25 


§  491.  Inventoey  and  Appraisal  of  Assets.  38 & 

common  law,  to  ascertain  what  is  a  substantial  part  of  the  free- 
hold and  what  is  a  thing  annexed  thereto  for  the  purpose  of  trade 
and  manufacture  ;^^  the  result  of  the  decision  being,  that  as  be- 
tween the  heir  and  the  personal  representative  of  the  decedent,  the 
rule  still  is,  that  whatever  is  annexed  or  affixed  to  the  freehold  bj 
being  let  into  the  soil  or  annexed  to  it,  or  to  some  erection  upon 
it,  to  be  habitually  used  there  —  particularly  if  for  the  purpose  of 
enjoying  the  realty,  or  some  profit  therefrom  —  is  a  part  of  the 
freehold,  and  goes  to  the  heir  or  devisee.-^'*  As  to  such  fixtures, 
the  rule  obtains  in  New  York,  as  elsewhere,  which  treats  as  identi- 
cal the  rights  of  heirs  and  personal  representatives,  grantor  and 
grantee,  and  mortgagor  and  mortgagee;  Avhile,  in  regard  to  certain 
annexations  for  purposes  of  trade  and  manufacture,  and  growing 
crops,  the  rule  is  the  same  in  the  case  of  the  heir  and  personal 
representative  as  in  that  of  landlord  and  tenant. -^^  In  applying 
this  distinction,  however,  it  is  to  be  observed  that  the  contract  un- 
der which  the  article  may  have  been  affixed  to  the  freehold,  or  the 
will  from  which  the  executor  derives  his  authority,  may  modify 
the  rights  of  the  parties  interested  in  the  estate. ^^ 

§  491.  Crops  and  produce. — The  statute  also  declares  that  "  the 
crops  growing  on  the  land  of  the  deceased  at  the  time  of  his  death,'^ 
and  "  every  kind  of  produce  raised  annually  by  labor  and  cultiva- 
tion, except  growing  grass  and  fruit  ungathered,"  shall  be  regarded 

13  House  V.  House,  10  Paige,  1.58;  15  For  illustrations  of  the  text,  see 
Ford  V.  Cobb,  20  N.  Y.  344 ;  Voorhees  the  cases  supra,  and  also  Murdock  v. 
V.  McGinnis.  48  id.  278;  McRea  v.  Gifford,  18  N.  Y.  28,  33:  Potter  v. 
Central  Nat.  Bank  of  Troy,  66  id.  489;  Cromwell,  40  id.  287;  Miller  v.  Plumb, 
Coey's  Estate,  1  Tuck.  125 ;  Livingston  0  Cow.  665;  Walker  v.  Sherman,  20 
V.  Sulzer,  19  Hun,  375;  McKeage  v.  Wend.  636;  Farrar  v.  Chauffetete,  5 
Hanover  Fire  Ins.  Co.,  16  id.  239;  Den.  527;  Vanderpoel  v.  Van  Allen, 
Wells  V.  Maples,   15  id.  90.  10   Barb.    157;    Laflin   v.    Griffiths.    35 

14  In  Buckley  v.  Buckley  (11  Barb.  id.  58;  Tabor  v.  Robinson.  36  id.  483; 
43),  it  was  accordingly  held,  that  all  Freeland  v.  Southworth,  24  Wend, 
erections     connected     with     a     cotton  191. 

factory  and   other   mills   propelled   by        16  In  Downing  v.  Marshall    ( 1  Abb. 

water     power,     including     the     dams,  Ct.    App.    Dec.    525 ) ,    the    court    ob- 

water    wheels    and    gearing,    and    ma-  served,    that,    although    it    might    be 

chinery    fastened    to    the    ground    or  true  that  a  testator  could  not  by  his 

buildings,   are   prima   facie  a  part  of  will  withdraw  fixtures  from  the  effect 

the   realty,   and   descend   to   the   heir,  of    the    statute,   Avhere   such    property 

and  do  not  pass  to  the  executor  or  ad-  was    necessary    to    pay    debts,    yet    it 

ministrator..      And     see    Lockwood    v.  seems    the    statute    did    not    interfere 

Lockwood,  3  Rcdf.  330.  336.     In  Hovey  Avith  the   right  of   the  testator   to  re- 

V.    Smith     (1    Barb.    372),    the    court  lieve  such  property  from  the  payment 

held,  that  whether  a  pump   and  pipe,  of  debts  or  distribution,  in  case  there 

balance  and  scales,  and   a  beer  pump  remained  other   property   sufficient  to 

were  annexed   to  the   freehold,   was  a  pay  the  debts,  though  it  might  be  dis- 

matter  of  fact  which  belonged  to  the  posed  of  in  specific  legacies. 
surrogate  to  decide. 


387  IXVENTORV    AND     Al'l'KAI.SAL    OF    AsSETS.  §402. 

as  assets,"  which  is  simply  declaratory  of  the  common  law.  A 
distinction  has  always  heen  taken  hetween  growing  crops  of  grain 
and  vegetables,  such  as  wheat,  corn,  and  potatoes,  the  annual 
produce  of  labor  in  the  cultivation  of  the  earth,  and  growing  trees, 
fruit,  and  grass,  the  natural  produce  of  the  earth,  which  grow 
spontaneously  and  without  cultivation.  The  former  have  always 
been  considered  to  be  chattels,  which  the  executor  is  entitled  to 
take;  while  the  latter  are,  until  severed,  parcel  of  the  land,  and 
descend  to  the  heir.^^  If  severed,  they  become  chattels,  though, 
t(i  liavi-  that  cflV'cr,  the  severance  need  not  be  an  actual  jihysical 
severance.  Thus,  a  valid  sale  of  growing  trees,  etc.,  to  one  having 
no  interest  in  the  land,  has,  in  law,  the  effect  to  sever  them  from 
the  land  ;  and,  in  that  case,  it  seems,  they  go  to  the  executors  of  the 
])urchaser,  as  personal  property.^^  But  where  land,  upon  which 
a  crop  of  wheat  is  growing,  is  devised  in  such  form  as  to  convey 
it  to  the  devisee,  the  crop  is  put  upon  the  footing  of  a  chattel 
specifically  bequeathed,  and  the  executor,  though  he  may  take  the 
crop  primarily  as  trustee  for  creditors,  cannot  sell  it  to  pay  general 
legacies ;  and  where  it  appears  that  there  are  no  creditors,  there 
being  no  longer  any  trust  purpose  to  serve,  the  whole  title,  legal 
and  equitable,  vests  in  the  devisee,  who  can  compel  a  delivery,  or 
in  case  it  has  been  converted  by  the  executor  or  any  other  person, 
may  maintain  an  action  to  recover  its  value. "^ 

§  492,  Rents. —  "  Rents  reserved  to  the  deceased,  which  had  ac- 
crued at  the  time  of  his  death,"  go  to  the  representative  as  assets, 
and  not  to  the  heir.^^  This  means  rents  which  had  become  due  to 
the  deceased,  and  were  payable  upon  or  before  his  death. ^"  If  the 
rent  was  not  only  accruing,  but  was  due,  before  the  decedent's 
death,  the  fact  that,  by  the  terms  of  the  contract,  the  time  of  pay- 
ment was  postponed  until  a  day  before  which  he  died,  does  not 


17  Co.  Civ.  Proc,  §  2712,  as  amended  of  Clemans.  29  id.  813:  0  X.  Y.  Supp. 

1803.  subds.   5,  6.     Growing  grass  be-  474. 

longs  to  the  heir  or  devisee,      (ilatter  21  Co.  Civ.  Proc.,  5  2712,  as  amended 

of  Chamberlain.  140  X.  Y.  300:  .5.5  St.  1803,  subd.  7.     Sums  due  a  lessee  for 

Rep.   665.)  the  storage  of  goods,  on  the  premises 

IS  Bank   of  Lansingburgh   v.   Crarv,  leased,  are  distributable  assets.     fHar- 

1  Barb.  544;  Kain  v.  Fisher,  6  N.  Y.  ris   v.    Meyer,    3    Redf.    450.)       As    to 

507.  rents  from  lands  held  under  lease  from 

l9^Yarren   v.    Leland.    2    Barb.    613.  the  Indians,  see  Matter  of  McKay,  33 

And  see  :\rclntvre  v.  Barnard,  1  Sandf.  :Misc.  520:  68  X.  Y.  Supp.  025. 

Ch.  52.              "  22  Marshall    v.    Moselev,    21    X.    Y. 

20  Stall    v.    ^Yilbur,    77    X.    Y.    158;  280:   :Matter  of  Foulds.  .35  Misc.   171; 

Rradner  v.  Faulkner,  34  id.  347:  Mat-  71  X.  Y.  Supp.  473.     Compare  1  R.  S. 

ter  of  Kick,   11   St.  Rep.  088;   Matter  747,  §  21:  Kohler  v.  Knapp,  1  Bradf. 

241.     See  §  532.  post. 


§493. 


Inventory  and  Appraisal  of  Assets. 


388 


affect  the  executor's  riglit  to  take  the  rent.^^  As  rents  of  land, 
due  and  payable  after  decedent's  death,  go,  according  to  the  com- 
mon law,  to  the  heir  or  devisee,  they  are  not  assets  to  be  inventoried 
by  the  representative.  This  rule  has  not  been  affected  by  the  stat- 
ute^* which  provides  for  tiie  apportionment  of  rents  upon  the  de- 
termination of  an  estate  in  lands;  the  object  of  that  statute  being 
not  to  apportion  rents  between  those  entitled  to  take  the  real  and 
those  entitled  to  take  the  personal  estate,  but  to  apportion  them 
between  successive  takers  of  the  realty.^^  Consequently  an  exec- 
utor cannot  maintain  an  action  against  a  lessee  for  a  portion  of 
rent  reserved  to  his  testator  which  had  not  accrued,  i.  e.,  had  not 
become  due,  at  the  time  of  the  latter's  death. ^^ 

§  493.  Things  in  action  and  other  property. — ''  Debts  secured  by 
mortgage,  bonds,  notes,  or  bills ;  accounts,  money,^^  and  bank  bills, 
or  other  circulating  medium,  things  in  action,  and  stock  in  any 
corporation  or  joint-stock  association,"  ^*  and  "  goods,  wares,  mer- 
chandise, utensils,  furniture,  cattle,  provisions,  moneys  unpaid 
on  contracts  for  the  sale  of  lands,^^  and  every  other  species  of  per- 


23  Wadsworth  v.  Allcott,  6  N.  Y.  64. 

24  L.  187.5,  c.  542;  now  (1893)  made 
Co.  Civ.  Proc,  §  2720.  As  carried 
into  the  Code,  the  original  statute 
was  amended,  by  adding,  that  "  this 
section  shall  not  apply  to  any  case  in 
which  it  shall  be  expressly  stipulated 
that  no  apportionment  be  made,  or  to 
any  sums  made  payable  in  policies  of 
insurance  of  any  description."  See  L. 
180G,  c.  547,  §  192.  Under  the  Eng- 
lish statute,  from  which  our  own  is 
copied,  the  words  "  expressly  stipu- 
lated," as  applied  in  a  will,  have  been 
held  to  require  either  an  express  di- 
rection that  there  shall  be  no  appor- 
tionment, or  language  so  express  in 
the  terms  of  the  gift  that  apportion- 
ment is  clearly  impossible,  consistently 
with  it.  Inference  from  the  whole 
tenor  and  context  of  the  will  is  not 
sufficient.  (Tyrell  v.  Clark,  2  Drew. 
86.) 

25  Matter  of  Weeks,  5  Dem.  194; 
disapproving  Matter  of  Eddy,  10  Abb. 
N.  C.  396.  But  compare,  to  the  con- 
trary, Miller  v.  Crawford,  26  id.  376; 
16  N.  Y.  Supp.  358. 

2f!Niles  V.  Chace,  29  Hun,  200.  In 
that  case,  the  tenant  was  the  de\Tsee 
of  the  premises.  The  court  adds: 
"  Very  possibly,  in  such  a  case,  upon 
a  complaint  properly  framed,  an  ac- 
tion might  be  maintained  by  the  exec- 


utor against  the  heir  or  devisee  who 
had  been  tenant  of  the  deceased." 

27  As  to  moneys  deposited  by  de- 
cedent in  trust.  (Matter  of  Snyder, 
37  Misc.  59:  74  N.  Y.  Supp.  832.) 
Joint  deposits  in  name  of  decedent 
and  another.  (Matter  of  Lent,  1 
Misc.  264:  22  K  Y.  Supp.  917.) 
Moneys  given  to  the  wife  at  the  time 
of  her  husband's  death  must  be  treated 
as  part  of  his  estate,  in  the  absence 
of  proof  as  to  the  reason  for  such 
payment  or  the  purpose  for  which 
they  were  received  and  used.  (Matter 
of  .James,  78  Hun,  121;  28  N.  Y.  Supp. 
992;  affd.,  146  N.  Y.  78.)  As  to 
moneys  deposited  by  executor  in  tes- 
tator's bank  account  and  subsequently 
withdrawn  in  his  representative  ca- 
pacity, see  flatter  of  Shipman,  82 
Hun,    108;    31   N.  Y.    Supp.    571. 

28  As  to  apportionment  of  dividends, 
see  Co.  Civ.  Proc,  §  2620;  Matter  of 
Kane,  64  App.  Div.  566;  72  N.  Y. 
Supp.   333. 

29  The  price  of  land  contracted  to 
be  sold  by  a  decedent,  but  not  received 
by  him  before  his  death,  goes  to  the 
representative,  and  not  to  the  heir  or 
devisee.  On  the  other  hand,  a  vendee's 
interest  in  an  executory  contract  for 
the  purchase  of  lands  is  real  estate, 
and  at  his  death  passes  to  his  heirs. 
(Palmer  v.  Morrison,  104  N.  Y.  132.) 


389  IXVKXTOKV    AXD   Al'l'UAiSAL    OF    AsSETS.        §§  494,  495. 

sonal  property  and  effects,  not  hereinafter  excepted,"  are  also  de- 
clared by  tlie  statute  to  be  personal  assets.^*^ 

§  494.  The  appraisal. — ■  For  the  purpose  of  completing  the  inven- 
tory, the  surrogate  must,  upon  application  of  the  executor  or  ad- 
ministrator, as  often  as  occasion  recpiires,  appoint  two  disinterested 
aj)praisers  to  estimate  apd  appraise  the  personal  property.^^  Each 
a])praiser  is  entitled,  in  addition  to  his  actual  expenses,  to  a  sum, 
to  be  fixed  by  the  surrogate,  not  exceeding  five  dollars  for  each 
day  actually  and  necessarily  occupied  by  him  in  making  the  ap- 
praisal.^^ The  number  of  days'  services,  and  the  expenses,  if  any, 
must  be  proved  by  the  affidavit  of  the  appraiser  ;  and  the  sums  pay- 
able therefor  taxed  by  the  surrogate,  and  paid  by  the  executor  or 
administrator.^^  The  appraisement  cannot  be  made  until  after  five 
days'  notice  of  the  time  and  place  of  making  it  shall  have  been 
served  on  the  legatees  and  next  of  kin  residing  in  the  county  where 
the  property  to  be  appraised  is  situated,  and  the  notice  must  also 
be  posted  in  three  of  the  most  public  places  in  the  town.^^  Service 
of  the  notice  may  be  either  personal  or  by  mail,  but  in  the  latter 
event,  ten  days'  notice  of  the  appraisal  must  be  given.''^  An  ap- 
praisement made  without  the  previous  posting  of  notice  thereof, 
is  invalid,  vitiates  the  inventory,  and  entitles  the  appraiser  co  no 
fees.^^  If  the  assets  arc  in  several  different  and  distant  places 
within  the  State,  several  inventories  may  be  made.  Before  acting, 
the  appraisers  must  take  and  subscribe,  before  any  officer  author- 
ized to  administer  oaths,  an  oath,  inserted  in  the  inventory,  that 
they  will  truly,  honestly,  and  impartially  appraise  the  personal 
property,  which  shall  be  exhibited  to  them,  according  to  the  best 
of  their  knowledge  and  ability.  The  appraisal  of  the  property  in 
the  inventory  must  be  made  in  ])rosence  of  such  of  the  next  of  kin, 
legatees,  or  creditors  as  may  attend. ^^ 

§  495.  Contents  of  inventory. —  A  convenient  method  of  enumera- 
tion is  to  designate  the  articles  in  successive  classes:  first,  those,  if 

-•^Co.  Civ.  Proc,  §  2712.  as  amended  ter   how  large   the  estate,   to   demand 

1S(I3.  subds.  8  and  9.     The  exceptions  or   receive  more   than  the  statute   al- 

roferred    to    are    "  things    annexed    to  lows,     unless    the     parties     interested 

tlic  freehold,"  etc.  consent.      (Matter  of  Harriot,   145  N. 

31  Co.  Civ.  Proc,  §  2711.  as  amended  Y.  o40 ;  G.5  St.  Rep.  .528.) 
1S93.  adopting  2  R.  S.  82.  §§   l-,5.  as        33  Co.  Civ.  Proc,  §  2565. 
innonded  hy  L.  187.3,  c.  225.  §  1.     The        34  Co.  Civ.  Proc,  §  2711,  as  amended 
clause  in  the  latter  act  that  no  clerk  1893. 

or  other  person  employed  in  the  sur-  35  Co.  Civ.  Proc,  §  2711,  as  amended 

rogate  s  olHco  was  eligible,  is  dropped  1901;   id.,   8§   797.  subd.   1,  798. 

out   of   the   statute   as   transferred   to  3(i  Salomon  v.   Heichel.  4  Dem.    17t>. 

the  Code,  and  the  statute  is  repealed.  37  Co.  Civ.  Proc,  §  2711,  as  amended 

32  Appraisers  have  no  right,  no  mat-  1893. 


§  496.  Inventory  and  Appeaisal  of  Assets.  390 

any,  which,  by  the  statute,  are  absohitely  exempt;  then,  in  a  sec- 
ond class,  the  articles  which  it  is  proposed  the  appraisers  shall 
set  apart  as  allowable,  in  their  discretion,  upon  their  valuation ; 
then,  thirdly,  assets  consisting  of  things  in  possession  having  an 
ascertainable  money  value.  After  these,  things  in  action  which  are 
supposed  to  be  good  and  collectible ;  and,  lastly,  bad  debts  and  other 
things  in  action  or  in  possession,  which  have  no  ascertainable 
value.  Each  article  must  be  set  down  separately,  with  its  money 
value,  distinctly  in  figures,  opposite.^^  If  the  value  is  unknown  or 
doubtful,  it  should  be  so  stated.  The  surrogate  has  no  authority, 
under  the  statute,  to  direct  the  appraisers  as  to  the  manner  in 
which  they  shall  estimate  the  value  of  the  property ;  and  there  is 
no  requirement  that  the  representative  shall  make  any  estimate  of 
the  value  of  the  property  inventoried.^^  The  representative  must 
act  upon  his  own  responsibility  in  this  regard ;  the  statute  does  not 
contemplate  any  interference  by  legatees  or  next  of  kin  with  this 
action  which,  aided  by  appraisers,  he  is  required  to  take.  Conse- 
quently, an  application  by  interested  parties  for  an  order  direct- 
ing the  representative  to  produce  certain  papers  for  the  informa- 
tion of  the  appraisers,  will  not  be  granted.  The  proper  practice 
in  preparing  an  inventory  is  to  postpone,  until  an  accounting,  all 
disputed  questions  respecting  the  existence  or  valuation  of  a  de- 
cedent's assets.'*^ 

In  respect  to  things  in  action,  the  statute  requires  a  particular 
statement  of  all  bonds,  mortgages,  notes,  and  other  securities  for 
the  payment  of  money,  belonging  to  the  deceased,  which  are  known 
to  the  executor  or  administrator,  specifying  the  name  of  the  debtor 
in  each  security,  the  date,  the  sum  originally  payable,  the  indorse- 
ments thereon,  if  any,  with  their  dates,  and  the  sum  which,  in 
the  judgment  of  the  appraisers,  may  be  collectible  on  each.  All 
moneys  in  whatever  form,  whether  in  specie  or  bank  bills,  or  other 
circulating  medium,  belonging  to  the  deceased,  Avhich  have  come 
to  the  hands  of  the  representative,  must  be  included ;  and  if  none 
shall  have  come  to  his  hands,  the  fact  must  be  so  stated.'*^ 

§  496.  Representative's  debt  to  decedent. —  The  statute  expressly 
directs  that  any  claim  which  the  deceased  had  against  the  executor 
or  administrator  himself  (unless,  of  course,  it  be  one  which  abated 
by  death),  must  be  included  in  the  inventory.     A  testator  does  not, 

38  Co.  Civ.  Proc,  §  2711,  as  amended  Proc.  Rep.  231;  Matter  of  Goundry, 
1893;  2  R.  S.  83,  §  5.  57  App.  Div.  232;   08  N.  Y.  Supp.  155. 

39  Matter  of  McCaffrey,  50  Hun,  371.        41  Co.  Civ.  Proc.  §  2714.  as  amended 
40Vogel  V.   Arbogast.   4   Dem.    399;     1893;   adopting  2  R.  S.  84,  §§  11,  12. 

s.   c.   as   Estate   of  Arbogast,   9   Civ. 


:391  Inventory  and  Ai-pkaisal  of  Assets.      §§  497,  498. 

by  naming  his  debtor  as  executor,  discharge  any  just  claim  he  had, 
but  the  executor  is  liable  for  it,  as  so  much  money  in  his  hands, 
at  the  time  the  demand  becomes  due;  and  must  apply  the  amount 
as  assets.'*^  And  if  the  testator  has  by  his  ^^^ll  given,  a  discharge 
of  a  debt  due  liim,  or  bequeathed  it  to  the  debtor,  this  can  take 
■effect  only  as  a  specific  bequest;  and  cannot  avail  as  against  cred- 
itors. The  demand  must  be  included  in  the  inventory,  and,  if 
necessary  for  the  payment  of  debts,  will  be  collected  and  applied; 
if  not  necessary  for  that  purpose,  the  provision  of  the  will  will 
have  effect  as  a  specific  legacy,  in  the  same  manner  and  propor- 
tion as  other  specific  legacies.'*^  Where  an  intent  is  manifested, 
on  the  face  of  the  will,  that  a  clahn  against  an  executor  is  to  be 
enforced  only  V)v  a  deduction  from  a  bequest  to  his  wife,  he  is  not 
chargeable  with  it  as  assets.^'* 

§  497.  Foreign  assets. —  These  may  be  included,  and  the  executor 
may  be  conqiellod  to  include  them  in  his  inventory,  although  they 
are  subject  to  administration  in  the  foreign  jurisdiction.*^  But  an 
executor  appointed  exclusively  to  administer  property  in  this  State 
is  only  bound  to  account  for  such  property  as  is  situated  here,  and 
is  not  chargeable  with,  or  liable  to  account  for,  the  property  of  the 
testator  situated  without  this  State,  and  which  never  came  into  his 
actual  possession,  nor  is  he  bound  to  enter  such  property  upon  the 
inventory  filed  by  him  liere.^^ 

§  498.  Return  of  inventory. —  Duplicates  of  the  inventory  must 
be  made  and  signed  by  the  appraisers,  one  of  which  must  be  re- 
tained by  the  executor  or  administrator,  and  the  other  returned 
to  the  surrogate  within  three  months  from  the  date  of  the  letters. 
On  returning  such  inventory,  the  executor  or  administrator  must 
take  and  subscribe  an  oath,  indorsed  upon  or  annexed  to  the  in- 
ventory, stating  that  the  inventory  is  in  all  respects  just  and  true, 
that  it  contains  a  true  statement  of  all  the  personal  property  of 
the  deceased  which  has  come  to  his  knowledge,  and  particularly 
of  all  money,  bank  bills,  and  other  circulating  medium  boL^nging 
to  the  deceased,  and  of  all  just  claims  of  the  deceased  against  him. 


42  Co.  Civ.  Proc,  §  2714.  as  amendod  man  v.  Freeman.  4  Redf.  211  :   Decker 

1803:  adoptino:  2  R.  S.  S4.  §  13:  Decker  v.    Miller.    2    Pai^e.     140;     Baucus    v, 

V.    Miller.    2    Paijre.    140.      Before    the  Stover.  80  N.  Y.   1. 

statute,   the  appointment   of  a   person  •*•*  Stevens  v.  Stevens.  2  Redf.  20.5. 

as  executor  discliarped  a  debt  due  from  -to  Matter  of  Butler,  38  X.  Y.  307  :   1 

him  to  the  testator.  Tuck.  87. 

•*■■' Co.  Civ.  Proc  §  2714,  as  amended  •»'' Sherman    v.    Page,    21    Hun,    59; 

1803:  adoptinfj  2  R.  S.  84,  §   14.     See  affd.,  85  N.  Y.   123. 
Adair  v.  Brimmer,  74  N.  Y.  540;  Free- 


§8  400,  500.        IXVEXTORY    AND   APPRAISAL    OF   AsSETS.  392 

according  to  tlie  best  of  his  knowledge.'^'  The  inventory  may  be 
corrected  at  any  time  before  it  is  filed  by  inserting  or  striking 
out  an  item  which  may  have  been  omitted  or  included  by  mistake."*'^ 

§  499.  Supplemental  inventory. —  Whenever  personal  property  or 
assets  of  any  kind,  not  mentioned  in  an  inventory  already  made, 
come  to  the  possession  or  knowledge  of  an  executor  or  administra- 
tor, he  must  cause  such  property  to  be  appraised  in  the  manner 
before  described,  and  an  inventory  returned  within  two  months 
after  the  discovery,  and  the  making  of  the  inventory  and  return 
may  be  enforced  in  the  same  manner  as  in  the  case  of  the  first 
inventory.  ^^ 

TITLE  SECOXD. 

COMPELLINO  RETURN  OF  INVENTORY. 

§  500.  Application  and  order  to  show  cause. —  A  creditor,  or  per- 
son interested  in  the  estate,  may  present  to  the  Surrogate's  Courts 
proof  by  affidavit,  that  an  executor  or  administrator  (including  a 
temporary  administrator)^^  has  failed  to  return  an  inventory,  or 
a  sufficient  inventory,  Avithin  three  months  from  the  date  of  his 
letters.  Thereupon,  if  the  surrogate  is  satisfied  that  the  executor 
or  administrator  is  in  default,  he  must  make  an  order  requiring 
the  delinquent  to  return  the  inventor\",  or  a  further  inventory;  or, 
in  default  thereof,  to  show  cause,  at  a  time  and  place  therein 
specified,  why  he  should  not  be  attached. ^^  The  petitioner,  if  a 
creditor,  must  either  distinctly  declare  himself  to  be  such  a  cred- 
itor, or  set  forth  facts  showing  that  he  is  entitled  in  that  char- 
acter.^^    It   seems  to  be   clear   that  where   no  person  interested 


47  Co.  Civ.  Proc,  §  2715,  as  amended  section  2715.     This  section  confers  no 

1893;   adopting  2  R.   S.  84,   §§   15.  16.  new    power    on    the    surrogate,    but    is 

An  unverified  list  of  assets  cannot  be  merely  declaratory  of   the  law   as  al- 

treated    as   an   inventory    (Loesche   v.  ready    adjudged.       (Matter    of    Mcln- 

Griffin,  3  Dem.  358)  ;  although  a  veri-  tyre,    4    Redf.    489.)      A   request   in   a 

fied   statement,   if   accompanied  by  an  codicil   that  "  my  executors  and   trus- 

appraisal,    may   be    deemed    sufficient:  tees  be  not  obliged  or  compelled  to  file 

ard  such  an  appraisal  may  be  had  even  with   the   surrogate   any   inventory    of 

without    actual    insnection    of    assets,  my  estate"  is  against   public   policy: 

(Silverbrandt    v.    Widmayer,    2    Dem,  the  clause  is  invalid  and  of  no  effect. 

2fi3.)  So    held    on    appMcation    for    probate. 

•ts  Matter  of  Pa vne.  78  Hun,  292 :  28  (Potter    v.    McAlpine,    3    Dem.    108:) 

X.  Y.  Sunn.  nil:"affd..  151  X.  Y.  054.  See  Brainerd  v.  Bird.sall.  2  id.   331. 

49  Co.  Civ.  Proc.  §  2714,  as  amended  52  Pendle  v.  Waite,  3  Dem.  261. 
1893:   adopting  2  R.   S.  86,   §  24.  Although    a    surrogate   may   not   have 

50  Co.  Civ.  Proc  §  2672.  third  sen-  jurisdiction  to  decide  a  disputed  claim, 
tence;  Matter  of  Gartner,  2  Law  Bui.  he  must  grant  an  order  for  an  inven- 
76,  tory  to  a  creditor,  on  proof  that  one 

51  Co.  Civ  Proc,  §  2716.  as  amended  has  not  been  made  -within  thp  time 
1893,  in  part;   being  part  of  former  prescribed.       (Creamer    v.    Waller,    2 


393  IXVEXTOKV    AND     Al'l'liAISAL    OF    A.SSETS.        §§  501,  502. 

makes  the  application,  it  is  within  the  power  of  the  surrogate  to^ 
jjroeced  to  compel  a  return,  on  his  b\vn  motion.^' 

§  501.  Application,  when  to  be  made. —  There  is  no  fixed  limit 
within  which  the  application  must  he  made,  after  a  failure  to  vol- 
untarily return  an  inventory;  but  after  a  sufficient  lapse  of  time 
a  presumption  arises  that  the  estate  has  been  properly  adminis- 
tered. The  lapse  of  thirty  years  affords  such  a  presumption,  and 
the  application  in  such  a  case  was  accordingly  denied.^'*  The  stat- 
ute does  not  state  how  many  days  before  its  return  the  order  must 
be  served,  nor  when  it  is  to  l)e  returnable,  but  the  form  of  the 
order  will  be  such  as  to  allow  the  necessary  steps  to  be  taken  for 
the  appointment  of  appraisers,  the  notice  of  the  appraisal,  and 
other  proceedings  for  the  completion  of  the  inventory  before  the 
return  day. 

«5  502.  Punishment  for  contempt  for  disobeying  order. —  The  stat- 
ute directs  that  "  upon  the  return  of  the  order,"  which  of  course 
implies  proof  of  due  ser^dce  thereof,  "  if  the  delinquent  has  not 
tiled  a  sufficient  inventory,  the  surrogate  must  issue  a  warrant  of 
iittachmcnt  against  him,  upon  w^hich  the  proceedings  are  the  same 
as  upon  a  warrant  issued  for  disobedience  to  an  order,  as  pre- 
scribed in  title  twelfth,  of  chapter  seventeenth,  of  "  the  Code  of 
Civil  Procedure. ^^     The  order  requiring  the  respondent  to  make 

Dem.  .3.51.)  See  Co.  Civ.  Proe..  S  2.il4,  The  proper  construction  of  this 
subd.  11.  He  may  properly  investi-  (lause  is  somewhat  obscure.  The 
gate  the  status  of  the  petitioner  be-  title  mentioned  is  that  relating  to- 
fore  proceeding  with  the  merits.  "  proceedings  supplementary  to  an. 
(Matter  of  Comins,  9  App.  Div.  492;  execution  against  property."  It  may 
41  X.  Y.  Supp.  323.)  As  to  the  right  be  presumed  that  the  reference  is  to 
of  an  illegitimate  child,  whose  parents  the  section  of  the  Code  which  pro- 
intermarried  prior  to  the  Domestic  vides  that  a  person  who  refuses,  or, 
Relations  Law.  to  apply,  see  flatter  without  good  cause,  neglects,  to  obey 
of  Barringer,  29  Misc.  4.")7 ;  (11  X.  Y.  an  order  therein  specified,  may  be 
Supp.  lOOO.  punished  as  for  a  contempt,  although 
5-3  Thomson  v.  Thomson.  1  Bradf.  24.  it  may  be  argued  that  the  reference 
s-l  Thomson  v.  Thomson,  1  Bradf.  24.  is  to  section  2440.  which  authorizes 
See  also  Leroy  v.  Bayard,  3  id.  228.  an  immediate  commitment.  (Co.  Civ. 
In  Matter  of  Wetmore  (X.  Y.  Law  J.,  Proc,  §  2457.)  It  is  difficult,  how- 
Feb.  28.  1893).  the  surrogate  held  that  ever,  to  understand  why  reference  was 
the  receiver  of  the  property  of  a  not  made  directly  to  title  third,  of 
legatee  was  a  party  interested  in  the  chapter  17,  which  treats  of  proceed- 
estate  of  decedent,  and  as  such  enti-  ings  to  punish  as  for  a  contempt  of 
tied  to  institute  the  proceeding.  It  ap-  court.  The  doubt  is  increased  by  the 
pearing,  however,  that  the  estate  was  fact  that  the  original  draft  of  the 
distributed  by  the  executors  in  the  section  contained  the  clause  in  ques- 
course  of  administration  long  previ-  tion,  as  framed  by  the  revision 
•  Ills  to  the  ai)p<)intnient  of  the  receiver,  commissioners,  did  refer  to  the  last- 
the  application  to  compel  the  exec-  named  title  (first  draft  of  Rev.  Stat., 
utors  to  file  an  inventory  was  denied.  S  2493).  Again,  by  section  2440  of 
•'^'•"' Co.  Civ.  i'roc,  §  271tt,  as  amended  the  Code,  also  contained  in  c.  17. 
1893;   formerly  section  2715,  in   part.  tit.    12,   it   is   provided   that   where   a 


§  503.  Invextory  and  Appraisal  of  Assets.  394 

a  return,  or  show  cause  why  he  should  not  be  attached,  is  one  of 
those  mandates  which  must  be  issued  as  the  result  of  a  judicial 
determination,  and  not  one  which  can  be  properly  issued,  as  of 
course,  by  the  clerk  of  the  court;  it  must  be  personally  served 
upon  the  delinquent/''*'' 

§  503.  Excusing  failure  to  return  inventory. — It  is  no  excuse  for 
failing  to  make  and  return  an  inventory  that  the  assets  have  no 
present  existence,  that  is,  have  been  disposed  of  by  the  repre- 
sentative;^^ nor  is  it  an  answer  to  the  application  to  compel  the 
return  of  an  inventory  that  the  representative  has  assets  largely 
in  excess  of  the  debts  of  decedent,  and  that  he  offers  to  give  secu- 
rity for  the  payment  of  any  debts :  or  that  it  would  be  troublesome 
and  expensive  to  make  an  inventory:  or  to  allege  that  the  peti- 
tioner is  actuated  by  curiosity  and  a  design  to  abuse  the  process 
of  the  court. ^^  It  is,  however,  a  good  answer  that  the  petitioner 
has  released  his  interest,  or  has  waived  his  right;^^  for  notwith- 
standing the  mandatory  words  of  the  section,  the  court  is  not  de- 
prived of  discretion  and  the  power  to  pass  upon  the  right  of  the 
petitioner  to  demand  an  inventory.  It  is  its  duty  to  deny  the 
application,  where  it  appears  that  the  petitioner  is  not,  on  the 
face  of  the  proceedings,  entitled  to  the  order, —  as  where  it  ap- 

judgment  debtor  has  been  ordered  to  of  the  former  were  explicit  and  direct, 
give  an  undertaking,  "  if  he  fails  to  the  better  opinion  was  that  they  must 
comply  with  the  order,  the  judge  may  prevail,  and  the  commitment  issue  at 
forthwith,  by  warrant,  commit  him  to  once,  without  any  opportunity  for  the 
prison,  there  to  remain  until  the  close  executor  to  excuse  his  alleged  neglect, 
of  the  examination,  or  the  giving  of  But  now,  it  would  seem,  reference 
the  required  undertaking." — ■  which  must  be  had  to  the  provisions  of  the 
bears  a  striking  resemblance  to  the  new  Code  prescribing  the  proceedings 
portion  of  the  Revised  Statutes  for  where  a  warrant  of  attachment  issues 
which  the  clause  is  a  substitute,  to  punish  for  a  contempt, 
viz.:  "the  surrogate  shall  issue  an  56  \Yhite  v.  Lewis.  3  Dem.  170. 
attachment  against  him,  and  com-  57  Silverbrandt  v.  Widmayer,  2  Dem. 
mit  him  to  the  common  jail  of  the  263.  It  had  been  held,  before  this 
county,  there  to  remain  until  he  shall  decision,  that  no  appraisal  was  pos- 
return  such  inventory."  (2  R.  S.  85,  sible  in  such  a  case:  that  where  an 
■§  17.)  The  note  of  Mr.  Commissioner  administratrix,  without  filing  an  in- 
Throop,  to  section  2715  of  the  Code,  ventory,  had  disposed  of  all  the  assets 
states  that  the  purpose  of  the  clause  of  the  estate,  in  the  payment  of  funeral 
was  "  to  apply  to  the  proceed-  expenses  and  debts,  she  could  not  be 
ings  the  ordinary  rules  applicable  compelled  to  file  a  statutory  inven- 
±o  cases  of  contempt."  There  was  an  tory;  and  the  only  remedy,  in  such  a 
inconsistency  between  the  provisions  case,  was  to  require  her  to  make,  un- 
of  the  original  clause  and  the  general  der  oath,  a  statement  of  the  property 
provisions  of  the  statute  in  regard  to  that  came  into  her  hands,  its  value 
attachments  issuing  from  the  Surro-  and  its  disposition,  and  what  had  be- 
gate's  Court,  which  provided  for  the  come  of  the  proceeds.  (Matter  of  Rob- 
delinquent  being  brought  before  the  bin-;,  4  Redf.  144.) 
court  to  answer  for  his  alleged  dis-  58  Forsyth  v.  Burr.  37  Barb.  540. 
obedience,  instead  of  being  committed  59  Matter  of  Barnes,  1  Civ.  Proc. 
to  jail  at  once.    But.  as  the  directions  Rep.  59. 


395  IXVKNTORY    AM)    Al'l'KAISAI.    OF    AsSKTS.  §  503. 

pears,  on  the  petition  of  the  administrator  of  a  deceased  legatee, 
that  the  latter,  in  his  lifetime,  had  received  his  legacy,  and  exe- 
cuted a  release.*^  So  where  all  the  parties  interested  were  of  full 
age,  and  one  of  them,  with  the  assent  of  the  others,  undertook  to 
administer  upon  the  estate  without  the  issuing  of  letters  of  admin- 
istration, which  he  did  l)y  settling  all  claims  against  the  estate, 
and  stating  an  account  and  (]istril)uting  the  l)alance  shown  to  be 
on  hand  for  distribution,  and  each  of  the  other  parties  interested 
took  his  share;  in  such  a  case  no  one  of  them  can,  therefore,  claim, 
through  a  formal  administration,  an  inventory  and  a  new  distribu- 
tion.*'^ Where  the  application  is  to  compel  the  filing  of  a  further 
inventory,  and  the  representative  denies  the  existence  of  further 
assets,  the  application  will  be  refused,^^  inasmuch  as  the  court  has 
no  power  to  require  the  examination  of  parties  or  witnesses  for 
the  purpose  of  testing  the  correctness  of  the  inventory  as  returned ; 
any  errors  therein  must  be  corrected  on  a  future  accounting.*'' 
I  do  not  understand  by  this  that  the  court  is  without  power  to 
correct  an  inventory  which  is  insufficient  either  in  form  or  in 
substance.  It  is  not  only  the  return  of  some  inventory,  but  the 
return  of  "  a  sufficient  inventory  "  which  the  court  is  authorized 
to  compel,  and  what  is  a  sufficient  inventory  in  a  particular  case 
depends  upon  the  facts  of  that  case.  When  the  fact  of  insuffi- 
ciency does  not  appear  on  the  face  of  the  inventory,  it  is  difficult 
to  understand  why  the  court  may  not  take  proof  of  extrinsic  facts, 
with  a  view  of  ascertaining  whether  an  allegation  of  insufficiency 
is  supported.*''*     The  original  statute  expressly  permitted  the  sur- 

60  Matter  of  Wao^ner,  119  X.  Y.  28;  claiming  the  bonds  as  his  own. 
28  St.  Rep.  266.  Compare  Schmidt  v.  (Young  v.  Young.  5  Week.  Dig.  109.) 
Heusner,  4  Dem.  275;  Matter  of  «•"?  Vogel  v.  Arbogast.  4  Dem.  399; 
Barnes,   1   Civ.  Proc.   Rep.   59.  9  Civ.  Proc.  Rep.  231 :   Matter  of  ilc- 

eiLedyard    v.    Bull.    119   N.   Y.    62.    Intyre.  supra. 
See   Weatherwax    v.    Shields.   45   App.       64  Under  the  Revised  Statutes,  which 
Div.   109:   61  N.  Y.  Supp.  594.  contained    nothing    with    reference    to 

62  Matter  of  ilclntyre,  4  Redf.  489.  the  court's  power  to  amend  ar  inven- 
The  surrogate,  upon  an  application  of  tory.  it  was  held  that  the  surrogate 
this  kind,  has  no  power  to  determine  inight  require  an  executor  or  admin- 
the  ownership  (if  property,  the  title  to  istrator  to  show  cause  why  the  inven- 
which  is  disputed.  Accordingly,  where  tory  tiled  should  not  be  amended,  and 
the  applicant  seeks  to  have  inserted,  in  a  proper  case  —  c.  g..  where  no  ex- 
in  an  inventory  filed,  property  which  emption  was  made  of  articles  for  the 
the  executor  claims  as  belonging  to  widow's  use  —  he  might  order  the  in- 
hinisolf,  the  motion  should  be  denied,  ventory  to  be  amended.  This  power 
(Greenhough  v.  Greenhough.  5  Redf.  was  not  derived  from  the  provisions 
191.)  To  the  same  effect,  Matter  of  of  the  statutes  specially  relating  to  the 
Goundry.  57  App.  Div.  232 :  68  N.  Y.  return  of  inventories,  but  from  the 
Supp.  155.  And  a  surrogate's  order,  clauses  thereof  which  authorized  sur- 
directing  an  administrator  to  inven-  rogates  to  direct  and  control  the  con- 
tory  certain  bonds  as  assets  of  the  duct,  and  settle  the  accounts,  of  exec- 
€Btate,  does  not  estop  the  latter  from   utors  and  administrators,  and  to  ad- 


§§  504-506.        I.\VE>-TORY    AND    APPRAISAL    OF    AsSETS.  39& 

rogate  to  grant,  for  reasonable  cause,  to  an  executor  or  administra- 
tor in  default,  ''  further  time,  not  exceeding  four  months,"  within 
which  to  return  the  inventory.  Though  this  provision  is  omitted 
from  the  jiresent  statute,  there  is  no  reason  to  doubt  the  power  of 
the  court  to  grant  further  time,  in  a  proper  case. 

g  504.  Costs. —  The  surrogate  may,  in  his  discretion,  award  costs- 
to  any  party  to  the  proceeding,  not  exceeding  ten  dollars,  besides 
necessary  disbursements,  if  any,  for  printing  and  referee's  fees;^ 
but  in  Xew  York  county  the  matter  is  governed  by  court  rule,  that 
no  costs  "\\all  be  allowed  to  the  petitioner  who  takes  proceedings 
to  compel  the  filing  of  an  inventory  by  an  executor  or  administra- 
tor, unless  such  executor  or  administrator  shall  have  unreasonably 
delayed  to  make  and  file  such  inventory  after  haiang  been  duly 
requested  to  do  so  by  or  in  behalf  of  the  petitioner.^^ 

§  505.  Discharge  of  imprisoned  representative,  and  revoking  letters. 
—  A  person  committed  to  jail,  upon  the  return  of  a  warrant  of 
attachment,  issued  as  above  prescribed,  ''  may  be  discharged  by 
the  surrogate,  or  a  justice  of  the  Supreme  Court,  upon  hi^  paying- 
and  delivering  under  oath,  all  the  money  and  other  property  of  the 
decedent,  and  all  papers  relating  to  the  estate,  under  his  control, 
to  the  surrogate,  or  to  a  person  authorized  by  the  surrogate  to 
receive  the  same."  *'"  Where,  by  reason  of  his  default  in  returning 
an  inventory,  he  has  remained  committed  to  jail,  under  the  sur- 
rogate's order,  for  thirty  days,  the  surrogate  is  required  to  revoke 
the  letters  issued  to  him,  without  a  petition  or  the  issuing  of  a 
citation.  The  statute  provides  for  a  like  revocation  in  case  the 
citation  cannot  be  served  personally,  by  reason  of  the  executor  or 
administrator  absconding  or  concealing  himself.^* 

TITLE  THIRD. 

ARTICLES  SET  APART  FOR  THE  FAMILY  OF  THE  DECEASED. 

§  506.  Estate  of  representative  in  exempted  articles. —  The  law,, 
upon  the  f>ame  grounds  nf  humanity  on  which  it  exempts  certain 
articles  of  a  debtor  from  seizure  bv  creditors  under  execution. 


minister  justice  in  all  matters  relat-  ordered  a  reference  to  take  proof  and 

ing  to  the  affairs  of  deceased  persons,  report  to  the  court.    See  Co.  Civ.  Proc, 

(Sheldon   v.   Bliss.   8   X.   Y.    31.)      In  §  254t>,  and  §   117,  ante. 

Matter  of  Haley   (1  Law  Bui.  32   [K  C5  Co.    Civ.    Proc.,    §§    2556,    3236, 

Y.  Surr.  Ct.,  Feb..   1870]).  on  an  ap-  3251.  subd.   3. 

plication   by    an   interested   party   for  wRuIe  XIII,  March.   1888. 

an   amended   inventory   on   allefrations  ''^  Co.  Civ.  Proc,  §  2716,  last  clause, 

of  omissions  of  some  articles,  and  un-  ^8  Co.  Civ.  Proc,  §  2691,  subds.  3,  4. 

dervaluation    of    others,,     Calvin,     S.,  See  §  428,  ante. 


397  Invextoky  axd  Ai'I'kai.sal  of  Assets.  §  507. 

sets  apart  certain  of  tlie  goods,  etc.,  of  a  decedent,  for  the  use 
and  benefit  of  a  widow  or  minor  children,  or  both.  These  articles 
are  enumerated  by  the  statute.  They  are  as  much  assets  as  any 
part  of  the  personal  estate,  and  as  such  would  pass  under  the  will, 
or  be  applicable  to  the  payment  of  debts,  but  for  the  statutory 
provision  exempting  them  from  the  operation  of  the  laws  relating 
to  administration  of  estates.  In  the  eye  of  the  law,  therefore,  these, 
like  other  personalty,  pass  to  the  executor,  for  the  purposes  of  the 
trust  vested  in  him;  and  he  has  a  right  to  their  possession  and  cus- 
tody, in  order  to  inventory  the  articles,  and  set  apart  those  which 
the  statute  exempts. *^^  Ilis  authority  in  this  respect,  however,  is 
that  of  a  trustee  for  the  widow  or  family;  and  if  he  refuses  or 
neglects  to  set  apart  the  articles,  the  surrogate  may  cite  him  to 
show  cause  why  he  should  not  be  compelled  to  do  so,'^'^  or  may 
rectify  the  omission  upon  the  accounting.^^  If  he  sells  the  articles, 
the  proceeds  constitute  a  trust  in  his  hands,  which  the  surrogate 
may  compel  him  to  pay  over,  if  the  widow  affirms  the  sale.^^  It 
seems  also  that  in  case  of  willful  neglect,  he  is  liable  to  an  action.^^ 

§  507.  The  interest  of  widow,  etc.,  in  exempted  articles. —  The 
effect  of  the  statute  is  to  give  the  widow  and  children  of  a  person 
owning  personal  property  of  the  character  specified  therein,  at 
least  a  beneficial  interest  in  so  much  as  the  statute  specifies,  sub- 
ject only  to  the  right  of  the  executor  or  administrator  to  take  pos- 
session for  the  purpose  of  inventorying  it;  and  (so  far  at  least  as 
the  selection  of  the  articles  is  not  made  dependent  on  the  discre- 
tion of  the  appraisers)  the  widow  may  sell  them  immediately, 
subject,  however,  to  the  aforesaid  right."'*  The  testator  cannot  by 
his  will  defeat  this  provision  which  the  law  makes  for  the  family.'^^ 
To  entitle  the  widow  to  the  possession  of  articles  enumerated  (e.  g., 
sheep  and  swine)  the  deceased  husband  must  have  had,  or  his  per- 
sonal representatives  must  have,  such  an  ownership  and  possession 
of  them  at  the  time  of  the  making  of  the  inventory,  as  Avill  permit 
of  their  delivcrv  to  the  widow.     \Vlien  he  had  but  a  half  interest 


''■s  Voelckner    v.    Hudson.    1     Sandf.  oountinp.        (Clayton    v.     Wardell      2 

215.  Bradf.   1.) 

70  Sheldon  V.  Bliss.  8  N.  Y.  31.  And  73  Voelckner  v.  Hudson,  1  .Sandf. 
f^ep    Lockwood    v.    Lockwood,    3    Redf.  21.5. 

330.  33().  74  Fox  V.  Burns.  12  Barb.  077. 

71  Matter  of  Maack,  13  Misc.  .3(18:  75  Vedder  v.  Saxton.  4t)  Barb.  188: 
3.5  K.  Y.  Supp.  109:  Co.  Civ.  Proc,  Matter  of  Tobin.  40  St.  Rep.  .3()() :  16 
§  2724.  N.  Y.   Supp.  4G2.     A  woman  may.  by 

72  Sheldon  v.  Bliss,  8  N.  Y.  31.  And  antenuptial  afireement.  waive  her 
an  error  in  this  matter  may  be  cor-  rij^hts  to  the  exempt  articles.  (Younp 
reeled  by  a   proper  credit  on  an  ac-  v.  Hicks,  92  X.  Y.  235.)     See  Matter 

of  Allen.  30  Misc.  398. 


§  508. 


Inventory  and  Appraisal  of  Assets. 


398 


therein,  they  cannot  be  delivered  to  her,  nor  can  any  allowance  be 
made  therefor.'^'' 

§  508.  Exempt  articles  enumerated. —  The  ennmeration  given  by 
the  Revised  Statutes  of  the  articles  to  be  inventoried  and  appraised^ 
and  of  the  articles  which  are  exempted  for  the  benefit  of  decedent's 
widow  and  children,  was,  with  doubtful  propriety,  carried  into 
the  Code  of  Civil  Procedure  by  the  Legislature  of  1893.'^^  The 
statute  provides  that  "  if  a  man,  having  a  family,  die,  leaving  a 
wudow  or  minor  child  or  children,"  certain  enumerated  articles 
"  shall  not  be  deemed  assets,  but  must  be  included  and  stated  in 
the  inventory  of  the  estate,  without  being  appraised ;"  "^^  and  "  if 


T«  Baucus  X.  Stover,  24  Hun.  109; 
revd.  on  another  point.  89  N.  Y.  1 ; 
Matter  of  Perry.  38  Misc.  167.  Com- 
pare Matter  of  Williams,  31  App.  Div. 
617:  Matter  of  Hembury,  37  Misc. 
454,  ^vhere  the  estate  contained  none 
of  the  articles  specified  in  the  section. 

77  Co.  Civ.  Proc,  §  2713.  as  amended 
1893:  adoptincT  2  R.  S..  §§  9.  10,  as 
amended  L.  1874,  c.  470;  L.  1887,  c. 
630,  etc. 

78  The  articles  enumerated  by  the 
statute  are  as  follows : 

"  1.  All  spinning  wheels,  weaving 
looms,  one  knitting  machine,  one  sew- 
ing machine,  and  stoves  put  up  or 
kept  for  use  by  his  family. 

"  2.  The  family  bible,  family  pic- 
tures, and  school  books  used  by  or  in 
such  family,  and  books  not  exceeding 
in  value  fifty  dollars,  which  were  kept 
and  used  as  part  of  the  family  library. 

"  3.  All  sheep  to  tlie  number  of  ten, 
with  their  fleeces,  and  the  yarn  and 
cloth  manufactured  from  the  same, 
one  cow,  two  swine  and  the  pork  of 
such  swine,  and  necessary  food  for 
such  swine,  sheep  or  cow,  for  sixty 
days,  and  all  necessary  provisions  and 
fuel  for  such  widow,  child  or  children 
for  sixty  daj's  after  the  death  of  such 
deceased  person. 

"  4.  All  the  necessary  wearing  ap- 
parel, beds,  bedsteads  and  bedding, 
necessary  cooking  utensils,  the  cloth- 
ing of  the  family,  the  clothes  of  the 
widow  and  her  ornaments  proper  for 
her  station;  one  table,  six  chairs, 
twelve  knives  and  forks,  twelve  plates, 
twelve  tea-cups  and  saucers,  one  sugar 
dish,  one  milk-pot,  one  tea-pot  and 
twelve  spoons,  and  other  household 
furniture  which  shall  not  exceed  one 
hundred  and  fifty  dollars  in  value. 

"  5.  Other  necessary  household  furni- 
ture,   provisions    or    other    personal 


property  in  the  discretion  of  the  ap- 
praisers, to  the  value  of  not  exceeding 
one  hundred  and  fifty  dollars. 

"  Such  articles  and  property  shall 
remain  in  the  possession  of  the  widow, 
if  there  be  one.  during  the  time  she 
lives  with  and  provides  for  such 
minor  child  or  children.  If  she  ceases 
so  to  do,  she  shall  be  allowed  to  re- 
tain as  her  own,  her  wearing  apparel, 
her  ornaments  and  one  bed,  bedstead 
and  the  bedding  for  the  same,  and  the 
property  specified  in  subdivision  five : 
and  the  other  articles  so  exempted 
shall  then  belong  to  such  minor  child 
or  children.  If  she  lives  with  and  pro- 
vides for  such  minor  child  or  children 
until  it  or  they  become  of  full  age, 
all  the  articles  and  property  in  this 
section  mentioned  shall  belong  to  the 
widow.  If  there  be  a  widow  and  no 
minor  child,  all  the  articles  and  prop- 
erty in  this  section  mentioned  shall 
belong  to  the  widow.  If  a  married 
woman  die,  leaving  surviving  her  a 
husband,  or  a  minor  child  or  children, 
the  same  articles  and  personal  prop- 
erty shall  be  set  apart  by  the  ap- 
praisers with  the  same  eflfect  for  the 
benefit  of  such  husband  or  minor  child 
or  children.'' 

The  fifth  subdivision,  above,  was 
taken  from  L.  1889.  c.  406,  §  2.  All 
the  remainder  of  that  statute  was  re- 
pealed by  L.  1890.  c.  173,  §  2.  The 
cases  under  the  Act  of  1889,  such  as 
Daggett  V.  Daggett,  37  St.  Rep.  810; 
14  N.  Y.  Supp.  182;  Matter  of 
Steward,  30  St.  Rep.  438;  10  N.  Y. 
Supp.  24;  Matter  of  Tipple,  13  id. 
263;  Matter  of  Koch,  31  St.  Rep. 
963;  9  N.  Y.  Supp.  814:  24  Abb. 
X.  C.  468;  Matter  of  Hildebrand,  I 
Misc.  245;  Matter  of  ^Mulligan.  4  id. 
361,  are  of  interest  only  where  that 
statute  is  applicable. 


3111)  InVEXTOKY    AM)    Al'l'lJAISAI.    OF    AsSETS,  §  508. 

a  married  woman  die,  leaving  surviving  her  a  husband  or  a  minor 
child  or  children,  the  same  articles  and  personal  property  shall  be 
set  apart  by  the  appraisers,  with  the  same  effect,  for  the  benefit 
of  such  husband  or  minor  child  or  children.''  ''^  It  will  be  noted 
that  the  widow  or  the  husband,  as  the  case  may  be,  are  entitled  abso- 
Idtehj  to  the  articles  specified  in  the  first  four  subdivisions  of  the 
section,  and  to  $150  worth  of  household  furniture  beyond  ;  whereas, 
under  tlie  fifth  subdivision  he  or  she  is  entitled,  "  in  the  discretion 
of  the  appraisers,  to  $150  worth  of  furniture,  provisions,  or  other 
personal  property."  It  is  proper  to  treat  cash  as  "  personal  prop- 
erty," and  where  the  furniture  and  provisions  are  not  of  sufficient 
value  to  make  up  the  $150,  cash  may  be  allowed  to  make  up  the 
deficiency.^*^  The  appraisers'  discretion  can  obviously  be  exercised 
only  as  to  what  particular  articles  they  will  set  apart  ;^^  and  thej 
may  set  apart  a  portion  in  furniture  or  other  articles,  or  the  whole 
in  money.  The  exemption  of  *'  household  furniture  which  shall  not 
exceed  one  hundred  and  fifty  dollars  in  value,"  is  in  addition  to  the 
other  exempt  articles.®^  The  appraisers'  estimate  of  the  value  of 
ihe  articles  is  not  regarded  as  the  exercise  of  an  absolute  discretion,, 
but  is  subject  to  review  by  the  surrogate,  who  may  correct,  not 
only  any  irregularity  or  mistake,  but  also  an  improper  valuation. 
And  if  they  set  apart  articles  which  exceed  the  statute  limit,  and 
this  appears  on  the  face  of  the  inventory,  the  proceedings  may  be 
deemed  void,  unless  the  items  are  separable.^' 


TO  Co.  Civ.  Proc,  §  2713.  as  amended  72:  Keliy  v.  Moore,  IS  Abb.  X.  C. 
1S03,  last  sentence:  adopting,  as  modi-  468:  Matter  of  ^Miller,  1  Law  Bill.  48. 
fied,  L.  1887,  c.  630.  The  ri^rbt  of  a  The  testator  pave  his  widow  "  a.ll  of 
husband  under  this  statute  is  not  de-  the  household  property  in  the  dwell- 
feated  by  a  provision  in  his  favor  in  inj^-liouse  and  tlie  use  of  the  dwellincr- 
the  wife's  will,  which  is  not  specified  house  during  her  life."  In  the  dwell- 
to  be  in  lieu  of  such  interest.  (^lat-  infr-house.  at  the  time  of  the  testator's, 
ter  of  Harris.  2  Connoly.  4:  20  N.  Y.  death,  was  a  quantity  of  coal  and 
Supp.  68.)  The  ornaments  of  a  de-  wood,  provided  for  family  use,  and  a 
ceased  wife  suitable  for  her  station  shotgun.  Held,  that  these  articles, 
cannot  be  set  aside  for  the  husband  were  properly  allowed  to  the  widow; 
but  must  be  included  in  the  assets  be-  that  the  shotgun  might  have  been  pro- 
longing to  her  estate.  (Matter  of  vided  for  the  defense  of  the  house. 
Whiting,  19  Misc.  85;  43  N.  Y.  Supp.  and,  in  the  absence  of  proof,  the  court 
069.)  was  not  required  to  presume  the  con- 

80  Matter    of    Durscheidt,    6r)  .  Hun,  trary.     The  appraisers  also  set  apart 

136:    19  N.  Y.  Supp.  973.     If  the  ap-  as   exempt    and    for    the    use     of     the 

))raiscr    fails    to    set   apart   the    furni-  widiw,  a  horse,  pliaeton,  and  harness, 

ture.  the  widow  is  entitled  to  its  cash  of  the  value  of  $15(1.      Held,  that  the 

value.      Olatter  of  Bidgood,   36   Misc.  gift  of  the  household  property  did  not 

516;   73  N.  Y.  Supp.   1061.)      A  jiiano  preclude   tliis   allowance;    that   "other 

is  household  furniture,  within  the  stat-  personal   property"  was  available  for 

ute.      (Matter  of  Allen,  36  Misc.  398;  the  exemption  and  might  be  necessary. 

73  N.  Y.   Supp.  750.)  (Matter  of  Frazer.  92  X.  Y.  239.) 

SI  Matter  of  Bidgood.  siuprn.  83  Applegate    v.    Cameron,    2    Bradf. 

82Lyendecker  v.  Eisemann,  3  Dem.  119.     The  widow's  dower  right  is  not 


§§  509,  510.     Inventory  and  Appraisal  of  Assets.  400 

Beyond  the  articles  thus  provided  far  the  family,  the  family  are 
not  entitled  to  their  support  from  the  estate  pending  administra- 
tion;**^ and  whatever  payments  the  executor  or  administrator  makes 
to  them,  and  whatever  portion  of  the  assets  they  are  allowed  to 
consume,  must  be  accounted  for,  on  the  settlement  of  the  estate.^^ 
The  widow's  right,  under  the  statute,^*^  to  tarry  in  the  chief  house 
of  her  husband  forty  days  after  his  death,  without  liability  for 
rent,  and  to  have,  during  that  time,  her  reasonable  sustenance  out 
of  the  estate,  will  be  mentioned  hereafter.^' 

§  509.  "  Having  a  family." —  As  these  words  are  used  in  the  stat- 
ute, they  do  not  necessarily  mean  having  children.  If  a  man  has 
a  wife  and  relatives,  living  watli  him  at  the  time  of  his  death,  he 
has  a  family  within  the  meaning  of  the  statute,  although  he  has  no 
children. ^^  It  is  not  even  necessary  that  he  should  have  been  liv- 
ing with  his  wife  and  children  at  the  time  of  his  death,  or  have 
contributed  to  their  support  prior  to  that  time.*^  It  is  not  neces- 
sary that  the  decedent  should  have  been  a  householder,  or  that  he 
or  his  widow  and- children  should  have  been  inhabitants  of  this 
State,  to  entitle  the  latter  to  the  possession  of  the  exempted 
articles.^*^ 

§  510.  Compelling  the  setting  apart,  etc.,  of  exempt  articles. — 
"  "Where  an  executor  or  administrator  has  failed  to  set  apart  prop- 
erty for'  a  surviving  husband,  wife,  or  child,  as  prescribed  by  law, 
the  person  aggTieved  may  present  a  petition  to  the  Surrogate's 
Court,  setting  forth  the  failure,  and  praying  for  a 'decree,  requir- 
ing such  executor  or  administrator  to  set  apart  the  property  accord- 
ingly; or,  if  it  had  been  lost,  injured,  or  disposed  of,  to  pay  the 
value  thereof,  or  the  amount  of  the  injury  thereto ;  and  that  he  be 
cited  to  show  cause  why  such  a  decree  should  not  be  made."  If 
the  surrogate  is  of  the  opinion  that  sufficient  cause  is  shown,  he 
must  issue  a  citation  accordingly.  On  the  return  of  the  citation, 
the  surrogate  must  make  such  a  decree  in  the  premises  as  justice 
requires.     In  a  proper  case,  the  decree  may  require  the  executor 

to    be    considered    in    estimating    the  .307:      14     X.     Y.     Supp.     841;     afFd.. 

Talue  of  the   personalty.      (Matter    of  1.33    X.    Y.    601),    the    decedent    had 

Steward,  90  Hun,  94;  35  N.  Y.  Supp.  lived    apart    from    his    wife    for    ten 

,366.)  years  preceding  his  death,  and  did  not 

84  Hennessy's  Estate,   1  Tuck.  33.5.  contribute    to    her    support,    but    pro- 

85  See  Heidenheimer  v.  Wilson,  31  vided  clothing  for  his  daughter,  until 
Barb.  636.  she  became  of  age.     Held,  that  he  had 

83  1  R.  S.  742.  §   17.  a   family  within  the   statute. 

f~  See  c.  XVII,  post.  oo  Kapp   v.  Public   Adm'r,   2   Bradf. 

88Kain  v.  Fisher,  6  X.  Y.  597.  258. 

89  In    Matter    of    Shedd     (60    Hun. 


401  Inventory  and  Ai-pkaisal  of  Assets.  §  511. 

personally  to  pay  the  value  of  the  property,  or  the  amount  of  the 
injury  thereto.  The  decree,  made  ujxju  a  judicial  settlement  of 
the  account  of  an  executor  or  administrator,  may  award  to  a  sur- 
viving husband,  wife,  or  child,  the  same  relief  which  may  be 
awarded,  in  his  or  her  favor,  on  a  petition  presented  as  above.^^ 

TITLE  FOURTH. 

EFFECT   OF    INVENTORY    AS    EVIDENCE. 

§511.  Impeaching  inventory. —  The  making-  and  filing  of  an  in- 
ventory and  appraisal  of  the  effects  of  a  deceased  person  is  as 
Avell  for  the  protection  of  the  executor  or  administrator  as  for  the 
legatees,  next  of  kin,  and  creditors.  The  inventory  is  only  pre- 
sumptive evidence  against  the  person  filing  it.  The  statute  pro- 
vides, that  in  "  any  action  or  special  proceeding,  to  which  an  exec- 
utor or  administrator  is  a  party,  wherein  the  question,  whether 
he  has  administered  the  estate  of  the  decedent,  or  any  part  thereof, 
is  in  issue,  or  is  the  subject  of  inquiry,  and  the  inventory  of  as- 
sets, filed  by  him,  is  given  in  evidence,  either  party  may  rebut  the 
same,  by  proof,  either  (1)  that  any  property  was  omitted  in  the 
inventory,  or  was  not  returned  therein  at  its  true  value;  or  (2) 
that  any  property  has  perished  or  has  been  lost,  without  the  fault 
of  the  executor  or  administrator ;  or  has  been  fairly  sold  by  him, 
at  private  or  public  sale,  at  a  less  price  than  the  value  so  returned ; 
or  that,  since  the  return  of  the  inventory,  it  has  deteriorated  or 
enhanced  in  value."  ^^     But  these  provisions  were  not  designed 

f^i  Co.  Civ.  Proc.  §  2724,  as  amended  utor    or    administrator.      The    former 

1893;     consolidating    former    sections  statute  applied  only  to  actions  a<rainst 

2720,  2721;  Matter  of  Maaok,  13  Misc.  the  representative.     A  construction  of 

368;  35  N.  Y.  Supp.  100.     It  has  been  the  original  section,  which  appears  to 

held    that,    on    the    accounting    of    an  be  applicable  to  the  revised  provision, 

administratrix,  she  cannot  be  allowed  was  given  in  Underbill  v.  Newburger 

for    the    articles   which    she   might,   as  (4  Redf.  409)  :    '"  Where  the  executors 

widow,  have  claimed  to  be  exempt  by  or   administrators   give   the    inventory 

law   in  her  favor,   on  making  the   in-  in  evidence,  to  fix  their  liability,  the 

vcntory,  if  they  were  not  so  allowed;  plaintiff    may    show    tlie    omission    of 

especially  where  there  is  evidence  that  properly  therefrom,  or  an  undervalua- 

she   had   possession   of   assets    not   in-  tion,  or  an  enhanced  value.     While,  if 

ventoried ;    and  that  if,  through  igno-  the  plaintiff  shall  give  it  in  evidence, 

ranee  or  mistake,  she  omitted  to  claim  to  fix  their  liability,  they  shall  be  at 

the  exemption  at  the  proper  time,  the  liberty,    in    order    to   overcome    it.    to 

remedy  is  a  special  application  to  cor-  show  that  the   property   has   perished 

rect    the    mistake,    on    notice    to    the  or  been  lost  without  their  fault;  that 

<'reditors  and  next  of  kin.      (Cornwell  it    has  l)cen   fairly   snUl   at    private   or 

V.  Deck,  2  Redf.  87.)  |)ublic  sale,  at  a  less  price,  or  that  it 

92  Co.  Civ.  Proc,   §   1832:   extending  lias  deteriorated;   and  that   these  con- 

the   original   to   special   proceedings  by  ditions  must  be  affirmatively  sliown  in 

or  against,  and  to  actions  by,  an  exec-  order    to    overcome    the    presumption 

26 


§  512.  Inventory  and  AprRAisAi.  of  Assets.  402 

to  operate,  upon  an  accounting,  where  an  administrator's  manage- 
ment of  his  trust  is  upon  trial  ;^^  and  an  inventory  has  not  the 
effect  of  binding,  even  presumptively,  a  successor  in  office  of  the 
executor  filing  it.*^"*  It  is  also  provided,  that  "  in  such  an  action  or 
special  proceeding,  the  executor  or  administrator  shall  not  be 
charged  with  a  demand  or  right  of  action,  included  in  the  in- 
ventory, unless  it  appear  that  the  same  has  been  collected,  or  might 
havo  been  collected,  with  due  diligence."  ®^  But  the  Code  declares 
that  "  the  last  two  sections  ^*^  do  not  vary  any  rule  of  evidence,  re- 
specting any  proof,  which  an  executor  or  administrator  may  now  ^^ 
make."  ^^  An  inventory  filed  by  co-executors,  though  evidence  of 
the  joint  possession  of  securities  and  receipt  of  moneys  by  them, 
will  not  preclude  either  of  them  from  proving,  on  the  accounting:, 
that  they  were  in  fact  held  and  received  exclusively  by  one  of  their 
number.^^ 

§  512.  Conclusive  effect  of  inventory.— The  inventory  is,  however, 
prima  facie  evidence  of  the  value  of  the  property,  as  well  as  o£ 
what  assets  have  come  into  the  hands  of  the  executors ;  and  if  they 
have  disposed  of  any  of  the  property,  they  are  prima  facie  liable 
for  the  amount  of  money  at  which  it  was  inventoried.-^  If  it  is. 
sho^^^l  that  assets  were  disposed  of  for  more  than  the  inventory 
price,  they  are  of  course  liable  for  that  amount.  And  where  as- 
sets are  taken  by  an  administrator  at  the  inventory  price,  if  it  is 
shown  that  they  are  of  greater  value  than  that  price,  he  must 
answer  for  the  true  value."  There  was  formerly  no  way  in  which 
an  inventory  could  be  impeached  in  a  proceeding  in  relation  to 
the  inventorv  itself,  but   it  might  be  surcharged   or  falsified  on 


raided  hy  the  im-entory.  by  the  parties  iitor.       The    latter    in    his    inventory 

seekinjr    to    overcome    it."       Compare  charired  hiuiself  therewith.     Held,  that 

Wood'ioiise  V.  Woodhouse.  5  Redf.  1.31.  the  presumption  arising  from  the  in- 

93  Matter  of  Woodworth.  .5  Dem.  ventory.  that  the  sum  was?  actually^ 
156.     See  post,  c.  XTX.  art.  .5.  snbd.  2.  due.  was  not  overcome  by  proof  of  a 

94  Solomons  v.  Kursheedt,  .3  Dem.  sealed  undertaking  of  the  executor 
307.  with  testator  to  pay  said  sum  upon  a 

95  Co.  Civ.  Proc.  §  1S33.  See  Thorne  certain  contingency  which  had  fai'ed, 
V.  Underbill.  1  Dem.  306.  As  to  what  where  it  did  not  appear  that  such  un- 
is  "  due  diligence."  see  Smith  v.  Colla-  dertaking  contained  the  whole  agree- 
mer.  2  Dem.  147.  ment  with  the  testator. 

S"  Sections  1832.  1833.  supra.  99  Taylor  v.  Shuit.  4  Dem.  .528. 

97  That  is.  under  the  law  prevailing  l  Ames   v.    Downing.    1    Bradf.    321 : 

prior  to   September   1,   1880.      See  Co.  :Matter  of  Shipman.  82  Hun.   108:    31 

Civ.     Proc'  §     3343.     subd.     22:     id.,  X.  Y.  Supp.  571:  :\ratter  of  Childs.  26' 

§   33.56.  id.    721:    Matter   of   :iaack.    13   Misc. 

9SCo.   Civ.  Proc.   §    1834.     See  Wil-  308:   Matter  of  Mullon.  145  X.  Y.  98; 

lou<.'hbv  V.  McCluer.  2  Wend.  60S.    In  64  St.  Rep.  551. 

Bellinger  V.  Potter    ( 36  St.  Rep.  601) .  2  Zilkin    v.    Carhart.    3    Bradf.    376. 

the  testator  bequeathed  a  certain  sum  See  flatter  of  Mullon.   145  X.  Y.  98; 

described  as  due  him  from  his  exec-  64  St.  Rep,  551. 


403  I.WENTOIiV    AND    AlTKAlSAL    OF    AsSETS.  §  512. 

an  accounting.^  The  unoxplaincd  omission  of  an  administrator 
to  make  any  claim  of  set-off  ol-  defense  to  a  demand  against  himself 
in  the  inventory,  is  evidence  against  the  validity  of  such  a  de- 
fense.'* Where  an  executor,  in  preparing  an  inventory  of  the  es- 
tate, included  therein  a  promissory  note  given  by  him  to  the 
testator,  which  note  was  then  outlawed,  this  was  held  a  suflScient 
acknowledgment  in  writing  to  remove  the  bar  of  the  Statute  of 
Limitations.^  Where  a  bank  deposit  is  inventoried  as  cash,  but 
the  money  is  not  actually  collected  before  the  bank  fails,  the  ad- 
ministrator is  not  absolutely  concluded,  but  the  inventory  may  be 
shown  to  be  incorrect, —  e.  g.,  upon  a  final  accounting.*'  So,  too, 
the  fact  that  a  donee  of  certain  property,  handed  it  to  the  executor 
on  his  demand  that  it  should  be  inventoried,  does  not  preclude  a 
subsequent  claim  therefor.^ 


•T  ]\Iontfromprv  v.  Dunninfr.  2  Bradf.  «  Sheerin  v.   Public   Adm'r,   2   Redf. 

220.     And  see  Thomson  v.  Thomson.  1  421. 

id.  24.     But  the  rule  seems  now  to  be  7  Matter   of   Van    Slooten,    76    Hun, 

changed.     See  Co.  Civ.  Proc,  §   1832,  55;    27   N.   Y.   Supp.   666.      This  case 

supra.  wa.s  subsequently  reversed    (145  N.  Y. 

4  Lloyd  V.  Lloyd.  1   Redf.  .399.  .327),  on  the  ground  that  the  taking 

5  Ross  V.  Ross,  6  Hun.  80 ;  Matter  of  the  property  by  the  executor  was 
of  Dafrcett,  1  Misc.  248;  22  N.  Y.  his  individual  act,  and  did  not  con- 
Supp.  911.  stitute  a  claim  against  the  estate  as 

such. 


CHAPTER  XVII. 

ADMINISTRATION  OF  ESTATE  AND  PERFORMANCE 

OF   WILL. 


TITLE  FIRST. 

THE    OFFICE    AND    ESTATE    OF      EXECUTORS,    ADMIXINSTRATOKS,    AND 
TESTAMENTARY    TRUSTEES. 

ARTICLE  FIRST. 

THE    TITLE    AND    OBJECT    OF    THE    OFFICE. 

§  513.  The  office  of  executor. —  We  have,  in  preceding  chapters, 
given  in  detail  an  account  of  the  proceedings  in  the  Surrogate's 
Court  by  which  executors  and  administrators,  and,  in  certain  cases, 
testamentary  trustees,  acquire  authority  to  act  as  such ;  and  have 
also  pointed  out  certain  specific  duties  prescribed  by  statute,  with 
respect  to  executors  and  administrators,  as  to  appraising  the  as- 
sets of  their  decedent,  and  making  and  filing  an  inventory.  The 
duties  and  powers  of  the  ofiicers  above  mentioned,  in  the  manage- 
ment and  disposition  of  the  estate  in  their  hands,  their  rights  of 
action,  and  their  accountability  in  law  and  equity  for  the  faithful 
performance  of  their  obligations,  are  subjects  of  large  importance, 
not  strictly  within  the  scope  of  this  volume,  and  can  be  treated,  in 
a  single  chapter,  in  only  the  most  general  way. 

An  executor  has  been  defined  to  be  one  to  whom  the  execution 
of  a  last  will  and  testament  —  that  is,  the  application  of  the  estate 
pursuant  to  the  directions  of  a  will  —  is,  by  the  testator's  appoint- 
ment, confided.  The  term  was  originally  employed  in  a  sense 
sufficiently  broad  to  include  an  administrator  upon  the  estate  of  an 
intestate,  a  distinction  being  taken  between  executor  testamenfari}is 
and  executor  dativus}  but  this  usage  is  obsolete.  He  can  derive  his 
office  from  a  testamentary  appointment  only,  though  it  is  not  neces- 
sary that  he  be  expressly  named  as  such.  If,  by  any  word  or  cir- 
cumlocution, the  testator  recommend  or  commit  to  one  or  more  the 
charge  and  office,  or  the  rights  which  appertain  to  an  executor,  it 

iWms.  on  Exrs.  (6th  Am.  ed.)  266. 
[404] 


405  Administratiox  of  Estate,  Etc.  §  514. 

amounts  to  as  much  as  the  ordaining  or  constituting  him  or  them 
to  be  executors.^  And,  as  has  been  before  noted,  it  is  not  even 
reciuisite  that  the  testator  should  constructively  name  the  executor, 
for  he  may  delegate  to  another  the  power  to  make  the  nomina- 
tion.^ At  common  law,  althou<»h  an  executor  could  not  assign 
the  executorship,  yet  he  might  continue  it  by  his  will ;  and  in  case 
of  the  death  of  the  sole  executor,  the  executor  of  such  executor  was, 
to  all  intents  and  purposes,  the  executor  and  representative  of  the 
first  testator.  But  our  statutes  have  abrogated  this  rulc.^  So,  at 
common  law,  one  who,  not  being  either  executor  or  administrator, 
intermcdt]led  with  the  goods  of  the  deceased,  or  did  any  other  act 
characteristic  of  the  office  of  executor,  was  thereby  an  executor  of 
his  own  wrong,  called  more  usually  an  executor  de  son  tort.^  But 
our  law  does  not  recognize  such  an  executor,  and  one  who  is  neither 
executor  nor  administrator  cannot  acquire  any  title  to  the  assets, 
as  a  representative  of  the  deceased.^ 

§  514.  Testamentary  trustees. —  A  distinction  is  made  between  the 
office  of  executor  and  that  of  a  testamentary  trustee.  The  duty  of 
an  executor  as  such,  and  his  duty,  as  a  trustee  of  an  express  trust 
under  the  will,  are  entirely  different.  As  executor,  it  is  his  duty 
to  collect  the  property,  and  pay  the  debts  and  general  legacies ; 
while,  as  trustee,  it  is  his  duty  to  invest  and  manage  the  particular 
fund  or  trust  estate  in  accordance  with  the  directions  of  the  will."'^ 
The  quality  of  an  executor's  title  necessarily  depends  upon  the 
language  of  the  will  which  he  is  to  perform.  A  will,  for  example, 
which  gives  the  executor  power  to  collect  and  pay  over  dividends 
on  the  stock  of  an  incorporated  company,  does  not  necessarily  vest 
in  him  title  to  the  stock ;  such  a  power  may  be  lodged  with  one 
]K'rson  while  the  title  is  in  another.^ 

2  Spo  TTiimbort  v.  Wurster,  22  TTim,  the  only  child  of  tho  dcoodont,  whore 
405;  1  Wms.  on  Exrs.  (fith  Am.  od.)  the  party  assertinfj  the  claim  soufrht 
280.  to  repudiate  the  settlement.     Compare 

3  Hartnett  v.  Wandell.  fiO  X.  Y.  .340;  Ahrens  v.  .Tones,  109  N".  Y.  5.5.=!. 

§   201.  ante.  « See    2    R.    S.    81,    §    78;    id..    44!), 

4See   Fosdick   v.   Delafield,   2    Redf.  §  17;   §  130.  ante. 

302.  TSee    §§    310.   449.     A  release   exe- 

5  Anderson   v.   Daley.   38   App.   Div.  cuted  to  executors  does  not  discharge 

r^O'M   ."iG  N.  Y.  Supp.  .511;  appeal  dis-  them  as  trustees.      (Doritv  v.  Doritv, 

missed.    1.59   N.  Y.    140.      See  Mills  v.  40    App.    Div.    2.36;    .57    X.    Y.    Supp. 

Mills    (115   id.  80;   23   St.  Rep.   004),  1073.) 

where  it  was  held,  that  one  who  was  8  Onondapa  Trust  &  D.  Co.  v.  Price, 

a    mere   debtor   of   a   decedent,   in   his  87  N.  Y.  542.     See  Matter  of  Under- 

lifetime.    and    had    in    no    way    inter-  hill,  35  App.  Div.  434:  54  X.  Y.  Supp. 

fored  with  the  decedent's  estate  since  907;    aflfd.,    158   X.  Y.   721;    Robinson 

his  death,  could  not  be  treated  as  an  v.    Adams,    30    Misc.    537;    63    X.    Y. 

executor   dc  son   tort,   simply  because  Supp.  816. 
he  assumed  to  make  a  settlement  with 


§§  515,  516.     Administbation  of  Estate,  Etc.  406 

§  515.  The  office  of  administrator. — At  an  early  period  in  Eng- 
land, the  sovereign,  as  "parens  patria>,  took  possession  of  the  goods 
of  an  intestate,  it  being  presumed  that  the  deceased,  by  his  neglect 
to  make  a  will,  acknowledged  that  he  was  without  a  rightful  heir. 
Subsequently  the  cro\\Ti  conceded  the  right  to  distribute  the  ef- 
fects to  the  near  relatives  of  the  deceased,  but  this  was  to  be  done 
under  the  direction-  of  the  church.  The  ecclesiastical  authorities 
were  not  slow  to  realize  the  benefits  of  this  supervisory  power,  and, 
before  the  lapse  of  much  time,  the  privilege  of  administering  the 
goods  of  an  intestate  was  exercised  by  the  bishops  instead  of  the 
crown.  The  abuses  of  this  power  —  amounting  almost  invariably 
to  the  confiscation  of  the  whole  estate  for  the  benefit  of  the  bishop 
or  his  order  —  grew  to  be  so  great,  that  Parliament  interfered  at 
last,  and  deprived  the  church  of  its  power  to  administer  the  estates 
of  deceased  persons.  Such  administration  in  this  country  has  al- 
ways been  conferred  by  law  upon  some  one  of  the  nearest  of  kin  of 
the  deceased,  upon  the  order  and  under  the  authority  of  a  civil 
tribunal.  In  general,  it  may  be  said  there  is  no  distinction  be- 
tween the  rights,  powers,  and  duties  of  executors  and  adminis- 
trators as  such..^ 

§  516.  Representative  character  of  executors,  etc. —  An  executor 
or  administrator  is  said  to  be  the  representative  of  the  testator  or 
intestate  in  respect  to  his  personal  estate,  the  whole  of  which  vests 
in  the  one  on  the  death  of  the  testator^  and  in  the  other  on  the  grant 
of  letters  of  administration,  which  relate  back  to  the  time  of  the 
decease  of  the  intestate.^*^  The  interest  thus  vested  in  such  per- 
sonal representatives  is  for  the  benefit  of  the  estate,  to  discover 
and  collect  the  effects,  preserve  them  from  waste,  pay  the  debts  in 
their  legal  order,  and  to  distribute  the  surplus,  if  any,  according  to 
the  will  of  the  testator  or  the  Statute  of  Distributions,  as  the  case 
may  be.  To  this  end  they  are  invested  with  every  power  and 
remedy  which  belonged  to  the  deceased  while  living,  within  the 
jurisdiction  of  the  State  in  which  the  letters  were  granted. ^^ 
IN^evertheless,  they  are  not  the  mere  representatives  of  their  testator 
or  intestate,  but  are,  under  the  statutes  of  this  State,  trustees  for 
the  benefit  of  the  persons  interested  in  the  estate  ;^^  and  they  may, 


9  Douglass  V.  Satterlee.  11  Johns.  n  Schultz  v.  Pulver,  11  Wend.  361. 
16;  Murray  v.  Blatchford,  1  Wend.  Compare  Babcock  v.  Booth,  2  Hill, 
583;  .Jackson  v.  Robinson,  4  id.  436.  181. 

10  Valentine  v.  .Jackson,  9  Wend.  12  Dox  v.  Backenstose,  12  Wend. 
302;  Babcock  v.  Booth,  2  Hill,  181;  .542.  And  see  post,  tit.  6,  art.  1  of 
Kaufman   v.    Schoeffel,    46   Hun,    571.  this  chapter. 

See  §  364,  ante. 


407  Administration  of  Estate,  Etc.     §§  517,  51H. 

for  the  bcnctit  of  creditors  or  others  interested  in  the  estate,  dis- 
attirni,  treat  as  void,  and  resist  all  acts  done,  transfers  and  agree- 
ments made,  in  fraud  of  such  persons'  rights.*^ 

§  517.  Foreign  executors  and  administrators, —  The  term  "  for- 
eign," as  applied  to  executors  or  administrators,  more  properly 
distinguishes  the  personal  representatives  of  one  dying  domiciled 
without  the  State,  whose  authority  is  solely  evidenced  by  letters 
issued  from  a  tribunal  of  the  decedent's  domicile.  But  it  has  al- 
ready appeared  that  the  Surrogates'  Courts  of  this  State  have 
jurisdiction,  in  certain  instances,  to  issue  original  letters  upon  the 
estate  of  a  nonresident  decedent ;  thus  giving  rise,  where  the  foreign 
court  has  also  acted,  to  what  has  been  termed  a  ''  conflicting  grant 
of  letters."  ^^  And,  finally,  the  Code  provides  for  the  issuing,  from 
our  Surrogates'  Courts,  of  letters  upon  the  estate  of  such  a  decedent, 
in  aid  of  letters  granted  by  a  tribunal  of  his  domicile,  and  at  the 
instance  of  the  person  or  persons  holding  the  same.^^ 

§  518.  Their  rights  and  liabilities  here. — It  is  pertinent  to  re- 
mark, in  this  place,  upon  the  rights  and  liabilities  of  foreig-n  rep- 
resentatives, in  the  sense  above  indicated,  in  the  courts,  and 
otherwise,  within  the  limits  of  this  State.  The  general  rule  is, 
that  the  authority  of  a  foreign  executor  or  administrator  is 
strictly  local,  and  is  not  recognized  outside  of  the  jurisdiction  in 
which  his  letters  were  granted.^''  His  appointment  by  a  court  of 
a  foreign  country, —  and,  for  this  purpose,  the  several  States  re- 
gard each  other  as  foreign  countries, —  puts  him  in  no  different 
position  from  that  which  he  would  occupy  if  no  letters  had  ever 


I'J  L.   1858,  c.   314,  §   1,  as  amended  hrin2:>;    an   action    in   a    court   of   thi.s 

L.   1880,  c.  487.     See  post,  tit,   1.  art.  State,   it  is  not  necessary  for  him  to 

3,  siibd.  2  of  this  chapter.  allege  probate  of  the  will  in  a  tribunal 

14  See  Stone  v.  Scripture,  4  Lans.  of  the  testator's  domicile.  (Lelandv. 
186.  Manning.  4  Hun.  7.) 

15  As  to  such  letters, —  called  ancil-  16  See  Isham  v.  Gibbons.  1  Bradf . 
lary  letters  testamentary  and  of  ad-  69;  Morrell  v.  Dickey,  1  .Tohns.  Ch. 
ministration. —  and  the  object  of  the  1.53;  Doolittle  v.  Lewis.  7  id.  45:  Wil- 
ofUce  so  created,  see  §§  312.  371,  ante;  liams  v.  Storrs,  6  id.  353;  Ulster  Co. 
Parsons  v.  Lvman,  20  X.  Y.  103;  Sav.  Inst.  v.  Fourth  Nat.  Bank,  28 
Palmer  v.  Phoenix  Mut.  L.  Ins.  Co.,  St.  Rep.  24:  8  X.  V.  Supp.  1(52.  A 
84  id.  03.  In  Cummings  v.  Banks  (2  trust  created  in  this  State,  of  which 
Barb.  (102),  it  was  held  that  one  ap-  a  married  woman  is  trustee,  remains 
pointed  here  administrator  with  the  valid  although  .she  subsequently  re- 
will  annexed,  of  a  testator  dying  dom-  moves  to  another  State,  by  the  law  of 
iciled  in  a  foreign  country,  pursuant  which  she  is  incapable  of  acting  as  a 
to  a  power  of  attorney  given  by  the  trustee;  such  removal  will  not  divest 
foreign  executors,  was  not  independent  her  title  to  the  fund,  which  remains  in 
of,  but  ancillary  to,  them,  and  was  her  so  long  as  no  one  is  appointed  to 
bound  bv  a  decree  rendered  against  take  it  from  her.  (Schulter  v.  Bow- 
them  by  "a  court  of  the  testator's  dom-  ery  Sav.  Bank,  117  N.  Y.  125;  26  St. 
icile.     Where    the   ancillary  executor  Rep,  922.) 


§  518.  Administration  of  Estate,  Etc.  408 

been  granted  to  him.  But  these  general  propositions  must  be 
taken  with  some  modifications,  in  respect  to  wliich  it  will  be  con- 
venient to  distinguish  between  acts  involving  litigation  and  .those 
where  no  judicial  action  is  taken.  As  to  the  latter,  it  is  to  be 
observed  that  the  courts  have,  in  some  cases,  allowed  foreign  rep- 
resentatives to.  do  certain  acts  here,  as  to  take  possession  of  goods, 
receive  voluntary  pa^anent  of  debts,  dispose  of  assets  situated  here, 
foreclose,  by  advertisement  under  our  statutes,  a  mortgage  of  real 
property  situated  in  this  State,  and  otherwise  exercise  authority 
so  far  as  possible  without  bringing  suit.^^  Even  as  to  acts  of  this 
character,  however,  it  has  been  held  that  a  distinction  is  to  be  made 
between  cases  where  there  is  a  conflicting  grant  of  letters,  and 
those  where  such  a  circumstance  does  not  exist. ^*  But  such  repre- 
sentatives have  no  standing  as  parties  plaintiff  in  the  courts  of 
this  State,  without  taking  out  letters  here  ;^^  although  the  assignee 
of  a  foreign  executor  may  maintain  an  action  in  a  court  of  this 
State,  upon  a  cause  of  action  transferred  to  him  by  the  latter, 
since,  in  such  a  case,  he  sues  in  his  own  right,  notwithstanding  that 
his  title  may  be  derived  from  a  representative.^^  The  exemption 
of  foreign  executors  and  administrators  from  liability  to  prosecu- 
tion in  our  courts  is  not  coextensive  with  their  disability  to  sue 
therein.  They  cannot  be  so  proceeded  against  in  a  purely  legal 
action,^^  nor  can  they  be  substituted  in  such  an  action,  pending 
against  the  decedent  here  at  the  time  of  his  death  ;^"  but  they  are 
liable  to  an  action  in  equity,  under  certain  circumstances,   and 

17  Thus  a  bank  is  protected  in  pay-  this  State,  it  was  held  that  the  satis- 
ing  decedent's  deposit  to  his  foreign  faction  of  the  mortgage  by  the  foreign 
administrator  upon  presentation  of  administrator  was  no  defense.  See 
letters.  (Schulter  v.  Bowery  8av.  Co.  Civ.  Proc,  S  2478;  §  145,  ante. 
Bank,  49  Hun,  607;  16  St.  Rep.  784;  19  Parsons  v.  Lyman,  20  N.  Y.  103; 
Maas  V.  German  Sav.  Bank,  73  App.  ^liddlebrook  v.  Merchants'  Bank,  24 
Div.  524.)  See  Vroom  V.  Van  Home,  How.  Pr.  267;  Matter  of  Butler.  38 
10  Paige,  549:  Brown  v.  Brown,  1  K  Y.  397:  Matter  of  Webb.  11  Hun, 
Barb.  Ch.  187 ;  Middlebrook  v.  Mer-  124.  Compare  Holyoke  v.  Union  Mut. 
chants'  Bank,  14  Abb.  Pr.  462,  note:  L.  Ins.  Co.,  22  id.  75;  Palmer  v.  Phoe- 
24  How.  Pr.  267;  41  Barb.  481;  3  nix  Mut.  L.  Ins.  Co.,  84  N.  Y.  63; 
Keyes,  135;  Williams  v.  Storrs,  6  Philipe  v.  Lew,  56  Super.  Ct.  (J.  & 
Johns.  Ch.   353:   Doolittle  v.  Lewis,  7  S.)    606;    16  St.  Rep.  889. 

id.  45;   Averill  v.  Taylor,  5  How.  Pr.  20   Peterson    v.    Chemical    Bank,    32 

476.  N.  Y.  21:   Smith  v.  Tiffany,   16   Hun, 

18  Stone  V.   Scripture,  4  Lans.   1S6.  552.      See  McBride  v.  Farmers'  Bank, 
Where     original     administration     was  26  X.  Y.  450. 

granted,  first  in  New  York  and  after-  21  Field  v.  Gibson,  56  How.  Pr.  232; 

ward    in    New    Hampshire,    upon    the  Matter   of   Webb,    11    Hun.    124:    Ver- 

estate  of  one   dying  domiciled   in  the  milya  v.  Beatty,  6  Barb.  429 :  Metcalf 

latter    State;    and,    an    action    having  v.  Clark,  41  id.  45;  Ferguson  v.  Harri- 

been  brought  here  by   the  New  York  son,  27  Misc.  380 :  58  N.  Y.  Supp.  850. 

administrator,  to  foreclose  a  mortgage  22   Matter   of   Webb.    11    Hun,    124; 

upon  lands  here,  given  to  secure  pay-  Flandrow  v.  Hammond,   13  App.  Div^ 

ment  of  a  bond  made  by  a  resident  of  325;  43  N.  Y.  Supp.  143. 


409 


Ad.mimsikatiox   of  Estate,   Ivrc 


§  .j1.^. 


upon  proper  alloiratioii,  t<t  prevent  waste  of  property  brought 
within  the  juris^dietion,  and  secure  its  application  to  the  payment 
of  tiie  debts  of  the  testator  according  to  the  law  of  the  State 
whence  they  derived  their  authority."'  Their  responsibility  ex- 
tends to  assets  shown  to  have  been  in  their  possession  within  this 
State,  no  matter  where  they  have  been  received."'*  And  their 
character  as  foreign  executors  or  administrators  furnishes  no  ob- 
jection to  an  action  In'  them"''  or  against  them,  in  a  court  of  equity 
of  this  State  in  their  character  as  trustees.  Thus,  an  action  may 
be  maiutaiiUMl  against  them  where  the  alleged  liability  is  not  that 
of  the  decedent  or  his  estate,  but  is  predicated  upon  their  own 
wrongful  use  or  misapplication  of  trust  funds  which  have  come 
to  their  hands,"'^  or  on  a  breach  of  contract  made  by  them  in  their 
representative  character."' 


23  Field  V.  Gibson.  5(1  How.  Pr.  2.32. 
See  Sere  v.  Coil,  5  Abb.  Pr.  481  ;  Duffy 
V.  Smith,  1  Dem.  202:  Farmers'  L.  & 
T.  Co.  V.  Ferris.  07  App.  Div.  1;  73 
N.  Y.  Supp.  475 ;  Stone  v.  Demarest, 
tl7  App.  Div.  540;  73  N.  Y.  Supp.  903; 
Collins  V.  Stewart,  2  App.  Div.  271; 
37  N.  Y.  Supp.  891 ;  Campbell  v.  Tou- 
sey,  7  Cow.  64.  The  last  case,  with 
other  cases,  holding  that  a  foreign  ex- 
ecutor or  administrator,  who  comes 
into  a  State  in  which  he  has  not  been 
appointed,  bringing  with  him  assets 
collected  in  such  foreign  jurisdictim, 
may  be  held  liable  to  creditors  in  the 
State  to  whicli  he  comes,  to  the  ex- 
tent of  such  assets,  has  been  ques- 
tioned in  Judy  V.  Kelly  (11  111.  211; 
50  Am.  Dec.  455)  and  in  Story  on 
Conflict  of  Laws.  §  514b,  and  is  com- 
mented on  in  34  Alb.  L.  J.  280.  See 
Hardcnberg  v.  Manning,  4  Dem.  437; 
Smith  V.  Central  Tr.  Co..  7  App.  Div. 
278;    40  X.   Y.   Sui)p.    152. 

24  Gulick  V.  Gulick.  33  Barb.  92.  In 
that  case  it  appeared  that  the  dece- 
dent was  a  resident  of  California,  and 
died,  leaving  personal  property  there, 
and  holding  a  demand  against  J.,  his 
brother.  The  latter  possessed  himself 
of  the  property,  and  died  in  a  foreign 
country,  and  his  administratrix,  ap- 
pointed in  California,  took  possession 
of  his  assets,  and  brought  the  same 
into  this  State.  Held,  that  the  sur- 
rogate here  had  jurisdiction  to  ap- 
point an  administrator  of  the  estate 
of  the  first-mentioned  decedent ;  and 
that  such  administrator  could  main- 
tain an  action  in  the  courts  of  this 
State  against  the  administratrix  of 
J.,  to  recover  the  indebtedness  of  the 


estate  of  .1.  to  the  estate  of  R.  In. 
Sedgwick  v.  Ashburner  (1  Bradf.  105) 
an  executor  of  a  decedent  who  was 
domiciled  in  Massachusetts,  took  out 
letters  in  India  and  collected  the  debt 
there  and  transmitted  to  S.  a  coexecu- 
tor,  who  resided  in  New  York,  but 
had  taken  out  letters  in  Massachu- 
setts, bills  for  the  amount  of  a  share 
thereof  belonging  to  A.  under  the  will, 
with  directions  to  indorse  them  with- 
out recourse,  and  deliver  them.  Held 
that,  although  the  executor  S.  took 
out  letters  in  New  York,  and  named 
the  bills  in  the  inventory,  and  al- 
though A.,  the  legatee,  refused  to  ac- 
cept the  bills  in  release  of  the  foreign 
executor's  liability,  neither  the  bills 
nor  their  proceeds  were  assets  in  the 
hands  of  S.,  and  that  he  must  be 
deemed  to  have  received  them  as  the 
agent  of  the  forei<rn  executor  or  of 
the  legatee.  See  Parsons  v.  Lvman, 
20  X.  Y.  103;  Sherwood  v.  Wcioster, 
11  Paige,  441;  Yermilya  v.  Bcatty,  G 
P.arb.  420:  Kohlcr  v.  Knapp.  1  Bradt. 
241;  Ordronaux  v.  Helie.  3  Sandf.  Ch. 
512;  Gray  v.  Ryle,  50  Super.  Ct. 
(J.  &  S.)  198;  Ferguson  v.  Harrison, 
27  Misc.  380;  Jones  v.  Jones,  8  id. 
(500;   30  N.  Y.  Supp.  177. 

25  Bloodgocd  V.  Mass.  Ben.  L.  Assn., 
19  :Misc.  400:   44  N.  Y.  Supp.  503. 

20  Montalvan  v.  Chivcr.  32  Barb. 
190. 

27  Thus  an  action  may  bi'  maintiiincd 
against  a  foreign  executor  to  compel 
the  specific  perfornu\nce  of  a  contract 
made  by  him  to  assign  a  judgment  b»'- 
longing  to  the  estate.  (Johnson  v. 
Wallis,  112  X.  Y.  230.) 


§519.  Administration  of  Estate,  Etc.  410 

ARTICLE  SECOND. 

THE    surrogate's    CONTROL    AND    SUPERVISION. 

§  519.  Surrogate's  general  control. —  In  all  matters  relating  to 
the  estate,  tlie  fenrrogate  granting  letters  testamentary  or  of  ad- 
ministration has  a  general  snpervision  and  control  of  the  execntor 
or  administrator.  The  Code  expressly  declares  that  he  has  juris- 
diction to  direct  and  control  the  conduct,  and  settle  the  accounts, 
of  executors,  administrators,  and  testamentary  trustees.^*  His 
power  over  the  last-named  officers  is  shared  by  other  courts  of 
record,  and  is  not  so  extensive  as  that  possessed  in  respect  to 
executors  and  administrators,  though  it  has  been  much  enlarged 
by  the  Code  of  Civil  Procedure. ^^  It  is  not  to  be  inferred,  how- 
ever, that  the  surrogate  has  authority  to  control  the  conduct  of 
executors  or  administrators  relative  to  proceedings  in  other  courts, 
affecting  the  estate,  e.  g.,  to  prohibit  an  executor  from  contesting 
the  payment  of  promissory  notes,  given  by  the  testator,  in  an 
action  at  law  brought  thereon.^*^  Xor  can  he  control  their  actions 
as  to  property  wdiich,  as  executors  or  administrators,  they  had 
no  right  to  take  possession  of.^^  So  he  cannot  compel  an  executor 
to  treat  a  legacy  as  a  charge  upon,  and  satisfy  the  same  out  of,  the 
testator's  real  property,^^  or  compel  an  executor  to  exercise  a 
power  of  sale  given  by  the  will,^^  or  to  set  aside,  for  fraud,  a  sale 
of  land  made  by  an  executor.^*  And,  in  general,  he  cannot  inter- 
fere with  the  representative,  to  control  him  w^hile  in  the  orderly 
discharge  of  his  duties.^^     Hence  the  discretion  of  executors  con- 


28  See  Co.  Civ.  Proc,  §  2472,  subd.  ing  by  one  executor,  who  had  exclu- 
3;   §  44,  ante.  sive    possession   of   all    the    funds   and 

29  See  Brown's  Accounting,  16  Abb.  property  of  the  estate,  his  coexecutor 
Pr.   (N.  S.)   4.57,  and  §§  319,  449,  a«fc.  objected  to  the  accounts  and  asked  the 

30  Matter  of  Parker,  1  Barb.  Ch.  154.  coiirt  to   direct  the   accounting   party 

31  Calyer  v.  Calyer,  4  Redf .  305 ;  to  transfer  to  him  so  much  of  the 
holding  that  a  surrogate  has  no  juris-  funds  as  would  enable  him  to  compen- 
diction  to  compel  an  administrator  sate  his  counsel  for  their  services  in 
Avith  the  will  annexed,  to  pay  over  to  the  contest.  The  application  was  de- 
the  devisee  rents  from  real  estate  de-  nied  for  want  of  power.  (Thompson 
vised  to  the  latter  for  life,  or  to  re-  v.  Mott,  1  Dem.  32.)  See  also  Wal- 
strain  the  further  collection  of  such  ton  v.  Howard.  1  id.  103 ;  .Jenkins  v. 
rents  by  the  administrator.  .Jenkins,   1   Paige.  243.      An  order  re- 

32  Bevan  v.  Cooper,  72  N.  Y.  317,  quiring  certain  securities,  held  by  ex- 
328.  ecutors,    to    be    deposited    in    a    trust 

33  Peyser's  Estate,  20  Daily  Reg.  No.  company,  to  remain  until  the  further 
151.  order  of  the   surrogate  —  was   held  to 

34  Matter  of  Valentine,  23  N.  Y.  be  authorized  under  the  Revised  Stat- 
Supp.   289.  utes.  on  proof  of  facts  showing  a  per- 

35  Wood  V.  Brown,  34  N.  Y.  337,  sistent  indisposition  on  the  part  of 
343 ;  Morse  v.  Tilden.  35  Misc.  560 ;  such  executors  to  comply  with  the  law 
72  N.  Y.  Supp.  30.     Upon  an  account-  concerning    their    official    duties,    and 


411  Administration'  of  Estate,  Etc.  §  520. 

ferrod  upon  them  ]>y  the  will,  to  detenuine  what  part  of  the  })rin- 
<ij)al  of  the  estate  may  he  necessary  to  he  applied  to  the  support 
of  the  heneficiarv,  is  snhject  to  review  hv  the  surrogate  to  the 
extent,  at  least,  of  ascertaining  whether  it  has  ])een  exercised 
honestly  and  in  good  faith;  powers  formerly  exercised  hy  court-5 
<if  equity  in  this  regard,  are  now  possessed  also  by  the  surrogate. 
The  surrogate  is  powerless,  however,  to  overrule  the  decision  of 
the  trustee,  except  upon  proof  that  he  has  alnised  his  discretion 
or  that  his  conduct  has  been  inconsistent  with  the  honest  and 
faithful  discharge  of  liis  duties;  but  not  on  the  ground  that  he  has 
reached  an  erroneous  conclusion.*^"  An  application  by  a  trustee 
for  instructions  as  to  the  manner  of  the  execution  of  his  trust  is 
iDeyond  the  power  of  the  surrogate  to  grant. ^^ 

§  620.  Disagreement  between  representatives. —  It  is  obviously 
desirable  that  Surrogates'  Courts  should  possess  authority  to  direct 
the  conduct  of  two  or  more  executors  or  administrators  v»diere 
there  is  a  disagreement  between  them  as  to  (the  custody  of  money, 
or  management  of  the  estate.  As  the  law  formerly  stood,  it  was 
<lou])tful  if  any  such  authority  existed  in  either  the  Surrogate's 
(^ourt  or  the  Supreme  Court;  and  it  certainly  did  not,  unless  it 
clearly  appeared  that  the  interests  of  the  beneficiaries  were  jeopar- 
dized by  reason  of  the  disagreement;^*  or  the  application  was  made 
by  a  majority  of  such  beneiiciaries.^'^  This  defect  is  remedied  by 
the  present  Code  in  a  section  ■*"  which  extends  also  to  testamentary 
trustees  and  guardians,  and  provides  that  "  where  two  or  more  co- 
executors  or  co-administrators  disagree,  respecting  the  custody  of 
money  or  other  property  of  the  estate;  or  two  or  more  testa- 
mentary trustees  or  guardians  of  the  property  disagree,  respecting 
the  custody  of  money  or  other  property,  belonging  to  a  fund  or 
nn  estate  which  is  committed  to  their  joint  charge;  the  surrogate 
may,  upon  the  application  of  either  of  them,  or  of  a  creditor  or 
person  interested  in  the  estate,  and  proof,  by  affidavit,  of  the  facts, 

showing  clangor   aa  to  the  safety  and  nicnt   was   levied   on   its   stockholders, 

preservation  of  the  estate.      And  such  On   the  application  of  its  receiver,  on 

order  is  not  invalidated  by  containinfj  the   executor's   accountinfj.    the   latter 

a    provision    that    the    deposit    should  was  ordered   to  sell   tlie  stock  to  pay 

be  for  the  individual  shares  or  inter-  the  assessment. 

esta    of    the    petitioners.        (Matter   of  37  Matter   of    Foster.    .30   Misc.    573; 

Oilman.   41   Hun.   .561.)  0.3  N.   Y.   Supp.   1102.      See  Crawford 

3fi  Banning    v.    Gunn.    4    Dem.    337.  v.  Winston.  34  App.   Div.  457 :   54  N. 

See    Merritt    v.    Corlies,    54    St.    Rep.  Y.  Supp.  246. 

215;  24  N.  Y.  Supp.  561.      In  Matter  38  Burt  v.  Burt,  41  N.  Y.  46. 

of    Buel     (23    id.    283).    the    testator  39  Quackenboss  v.  Southwick.  41  N. 

directed  the  executor   to  hold  certain  Y.   117. 

bank  stock  in  trust  for  a  legatee.    The  *0  Co.  Civ.  Proc,  §  2602. 
bank   becoming   insolvent,   an   assess- 


§  521.  Admixistratiox  of  Estate^  Etc.  412 

make  an  order,  requiring  them  to  show  cause,  why  the  surrogate 
should  not  give  directions  in  the  premises.  Upon  the  return  of 
the  order,  the  surrogate  may,  in  his  discretion,  make  ah  order, 
directing  that  any  property  of  the  estate  or  fund  be  deposited  in. 
a  safe  place,  in  the  joint  custody  of  the  executors,  administrators, 
guardians,  or  testamentary  trustees,  as  the  case  requires,  or  sub- 
ject to  their  joint  order;  or  that  the  money  of  the  estate  be  de- 
posited in  a  specified  safe,  bank,  or  trust  company,  to  their  joint 
credit,  and  to  be  drawn  out  upon  their  joint  order.  Disobedience 
to  such  a  direction  may  be  punished  as  a  contempt  of  the  court." 
Inasmuch  as  each  of  two  or  more  executors  or  administrators 
has  full  control  of  the  assets,  and  may  dispose  of  the  same  with- 
out the  co-operation  of  his  associate,  the  enjoyment  of  this  right 
cannot  be  lawfully  restrained  by  the  surrogate,  merely  because 
of  a  disagreement  between  executors  or  administrators  as  to  the 
time  when,  or  the  circumstances  under  which,  such  right  can  be 
most  advantageously  exercised."*^ 

AKTICLE  THIKD. 

THE   ESTATE  OF  EXECUTOKS,  ADMIXISTRATORS,  AXD  TESTAMENTARY 

TRUSTEES. 

SUBDIVISIOX  1. 

THE    XATURE    OF    THE    ESTATE. 

^521.  Vesting  of  title,  on  owner's  death. —  The  effect  of  the 
death  of  an  owner  of  j)roperty  is  to  vest  the  title  thereto  at  once 
in  some  other  person.     The  property  is  never  for  one  moment 


41  Brennan  v.  Lane^  4  Dem.  322  by  requiring-  a  joint  custody  of  its 
(s.  c.  as  Estate  of  Brennan,  9  Civ.  assets. —  the  fact  that  the  excluded  ex- 
Proc.  Rep.  .50).  Where  there  is  eeutor  would  be  deprived  of  commis- 
nothing  in  the  will  indicating  that  the  sions  if  no  services  were  rendered  by 
testator  reposed  greater  trust  and  con-  him,  and  he  was  competent  and  wil!- 
fidence  in  one  executor  than  in  the  ing  to  perform  his  full  share  of  the 
other,  and  nothing  tending  to  show  duty  confided  by  the  will,  while  the 
that  it  would  impair  the  security  of  acting  executor  would  receive  practi- 
the  property  of  the  estate  to  take  it  cally  a  double  commission,  was  held 
from  the  sole  custody  of  an  executor  to  be  a  consideration  making  such 
who  had  first  qualified  and  taken  pos-  joint  custody  desirable.  (Chambers 
session  f  f  the  entire  estate,  and  place  v.  Cruikshank.  ')  Dem.  414  [«.  c. 
it  in  the  joint  custody  of  himself  and  as  flatter  of  Delaplaine,  19  Abb.  N".  C. 
a  subsequently  qualifying  associate  413].)  Guion  v.  Underbill,  1  Dem. 
with  whom  he  could  meet  without  in-  302.  As  to  granting  one  executor  the 
convenience,  whenever  conference  or  right  to  inspect  books  and  papers  in 
combined  action  was  necessary,  and  possession  of  his  co-executor,  see  Mat- 
where  it  was  not  shown  that  the  inter-  ter  of  Stein,  33  Misc.  542;  68  N.  Y> 
ests  of  the  estate  would  be  prejudiced  Supp,  933. 


413 


Admixistratiox  of  Estate,  Etc. 


§  522. 


without  an  owner.  The  estate  which  an  executor  or  administra- 
tor has  in  the  goods  of  the  deceased  is  not  the  absolute  interest 
which  every  one 'has  in  his  own  property;  nevertheless,  for  many 
purposes,  the  law  treats  the  executor  or  administrator  as  the  abso- 
lute o^^'ner,  and,  as  such,  capable  of  disposing  of  the  goods  of  his 
decedent,  as  if  they  were  his  own.  But,  speaking  generally,  the 
estate  of  an  executor  or  administrator,  as  such,  is  in  autre  droit, 
and  the  decedent's  property  in  his  possession,  if  distinguishable 
from  his  own,  is  not  subject  to  his  debts.'*"  Hence,  a  general  as- 
signment by  ;ni  executor  of  all  his  property,  or  a  release  of  all 
actions  and  demands  which  he  has  for  any  cause  whatever,  does 
not  extend  to  or  embrace  the  ])roperty  or  demands  which  he  holds 
as  executor. 

§  522.  Representative's  qualified  title. —  As  to  the  property  which 
they  hold  in  a  representative  capacity,  executors  and  adminis- 
trators are,  in  equity,  to  be  treated  as  trustees  for  the  legatees  or 
next  of  kin,  and  creditors.^'^  Hence,  while,  at  law,  the  executor 
or  administrator  has  absolute  power  to  dispose  of,  or  to  pledge, 
the  assets,  and  to  give  a  valid  title,'*'*  equity  will  always  intervene 
in  a  case  of  fraud  or  misapplication,  and  will  follow  the  assets 
or  their  proceeds  into  the  hands  of  a  purchaser  affected  with 
notice  of  their  misapplication,  and  the  trust  will  attach  on  the 
property.^''     As  to  personalty,  an  executor  is  a  trustee  of  the  per- 


42  The  statute  declares  that  the  real 
property  which  belonged  to  any  dece- 
dent is  not  bound  or  in  any  way  af- 
fected by  any  judgment  asjainst  his 
€xecutor  or  administrator,  and  is  not 
liable  to  be  sold  bv  virtue  of  any  exe- 
cution issr.ed  upon  sucli  judpfuient,  un- 
less the  judornient  is  expressly  made, 
lay  its  terms,  a  lien  upon  specific 
real  property  therein  described,  or  ex- 
pressly directs  the  sale  thereof.  (Co. 
■Civ.  Proc,  §  1823.) 

■*•"'  An  executor,  as  such,  takes  nn- 
qualified  leiral  title  of  all  personalty 
not  specifically  bequeathed,  and  a  qual- 
ified legal  title  to  that  which  is  so 
bequeathed.  He  holds  as  a  trustee 
for  the  benefit  (1)  of  the  creditors  of 
"the  testator,  and  (2)  of  those  entitled 
to  distribntion.  (Blood  v.  Kane,  130 
N.  Y.  .TU:  42  St.  Rep.  .'-)40.)  It  was 
also  held,  in  that  caso.  that  the  trust 
estate  of  a  sole  executor,  who  is  also 
sole  legatee  and  devisee,  is  for  the 
l)enefit  of  the  testator's  creditors, 
only;  and  when  they  are  paid,  the 
trust   estate  merges  in  the  beneficial 


interest,  and  the  sole  legatee  and  de- 
visee becomes  vested  with  the  legal 
title  of  all  the  testator's  estate. 
(Thomas  v.  Troy  Citv  Xat.  Bank,  19 
Misc.  470;  44  N.  Y.  Sunp.  1039; 
Hauptmann  v.  First  Nat.  Bank,  etc., 
83  Hun,  78;  31  N.  Y.  Rupp.  304.) 
Hence,  such  executor,  on  proof  that 
all  the  debts  of  the  testator  have  been 
paid,  may  avail  himself  of  a  demand, 
due  the  estate  as  a  counterclaim  in  an 
action  against  him.  Sec  ^Matter  of 
Van  Honten,    IS    App.    Div.    301;    40 

N.  Y.  supp.  mo. 

•*4Hunnier  v.  Rogers,  '^'•^  Barb.  8;i. 

45  Sacia  v.  Bcrthoud,  17  Barb.  15; 
Cooper  v.  Weston.  10  St.  Rep.  937: 
Cooper  V.  Illinois  Cent.  R.  Co..  38  App. 
Div.  22;  57  K  Y.  Supp.  925;  First 
Xat.  Bank.  etc.  v.  National,  etc.. 
Bank.  150  N.  Y.  459:  Marshall  v.  De 
Cordova,  20  App.  Div.  015;  50  N.  Y. 
Supp.  294.  See  Matter  of  Holmes. 
37  App.  Div.  15;  55  N.  Y.  Supp.  708; 
affd.,  159  N.  Y.  532;  Van  Vleck  v. 
Enos.  88  Hun,  348;  34  IV.  Y.  Supp. 
754:    Isham    v.    Post,    71    Hun,    184; 


§  523.  Au.Ml^'lSTKATlOX    OF    EsTATE,    EtC.  -il-t 

Fons  entitled  to  it,  and  the  next  of  kin  have  always  the  right  to 
file  a  bill  to  enforce  the  trust,  even  if  the  rights  which  they  assert 
depend  on  the  invalidity  of  the  will  under  Avliich  the  executor 
qualified/*'  So,  an  executor  who  purchases  land  with  trust  funds> 
when  no  such  power  is  given  him  in  the  will,  is,  nevertheless,  in- 
vested with  the  full  legal  title,  though,  between  the  executor  and 
his  beneficiaries,  it  is  impressed  with  a  trust  which  they  can  en- 
force ;  and  since  the  title  does  not  come  to  him  under  the  will,  his 
w^ant  of  power  to  mortgage  under  that  instrument  does  not  apply,, 
and  a  mortgage  executed  by  him  on  the  property  is  valid.*' 

§  523.  Merger  of  title. —  Notwithstanding  the  representative  char- 
acter of  an  executor  or  administrator,  the  property  held  by  him  at 
first  in  that  character  may  become  his  own  to  his  own  nse,  by  in- 
termixing it  with,  so  as  to  become  indistinguishable  from,  his  own 
property  —  e.  g.,  money  of  the  decedent  deposited  in  bank,  in  com- 
mon account  with  his  own  funds.'*^  Such  moneys  are  subject  to  the 
executor's  individual  debts,  and  in  case  of  the  insolvency  of  the 
bank,  the  loss  is  his  owm  and  not  that  of  the  estate.  So,  at  com- 
mon law,  an  executor  w^ho  is  a  creditor  of  the  deceased,  or  who 
pays  the  debts  of  the  deceased  with  his  own  money,  acquires  and  be- 
comes vested  with  the  absolute  ownership  of  the  assets  in  his  hands,, 
to  the  extent  of  the  debt  owed  to,  or  money  paid  by,  him, —  in  the 
first  case,  the  title  vesting  at  his  election,  in  the  latter,  by  opera- 
tion of  law.'*^     This  principle  does  not,  however,  warrant  the  con- 

revd.,    on    other    points,     141    N.    Y.  and   nothing   remained  but   to   compel 

100;     Suarez    v.     Montigny,     1     App.  the   executor   of   the   deceased   trustee 

Div.     494;      aflfd.,     153     X.     Y.     678.  to  pay  the  indebtedness  of  the  estate 

Thug    an    executor    or    administrator  to  the  distributees.       (Graham  v.   De 

cannot  make  a  valid  sale  or  pledge  of  Witt,  3  Bradf.  186.) 
the  assets,  as  a  payment  of  or  security        49  In  Abell  v.  Bradner    (39  St.  Rep. 

for  his  own  debt,  since  the  very  nature  5;    15   N.  Y.   Supp.   64),   an   adminis- 

of   the    transaction    implies   notice    to  trator  had  purcliased,  at  a  foreclosure, 

the    purchaser    or    mortgagee,    of    his  property  belonging  to   the  estate,   de- 

pprticipation    in    the    misapplication,  daring  that  he  did  so  in  the  interest 

(Sutherland    v.    Brush.    7    .Johns.    Ch.  of  himself  and  the  heirs.      Held,  that 

21;    Field  v.  SchieflFelin,  id.   153.)  he    had    a    right,    in   order    to    protect 

40  Read    v.    Williams,    27    St.    Rep.  himself  as  a  creditor  of  the  estate,  to- 

."JOS:     8    N.    Y.    Supp.    24;    affd.,    125  retain  the  title  until  his  just  demands 

X.  Y.  500.  upon   it   were   satisfied,   and   that   his- 

4T  McLean   v.    Ladd,    66   Hun.    341 ;  accountability  was  limited  to  the  fair 

21   N.   Y.    Supp.    196.      See   Butler  v.  rental    value    of    the    property.       See 

Walsh,   48   App.   Div.    459;    Roarty  v.  Livingston  v.    Newkirk,    3    Johns.   Ch. 

McDermott.   140  N.  Y.  296.  312.       In    Haberman    v.    Baker     (128^ 

48  Where  the  trustee,  having  mingled  N.  Y.  253 ) ,  upon  the  foreclosure  of  a 
the  money  with  his  own,  without  mak-  mortgage  belonging  to  the  estate,  the 
ing  distinction,  died; — Held,  that  mortgaged  premises  were  bought  in  by 
there  was  no  necessity  for  the  ap-  the  administrator.  Held,  that  the 
pointment  of  a  new  trustee,  for  the  premises  so  acquired  took  on  the  char- 
trust  fund  had  not  been  kept  separate,  acter    of    the    mortgage    indebtedness 


415  Administkatiox  of  Estate,  Etc.  §  524. 

elusion  that  an  execntor  or  achnini>trator  can  give  liimself  a  pref- 
erence over  other  ereditoi-s.  TiRler  the  existing  statute,  he  must 
inchule  his  liahility  in  the  accounting,  and  he  makes  anj  sueii 
appropriation  nieanwhik'  at  liis  periL^'^ 

i;  524.  Joint  tenancy  of  representatives. —  Every  estate  vested  in 
two  nr  iii(»re  executors  or  administrators,  as  such,  is  held  by  them 
in  joint  tenancy.^*  They' are  to  be  considered  as  one  person,  and 
as  having  but  one  joint  and  entire  estate  in  the  property  of  the  de- 
cedent. The  death  of  either  does  not  change  the  quality  of  the 
estate ;  the  survivor  is  vested  with  the  interest,  of  his  deceased 
(•(im]iani()n.  Therefore,  the  acts  of  any  one  of  them  relating  to- 
the  management  and  disposition  of  the  assets  are  to  be  deemed 
the  acts  of  all.'''"  Thus,  two  executors,  against  the  will  of  their  co- 
executor,  may  compromise,  and  release  a  mortgage  or  other  debt 
of  the  estate.^^  But  where  the  will  requires  an  act  to  be  done  by 
tlic  executors  jointly,  the  death  of  one  of  them  prevents  perform- 
ance.^'* Where  two  executors  or  administrators  take  an  obliga- 
tion to  themselves  jointly  as  representatives  of  their  decedent,  for 
a  debt  belonging  to  his  estate,  one  of  them  can  receive  payment  and 
lawfully  discharge  the  obligation. ^^  Two  or  more  qualifying  testa- 
mentary trustees  cannot,  like  executors,  act  separately,  but  all 
must  join  in  receipts  and  conveyances.  A  deed  by  two,  w^hile  a 
third,  Avlio  is  qualified  to  act,  is  living,  is  not  valid. ^^  But  when 
the  founder  of  the  trust  expressly  authorizes  a  majority  to  act 
and  to  execute  their  acts,  their  execution  of  the  duties  of  the  trust, 
in  good  faith,  is  valid  and  effectual.^"  If  one  or  more  of  the  exec- 
utors, on  whom  is  conferred  a  power  of  sale,  fail  to  take  upon  him 

and  were  to  be  rcpfarded  as  personalty  ")2;  Murray  v.  Blatohford,  1  Wend, 
which  the  administrator  could  dis-  083 ;  Jackson  v.  Robinson.  4  id.  436; 
pose  of  and  must  account  for  as  per-  Stuyvesant  v.  Hall.  2  Barb.  Ch.  1,51; 
sonalty.  To  pass  a  good  title  it  was  Douglass  v.  Satterlee.  11  Johns.  16; 
not  necessary  that  the  heirs  of  the  de-  Gardner  v.  Miller,  19  id.  IScS;  Bren- 
cedent  nor  his  residuary  devisee  should  nan  v.  Lane,  4  Dem.  322,  and  cases- 
join    in    the    administrator's    convey-  cited. 

ance,  and  this,  although   the  decedent  ^'^  Murray    v.    Blatchford.    1     Wend. 

had,    as    mortgagee,    taken    possession  .583.      Compare  Wheeler  v.  Wheeler,  0 

iif  the  premises  in  his  lifetime  in  order  Cow.   34;    Stuyvesant  v.  Hall.  2   Barb. 

to    satisfy    tlie    mortgage    debt    out    of  C'h.   151. 

the   property  mortgaged,   but  had  not  54  Herriott   v.    Prince.   87    Hun,   95; 

held  it  long  enough  to  gain  a  title  by  33  N.  Y.  Supp.  !)70 ;  affd..  155  X.  Y.  5. 

adverse  possession.  f''''  People  v.    Keyser^    28   N.   Y.    226. 

.'■>o  See  Co.  Civ.  Proc,  §  2719  (former  5fj  Ridgeley    v.     Johnson,     11     Barb^ 

§  2739).  527:    Earle    v.    McOoldrick,    15    Misc. 

51  1  R.  S.  727,  §  44;  L.  1890,  c.  547,  135:    30   X.   Y.    Supp.   803;    Egbert   v. 

§§   56,   140,   154.      See   Davis  v.  Kerr,  :McGuire,  ,36  Misc.  245:  Wilder  v.  Ran- 

3  App.  Div.  322:   38  X.  Y.  Supp.  387.  ney.  95  X".  Y.   7.  and  cases  cited. 

•'■>2  Wheeler   v.   Wheeler.   9   Cow.    34;  57  Crane    v.    Decker.    22    Hun.    452. 

Boeert  V.  Hertell,  4  Hill,  492;  9  Paige,  See  House  v.  Raymond.  3  id.  44. 


f  525.  Administration  of  Estate,  Etc.  416 

the  execution  of  tlie  will,  then  any  sale  made  by  those  who  take 
upon  themselves  the  execution  thereof  is  valid,  as  if  the  others 
had  joined.^®  This  is  merely  declaratory  of  the  common  law.^*^  The 
statute  applies  as  well  to  the  case  of  a  mere  power  of  sale,  or  where 
there  is  a  discretion  given  to  the  executors  to  determine  whether 
the  land  shall  be  sold  or  not,  as  to  the  case  of  a  positive  order  that 
the  land  be  sold.^  The  refusal  of  one  of  the  executors  to  act  may 
be  proved  like  any  other  matter  in  pais;  a  renunciation  is  not  neces- 
sary.^^ 

§  525.  Suits  between  co-executors,  etc. —  As  two  or  more  repre- 
sentatives are  joint  tenants,  each  having  the  same  right  to  the  pos- 
session of  the  fund,  it  follows  that,  at  law,  one  executor  or  admin- 
istrator cannot  sue  his  co-executor  or  administrator,  to  recover  a 
debt  due  from  the  latter  to  the  testator  or  intestate.  It  is  other- 
wise in  equity,  where  such  an  indebtedness  can  be  ascertained, 
and  such  disposition  of  the  fund  made  as  justice  and  equity  re- 
■quire.^^  Hence,  in  a  case  where  a  mortgagor,  being  appointed  one 
of  the  executors  of  the  will  of  the  mortgagee,  accepts  the  trust  and 
qualifies,  his  co-executor  having  accepted  and  qualified,  may  pro- 
ceed to  revive  the  suit  against  the  mortgagor  co-executor.®^  But 
one  executor  cannot  maintain  an  action  against  his  co-executor  to 
compel  the  latter  to  place  the  securities  and  papers  of  the  estate  in 
liis  possession  in  the  custody  of  a  bank,  or  that  both  he  and  the 
plaintiff  deposit  all  moneys  thereafter  collected  therein,  to  be 
drawn  out  only  on  their  joint  check ;  and  it  is  no  ground  for  such 
an  action  that  the  defendant  maintains  exclusive  manual  possession 
of  the  securities  belonging  to  the  estate,  and  refuses  to  deliver  over 
any  portion  thereof  to  the  custody  of  his  co-executor,  it  not  ap- 


58  2  Rev.  Stat.  109.  §  5.5:  Sullivan  sumed  to  accept  the  trust  e«tate;  but 
V.  Fosdick,  10  Hun.  181:  Barber  v.  he  cannot  be  vested  with  it  against 
Barber,  17  id.  73.  his   will.      Where   it   was   in   writing, 

59  Davoue  v.  Fanning.  2  Johns.  Ch.  and  acknowledged  so  as  to  be  received 
252;  Ogden  v.  Smith,  2  Paige,  195;  in  evidence  without  further  proof,  it 
Kiles  V.  Stevens.  4  Den.  399:  Bunner  was  he'd  sufficient.  (Burritt  v.  Silli- 
T.  Storm,  1  Sandf.  Ch.  357:  Conover  v.  man.  13  X.  Y.  93.) 

Hoffman.  1  Bosw.  214.  02  Rogers  v.  McGuire.  75  Hun,  133; 

00  Taylor    v.    Morris.    1    X.    Y.    341 ;  27  X.  Y.  Supp.  276. 

Leggett  V.  Hunter,  19  id.  445.  6.3  McGregor  v.  McGregor,  35  X.  Y. 

ci  Roseboom  v.   Mosher,   2   Den.   Gl.  218.       And    see    Decker    v.    Miller,    2 

And  see  Sharp  v.  Pratt.  15  Wend.  GIO:  Paige.  150:  Smith  v.  Lawrence.  11  id. 

Matter    of    Stevenson,    3    Paige,    420.  206:   Wurts  v.  Jenkins.  11   Barb.  546. 

The    renunciation    or    disclaimer    of    a  As  to  a  suit  by  one  executor  against 

devisee  in  trust  need  not  be  in   such  another,  who  is  a  surviving  partner  of 

form  as  to  pass  an  estate  in  the  prop-  decedent,  for  an  accounting,  see  Simp- 

erty  devised.      In  the  absence  of  proof  son  v.  Simpson,  44  App.  Div.  492. 
to  the  contrary,  such  devisee  is  pre- 


417  Admixistkatiox  of  Estate,  Etc.     §§  526,  527. 

peariiii;'  that  the  interests  of  tlie  benefieiarie.s  under  the  will  arc 
jeoparded  In'  siieh  exclusive  possession. ''■* 

§  526.  Survivorship. —  In  case  of  the  death  of  one  of  several  ex- 
ecutors, the  surviving  executor  and  trustee,  or  a  surviving  admin- 
istrator, has  the  right  to  the  exclusive  possession  of  the  property.*^^ 
It  is  not  unusual  for  a  will  to  confer  upon  the  survivor  of  two  or 
more  executors  or  trustees  the  power  of  appointing  a  successor. 
In  such  a  case,  it  is  not  imperative  that  such  appointment  should 
be  made,  and  if  none  is  made,  the  trust  may  be  carried  out  by  the 
survivor  alone.^" 

§  527.  Substituted  trustees. —  Where  all  the  trustees  decline  the 
trust,  or  die,  or  are  removed,  the  trust  is  not  defeated,  nor  the 
title  to  the  real  property  affected,^^  but  the  execution  of  the  trust 
devolves  upon  the  court,  which  may  appoint  others  in  their  place,^® 
and  the  trust  estate  vests  in  the  appointees,  as  fully  as  if  they  had 
been  originally  named  in  the  will.^^ 

It  is  well  settled  that  the  court  has  power  to  clothe  the  substi- 
tuted trustee  with  all  the  powers  of  the  one  superseded  by  death 
or  removal.'^'' 

A  trust,  conferred  upon  the  executor  or  "  whoever  shall  execute 
this  my  will "  is  not  a  personal  trust,  or  confidence,  but  can  be 
exercised  by  any  person  lawfully  appointed  to  execute  the  will.^* 

A  trustee  cannot  continue  the  trust  after  his  death  by  will, 
whether  the  trust  be  of  real  or  personal  estate.^^  The  old  rule  that 
a  trust  of  personal  property,  upon  the  death  of  the  trustee,  de- 
volved upon  his  personal  representatives,  is  now  abrogated  by  stat- 

*'>4Burt  V.  Burt,  41  N".  Y.  46,  limit-  C9  See  Myers  v.  McCulIagh.  63  App. 

ing  Wood  V.  Brown.  34  id.  337.      And  Div.  321.     Provision  is  made  by  stat- 

soe  Quackenboss  v.  Southwick   (41   id.  iite    (Co.   Civ.   Proc,   §   2814)    for  the 

117)    as  to  the  remedy  in  such  a  case  resignation  of  trustees   upon   petition. 

'  f    the    beneficiaries    under    the    will.  Independently  of  the  statute,  the  court 

But   now,   the    Code   expressly   confers  has   no   power,   upon   a   mere   petition, 

uunn     tlie     Surrogate's     Court     ample  to  discharge  a  trustee  without  consent 

power  to  interfere  in  such  cases.     (See  of  all  parties.      (Matter  of  Van  Wvck, 

S  520,  ante.)  1  Barb.  Ch.  .56.1:  Shepherd  v.  :McEvers, 

"'^  Shook    v.    Shook,    19    Barb.    6.53;  4  Johns.  Ch.  136;   Cruger  v.  Halliday, 

House  V.  Raymond,  3  Hun,  44;  Davis  11   Paige,  314.)       As  to  the  power  to 

v.   Kerr,   3   App.   Div.   322;    38   N.   Y.  remove  a  trustee  on  good  cause  shown, 

Supp.  387.  and  to  substitute  another  in  his  stead, 

«6  Belmont  v.  O'Brien,  12  N".  Y.  304.  see  §§  440-40"),  anir. 

or  See  Paget   v.   Stevens,   143  N.  Y.  70  Leggett  v.  Hunter.  10  X.  Y.  44.5; 

172:   62  St.  Rep.   103.  Ross  v.  Roberts.  2  Hun.  00. 

*;8King    v.    Donnelly.    5    Paige,    46;  71  Rovce  v.   Adams,   123  X.  Y.   402: 

He   Peyster   v.    Clendining,   8   id.   205;  33    St.    Rep.   622.       As   to   the   powers 

McCosker  v.  Brady,  1   Barb.  Ch.  320;  and   duties   of   an   administrator   with 

Quackenboss   v.    Southwick,    41    N.   Y.  the  will  annexed,  see  §  334,  ntitc. 

117.       See    Co.    Civ.    Proc,   §    2818;  72  Fonda  v.  Penfield,  56  Barb.  503. 
§§  322,  454,  071  te. 

27 


§  52S.  Administration  of  Estate,  Etc.  418 

lite.      All  unexecuted   express   trusts   now   vest   in   the   Supreme 
Court." 

In  respect  to  real  property,  inasmuch  as  a  power  to  sell  lands, 
conferred  upon  executors,  is  derived  from  the  will  and  not  the 
probate,  it  was  always  doubtful  whether,  in  any  case,  a  power  re- 
latiuir  to  realty  Avould  pass  to  an  administrator  with  the  wall  an- 
nexed. It  is  true  that  the  statute  confers,  upon  administrators  with 
the  will  annexed,  "  the  same  duties,  rights,  and  powers  as  if  they 
had  been  named  executors  in  the  will ;"  "^^  but  the  weight  of  au- 
thority is  in  favor  of  the  view^  that  the  statute  has  reference  only 
to  personalty,'^^  and  is  not  applicable  to  realty  or  to  a  discretionary 
power,  or  to  a  gift  in  trust,  or  to  a  power  inseparably  connected 
therewith.*^^ 

SUBDIVISION^  2. 

THE    QUANTITY    OF    THE    ESTATE. 

§  528.  In  general. —  The  wdiole  personal  estate  of  the  deceased^ 
both  at  law  and  in  equity,  including  debts,  accounts,  things  in  ac- 
tion, and  every  species  of  personal  property,  not  expressly  ex- 
cepted by  the  statute,  vests  in  the  executor  or  administrator.  He 
alone  is  entitled  to  represent  the  deceased  in  respect  of  his  per- 
sonal property,"^  and  he  has  the  same  right  to  the  possession  of 
the  estate  as  the  decedent  would  have,  if  living,  and  the  same 
remedies  for  its  recovery  and  protection.'^ 

On  the  other  hand,  it  may  be  stated,  as  a  general  rule,  that  all 
rights  in  the  real  estate  are  represented  solely  by  the  heir  or  dev- 
isee, who  alone  can  sue  in  respect  of  injuries  done  to  it.      There 

73  L.   1882,  c.   185:   L.   1807,  c.  417,  cute  the  trust   power  under  the  will. 

§   8,  as  amended  by  L.    1902,  c.   150;  For  a  case  where  an  imperative. power 

L.   1896,  c.  547,   §   91,  as  amended  by  of  sale  was  held  properly  exercised  by 

L.  1902,  c.  151.      For  former  rule,  see  an  administrator  c.  t.  a.,  see  Clifford 

Bunn    V.    Vaughan,    1    Abb.    Ct.    App.  v.    Morrell,   22    App.    Div.    470.       See 

Dec.  253;  3  Keyes,  345.      See  Brink  v.  §  335,  ante. 

Layton,     2     Redf.     79;     Robinson     v.        '7  While  it  is  true  that  the  appoint- 

Schmitt,   17   App.  Div.  628;   45  N.  Y.  ment  of  an  executor  vests  in  him  all 

Supp.  253.  the  personal  estate  of  the  testator,  yet 

'■i  2  R.  S.,  72,  §  22.  if   it   can   be   collected,   from   any   cir- 

"SConklin  V.  Egerton,  21  Wend.  430.  cumstance   or  expression   in  the   will, 

'^>  Dominick    v.    Michael,    4    Sandf.  that  the   testator   intended  his   execu- 

374;  Dunninor  y.  Ocean  Nat.  Bank,  61  tor  to  have  only  the  office,  and  not  the 

X.  Y.  497;   Beekman  v.  Bonsor,  23  id.  beneficial     interest,    equity    wi'l     give 

298 :     Roome    v.     Philips,  27   id.   357 ;  effect   to    such   an    intention,    and    the 

though,  in  the  latter  case,  Davies,  J.,  executor  will  be  deemed  a  trustee  for 

said,  that  if  the  question  were  new,  he  those    on   whom    the    law   would    have 

should  say  the  statute  applied  to  real  cast  the  surplus,  in  case  of  a  complete 

property.      The  trust,  in  such  a  case,  intestacy.  (See    Story's    Eq.    Jur., 

devolves    upon    the     Supreme     Court,  §   1208.) 
which  will  appoint  a  trustee  to  exe-        78  Patchen  v.  Wilson,  4  Hill,  57. 


411)  Admi.nistkation  of  Estate,  Etc.  §  529. 

are  two  classes  of  representatives  therefore:  personal  represenia- 
tives, —  that  is,  executors  or  administrators;  and  real  represenior 
tives, —  that  is,  the  heir  or  devisee.  By  the  use  of  the  term  "  rep- 
resentative," it  is  not  meant  to  imply  that  a  man,  regarded  as  an 
individual,  and  apart  from  his  rights  in  and  to  property,  con- 
tinues his  existence  by  representation.  By  death,  all  the  accrued 
rights  of  an  individual  as  such  are  extinguished ;  and  strictly  per- 
sonal causes  of  action,  as  for  attacks  upon  his  life,  his  liberty, 
or  his  reputation,  do  not  survive  him,  even  though  suit  has  been 
commenced  on  them ;  and  actions  against  him  for  the  like  causes 
perish  in  like  manner,  according  to  the  maxim,  actio  personalis 
morifur  cum  persona.'^ 

§  529.  What  are  assets  to  be  accounted  for. —  We  had  occasion, 
in  connection  with  the  subject  of  the  inventory  and  appraisal  of 
the  estate,  to  give  the  statutory  enumeration  of  the  classes  of  arti- 
cles which  ought  to  be  inventoried,  but  reserved,  for  subsequent 
consideration,  the  subject  of  what  are  assets  for  which  an  execu- 
tor or  administrator  is  accountable,  so  far,  at  least,  as  the  adjudi- 
cations of  our  own  courts  have  settled  the  principles  involved. 
Personal  property  may  be  either  in  possession,  that  is,  where  the 
deceased  had  not  only  the  right  to  enjoy,  but  also  the  actual  en- 
joyment ;  or  in  action, —  that  is,  w^here  he  had  not  the  occupation, 
but  merely  a  right  to  occupy  the  thing  in  question,  the  possession 
whereof  may,  however,  be  recovered  by  action ;  from  whence  the 
thing  so  recoverable  is  called  a  thing  or  chose  in  action.^^ 

The  executor  or  administrator  may  enter  upon  premises  de- 
scended to  the  heir,  for  the  purpose  of  removing  the  goods,  and  it 
is  his  duty  to  acquire  possession  of  such  books  of  account  and 
title  deeds  or  papers  of  the  deceased  as  will  inform  him  of  the 
nature  and  amount  of  the  estate.^^    In  an  accurate  and  lecral  sense. 


70  Exoontnrs  and  administrators  rep-  that  deceased  at  times  made  incidental 

resent,  in  all  matters  in  which  the  per-  statements    that    the    increase    of    the 

ponal  estate  is  concerned,  the  person  of  farm  belonjied  to  her  Inisband,  was  not 

the  testator  or  intestate,  as   the  heir  sufficient  to  overcome  the  presumption 

does   that   of   the   ancestor.       (Lee   v.  that  the  property  remained  hers,  and 

Dill,     30     Barb.     516;      disapproving  that  her  administrator  sliould  include 

]\IcCray   v.   McCray,    12   Abb.    Pr.    1.)  such   personal   property   in   his   inven- 

For  the  meaning  of  the   term   "legal  tory.     (^Matter  of  Wheeler.  28  St.  Rep. 

representatives."  as  used  in  the  Stat-  638 :    8    X.   Y.    Supp.    3S.'>. )       Moneys 

lite   of    Distribution,   see   post,   tit.   8,  contributed  by  the  heirs  to  produce  an 

of  this  chapter.  annuity  given  bv  tlie  will,  are  not  to 

80  Wms.    on    Exrs.     (6th    Am.    ed.)  be    accounted     for     bv    the    executor. 

862.       _  CMattcr  of  Collins.  144  N.  Y.  .522:  64 

SI  Prior  to  the  marriage  of  deceased  Pt.    Rep.    48.)        Nor    are    securities, 

she   owned    a   farm    and   the    personal  given   by   testator   in    his   lifetime   to 

property  thereon.    Held,  that  evidence  one  named  as  executor  in  his  will,  to 


§529. 


Administration  of  Estate,  Etc. 


420 


all  the  personal  property  of  the  deceased,  which  is  of  a  salable 
nature,  and  may  be  converted  into  ready  money,  is  deemed  assets ; 
but,  in  a  larger  sense,  all  the  property  of  the  deceased  which  is 
chargeable  with  his  debts  or  legacies,  and  is  applicable  to  that 
purpose,  is  to  be  deemed  assets. 

Where  a  question  arises,  as  to  whether  certain  effects  are  assets 
of  the  estate,  or  are  the  individual  property  of  the  representative, 
the  latter  may,  by  his  own  acts,  be  concluded  from  claiming  them.^^ 
Personal  property  of  a  nonresident  testator  may  vest  in  the  execu- 
tor, under  a  will  which  would  be  void  if  the  former  had  resided 
here.^^ 


distribute  the  proceeds  thereof.  (Mat- 
ter of  Cooper.  0  Mi:^c.  501  ;  27  N.  Y. 
Supp.  42.5. )  But  where,  in  such  case, 
specified  amounts  are  to  be  paid  out 
of  the  proceeds,  the  surplus,  if  any, 
must  be  accounted  for.  ( Bliss  v.  Fas- 
dick,  76  Hun.  508:  27  N.  Y.  Supp. 
1053.)  Evidence  that  the  intestate 
gave  to  his  wife  money  with  which  to 
purchase  furniture,  which  she  did, 
without  further  evidence  tending  to 
show  a  gift,  either  of  the  money  or 
furniture,  to  her  as  her  separate  prop- 
erty, is  not  enough  to  exonerate  her 
from  accounting  for  it  as  administra- 
trix, (flatter  of  Ward,  2  Redf.  251; 
S.  P.,  Matter  of  James.  78  Hun,  121; 
28  N.  Y.  Supp.  992;  affd.,  146  K  Y. 
78.)  The  mere  handing  of  property, 
by  the  alleged  donee  thereof,  to  the 
executor  on  his  claim  that  it  should 
be  inventoried,  without  any  intent  to 
make  a  gift  thereof  to  the  estate,  does 
not  work  a  transfer  of  title  so  as  to 
make  it  assets.  (Van  Slooten  v. 
Wheeler,  70  Hun,  55;  27  K  Y.  Supp. 
666;  revd.,  on  another  point,  145  N. 
Y.  327.)  And  see  Gannon  v.  McGuire, 
160  id.  476;  Matter  of  Farmers'  L.  & 
T.  Co.,  47  App.  Div.  448. 

82Garvey  v.  McCue,  3  Redf.  313; 
revd.  on  another  point,  14  Hun,  562. 
In  that  case,  one  who,  having  received 
letters  of  administration  upon  the  es- 
tate of  his  wife,  swore  that  she  left 
an  estate,  and  filed  his  account,  in 
which  certain  moneys  were  returned 
as  constituting  the  whole  estate,  was 
held  estopped,  as  against  a  creditor  of 
the  estate,  from  claiming  the  moneys 
as  his  own  individual  property.  See 
Butler  v.  Weeks.  12  Misc.  192:  33 
N.  Y.  Supp.  1090;  Borland  v.  Borland, 
59  App.  Div.  37;  69  N.  Y.  Supp.  179. 

8.HDespard  v.  Churchill.  53  N.  Y. 
192.     In  that  case,  a  resident  of  Cali- 


fornia dying  seized  of  certain  lease- 
hold estates  for  years,  in  lands  situ- 
ated in  this  State,  left  a  last  will 
and  testament,  void,  in  its  material 
provisions,  under  the  statutes  of  this 
State,  but  valid  by  the  laws  of  Cali- 
fornia. A  portion  of  the  executors 
named  in  the  will  were  residents  of 
this  State,  and  these  were  charged 
with  the  care  ami  administration  of 
the  property  here.  Held,  that  the 
leasehold  estates  were  to  be  treated 
as  personalty,  and  to  be  governed  by 
the  law  of  the  testator's  domicile :  but 
that  the  courts  of  this  State  would 
not  aid  in  carrying  out  here  bequests 
contrary  to  its  statute  laws,  and  that 
the  assets  here,  after  paying  there- 
from certain  legacies,  valid  under  the 
laws  of  this  State,  and  directed  to  be 
paid  by  the  executors  here,  should  be 
remitted  to  California,  to  be  there  dis- 
tributed. To  the  same  effect.  Simon- 
son  V.  Waller,  9  App.  Div.  503. 

Foreign  assets. —  Personal  property 
has  no  status  or  locality,  except 
as  it  follows  the  owner's  person; 
and  wherever  situate,  the  representa- 
tive is  the  proper  person  to  collect 
and  receive  it.  Hence,  assets  belong- 
ing to  a  deceased  resident,  situated  in 
another  State,  must  be  included  in 
the  inventory  of  the  assets  filed  by  his 
executor,  to  whom  letters  testament- 
ary are  issued  here,  unless  an  execu- 
tor has  been  appointed  in  the  foreign 
State.  (Sherman  v.  Page,  85  X.  Y. 
123.)  It  is  not  sufficient  for  the  ap- 
praisers to  include  only  such  property 
as  "  shall  be  exhibited  to  them,"  but 
all  the  property  of  which  they  have 
anv  knowledge  should  be  included. 
(Matter  of  Butler.  38  N.  Y.  397.) 
Where  a  policy  of  insurance  issued  by 
a  New  York  company,  to  a  resident  of 
another  State,  was  at  the  time  of  the 


421 


Administkatiox  of  Estate,  Etc. 


§  530. 


The  complicated  questions  growing  out  of  the  doctrine  of  equi- 
table conversion  cannot  be  considered  here;*^  nor  is  it  necessary 
to  enlarge  upon  the  subject  of  the  different  kinds  of  chattels,  real 
and  personal,  which  is  fullv  treated  in  standard  works  of  author- 
ity.«^ 

§  530.  Real  property.—  With  respect  to  the  real  estate,  unices  it 
is  devised  to  the  executor  upon  an  express  trust,  the  heir  or  de- 
visee is  the  only  person  who  has  the  right  to  its  possession  and 
enjoyment,  except  where  it  may  be  required  to  satisfy  the  debts 
of  the  deceased.*"'"  The  same  is  true  of  an  interest  in  a  contract 
for  the  purchase  of  lands  by  the  decedent.^'  Such  an  interest  de- 
scends to  the  heirs  of  the  purchaser,^^  and  the  purchase-money 
passes  to  the  executor  of  the  vendor  as  part  of  the  assets.^^ 


insured's  dpath.  and  had  since  l)een.  in 
a  foreign  jurisdiction  in  the  posses- 
sion of  the  insured  or  of  his  adminis- 
trator,—  Held,  that  a  public  adminis- 
trator in  this  State,  never  having  ob- 
tained the  title  to  tlie  ])oliey.  or  a  right 
to  its  possession,  could  not  enforce  its 
pa\nnent.  (Morrison  v.  Mut.  L.  Ins. 
Co"!,  57  Hun,  97:  32  St.  Rep.  846.) 
See  Holvoke  v.  Mutual  Tns.  Co..  22 
Hun.  75":  aflFd..  84  N.  Y.  G48 ;  Sulz  v. 
^lutual  Reserve,  etc.,  Assn.,  145  id. 
5G3 ;  Simonson  v.  Waller,  9  App.  Div. 
50.3. 

!^4  0n  this  subject  see  §  269,  n.  33, 
ante,  and  in  addition  to  the  cases  there 
cited,  the  following:  Hatch  v.  Bas- 
sett.  52  X.  Y.  350:  Ross  v.  Roberts. 
63  id.  652:  aflfg..  2  Hun.  90:  Gourley 
v.  Campbell.  66  X.  Y.  169:  Fisher  v. 
Ranta.  id.  468:  Xewell  v.  Xichols.  75 
id.  78;  affg.,  12  Hun.  604:  Betts  v. 
Betts,  4  Abb.  X.  C.  317;  Barntjs  v. 
Hatluiway,  66  Barb.  452  ;  Sage  v.  Lock- 
man.  53  How.  276 :  Power  v.  Cassidy, 
54  id.  4;  Gano  v.  McCunn.  56  id.  337; 
Shumway  v.  Harmon.  4  Hun.  411: 
Craham  v.  Livingston.  7  id.  11:  Kelly 
V.  Hoev.  35  App.  Div.  273 :  Doane  v. 
Mercantile  Trust  Co..  160  X.  Y.  494; 
Hope  V.  Brewer.  136  id.  126:  :Matter 
of  Tatum.  169  id.  514:  Miller  v.  Gil- 
bert, 144  id.  68:  Matter  of  Young.  145 
id.  535;  Salisbury  v.  Slade,  160  id. 
278:  McDonald  v.  "O'Hara.  144  id.  566; 
Thompson  v.  Hart,  58  App.  Div.  439; 
:\ransbach  v.  Xew.  id.  191:  affd..  170 
X.  Y.  585;  Merritt  v.  Merritt.  32  App. 
Div.  442:  affd..  161  X.  Y.  634:  Mat- 
ter of  Hosford,  27  App.  Div.  427: 
Mutual   L.   Ins.   Co.  v.   Bailcv.   19   id. 


204;  Baker  v.  Baker,  18  id.  189;  157 
X.  Y.  671;  Matthews  v.  Studlev.  17 
App.  Div.  303. 

85  See  Wms.  on  Exrs.  ( 6th  Am.  ed. ) 
746-817:  3  Redf.  on  Wills.  351. 

8C  See  Matter  of  Tompkins.  154  X. 
Y.  634;  Butler  v.  Townsend.  84  Hun, 
100;  31  X.  Y.  Supp.  1094:  Craver  v. 
Jermain,  17  Misc.  244:  40  X.  Y.  Supp. 
1056.  The  heir  has  a  property  in  the 
monuments  of  his  ancestors,  but  not 
in  their  ashes.  (Matter  of  Brick 
Presbyterian  Chuich.  3  Edw.  155.) 
On  the  death  of  a  tenant  pour  autre 
vie,  the  estate  becomes  a  chattel  real, 
and  goes  to  the  personal  representa- 
tive. (1  R.  S.  722.  §  62:  id..  82.  §  6; 
Reynolds  v.  Collin.  3  Hill.  441.)  An 
equitable  estate  of  the  wife  for  the 
life  of  the  husband  belongs,  on  her 
death,  to  her  administrators,  and, 
therefore,  goes  to  her  husband  with- 
out administration.  (  Xorton  v.  Xorton. 
2  Sandf.  296.)  Where  a  will  confers 
a  power  of  sale  on  the  executor  and 
gives  the  proceeds  to  persons  named 
therein,  the  executor  takes  no  title  to 
the  real  estate  and  cannot  maintain 
ejectment.  (Smith  v.  Chase.  90  Hun, 
99;   35  X.  Y.  Supp.   615.) 

STSee  §   492.  ante. 

88  If,  however,  the  administrator  of 
the  purchaser  receives  rents  for  such 
land  accruing  after  the  death  of  the 
intestate,  he  must  account  for  them, 
as  well  as  for  the  sum  realized  by  him 
upon  a  sale  of  his  intestate's  interest 
in  the  land.  (Griffith  v.  Beecher.  10 
Barb.  432.) 

89  See  Williams  v.  Haddock.  145  X, 
Y.   144:   64   St.   Rep.   564. 


g  530.  ADMI^ilSTRATION    OF    EsTxVTE,    EtC.  422 

An  administrator,  as  such,  has  no  authority  or  control  over  the 
real  estate  of  his  intestate,  and  owes  no  duty  to  the  heirs.''*'^  He  is 
not,  therefore,  precluded  from  purchasing  such  real  estate,  upon 
a  foreclosure  sale,  in  his  own  right.*^^ 

Where  real  estate,  of  which  the  decedent  died  seized,  is  incum- 
bered by  a  mortgage  which  is  foreclosed  after  his  death,  and  the 
land  is  sold,  any  surplus  arising  on  the  sale  is  to  be  regarded  as 
realty,  and  goes  to  the  heirs  or  devisees,  not  to  an  administrator, 
although  the  mortgage  provides  that  the  surplus  shall  be  paid  to 
the  mortgagor,  his  executors  or  administrators;^^  and  the  same 
is  true  as  to  proceeds  of.  lands  sold  in  partition.^^  But  land  bought 
in  by  executors,  on  a  foreclosure  of  a  mortgage  belonging  to  the 
estate,  is  to  be  treated  as  personal  property,''^  and  a  Surrogate's 
Court  has  jurisdiction  to  direct  an  accounting  in  respect  thereto, 
where  the  administrator,  through  a  mesne  conveyance,  has  ac- 
quired title  in  his  individual  name.  It  is  not  necessary  to  first 
proceed  in  equity  for  the  imposition  and  declaration  of  a  trust.^^ 

The  payment,  by  an  administrator,  of  debts  secured  by  mort- 
gage upon  the  decedent's  real  estate,  is  unauthorized ;  but  where 
this  was  done  to  prevent  an  anticipated  foreclosure  and  the  ex- 
pense thereof,  it  having  become  apparent  that  the  equity  of  re- 
demption would  have  to  be  sold,  by  order  of  the  surrogate,  to  pay 
debts,  it  was  held  that  the  items  might  properly  appear  among 
the  administrator's  credits,  since,  presumptively,  the  land  brought 
as  much  more  at  the  sale,  as  the  amount  paid  in  discharge  of  the 
debt,  and  the  amount  was  properly  allowed,  out  of  the  proceeds, 
on  the  principle  of  subrogation.^® 

On  the  same  principle  of  subrogation,  where  the  only  property 
of  the  estate  was  certain  land  which  the  administrator  redeemed 
from  a  sale  for  unpaid  taxes,  the  amount  of  such  payments  may  be 
allowed  him  as  a  preferred  claim.' 


97 


90  Hollintrsworth  v.  SpauMinor,  .54  statute  being  desiprned  merely  to  pro- 
iN".  Y.  6.3fi:  Hillman  v.  Stephens.  16  vide  for  the  application  of  the  sur- 
id.  278:  Brevoort  v.  M'.Jimsev.  1  Edw.  plus  to  the  payment  of  debts,  if  re- 
,5.51:  Griffith  v.  Beecher.  10  Barb.  432;  quired  for  that  purpose,  and  not  other- 
Matter  of  Woodworth,  5  Dem.   156.  wise  affecting  the   rights   of  heirs   or 

91  Hollingsworth    v.    Spauldins,    su-  devisees.      (lb.) 

pra:  Matter  of  Monroe,  142  N.  Y.  484 :  93  Matter  of  Gednev,  33  Misc.   160; 

60  St.  Rep.  102.  68  N.  Y.  Supp.  627. 

92  Dunning  v.  Ocean  Xat.  Bank,  61  94  Lockman  v.  Reilly,  95  N.  Y.  64; 
N.  Y.  497.  This  rule  was  not  changed  Yonkers  Sav.  Bank  v.  Kinslev,  78 
by  the  provisions  of  the  act   (L.  1867,  Hun,  186;  28  N.  Y.  Supp.  186.  ' 

c.    658;     revised    in    Co.    Civ.    Proc,  95  Matter  of  Gilbert,  39  Hun,  61. 

§§   2798,   2799),   which   requires   such  9*5  Stilwell  v.  Melrose,  15  Hun,  378. 

surplus   to  be  paid   to  the   surrogate.  See  §  523,  note  49,  ante. 

to  be   disposed  of,  on  the  application  ^^  .Tones  v.  Le  Baron,  3  Dem.  37 ;  6 

of  an  executor  or  administrator,  that  Civ.  Proc.  Rep.  62. 


423 


AUMI-MSTUATIOX    OF    EsTATE,    EtC. 


§o31. 


§531.  Land  regarded  as  money,  and  money  as  land. —  A  devise 

of  realty  tu  an  executor,  iu  tru=t  to  sell,  will,  of  course,  vest  the 
title  in  him/'"*  And  as  equity  will  consider  as  actually  done  that 
■which  ought  to  be  done,  land  is,  under  some  circumstances,  re- 
garded as  money,  and  money  as  land  —  as  where  the  will  directs 
that  the  land  shall  be  sold,  or  that  money  shall  be  laid  out  in  land. 
A  devise  directing  lands  to  be  sold  and  the  proceeds  to  be  divided, 
etc.,  is,  therefore,  a  disposition  of  money  and  not  of  land,  and  is 
good,  as  a  power  to  the  executors  to  sell,  although  they  are  not  ex- 
pressly named  as  the  donees  of  the  power.  In  selling  under  such 
a  power,  the  executor  acts  in  his  character  as  such,  and  not  as  trus- 
tee,^^  and  is  accountable,  in  the  Surrogate's  Court,  for  the  proceeds 
■of  any  sale  made  by  him,  as  he  is  also  for  the  rents  and  profits.^ 

A  mere  authority  to  executors  to  sell  real  estate  in  a  certain  con- 
tingency and  divide  the  proceeds  among  certain  specified  persons, 
does  not,  however,  vest  the  estate  in  the  executors.  It  is  simply 
a  power,  and  the  land  passes  at  once  to  the  devisees,  subject  only  to 
the  execution  of  the  power. ^  So  where  the  will  devises  lands,  and, 
by  a  subsequent  clause,  gives  power  to  the  executors  to  sell  the 
same  for  a  minimum  sum  and  invest  the  proceeds  for  the  benefit 


osGlacius  V.  Fogel,  88  N.  Y.  434. 

99  Meakings  v.  Cromwell,  5  N.  Y. 
136. 

1  Co.  Civ.  Proc.  §  2726,  subd.  4,  as 
amended  1893.  See  Clark  v.  Clark,  8 
Paige,  1.52 ;  Stagg  v.  Jackson,  1  N.  Y. 
206:  Bloodgood  v.  Bruen.  2  Bradf.  8; 
Matter  o^  Collins,  70  Hun.  273;  24 
N.  Y.  Supp.  22G;  affd.,  144  N.  Y. 
522.  As  to  proceeds  of  realty  in 
another  State,  see  Peck  v.  Mead.  2 
Wend.  470 ;  Mead  v.  Merritt,  2  Paige, 
402.  An  opinion  was  intimated  in 
Bolton  V.  Jones  (6  Robt.  166,  228), 
that  a  trustee,  named  as  such  and  also 
as  executor,  might  execute  a  naked 
power  as  to  real  estate,  without 
qualifying  as  executor.  No  allusion 
was  made  to  the  statute  forbidding  an 
executor's  interference  with  the  estate 
before  letters  granted.  The  case  has 
been  distinctly  overruled,  on  another 
point  (Bolton  v.  Schriever,  135  N.  Y. 
75).  and  discredited,  on  this  point 
(Humbert  v.  Wurster,  22  Hun,  405; 
Clapp  V.  Brown,  4  Redf.  200.)  See 
Newton  v.  Bronson,  13  N.  Y.  587; 
Judson  V.  Gibbons,  5  Wend.  224 ; 
Doolittle  V.  Lewis,  7  Johns.  Ch.  48. 
Where  an  executor,  without  authority, 
invests  estate  funds  with  his  own  in 


the  purchase  of  real  estate,  the  surro- 
gate may  treat  the  land  as  personalty 
and  compel  him  to  accoiuit  therefor. 
(Matter  of  Leonhard,  86  Hun,  289; 
33  N.  Y.  Supp.  302.) 

2  Scott  V.  Monell,  1  Redf.  431  :  Mat- 
ter of  Johnson,  32  App.  Div.  634;  52 
N.  Y.  Supp.  1081;  Braunsdorf  v. 
Braunsdorf,  23  id.  722 :  Matter  of 
Collins,  144  N.  Y.  522;  64  St. 
Rep.  48.  Compare  Re  Vandervoort.  1 
Redf.  270.  In  Vernon  v.  Vernon  ( 53 
N.  Y.  351),  the  testator  gave  to  his 
wife  an  annuity,  to  be  paid  by  the 
executors  out  of  his  share  in  the  rents 
of  certain  stores  of  which  he  was  part 
owner,  and,  if  they  proved  insutlicient, 
then  from  the  interest  of  other  prop- 
erty. The  executors  were  also  aii- 
thorized  to  sell  the  stores  at  a  mini- 
nuim  price  stated.  Held,  that  the 
power  to  receive  rents  and  profits  was 
necessarily  imjdied  from  the  duty  en- 
joined, to  apply  them ;  that  the  exec- 
utors took,  as  trustees,  the  legal  title 
during  the  life  of  the  wife,  for  the 
purpose  of  the  trust,  and  —  there 
being  no  residuary  clause  in  the  will 
—  that  the  lands  descended  to  the 
testator's  heirs,  upon  his  death,  sub- 
ject to  the  trust  estate. 


§  532.  Administration  of  Estate,  Etc.  424 

of  the  devisee  during  life,  the  executors  take  no  title,  but  the  dev- 
isee takes  a  fee,  subject  to  the  execution  of  the  power  of  sale." 

A  power  in  executors  to  sell  lands  will  not  be  implied  from 
the  fact  that  the  lands  are  charged  with  the  payment  of  debts."* 
But  the  proceeds  of  lands  sold  by  an  executor,  even  under  a  discre- 
tionary power  of  sale,  although  such  sale  was  not  necessary  for 
the  execution  of  the  trust  at  the  time  it  Avas  made,  may  be  regarded 
as  assets  in  his  hands,  and  applicable,  when  there  is  a  deficiency 
of  assets,  to  the  payment  of  his  own  claim,  established  against  the 
estate  uj)on  the  judicial  settlement  of  his  account.^ 

§  532.  Rents,  etc.,  of  real  estate — Rent  reserved  to  the  deceased, 
in  a  lease,  accrued  at  his  death,  may  be  recovered  by  the  executor 
or  administrator.^  But  having  no  interest  in  the  land,  he  cannot 
bring  ejectment  for  condition  broken.^  The  statute  ^  also  gives 
the  executors  or  administrators  the  same  remedy  as  the  decedent 
had  for  the  arrears  of  rent.  But  this  statute  is  not  applicable  to 
the  case  of  an  action  by  husband  and  wife  for  rent  of  the  wife's 
estate,  payable  to  both,  where  the  husband  dies  pending  the  suit. 
In  such  case,  the  cause  of  action  survived  to  her.^ 

Where  the  will  directs  the  sale  of  land  by  the  executors,  after  a 
period  named,  it  eifects  a  conversion  from  that  time,  and  the  ex- 
ecutors are  thereafter  entitled  to  the  rents.^*^  But  before  execution 
of  the  power,  they  have  no  authority  to  collect  the  rents  and  profits  ; 
if  they  do  so  collect,  they  are  accountable  therefor,  in  the  interest 
of  the  beneficiaries,  and  the  insertion  of  the  item  in  their  account 
is  properly  made.^^ 

A  gift  for  life  of  rents  and  income  of  real  estate  creates   an 


3  Vernon    v.    Vernon,    supra.       See  (Priester    v.    Hohloch.    70    App.    Div. 
Metzger  v.  Rankine,  69  App.  Div.  264;  256:   75  N.  Y.  Supp.  405.) 

74  N.  Y.  Supp.  649.  7  Van   Rensselaer   v.    Jones,   5   Den. 

4  Matter  of  Fox.  52  N.  Y.  5.30.  449. 

5  Matter  of  Powers,  124  N.  Y.  361;  si  R.  s.  747.  §  21. 

O'Flyn  V.  Powers,  21  N.  Y.  Supp.  905 ;  0  Jacques  v.  Short.  20  Barb.  269. 

affd..    136   N.   Y.   412.  lO  Shumway  v.  Harmon.  4  Hun,  411. 

6  Co.  Civ.  Proc,  §  2712,  as  amended  See  Smith  v.'  A.  D.  Farmer,  etc.,  Co., 
1893;  §§  489,  492,  ante.  As  to  the  ap-  16  App.  Div.  438:  45  X.  Y.  Supp.  192. 
portionmcnt  of  rents,  under  L.  1875.  c.  n  Matter  of  Boyd,  4  Redf.  154.  A 
542  (Co.  Civ.  Proc,  §  2720,  as  amended  general  devise  to  executors  to  sell  and 
1893),  see  §  492,  ante.  See  also,  L.  distribute,  in  a  specified  way,  the  pro- 
1896,  c.  547,  §  192.  The  products  of  ceeds  of  real  estate,  does  not  convert 
decedent's  farm,  worked  on  shares,  it  into  personalty,  so  as  to  make  them 
which  accrue  after  his  death,  do  not  accountable  for  "such  as  has  not  been 
constitute  rent  and  are  payable  to  the  sold,  as  personalty,  upon  their  final 
administrator.  (Matter  of  Strickland,  accounting,  and,  if  a  sale  is  not  made 
10  Misc.  486:  32  N.  Y.  Supp.  171.)  within  a  proper  time,  the  remedy  is  by 
See  Matter  of  Foulds,  35  Misc.  171 ;  application  to  the  court  to  compel  iL 
71  N.  Y.  Supp.  473.  Rent  accruing  (Matter  of  Hunter,  3  Redf.  175.) 
after  testator's  death  goes  to  the  heir. 


425  Admixistuatio^'   of  E-statk,  Etc.  §  533. 

estate  therein,  and  if  no  duties  are  charged  upon  executors  with 
respect  to  their  application,  no  estate  or  trust  is  created  in  them 
in  respect  thereto.^^ 

§533.  Property  in  joint  tenancy;  partnership  assets. —  In  regar<l 
to  joint  jjroperty,  or  property  which  the  decedent  held  jointly  with 
another,  the  general  rule  is  that  the  surviving  joint  tenant,  and 
not  the  executor  or  administrator  of  the  deceased  joint  tenant,  takes 
it.i3 

l>ut  the  law  merchant  makes  an  exception  to  this  rule,  in  favor 
of  the  joint  or  partnership  property  of  merchants  and  traders,  and 
those  engaged  in  undertakings  in  the  nature  of  trade.  Such  prop- 
erty does  not  go  to  the  survivor,  but  the  share  of  the  deceased 
partner  goes  to  his  executor  or  administrator.^^  The  surviving- 
partner  has  power  to  settle  the  partnership  concern  with  the  repre- 
sentative, and  the  latter  is  responsible,  in  respect  to  the  assets 
of  the  firm,  only  for  the  interest  of  the  decedent  in  the  surplus 
of  the  firm  assets,  after  the  settlement  of  the  partnership  ac- 
counts ;^^  and  is  not  accountable  for  more  than  he  received,  unless 
error  or  fraud  be  showm.  If  he  has  made  a  voluntary  settlement 
with  the  surviving  partner,  upon  a  statement  of  the  partnership 
accounts,  and  received  the  amount  found  due  to  the  decedent  ac- 
cording to  that,  statement,  and  there  is  nothing  to  show  that  he 
ought  to  have  engaged  in  litigation  to  secure  a  settlement,  the  va- 
liditv  of  the  settlement  mav  be  sustained. ^^ 


I2:\rnttpr  of  Blauvelt.  131  X.  Y.  trr  of  Hoacrland,  51  App.  Div.  347; 
•249:  Miicy  v.  Sawyer.  06  How.  Pr.  aflfd..  104  X.  Y.  573.)  The  several 
381  :  Matter  of  Blow.  2  Connoly.  300;  owners  of  a  vessel  are  tenants  in  corn- 
Matter  of  Goetschius.  2  ^Nliso.  278:  Mien,  and  must  join  or  be  joined  in 
James  v.  Beesly,  4  Redf.  230:  Carman  actions  by  or  a<rainst  them.  If  joined 
V.  Brown,  4  Dem.  90:  Matter  of  Grant,  as  defendants,  and  the  death  of  one 
SC)  Ilun.  017;  33  X.  Y.  Supp.  193:  of  Ihem  occurs,  liis  executor  or  per- 
affd..  152  N.  Y.  054.  An  equitable  sonal  representative  cannot  be  joined 
estate  of  a  wife,  for  the  life  of  her  with  the  survivors.  The  executor  is 
liusband.  is.  on  her  death,  assets,  cliarged  dc  6o«is  tcfttatorif).  the  sur- 
(Xorton  V.  Xorton,  2  Sandf.  290.)  vivors  dc  bonis  propriis.  and  the  judg- 
es Personal  property  owned  jointly  nient  could  not  be  tlius  rendered, 
by  husband  and  wife.  r.  (7.,  a  bond  and  ( Wricrht  v.  ^Marshall.  3  Daly.  331.) 
mnrtpage,  at  the  death  of  one  beloncrs  I-''  Thomson  v.  Thomson.  1  Bradf.  24. 
ti(  the  survivor,  and  forms  no  part  of  l'>  Sape  v.  Woodin.  tiO  X.  Y.  578; 
the  estate  of  the  deceased.  (^Matter  'Monforomery  v.  Duiininj;.  2  Bradf.  220. 
of  Albrecht.  32  St.  Rep.  193.)  See  Where  the  survivinjr  partner  is  also 
flatter  of  Meehan,  59  App.  Div.  150;  the  executor  or  administrator  of  the 
09  N.  Y.  Supp.  9  {joint  deposit).  deceased  partner,  a  statement  of  the 
14  See  Egberts  v.  Wood.  3  Paige,  partnership  affairs  is  incidental  to 
517:  Wilder  \.  Keeler.  id.  106:  Mat-  the  settlement  of  the  accoTints  of  the 
ter  of  Wormser.  51  App.  Div.  441  :  04  executor  or  administrator,  and.  in  a 
X.  Y.  Supp.  897.  Whether  property  case  of  final  accounting,  is  absnlutelv 
is  a  partnership  asset  is  a  question  of  necessary.  (Marre  v.  Ginochio.  2 
the  intention  of  the  partners.     (Mat-  Bradf.    105.)      See   Simpson  v.   Simp- 


§533. 


Administratiox  of  Estate,  Etc. 


426 


The  surviving  partner  is  entitled  to  the  exclusive  possession  and 
management  of  the  firm  assets,  for  the  purpose  of  selling  and  clos- 
ing out  the  same,  and  is  not  required  to  file  the  books,  to  enable 
the  next  of  kin  to  ascertain  the  interest  of  the  decedent.^'  He 
may,  therefore,  either  with  or  without  the  consent  of  the  representa- 
tive of  the  deceased  partner,  make  a  general  assignment  for  the 
benefit  of  the  creditors  of  the  business. ^^  Where  a  surviving  part- 
ner dies,  his  executor  takes  the  legal  title  to  the  partnership  prop- 
erty for  the  purpos3  of  settling  his  estate,  but  does  not  succeed 
him  as  surviving  partner.-*^ 

On  the  other  hand,  real  property  of  the  partnership  retains  its 
character  as  realty  between  a  surviving  partner  and  the  real  and 
personal  representatives  of  a  deceai^ed  partner,  except  that  each 
share  is  impressed  with  a  trust  implied  by  law  in  favor  of  the 
other  partner,  that,  so  far  as  is  necessary,  it  shall  be  first  applied 
to  the  adjustment  of  partnership  obligations  and  the  payment  of 


«cn,  44  App.  Div.  492 ;  60  X.  Y.  Supp. 
879.  The  books  of  the  firm  and  the 
balance  sheet,  showing  the  amount 
due  the  estate,  are  evidence  aojainst 
him  on  his  accountins^.  And  if  he 
•claims  that  any  deduction  shall  be 
made  with  reference  to  the  uncertain 
value  of  the  assets,  the  burden  is  upon 
him  to  show  what  corrections,  if  any. 
are  to  be  made.  f Matter  of  Saltus, 
3  Abb.  Ct.  App.  Dec.  243.)  See  Mat- 
ter of  Ver  Valen.  24  N.  Y.  Supp.  133. 
As  to  the  liability  of  the  general 
■estate  for  debts  incurred  by  the  repre- 
sentative in  continuing  decedent's 
business,  see  Willis  v.  Sharp.  113  N. 
Y.  .586:  43  Hun,  434:  s.  c,  11.5  X.  Y. 
396 ;  and  tit.  5,  art.  2  of  this  chapter, 
post. 

17  Waring  v.  Waring,  1  Redf.  205: 
Camp  V.  Fraser,  4  Dem.  212.  He  is  a 
trustee  for  the  purpose  of  liquidation; 
and  if  he  continues  the  business,  and 
uses  the  assets  of  the  old  firm,  he  com- 
mits a  breach  of  trust  and  misappro- 
priates property  upon  which  a  lien  has 
been  impressed  for  the  security  of  the 
representatives  of  the  deceased  part- 
ner. (Hooley  v.  Gieve,  9  Abb.  X.  C. 
11.)  See  Thomson  v.  Thomson,  1 
Bradf.  24 ;  Kastner  v.  Kastner,  53 
App.  Div.  393;  65  N.  Y.  Supp.  756. 
And  a  purcha.ser  of  the  interest  of 
the  survivor  takes  it  subject  to  such 
trust  which  equity  will  enforce. 
(Hutchinson  v.  Campbell,  13  Misc. 
152;  34  X.  Y.  Supp.  82.)  Where,  by 
the  articles  of  copartnership  the  sur- 


vivor has  an  option  to  purchase  the 
interest  of  the  other,  the  representa- 
tives of  the  deceased  partner  have  a 
right  to  share  in  the  profits  up  to  the 
time  the  option  is  exercised.  (Hull 
V.  Cartledge.  18  App.  Div.  54.)  Where 
a  testator  bequeaths  all  the  remainder 
of  the  stock,  tools,  machinery,  and 
book  accounts  of  a  certain  business, 
after  payment  of  the  debts  and  lia- 
bilities thereof,  to  certain  legatees,  an 
unsatisfied  judgment  obtained  by  tes- 
tator in  his  lifetime  for  goods  sold 
by  him  in  the  said  business  is  an 
asset  of  the  business,  and  not  of  the 
general  estate.  (Matter  of  Quin,  1 
Connoly.  382.)  Property  which  was 
the  product  of  a  business  formerly 
carried  on  by  the  intestate,  but  after 
his  death  was  conducted  by  an  admin- 
istrator in  his  own  name. —  Held  not 
to  be  the  property  of  the  estate  nor 
in  the  possession  of  the  administrators 
to  such  an  extent  as  to  enable  them 
to  maintain  conversion  against  third 
persons  who  acquired  it.  (Kenyon  v. 
Olney,  39  St.  Rep.  839:  15  X.  Y.'Supp. 
416.)  As  to  valuation  of  interest  of 
deceased  partner,  see  Sands  v.   Miner, 

16  App.  Div.  347 ;  Lowenstein  v. 
Schiffer,  38  id.  178. 

iSBeste  v.   Burger,   110  X.   Y.   644; 

17  Abb.  X.  C.  162;  W^illiams  v. 
Whedon,  109  X.  Y.  333;  Haynes  v. 
Brooks,   116  id.  487. 

ii»  McCann  v.  Hazard,  36  Misc.  7  ;  72 
X.  Y.  Supp.  45. 


427  Administration  of  Estate,  Etc.     §§  534-o.'30. 

any  balance  found  to  be  due  from  the  one  partner  to  the  other,  on 
winding  up  the  partnership  aifairs.  To  the  extent  necessary  for 
these  purposes  the  character  of  the  property  is,  in  equity,  deemed 
to  be  changed  into  personalty. 

On  the  death  of  either  partner,  his  share  of  the  land,  if  vested 
in  both,  or  if  in  the  survivor,  liis  equitable  title,  descends  as  real 
•estate  to  his  heirs,  subject  to  the  equity  of  the  surviving  partner 
to  have  it  appropriated  to  accomplish  the  trust  to  which  it  was 
primarily  subjected."*^ 

§  534.  Goodwill  of  business. —  The  goodwill  of  a  decedent's  busi- 
ness passes  as  an  asset  to  his  representative,  and  on  his  appro- 
priating the  business  to  his  own  use,  he  will  be  chargeable  upon 
his  accounting  with  the  value  thereof,  but  the  right  to  use  testa- 
tor's name  is  not  an  asset  for  which  a  personal  representative  is 
accountable.^^ 

§  535.  Literary  property. —  The  executors  or  administrators  of 
any  person  have  also  the  same  privileges  as  the  person  himself,  to 
■copyright  a  book,  play,  etc.,  of  which  he  was  the  author,  etc.,  and 
of  vending  a  book  copyrighted  by  him.^"  But  letters  of  correspond- 
ence are  not  assets  in  the  hands  of  the  receiver's  personal  repre- 
sentative, for  the  purpose  of  sale.^^ 

§  536.  Life  insurance  moneys. —  Where  the  decedent  had  an  in- 
surance policy  upon  his  life,  payable  to  his  executors  or  adminis- 
trators, the  fund  is,  of  course,  assets;  so  is  an  interest  in  a  policy 
on  the  life  of  another."'* 

Where  a  policy,  payable  to  the  widow  or  children,  is  issued  by  a 
company  whose  charter  declares  that  such  policies  shall  issue  to 
the  benefit  of  the  payee,  independently  of  the  creditors  of  the 
person  whose  life  is  the  subject  of  insurance,  the  fund  is  secured 
to  the  beneficiaries,  and  the  husband  or  fatlior  cannot,  by  bequeath- 
ing the  policy  for  other  uses,  defeat  their  right. "'^    In  case  of  such 

20Darrow  v.  Calkins,  154  N.  Y.  503;  23  Eyre  v.  Higbee,  35  Barb.  502;  22 

49  N.  E.  61.  How.    Pr.    198.      As   to   patent   rights, 

21  Kirknian  v.  Kirkman,  20  Misc.  see  Pitts  v.  Jameson,  15  Barb.  310. 
211;  45  N.  Y.  Supp.  373;  affd..  2t)  24  .Johnson  v.  Smith,  25  ITun,  171; 
App.  Div.  395;  Matter  of  Randell,  8  Matter  of  MilhM-.  5  Dem.  3S1  :  Gibbs 
N.  Y.  Supp.  r.52.  Also  heUl,  in  that  v.  Flour  City  Hank,  8(i  Hun.  103;  34 
case,  that  the  representative  was  not  N.  Y.  Supp.  195.  See  Matson  v. 
liable  for  the  value  of  the  right  to  use  Abbey,  70  Hun,  475 ;  24  X.  Y.  Supp. 
the  decedent's  name  in  continuing  his  284:    141   X.  Y.    179. 

business,  the  right  having  been  exer-  25  Ruppert  v.   Union   ^lut.   Ins.   Co., 

«ised   illegallv  and   not   in   accordance  7  Robt.  155.     And  see  Senior  v.  Acker- 

with  L.   18S0",  c.  561.  man.  2  Redf.  302:  Matter  of  Wendell, 

22  U.  S.  R.  S.,  p.  966,  §  4952.  3  How.  Pr.    (N.  S.)    68. 


§  537.  AD.MI^•lSTIiATIo:^f  of  Estate,  Etc.  42S 

a  policy,  as  in  the  case  of  any  life  insurance  for  the  benefit  of  the 
natural  dejiendents  of  the  deceased,  the  fund  may,  doubtless,  bo 
pursued  as  assets  by  creditors,  but  only  in  case,  and  so  far  as,  it 
can  be  shown  that  it  was  procured  by  the  payment  of  premiums  in 
fraud  of  the  creditors  of  the  decedent.^^  Where  a  life  policy  is 
specifically  bequeathed,  the  executor  owes  no  duty  to  collect  it."^ 

§  537.  Fire  insurance  policies. —  Such  policies,  on  which  moneys 
had  become  due  by  a  loss  before  the  decedent's  death,  are  assets. 
Where  the  death  occurs  after  insurance,  and  before  a  loss,  the  ex- 
ecutor or  administrator  should  give  notice  to  the  insurers  to  make 
the  policy  one  for  the  benefit  of  ^'  the  estate,"  unless  the  property 
covered  has  clearly  passed  to  particular  persons  as  heirs  or  dev- 
isees, beyond  any  question  of  claim  in  favor  of  others.  A  policy 
thus  continued  by  the  personal  representative,  as  well  as  one  taken 
out  by  the  deceased,  and  in  terms  payable  to  his  personal  repre- 
sentative, or  one  taken  out  in  the  first  instance  by  the  personal 
representative,  will  give  him  a  right  of  action  when  a  loss  occurs;^* 
but  the  question  whether  the  fund  accruing  is  assets  or  not  will 
depend  on  the  character  of  the  property  insured.  The  executor 
or  the  administrator,  though  he  has  no  title  to  the  realty  —  and 
the  creditors  have  no  lien  thereon  —  nevertheless  represents  the 
creditors;  and  their  interest,  like  that  of  a  mortgagee,  is  insurable. ^^ 


28  By    special    statute,    a    wife    may  Siipp.  502.     The  proceeds  of  a   policy 

effect  insurance  on  her  husband's  life,  payable  to  one  as  trustee  for  her  chil- 

and    if     she     survive,     the     insurance  dren  do  not,  upon  her  death,  pass  tc 

moneys  will  be  payable  to  her  or  her  her  executors.    (Matter  of  McAleenan. 

children,    except   as   to    such    part    as  53    App.   Div.    193;     65    N.   Y.    Supp. 

may  be   secured  by   premium  paid,   in  907:   affd.,  1G5  X.  Y.  045.) 

any  year,  out  of  the  property  of  the  27  Piatt  v.  Moore,  1  Dem.  191. 

husband,    exceeding    $500.      (L.    1840,  2s  Lawrence    v.    Niagara    Fire    Ins.. 

c.  80;  L.  1858,  c.  187;  L.  1866.  c.  656;  Co.,  2  App.  Div.  267;   37  N.  Y.  Supp. 

L.  1870,  c.  277:  L.  1873,  c.  821.)     See  811;  affd.,  154  X.  Y.  752. 

L.  1879,  c.  248,  as  to  the  assignability  29  Wj-man  v.  Wyman,  26  X.  Y.  253 ; 

or  surrender  of  a  wife's  policy.     De-  Herkimer  v.  Rice.  27  id.  163:  Colburn 

ceder.t  had  a  policy  of  insurance  upon  v.    Lansing,    46    Barb.    37 :    Clinton   v. 

his   life   which   made   the   amount    in-  Hope    Ins.    Co.,    45    X.    Y.    454.      The 

sured    payable    "  to   the    said    assured,  amount  of  a  policy  of  insurance  upon 

his    executors,    administrators,    or    as-  property  which  had  been  destroyed  by 

signs,     *     *     *     for  the  benefit  of  his  fire   was,  with   the   assent   of  the   life 

widow,  if  any."    Held,  that  the  money  tenant  of  such  property,  deposited  in 

belonged   to   the   widow   and   was    re-  bank    to    the    credit    of    decedent    and 

ceived   by  the   executor  not  as   assets  another  who  were  joint  owners  of  the 

of  the   estate  but  as  a  trustee   under  remainder  in  such  real  estate  after  the 

the  policy  for  the  widow,  and  that  a  life  tenancy.     Held,   that   the   deposit 

Surrogate's    Court    had,    therefore,    no  of  such   money  in  the   lifetime  of  the 

jurisdiction  to  make  an   order  direct-  decedent    constituted     such     insurance 

ing  the   executor  to  pay   such   money  money  personalty  which  would  pass  to 

over  to  the  widow.      (Matter   of  Van  decedent's  personal  representatives  as 

Dermoor,  42  Hun,   326.)      See  Matter  assets.       (.Jagger     v.     Bird,     42     Hun, 

of  Gordon,  39  St.  Rep.  909;   15  N.  Y.  423.)     Moneys  received  on  a  policy  of 


420  Ai>.\rrxisTKATiox  of  Estate,  Etc.       §§  537a,  538. 

§  537a.  Benefit  and  trust  funds. —  On  the  same  principle  a  benefi- 
-ciarv-fiind  in  a  benefit  association,  to  bo  paid  to  the  family  of  a 
member  after  his  death,  does  not  form  part  of  the  assets  of  a 
deceased  member."^'^  They  come  within  the  scope  of  the  statutes 
relating  to  the  insurance  of  a  man's  life  for  the  benefit  of  his 
family,  and  hence  moneys  which  the  executors  had  received  there- 
under are  not  assets  in  their  hands,  and  cannot  be  disposed  of  as 
such,  but  should  be  a])]ilie(l  in  accordance  with  the  terms  of  the 
trust,  to  the  exclusion  of  the  claims  of  decedent's  creditors. ^^ 

So  funds  deposited  by  testator  in  a  savings  bank,  in  trust  for 
■another,  belong  to  the  latter,  and  are  no  part  of.  such  depositor's 
estate,  and  an  action  will  lie  against  his  executor  in  his  individual 
capacity  to  recover  such  funds  where  it  appears  he  has  drawn  the 
same  from  the  bank.'"^" 

§  538.  Pension  money. —  By  the  pension  laws  of  Congress,^^  an 
accrued  pension  is  declared  not  to  be  considered  as  a  part  of  the 
assets  of  the  pensioner's  estate,  nor  liable  to  be  applied  to  the 
payment  of  his  debts,  but  shall  inure  to  the  sole  benefit  of  the 
"wddow  and  children.  This  law  of  exemption  is  said  to  be  founded 
on  just  views  of  human  generosity,  and  should  be  liberally  con- 
strued in  favor  of  the  debtor  and  his  familv.^'* 


fire   insurance   taken   out   after   testa-  32  Anderson    v.    Thomson,    .38    Hun. 

tor's  death,  and  payable  to  his  estate,  394.     Compare  Terry  v.  Bale,   1  Dem 

are  applicable  to  the  pajnnent  of  tes-  4.52 ;  Crowe  v.  Brady,  5  Redf.  1 ;   Seal- 

tator's   debts.      (IMatter   of   O'Connell,  len  v.   Brooks,   .54   App.   Div.  248;    66 

1  Misc.  50:  22  N.  Y.  Supp.  014.)  N.  Y.  Supp.  591;  Robinson  v.  Applebv, 

ai  Bown  V.  Supreme  Council  of  Cath.  69  App.  Div.  509;    75  X.  Y.   Supp.   L 

Assn..  33  Hun,  263.  The   fact   that   decedent   drew   the   in- 

31  Matter    of    Palmer.    3    Dem.    129;  terest  on  such  deposit  for  several  years 

Mattsr    of    Wendell,    3    How.    Pr.     (N.  does  not  overcome  the  presumption  of 

S.)  68.    See  Hellenberg  v.  B'nai  Berith.  a  trust  as  to  tlie  principal,  and  wliere 

94    N.    Y.     580.      The    disposition    of  decedent,      after      a      certain      period, 

moneys  paid  at  a  decedent's  death  by  allows  the   interest   to  accumulate,   it 

benefit   associations   of   which   he   was  also   should  be   included   in  the  trust, 

a  member,  must  be  determined  entirely  (IMatter  of  Collyer,  4  Dem.  24:    Far- 

by    the    constitution    and    by-laws    of  leigh  v.  Cadman,  159  N.  Y.   169.)     See 

such    associations,    and    such    moneys  as  to  gifts  causa  mortis,  tit.  4.  art.  4 

are  not  assets  of  the  decedent's  estate  of  this  chapter, 

for  which  his  personal  representatives  •"••J  U.  S.  R.  S.,  §  4718. 

are  chargeable  upon  their  accounting.  ">•*  Wilcox  v.  Hawlev,  31  X.  Y.  648; 

(Matter  of  Brooks,  5  Dem.  32().)  But  Shaw  v.  Davis,  55  Barb.  389:  Lock- 
where  an  administratrix  has  received  wood  v.  Younglove,  27  id.  505 ;  Van 
such  benefits  from  associations  as  Beureu  v.  Loper,  29  id.  389.  Moneys 
funeral  expenses,  they  nuist  be  deenu»d  awarded  by  the  Alabama  Coiirt  of 
a  reimbursement  of  amounts  pre-  Claims  on  account  of  an  "  indirect 
viously    expended    for    that    purpose,  claim "  founded  upon  the  payment  of 

(lb.)      H   the  moneys  are   payable   to  war   premiums  nf   insurance,   Indng   in 

the  legal  representatives  of  the  mem-  the  nature  of  a  gratuity  by  the  gov- 

ber,    of    course    the    executor    may    re-  ernment,     do     not     constitute     as.sets 

ceive  them.     (Suiz  v.  Mutual  Reserve,  which  an  administrator  is  entitled  to 

etc.,  Assn.,  145  N.  Y.  5G3.)  distribute.     They  belong  to  the  widow 


§§  539,  540.      Administration  of  Estate,  Etc.  430 

Hence  pension  moneys  received  by  a  widow,  and  passing  unex- 
changed for  other  property  to  her  exeentor,  are  not  liable  for  her 
debts,  where  she  leaves  children  under  sixteen  years  of  age.^^  But 
otherwise,  where  the  pensioner  (decedent)  received  his  pension 
money  in  his  lifetime,  and  deposited  it  in  bank,  taking  a  certificate- 
of  deposit,  which  he  had  at  the  time  of  his  death.  The  money  col- 
lected on  such  certificate  by  the  executor  is  assets  applicable  to 
the  payment  of  debts. ^^ 

§  539.  Damages  by  reason  of  decedent's  death. —  Where  the  deatli 
of  a  decedent  who  left,  hiiu  or  her  surviving,  a  husband,  wife,  or 
next  of  kin,  Avas  caused  by  the  wrongful  act,  neglect,  or  default 
of  a  natural  person  who,  or  a  corporation  which,  would  have  been 
liable  to  an  action  therefor  if  death  had  not  ensued,  the  executor 
or  administrator  may  maintain  an  action  to  recover  damages  for 
the  same,  which  are  exclusively  for  the  benefit  of  the  decedent'^ 
husband  or  wife  and  next  of  kin,  and  when  collected  are  to  be- 
distributed  by  the  plaintiff  among  them,  as  if  they  were  unbe- 
queathed  assets  left  in  his  hands,  after  payment  of  all  debts  and 
expenses  of  administration.^^ 

The  damages,  therefore,  are  not  assets  for  the  general  purposes. 
of  administration.  The  expenses  of  the  action,  and  the  repre- 
sentative's commissions  on  the  residue,  are  to  be  allowed  by  the 
surrogate,  upon  notice  given  in  such  a  manner  and  to  such  persons, 
as  the  surrogate  deems  proper.""^^ 

§  540.  Property  in  action. —  To  entitle  an  executor  or  adminis- 
trator to  sue  upon  a  contract,  it  is  not  necessary  that  he  should  be 
named  in  it.  If,  by  the  contract,  money  is  payable  to  A.,  or  to  A. 
and  his  assigns,  A.'s  executor  or  administrator  may  sue  for  it. 
His  right  of  action  is  exclusive  also,  and  no  words  introduced  into 
a  contract  or  obligation  can  transfer  to  another  his  exclusive  right 
of  representation.^^    In  order  to  vest  a  right  of  action  in  one  named 


and    next    of    kin,    and    are    protected  Snedeker   v.    Snedeker,   164   N.   Y.   58.. 

from  tlie  claim  of  creditors.      (Matter  See    Shearman    &    Redfield    on    Xegli- 

of  Cooley,   6  Dem.   77.)      See   Taft  v.  gence    (5th  ed.),  §   134.     If  the  repre- 

Marsily,  47  Hun,  175.  sentative  dies   the   action  may  be   re- 

"5  Hodge  V.  Leaning,  2  Dem.   553.  vived    in    the    name    of    his    successor^ 

siiBeecher    v.    Barber,    6    Dem.    129.  (Mundt  v.  Glokner,  24  App.  Div.  110; 

And   see   Tyler   v.    Ballard    (31    Misc.  160    X.    Y.    572.)       See    McGahey    v. 

54),   where  the  widow  had  purchased  Xassau  El.  R.  Co.,  51  App.  Div.  281;. 

land    with    pension    moneys    due    her  all'd..   166  X.  Y.  617. 

husband.      See  also  Matter  of  Liddle.  3S  Co.  Civ.  Proc.   §   1903. 

35  Misc.   173;   71   X.  Y.   Supp.  474.    '  39  Dicey  on  Parties,  207. 
37  Co.    Civ.    Proc,    §§    1902,    1903; 


431 


Administratiox  of  Estate,  Etc. 


§54' 


as  executor  in  a  will,  it  is  essential,  under  our  statutes,  that  he 
should  (jualify.'*" 

§  541.  Survival  of  rights  of  action  on  contract The  general  rule 

is  that,  with  respect  to  such  personal  actions  as  are  founded  upon 
any  obligation,  contract,  debt,  covenant,  or  other  duty,  the  right 
of  action,  on  which  the  testator  or  intestate  might  have  sued  in 
his  lifetime  (with  certain  exceptions  hereafter  stated),  survives 
his  death,  and  is  transmitted  to  his  executor  or  administrator, 
whether  the  breach  occurred  in  the  lifetime,  or  after  the  death,  of 
the  decedent."*^ 

In  respect  to  rights  arising  out  of  real  property,  and  proceedings 
relating  thereto,  they  survive  to  the  heir  or  the  devisee;  such  as. 
causes  of  action,  in  favor  of  the  decedent,  for  waste  of  real  prop- 
erty;"*^ or  for  injuries  to  it  in  the  decedent's  lifetime  ;^^  causes  of 
action  against  the  decedent,  for  specific  performance  of  a  contract 
to  convey  real  j^roperty  ;"*■*  rights  existing  in  favor  of  the  decedent,, 
to  redeem  real  property  from  sale  or  by  virtue  of  an  execution.'*^ 


40  At  common  law.,  an  oxocutor 
niiglit  sue  before  probate ;  but,  by  2 
R.  S.  71.  S  H).  he  is  prohibited  from 
interfering  with  tlie  estate,  before  let- 
ters fjranted,  further  than  necessary 
f(ir  its  preservation,  and  to  pay  funeral 
charges;  and  a  plea  in  bar  that  he 
was  not  executor  at  the  commence- 
ment of  the  action  is  good.  (Thomas 
V.  Cameron,  IG  Wend.  579;  Varick  v. 
Bodine.  3  Hill.  444.)  See  Flinn  v. 
Chase,  4  Den.  85 :  Matter  of  Flandrow, 
2S  Hun,  279:  (uitc.  S§  130,  131.  Hut 
where  a  wife  dies  intestate,  and  the 
husband  afterward  dies,  leaving  her 
assets  which  belonged  to  him  as  her 
survivor,  unadministered,  it  is  not 
necessary  for  his  personal  representa- 
tives to  take  out  letters  of  adminis- 
tration on  her  estate,  to  enable  them 
to  institute  suits  for  the  recovery  of 
such  assets.  But  tliey  may  institute 
suits  in  their  character  of  personal 
representatives  of  the  husliand.  stat- 
ing tliat  he  survived  his  wife.  (Roose- 
velt V.  Ellithorp,  10  Paige,  415;  Loek- 
wocd  V.   Stockholm.   11   id.   87.) 

4iHolbrook  v.  White.  13  Wend.  501. 
Thus,  an  administrator  may  have  an 
action  in  his  own  name  for  an  injury 
to  personal  property,  intermediate  the 
granting  of  letters  and  the  death  of 
the  intestate.  His  title  takes  effect  by 
relation.  (Valentine  v.  Jackson.  9 
Wend.  302;  Babcnck  v.  Booth,  2  Hill. 
181.)      The  administrator  has  a  ritrht 


to  recover  the  purchase  money  due  on 
a  contract  for  the  sale  of  land,  made 
by  the  intestate  in  his  lifetime,  and 
may,  it  seems,  extend  the  time  of  pay- 
ment. ( Schroeppel  v.  Hooper,  40 
Barb.  425;  Smith  v.  Gage,  41  id.  60.) 
But  the  interest  of  a  purchaser  in  an 
executory  contract  of  sale  of  land  does 
not  pass  to  his  executor.  (Griffith  v. 
Beecher.  10  Barb.  432.)  The  personal 
rejiresentative  may  sue  on  a  demand 
against  a  cotenant  in  conunon  of  the 
decedent,  for  his  share  of  rents  and 
profits.  (Hannan  v.  Osborn,  4  Paige,. 
336.)  Among  the  choses  in  action 
which  thus  go  to  the  personal  repre- 
sentatives, is.  a  cause  of  action  for  a 
breach  of  a  covenant  of  seizin  (Me- 
Kinstry  v.  Benson,  3  Johns.  Cas.  [2cl 
ed.]  562),  and  of  a  covenant  for  title, 
if  broken  in  the  lifetime  of  the  de- 
cedent ( Beddoe  v.  Wadsworth,  21 
Wend.  120)  ;  and  tliough  a  covenant 
be  purely  personal,  the  death  of  the 
covenantor,  after  breach,  does  not  ex- 
tinguish the  cause  of  action.  (Mott 
V.  Mott,  11  Barb.  127.)  And  so,  as  to 
a  mortgage  interest  before  foreclosure. 
(Demarest  v.  Wvnkoop,  2  Johns.  Ch. 
461.) 

•42  Co.  Civ.  Proc,  §  1652. 

43  See  Co.  Civ.  Proc.  §  2345;  Reilly 
V.  Erie  R.  Co..  63  App.  Div.  415. 

44  2  R.  S.  114,  §  4. 

45  Co.  Civ.  Proc,  §  1447. 


§§  542,  543.     Administratiox  of  Assets,  Etc.  432 

§  542.  Contracts  which  do  not  survive. —  Contracts  which,  bj 
their  terms,  are  expressly  limited  to  the  lifetime  of  the  deceased, 
or  which,  as  matter  of  law,  are  determinable  by  the  death  of  either 
party,  do  not  survive,  and  no  action  can  be  maintained  by  or 
against  the  representative,  for  any  alleged  breach  occurring  after 
his  death,  though  it  may  for  breaches  before  death.'*'^  Contracts 
determinable  by  death,  as  a  matter  of  law,  are  such  as  are  ob- 
viously founded  upon  personal  considerations  —  i.  e.,  made  with 
reference  to  the  personal  qualities  of  the  parties  —  such  as  an 
agreement  to  write  a  book,  paint  a  picture,  and  contracts  of 
ajjprenticeship  and  agency.^' 

So,  too,  covenants  which  both  run  with  the  land  and  descend  to 
the  heir  or  devisee  —  i.  e.,  covenants  which  affect  the  freehold, — 
go  to  the  heir,  not  only  where  he  is  not  named,  but  also  where  the 
covenant  is  made  with  the  covenantee  and  his  executor.  The  heir 
is  clearly  the  only  person  to  sue  for  any  breach  of  such  covenant, 
after  the  death  of  the  deceased.  For  breaches  committed  during 
the  lifetime  of  the  deceased,  the  rule  seems  to  be  that  if  there  has 
l)een  a  formal  breach  of  such  covenants  during  the  ancestor's  life- 
time, but  the  substantial  damage  has  accrued  after  his  death,  the 
real,  and  not  the  personal  representative  is  the  proper  plaintiff  in 
an  action  on  the  covenant.^^ 

On  the  other  hand,  if  the  breach,  though  committed  in  the  life- 
time of  the  covenantee,  has  caused  any  damage  to  the  personal 
estate,  the  personal  representative  may  sue.'*^  So,  too,  a  covenant 
which  does  not  run  with  the  land  —  e.  g.,  a  covenant  in  a  lease 
not  to  cut  down  trees  (the  trees  being  excepted  from  the  demise)  —-- 
may  be  sued  on  by  the  personal  representative. 

§  543.  Wrongs  to  the  property  of  decedent. —  If  a  breach  of  con- 
tract affects  the  personal  estate  of  the  deceased,  the  representative 
can  sue  for  the  consequential  damages.  For  example,  an  executor 
or  administrator  may  maintain  an  action  against  the  attorney  of 
the  deceased,  for  negligence  in  investigating  a  title  to  lands,  in 
consequence  of  which  the  deceased  took  an  insufficient  title.^*^ 

It  is  said  that  perhaps  an  action  might  be  brought  even  for  a 

46  See  Stubbs  v.  Holjrwell  R.  Co.,  L.  588.  Compare  Ricketts  v.  Weaver,  12 
H.,  2  Exch.  311.  Mees.  &  W.  718. 

47  As  to  a  contract  to  build  a  house,  50  Knights  v.  Quarles,  2  B.  &  B.  104. 
see  Quick  v.  Ludborrow,  3  Bulst.  30;  See  Fried  v.  N.  Y.  C.  R.  R.  Co.,  1 
2  Wms.  on  Exrs.  (6th  Am.  ed.)  1593,  Sheldon,  1.  for  a  review  of  rights  of 
note.  action  under  the  statute  which  do  and 

48  Dicey  on  Parties,  211.  do  not  survive,  and  go  to  the  executor 

49  Raymond  v.  Fitch,  2  C,  M.  &  R.  and  administrator. 


433  Administratiox  of  Estate,  Etc.  §  544. 

breach  of  promise  of  marriage,  if  the  representative  could  allege 
injury  to  the  deceased's  personal  estate  as  a  consequence  of  the 
breach  of  promise.'^^ 

The  statute  provides  that  for  wrongs  done  to  the  property, 
rights,  or  interests  of  another  (wdth  the  exceptions  stated),  for 
which  an  action  might  he  maintained  against  the  wrongdoer,  such 
action  may  be  brought  ])y  the  person  injured,  or,  after  his  death, 
against  his  executors  or  administrators,  in  the  same  manner  and 
with  the  like  effect,  in  all  respects,  as  actions  founded  upon  con- 
tracts.^" Under  this  provision,  it  is  held  that  an  action  is  given 
against  the  executors  for  every  injury  by  the  testator,  whether 
by  force  or  negligence,  to  the  property  of  another.  The  words 
*'  wrong  done,"  extend  to  cases  of  nonfeasance.^'^  The  provision 
extends  to  a  cause  of  action  in  favor  of  a  husband  against  a  rail- 
road company,  for  the  loss  of  services  of  his  wife,  who  was  injured 
in  the  act  of  leaving  their  cars,  while  a  passenger,  through  their 
negligence.^^ 

ij  544.  Injuries  to  person  of  deceased. —  The  general  rule  is,  that, 
with  some  exceptions,  an  action  for  a  personal  wrong,  i.  e.,  for 
injuries  to  the  person,  feelings,  or  reputation  of  the  deceased,  dies 
with  the  person.  The  statute  declares  that  actions  for  slander, 
for  libel,  and  actions  of  assault  and  battery,  or  false  imprisonment, 
actions  for  injuries  to  the  person  of  the  plaintiff,  or  to  the  person 
of  the  testator  or  intestate  of  any  executor  or  administrator,  do 
not  survive  ;^^  and  the  same  rule  is  applied  to  actions  for  breach 
of  promise  of  marriage.^^  Exceptions  to  the  rule  of  the  non- 
survival of  actions  for  personal  injuries  are  made  by  statute,  in 
the  case  of  injury  or  killing  by  the  careless  use  of  firearms;^'  also 
in  the  case  of  injuries,  causing  death,  occasioned  by  wrongful  act, 
neglect,  or  default,  in  which  instance  damages  may  be  recovered 
for  the  benefit  of  the  surviving  husband,  wife,  or  next  of  kin.^* 


51  Dicey  on  Parties,  209.    See  Cham-  54  Cregiii  v.  Brooklyn  Crosstown  R. 
berlain   v.   Williamson,  2  Maule  &   S.  Co..  75  N.  Y.  1!I2:  56  How.  Pr.  465. 
408 ;  Beckham  v.  Drake,  8  Mees.  &  W.  55  2  R.  S.  447,  §  2. 

846.     And  compare  Alton  v.  Midland  50  Wade  v.  Kajbtleisch,  58  N.  Y.  282; 

R.  Co.,  19  C.  B.   (N.  S.)  213.  16   Abb.    (N.   S.)     104.      See   Price   v. 

52  2  R.  S.  447.  §   1.  Price,  75  X.  Y.  244. 

53  Elder  v.  Bo.ijardus,  Hill  &  D.  57  L.  1873.  c.  19;  under  which  the 
Supp.  116.  We  have  already  referred  cause  of  action  survives  to  the  '•heirs 
to  the  remedy  which  an  executor  or  or  representatives  "'  of  a  person  killed, 
administrator  has  by  replevin  to  re-  5S  Co.  Civ.  Proc.  §  1902.  See  Shear- 
cover  poods  of  the  decedent  wrongfully  man  &  Redfield  on  Neg.  (5th  ed.) 
withheld.     See  2  R.  S.  449.  §   17:   and  §  124  et  seq. 

McKnight  v.  Morgan,  2  Barb.   171. 

28 


§  545.  Administration  of  Estate,  Etc.  434 

§  545.  Suits  to  disaffirm  wrongful  acts  of  deceased. —  Authority 
is  given  by  i^tatutc  to  any  executor,  achniuistrator,  receiver,  as- 
signee, or  other  trustee  of  an  estate,  or  of  the  property  and  effects, 
of  an  insolvent  estate,  corporation,  association,  partnership,  or 
individual,  to  disaffirm,  for  the  benefit  of  creditors  or  others  inter- 
ested in  the  estate,  and  treat  as  void,  and  resist,  all  acts  done, 
transfers  and  agreements  made,  in  fraud  of  the  rights  of  any 
creditor,  including  themselves,  and  others  interested  in  the  es- 
tate ;^^  and  the  executors  of  a  fraudulent  vendor  may  resist  an 
attempt  by  the  fraudident  vendee  to  recover  either  the  possession 
or  the  value  of  the  property  fraudulently  disposed  of;  and  they 
may  defeat  a  recovery,  if  they  can  establish  satisfactorily  the 
fraudulency  of  the  transaction.*'"  The  executor  or  administrator, 
as  the  case  may  be,  represents  the  decedent's  creditors  as  well  as 
his  estate.®^ 

He  may  sue  to  set  aside  decedent's  transfer  both  on  the  ground 
of  fraud  on  creditors,  and  of  undue  influence,  and  may  prove  both 
grounds. ^^  He  is  chargeable  as  for  a  breach  of  trust  for  a  culpable 
neglect  to  institute  any  action  or  proceeding  necessary  to  recover 
assets  fraudulently  disposed  of  by  his  decedent.*'^ 

The  right  of  an  executor  or  administrator  to  assail  an  assign- 
ment, made  by  the  decedent,  in  his  lifetime,  in  fraud  of  his  cred- 
itors, is  not  exclusive.  If  the  executor  collude  with  the  assig-nee, 
and  refuses  to  do  so,  the  creditors,  or  a  creditor,  may,  by  action 
against  the  personal  representative  and  assignee,  have  the  assign- 
ment set  aside,  and  the  property  applied  as  assets,®'*  and  it  is  not 
necessary  in  such  an  action  that  the  plaintiff  should  be  a  judgment 
creditor;  he  stands  simply  as  trustee  in  place  of  the  administrator.®^ 

59  L.   1858,  c.  314,  §   1,  as  amended  bercr  v.  Herdtfelder,  103  id.  302;   Ball 

L.   1889,  c.   487;   L.   1894,  c.   740:    L.  v.    Slaften,    98    id.    622;    Southard    v. 

1896,  c.   547,    §   232;    L.    1897,  c.   417,  Benner,   72   id.   424;    Matter   of   Hurt, 

§  7.     See  22  Abb.  N.  C.  327.  note.  60  Hun,  516. 

eo  Bryant  v.  Bryant,  2  Robt.  612.  C4  Bate  v.   Graham,    11    N.   Y.    237; 

ci  Hangen  v.   Hachemeister,   114  N.  Dewey  v.  Mover,  72  id.  70;  Guibert  v. 

Y.  566.     See  §  516,  ante.  Saunders,   lo'  St.  Rep.  43. 

62  Lore  V.  Dierkes,  51   N.  Y.  Super.  t'^  Harvey  v.   McDonnell,   113   N.  Y. 

(.J.   &    S.)     144;    16   Abb.    N.    C.    47;  526.    That  was  an  action  by  a  creditor 

Rousseau  v.   Bleau,  29   St.   Rep.   334 ;  to  set  aside  a  fraudulent  mortgage,  on 

8  N.  Y.  Supp.  823 ;   McCormick  v.  St.  the  refusal  of  the  administrator  to  do 

Joseph's  Home.  26  Misc.  36.  so.     The  sole  heir  and  next  of  kin  of 

C3  Matter  of  Cornell,  110  N.  Y.  351.  a  decedent  who   alleges   that   she   has 

This  was  a  proceeding  to  hold  an  as-  brought    an    action   to    determine    the 

signee    for    the    benefit    of    creditors,  validity  of  the  probate  of  an  alleged 

under  the  statute  of  1858,  supra,  and  will   of  the  decedent,   under  which   it 

is  of  course  entirely  applicable  to  the  seems     she     obtained     no     interest    or 

case  of  an  executor  or  administrator,  property,  has  no  standing,  before  the 

S.    P..    Matter    of    Dean,    86    id.    300;  instrument    is    set   aside,    to   maintain 

Matter  of  Cohn,  78  id.  248;  Lichten-  an  action  to  set  aside  a  transfer  made 


435  Admin isTKATiox  of  Estate,  Etc.  §  546. 

It  is  further  provided  that  every  person  who  shall,  in  fraud  of 
the  rights  of  creditors  and  others,  have  received,  or  in  any  manner 
interfered  with,  the  estate  or  effects  of  the  deceased,  etc.,  shall  be 
liable  in  the  proper  action  to  the  executors,  administrators,  or 
other  trustee  of  such  estate,  for  the  same  or  for  the  value  of  the 
property  taken,  and  the  damages  caused  thereby.''*^ 

TITLE  SECOND. 

FUNERAL    CHARGES    AND    EXPENSES    OF    ADMINISTRATION. 

ARTICLE  FIRST. 

FUNERAL    CHARGES. 

§  546.  Liability  for  funeral  charges. —  The  expenses  of  the  suit- 
able interment  of  decedent's  remains  have  priority  over  every 
other  claim  against  the  estate;  indeed,  the  statute  pro^ddes  that 
the  representative  shall  not  be  allowed  for  the  payment  of  any 
debt  or  claim,  upon  his  accounting,  until  the  funeral  charges  are 
paid.^^  The  immediate  duty  of  burying  the  body  rests  upon  the 
husband  or  the  wife,^*  or  other  relative  of  the  decedent,  or  may 
rest  upon  a  stranger  under  whose  roof  the  death  occurred.''^  lie 
cannot  keep  the  body  unburied,  or,  by  exposing  it  to  violation, 
offend  the  feelings  or  endanger  the  health  of  the  living. 

by   the   decedent   in    her   lifetime,    for  "  after    deducting    taxes,    assessments, 

fraud.     (Hagan  v.  Ward.  58  App.  Div.  interest    on    mortgages,    if    any.    and 

258;   68  N.  Y.   Supp.   1003.)  olhcr  charges   and   expenses,    for     and 

66  L.  1858,  c.  314.  §  2;  L.  1897.  c.  during  her  natural  life."  Held,  that 
417.  §  7.  And  see  2  R.  S.  449.  §  17;  disbursements  for  funeral  expenses, 
IVIcKnight  V.  Morgan.  2  Barb.  171;  transportation  of  decedent's  remains, 
Truesdell  v.  Bourke,  80  Hun,  55;  29  and  services  of  his  attending  physi- 
N.  Y.  Sup]).  849:  revd.,  on  other  cian,  were  chargeable  to  the  corpus  oi 
points,   145  X.   Y.  G12.  the  estate,  and  not  to  income.    Under 

67  Co.  Civ.  Proc,  §  2514,  subd.  3.        a  trust  deed  for  the  grantor  for  life. 
6SA   husband,    upon   the   settlement    remainder   over,   the   funeral   expenses 

of  his  accounts  as  administrator  of  the  of  the  grantor  should  be  paid  out  of 

estate  of  his  deceased  wife,  should  be  accrued  income  and  personalty  before 

allowed  out  of  her  estate  for  her  neces-  using  the  principal  of  the  trust.    ( Mat- 

sary  and  proper  funeral  expenses  paid  ter  of  Yates,  27   Misc.   395;    58   X.  Y. 

by  "him.     The  fact  that  it  is  the  duty  Supp.  808.) 

of   the  husband   to  bury   his   deceased  69  Regina   v.   Stewart,   12   Ad.   &   E. 

wife,    does    not    exempt    her    separate  773.     For  a  full  collection  of  autliori- 

estate  from  the  ultimate  charge.     ( Mc-  ties  ujwn  the  question  of  the  riglit>  of 

Cue  V.  Garvey.  14  Hun,  502:   Freeman  the    heir,    next    of    kin,    and    widow, 

V.  Coit.  27  id.  450;  Kessler  v.  Hessen,  respectively,  to  designate  the  plaee  of 

19   Abb.    X.   C.   86.)      See   Jackson   v.  burial,  and  the  control  of  it,  with  the 

Westerfield,    01    How.    Pr.    399:    Van  monuments,   see  Matter    of    Bcekman 

Orden  v.  Krause,  89  Him,  1 :  34  N.  Y.  Street,  4  Bradf.  503 :  and  also  the  note 

Supp.    1004.      In    Zapp    v.    Miller    (3  of  Mr.  IMoak  to  Re  Bettison,  L.  R.,  4 

Dem.  200),  the  will  gave  to  testator's  Ad.  &  Fee.  294:     12    Moak,    650:    and 

-widow   the   income   of   all   his   estate,  Snyder  v.  Snyder,  GO  How.  Pr.  3C8. 


§  546.  Administration  or  Estate^  Etc.  436 

By  whomsoever  the  duty  is  performed,  the  estate  of  the  de- 
ceased is  ultimately  liable  to  defray  the  necessary  reasonable  ex- 
penses of  the  burial.  It  is  analogous  to  the  duty  and  obligation  of 
a  father,  to  furnish  necessaries  to  a  child,  and  of  a  husband  to  a 
wife,  from  which  the  law  implies  a  promise  to  pay  him  who  does 
what  the  father  or  the  husband,  in  that  respect,  omits  to  do.'" 

It  is  not  usual,  and,  in  most  cases,  it  is  not  possible,  for  letters, 
cither  testamentary  or  of  administration  upon  the  estate,  to  be 
applied  for  and  granted  before  the  funeral  of  the  decedent,  so  that 
the  executor  or  administrator,  as  such,  is  very  rarely  called  upon 
to  superintend  the  funeral  ceremony  or  direct  the  necessary  ex- 
penditure of  money.  The  authority  of  a  person  named  as  executor 
in  the  will,  to  pay  the  funeral  charges  of  his  testator,  before  the 
grant  of  letters  to  him,  is  expressly  recognized  by  the  statutes  ;^^ 
and  the  rule  at  common  law  has  long  been  settled,  that  the  executor 
or  administrator  must  bury  the  decedent  in  a  manner  suitable  to 
the  estate  he  left  behind  him.^^  The  reason  of  the  rule  is  as  ap- 
plicable in  the  case  of  an  administrator  as  an  executor. ^'^ 

It  seems  to  be  settled  that  the  reasonable  and  necessary  expenses 
of  interring  the  dead  body  of  a  decedent  are  a  charge  against  his 
estate,  though  not  strictly  a  debt  due  from  him;  so  that  his  per- 
sonal representative  may  be  sued,  as  such,  for  their  recovery.^^ 

An  executor  or  administrator  who  gives  orders  for  the  funeral, 
or  ratifies  or  adopts  the  acts  of  another  who  gives  such  orders.  Is 
also  liable  personally  ;'^^  and,  where  he  has  assets,  he  is  individually 
liable,  though  he  has  neither  given  nor  adopted  any  directions 


70  Per    Folger,   J.,    in    Patterson   v.  7i  i  R.  s.  71,  §  16. 

Patterson,  59  N.  Y.  574.     In  this  case  72  2  Blackst.  Comni.  508. 

it  was  held  that  funeral  expenses  were  73  Rappelyea  v.  Russe.l,  1  Daly,  214. 

not    to   be    treated   as   a   debt    of   the  74  Patterson  v.   Patterson,  59  N.   Y. 

estate  but  as  a  charge  upon  the  same,  574;    JJalrymple    v.    Arnold,    21    Hun, 

of  the  same  nature   and  character   as  110;   Laird  v.  Arnold,  25  id.  4;   Riley 

necessary  administrative  expenses,  and  v.  Waller,  22  Misc.  63 ;  48  N.  Y.  Supp. 

was  entitled  to  a  preference  as  such.  535 ;   Patterson  v.  Buchanan,  40  App. 

See    Matter    of    Laird    v.    Arnold,    42  Div.  493;  58  N".  Y.  Supp.  179.     But  in 

Hun,    136;    Dalrymple    v.    Arnold,    21  the  absence  of  fraud  or  insolvency  the 

id.    110;    Laird    v.    Arnold,    25    id.    4;  distribution  of  a  trust  fund  should  not 

Huhna  v.  Theller,  35  Misc.  296;   71  N.  be   enjoined,    pending   an   action   upon 

Y.    Supp.   752.     A  life   tenant,   on   ae-  a   claim    for   funeral   expenses.      (Van 

counting   to    the   remainderman,    may  Orden  v.  Ledwith,  44  App.  Div.  580; 

charge  the  trust  fund  with   testator's  (iO  X.  Y.  Supp.  802.) 

funeral    expenses,    and    the   cost   of    a  "5  Ferrin  v.  Myrick,  41   N.  Y.   315; 

burial   plot  and  of  a  monument   paid  Murphy  v.    Naughton,    68    Hun,   424; 

for   by   him,  where   such   expenditures  23  N.  Y.  Supp.  52 ;  Tracy  v.  Frost,  32 

are  reasonable,  and  the  remainderman  St.    Rep.    907 ;    Matter   of   Schulz,   26 

assented  to  the  expenditure.      (Young  Misc.  688:   57  N.  Y.   Supp.   952.     See 

V.  Young,  2  Misc.  381;  21  N.  Y.  Supp.  Congregation,  etc.  v.  Sindrock,  15  App. 

1008.)  Div.  82. 


4.37 


Ad.mixistijatiox   ok  Estate,  Etc. 


547. 


for  the  funeral,  uiioii  an  iiii]ilicil  contract  for  the  expenses  of  the 
snital)k>  interment  of  tlie  tleeedent.'" 

But  where  a  third  person,  e.  g.,  the  mother  of  the  deceased, 
officiously,  in  tlie  presence  of  the  husband  of  deceased,  assumed 
entire  control  of  the  funeral  arrauj^jements  and  sent  for  the  under- 
taker, telling  him  to  sj^are  no  expense,  it  was  held  that  she  became 
personally  liable  to  the  undertaker  for  the  funeral  expenses,  and 
that  both  the  husband  and  the  estate  were  relieved  from  the 
obligation  otherwise  imposed  on  them  by  lawJ^ 

§  547.  Proceedings  to  compel  payment  of  funeral  expenses. —  For- 
merly, one  having  a  claim  for  funeral  expenses  was  not  considered 
a  creditor  of  the  estate,  and  could  not  enforce  payment  in  the 
Surrogate's  Court. ^^  But  the  former  distinction  no  longer  ob- 
tains,^^  and.  he  now  is  given  a  remedy  for  the  collection  of  his  claim 
against  the  representative  directly.  The  statute  provides^"  that 
every  executor  or  administrator  shall  pay,  out  of  the  first  moneys 
received,  the  reasonable  funeral  expenses  of  decedent,  and  the 
same  shall  be  preferred  to  all  debts  and  claims  against  the  de- 
ceased. If.  the  same  be  not  i)aid  within  sixty  days  after  the 
grant  of  letters  testamentary  or  of  administration,  the  person 
having  a  claim  for  such  funeral  expenses  may  present  to  the 
Surrogate's  Court  a  duly  verified  petition  praying  that  the  ex- 
ecutor or  administrator  mav  be  cited  to  show  cause  whv  he  should 


76Rappelyea  v.  Russell,  1  Daly,  214; 
Kittle  V.  Huntley.  (i7  Hun,  617;  22 
N.  Y.  Supp.  519;  Benedict  v.  Fergu- 
son, 15  App.  Div.  90;  44  N.  Y.  Supp. 
307.  Upon  the  death  of  a  legatee,  a 
child  of  testator,  the  executor,  with- 
out waiting  for  the  appointment  of  an 
administrator  of  the  estate  of  said 
legatee,  who  should  he  authorized  to 
receive  the  same,  paid  out  of  testa- 
tor's estate  the  necessary  funeral  ex- 
penses of  the  legatee.  Held,  that 
while  the  executor  had  no  legal  right 
to  make  such  payment,  yet  as  strict 
legal  rules  are  not  inllcxiltle  as  to 
such  expenditures,  equitable  considera- 
tions should  be  api)lied  to  the  case, 
and  such  payment  allowed.  (^Matter 
of  Butler,  1  Cnnoly.  58.) 

77Quin  V.  Hill.  4  Deni.  09;  s.  c.  as 
Matter  of  Hill,  17  Abb.  N.  C.  273. 
In  Lucas  v.  Hessen  (17  Abb.  N.  C. 
271),  the  husband  of  the  deceased 
ordered  the  necessaries  of  the  funeral, 
and  paid  the  undertaker  a  part  of  his 
bill,  and  suffered  a  judgment  for  tlie 
balance.      Held,    that    as    the    under- 


taker had  given  credit  to  the  husband, 
he  could  not  maintain  an  action  against 
the  executor  for  the  amount  of  his 
bill.  An  action  will  not  lie  for  ser- 
vices gratuitously  rendered  by  a  rela- 
tive, in  taking  charge  of  the  inter- 
ment of  the  deceased,  he  having  died 
suddenly  in  the  street,  the  ordinary 
funeral  expenses  having  been  jiaid  by 
the  executor.  ( Hewett  v.  Bronson,  5 
Daly,  1.)  S.  P.,  Hoffman  v.  Kanzc.  7 
Misc.  237;   27  N.  Y.   Supp.  2fi0. 

78  Matter  of  Schulz.  2(i  Misc.  OSS: 
57  N.  Y.  Supp.  952.  Thus  he  could 
not  petition  for  the  sale  of  decedent's 
land  to  pay  the  claim.  (Matter  of 
Corwin,  10  Misc.  19(5;  31  N.  Y.  Supp. 
426.)      See  §  849,  u.  71,  post. 

TO  Co.  Civ.  Proc,  §  2514,  subd.  3,  as 
amended  1900. 

80  Co.  Civ.  Proc,  §  2729,  subd.  3 
(added  1901).  The  i)ract ice  regulated 
by  this  section  applies  to  the  collection 
of  funeral  expenses,  thougli  incurred 
pri(n-  to  the  enactment  thereof.  (Mat- 
ter of  Kipp.  70  App.  Div.  567  ;  75  N. 
Y.  Supp.  589.) 


§§  548-550,      Administration  of  Estate,  Etc.  438 

not  be  required  to  make  such  payment,  and  a  citation  shall  be 
issued  accordingly. 

§  548.  Hearing  and  decree  thereon. — If  upon  the  return  of  such 
citation  it  shall  appear  that  the  executor  or  administrator  has  re- 
ceived moneys  belonging  to  the  estate  which  are  applicable  to  the 
pa\Tnent  of  the  claims  for  funeral  expenses,  the  surrogate  shall, 
unless  the  validity  of  the  claim  and  the  reasonableness  of  its 
amount  are  admitted  by  such  executor  or  administrator,  take 
proof  as  to  such  facts,  and,  if  satisfied  that  such  claim  is  valid, 
shall  fix  and  determine  the  amount  due  thereon  and  shall  make 
an  order  directing  the  payment,  within  ten  days  after  the  service 
of  such  order,  "wdth  notice  of  entry  thereof,  upon  such  executor 
or  administrator,  of  such  claim  or  such  proportion  thereof  as  the 
money  in  the  hands  of  the  executor  or  administrator  applicable 
thereto,  may  be  sufficient  to  satisfy.  If  it  shall  appear  that  no 
money  has  come  into  the  hands  of  the  executor  or  administrator 
the  proceeding  shall  be  dismissed  without  costs  and  without 
prejudice  to  a  further  application  or  applications  showing  that 
since  such  dismissal  the  executor  or  administrator  has  received 
money  belonging  to  the  estate.^^ 

§  549.  Only  reasonable  expenses  allowed. —  The  representative 
will  be  allowed,  upon  his  accounting,  the  amount  paid  for  funeral 
expenses,  in  the  absence  of  proof  that  they  were  unreasonably 
large,  even  though  they  were  first  paid  by  another,  to  whom  he 
subsequently  repaid  the  amount.*^  In  respect  to  the  reasonable- 
ness of  the  expenses  incurred,  a  person,  e.  g.,  an  undertaker,  who 
is  called  upon  to  furnish  funeral  requisites,  is  only  chargeable 
with  a  knowledge  of  the  apparent  condition  of  the  deceased's  prop- 
erty, and  his  station  in  life;  and  if  he  furnishes  only  what  would 
be  suitable,  if  such  appearances  were  not  deceptive,  he  is  entitled 
to  be  paid  in  full  from  the  estate,  even  though  it  is  insolvent. ^'^ 

§  550.  What  expenses  allowable  as  against  creditors. —  The 
amount  of  the  expenses  which  will  be  deemed  reasonable  or  neces- 
sary, for  the  suitable  burial  of  a  decedent,  must  be  considered, 
generally,  with  reference  to  "  his  degree  and  quality,"  but,  as 
against  creditors,  the  amount  of  his  estate  is  also  to  be  considered. 
As  respects  those  who  are  entitled  to  the  estate,  as  legatees  or  next 

81  (lb.)  Such  further  application  ^2  Matter  of  Miller,  4  Redf.  302. 
shall  not  be  made  less  than  three  s.3  Matter  of  Rooney.  3  Redf.  L5.  In 
months  from  the  granting  or  denial  of  that  case,  the  court  ordered  the  pay- 
any  previous  application,  and  the  ment  upon  the  petition  of  the  under- 
issuance  of  a  citation  thereon  shall  taker.  But  the  surrogate's  power  to 
be  in  the  discretion  of  the  surrogate,  do  this  was  doubted  in  Matter  of 
(lb.)  Hooney,  5  Dem.  285. 


439 


Admixistratiox  or  Estate,  Etc. 


§  550. 


of  kin,  the  executor  or  administrator,  while  he  is  not  justified  in 
an  extravagant  outlav,^^  is  not  restricted  to  the  bare  necessities  of 
the  case,  as  he  is  where  the  rights  of  creditors  intervene. 

The  executor  or  aihiiiiiistrator  decides,  at  his  peril,  on  the 
amount  of  the  e.\])on(liture  which  will  he  allowed  or  disallowed, 
on  the  final  settlement  of  his  accounts,  as  it  shall  be  deemed  reason- 
able or  otherwise.*^''  He  should  not,  before  ascertaining  the  amount 
of  the  estate,  purchase  a  larger  burial  lot  than  is  necessary,*''  and 
although  the  ex])ense  of  a  tombstone  has  been  considered  a  funeral 
charge,*^  yet,  where  the  estate  is  insolvent,  it  can  be  allowed,  if 
at  all,  to  a  very  moderate  amount  only.**^ 


84  In  Emans  v.  Hickman  (12  Hun, 
425),  tlie  will  contained  the  following 
clause :  "  To  my  executor  all  money 
in  my  possession,  all  money  due  from 
any  source  or  sources  whatever,  and 
all  property  of  every  kind  and  de- 
scription held  by  me,  for  my  funeral 
expenses  and  the  erection  of  a 
monument  to  my  memory  in  the 
Purdy  Yard,  in  Phillipstown.  Putnam 
County."  The  estate  amounted  to 
$1,200.  The  court  decided  that  the 
testator  did  not  intend  to  spend  all 
his  estate  for  funeral  expenses  and 
the  erection  of  a  monument  to  his 
memory,  but  only  so  much  as  would 
be  suitable  to  his  condition  of  life; 
fixed  this  amount  at  $150.  and  di- 
rected that  the  balance  be  distributed 
among  the  heirs-at-law.  as  in  cases  of 
intestacy.  See  Burnett  v.  Noble.  5 
Redf.  ()!•;  Chalker  v.  Chalkor.  id.  480; 
Campbell  v.  Purdv.  id.  434;  Tickel  v. 
Quinn.  1  Deni.  432 ;  ]\Iatter  of  Beach, 
1  Mi.sc.  27;  22  N.  Y.  Supp.  1070; 
Matter  of  Shipman.  82  Hun.  108;  31 
N.  Y.  Supp.  571;  Matter  of  Barnes.  7 
App.  Div.  13;  40  N.  Y.  Supp.  494; 
affd.,  154  N.  Y.  737. 

SSFerrin  v.  Myrick,  41  N.  Y.  315. 
See  Springsteen  v.  Samson,  32  id.  703, 
714. 

Sf!]Matter  of  Erlacher,  3  Redf.  8. 
In  that  case,  the  estate  amounted  to 
$2,025.78.  Held,  that  the  administra- 
tors should  be  allowed  only  $250  of 
$670  expended  by  them  for  a  monu- 
ment and  inclosing  the  burial  plot. 
In  Matter  of  Wood  (3  Pedf.  0.  n.).  it 
appeared  that  the  estate  amounted  to 
less  than  $2,800.  and  that  $700  was 
charged  by  the  administratrix  for 
burial  lot  and  monument,  and  $200 
additional  was  placed  to  the  account 
of  funeral  expenses.  It  was  held,  that 
the  charge  for   burial   lot  and   monu- 


ment was  excessive.  In  Matter  of 
Mount  (3  Redf.  1),  n.),  i*:  was  sliowii 
that,  out  of  an  estate  of  $983.30.  the 
administratrix  paid  $425  for  funeral 
expenses,  besides  $60  for  clergyman's 
fee  and  music,  and  $78  for  a  grave- 
stone. Held,  that  only  $200  .should 
be  allowed  for  funeral  expenses  and 
.$50  for  a  gravestone.  In  another  case, 
it  was  held  that,  as  against  decedent's 
next  of  kin,  an  expenditure  of  $351 
for  a  burial  lot  is  not  unreasonable, 
where  the  estate  amounts  to  $13,000; 
but  as  against  creditors,  the  expendi- 
ture would  not  have  been  allowed,  it 
seems.  (Valentine  v.  Valentine,  4 
Redf.  205.)  Funeral  expenses  incur- 
red by  an  executor  to  the  amount  of 
$t)0  will  not  be  held  excessive  where 
the  executor  acted  in  good  faith, 
though  testator's  estate  was  not  sufli- 
cient  to  pay  in  full  tlie  statutory  ex- 
emptions of  the  widow.  (flatter  of 
Ilildebrand.  23  N.  Y.  Supp.  148.)  An 
expense  of  $300  incurred  by  an  exec- 
utor for  testator's  tombstone  is  reason- 
able where  the  estate  is  valued  at  more 
than  $(>.OO0,  and  the  rights  of  credit- 
ors are  not  impaired.  ( .Matter  of  How- 
ard. 3  Misc.  170;  23  X.  Y.  Supp.  836.) 

8T  Patterson  v.  Patterson.  59  X.  Y. 
574;  Wood  v.  Vandenburgh.  6  Paige, 
277;  Fcrrin  v.  :Myri(k.  41  X.  Y.  315; 
Owens  V.  Bloomer,  14  Hun,  296.  In 
the  last  case,  the  estate  did  not  ex- 
ceed $8,000.  An  expenditure  of  $500 
for  a  headstone  was  held  to  be  ex- 
travagant, and  was  not  allowed  as 
against  the  heirs.  In  Harvev  v.  Van 
Cott  (71  Hun,  394;  atTd..  149  X. 
Y.  579),  the  ])urchase  of  a  monu- 
ment by  the  husband,  executor  of 
his  wife,  with  proceeds  of  a  jnilicy 
in  her  favor  on  his  life,  was  sustained. 

8S  Wood  V.  Vandcnburch.  supra. 
In  Cornwell  v.  Deck    (2  Redf.  87),  it 


§§  551,  552.     Admixistkatiox  of  Estate,  Etc.  440 

§  551.  Expenses  incident  to  death. —  The  expense  of  a  special 
messenger  to  the  family  of  the  decedent,  to  inform  them  of  his 
death,  may  be  allowed,  where  he  dies  abroad,  and  such  prompt 
commnnication  is  necessary  for  the  security  of  the  estate,  for  the 
burial,  and  to  avoid  expenses  of  delay.  So,  the  expense  of  accom- 
panying the  body,  and  of  a  copy  of  the  verdict  of  a  coroner's  jury,, 
if  such  copy  be  necessary  to  the  burial.*^  In  some  of  the  States, 
though  not  in  this,  the  expenses  of  the  decedent's  last  sickness 
are  given  a  preference,  with  the  funeral  charges.^^'  Mourning  for 
the  family  of  the  testator  is  not  a  funeral  charge,  strictly  speaking, 
although  charges  therefor  have  been  allowed  in  some  of  the 
States,^^  and  in  two  cases  were  allowed  here.^^ 

ARTICLE  SECOND. 

EXPENSES  or  AD:MTyiSTRATION. 

§  552.  Personal  liability  for  administration  expenses. —  After  dis- 
charging the  funeral  expenses,  the  executor  or  administrator  will 
then  have  occasion  to  incur  certain  expenses  incident  to  the  proof 
of  the  will,  or  the  grant  of  administration,  as  the  case  may  be,  and 
such  as  are  incident  to  the  general  administration  of  the  estate. 
As  in  the  case  of  funeral  expenses,  the  executor  or  administrator 
is  primarily  liable  for  these  expenses  in  his  individual  and  not  his 
representative  character,  although,  of  course,  he  is  entitled  to  be 
reimbursed,  out  of  the  estate,  his  "  actual  and  necessary  expenses. 


■was  held,  that  the  expense  of  a  tomb-  Dem.  524.    In  the  last  case  it  was  held 

stone,   if   not   excessive,   would   be   al-  that,    it    being    the    almost    universal 

lowed,    althoush    the    estate    was    in-  practice  for  the  family  of  a  deceased 

solvent.     Since  L.  1874,  c.  267,  funeral  person    to    wear     mourning;     and     a 

expenses,    including   a    suitable   monu-  change  of  wearing  apparel  being  thus 

ment,   are   not  only   a   charge   on   the  rendered   necessary   as   a    part   of   the 

estate,  but  constitute  a  debt,  so  as  to  preparation  for  the  funeral,  and  as  a 

entitle  one  furnishing  the  monument  mark  of  proper  respect  for  the  dead; 

to  institute  proceedings  as  a  creditor  this   expense,   when   reasonably   incur- 

for  the  sale  of  the  real  estate  to  pay  red  by  those  for  whom  he  was  bound, 

debts.       (^Matter    of   Laird   v.    Arnold,  in  his  lifetime,  to  provide,  should  be 

42  Hun.   136.)  borne  by  his  estate.     It  was  also  held, 

89  Hasler  v.  Hasler,  1  Bradf.  248.  in   that  case,   that  the   widow  should 

90  Freeman  v.  Coit,  27  Hun,  447.  be  allowed  a  reasonable  expenditure 
The  commissioners  proposed  this  rule  ($19)  for  the  disinterment  and  re- 
for  adoption  here  in  their  Draft  of  burial  of  decedent's  remains. —  the 
Revision    (1878),  §  ,549.  place  where  they  were  first  deposited 

01  See  Wood's  Estate,   1   Ashm.  .314;  having  been  discovered  to  be  undesir- 

Re  Holbert,    3   La.    Ann.    436;    Flint-  able;  also  .$175  for  a  mortuary  monu- 

ham's  Estate,  11  Serg.  &  R.  16;   Gris-  ment;   and  .$40.  the  purchase  price  of 

wold  V.  Chandler,  5  X.  H.  492 ;  Mack-  a  lot  in  a  well-kept  cemetery,  the  title 

nett  V.  Macknett,  9  C.  E,  Green,  296.  to  which  she  was  allowed  to  take  and 

■'2  Matter  of  Waehter.  16  Misc.  137:  hold  in  her  individual  name. 
38  X.  Y.  Supp.  941 ;  Allen  V.  Allen,  3 


441 


Administration  of  Estate,  Etc. 


§  552. 


as  appears  just  and  reasonable,'"*'  in  addition  to  his  statutory 
oonunissions,  and  conseciuciitly  in  addition  to  a  legacy  given  by  the 
will  to  the  executor  in  lieu  of  "  commissions."  '*^ 

The  principle  on  which  the  rule  of  the  representative's  personal 
liability  is  founded  is,  that  while  he  may  dislnirse  and  use  the 
moneys  of  the  estate  foj  purposes  authorized  by  law,  he  may  not 
bind  the  estate  by  an  executory  contract,  and  thus  create  a  liability 
not  founded  upon  a  contract  or  obligation  of  the  testator."" 

A  claim,  for  example,  by  an  attorney  employed  by  an  executor,, 
for  services  rendered  in  conducting  proceedings  for  the  probate  of 
decedent's  will,  and  otherwise  in  the  settlement  of  the  estate,  and 
for  moneys  advanced  for  disbursements  therein,  is  against  the 
executor  personally,  and  not  against  the  estate.**" 

The  liability  of  two  or  more  co-representatives  for  the  services 
of  an  attorney  retained  by  them  in  proceedings  against  them  on 
their  accounting,  is  joint  and  personal,  although  their  interests 
upon  a  distribution  are  different;  and  one  of  two  representatives 


93  Co.  Civ.  Proc,  §  2730,  as  amended 
1893;  adopting  L.  18tJ3,  c.  3U2,  §  8. 
See  Shepard  v.  Stebbins.  48  Hun,  247 ; 
Matter  of  Van  Nostrand,  3  Misc.  39G; 
Balz  V.  Underhill,  19  id.  215;  44  N. 
Y.  Supp.  419;  afTd.,  lU  App.  Div.  635. 

04  Matter  of  Pollen,  1  Law  Bui.  40. 

<J5  Austin  V.  Munro,  47  N.  Y.  360; 
Ferrin  v.  Myrick,  41  id.  315;  Rey- 
nolds V.  Reynolds,  3  Wend.  244;  De- 
niott  V.  Field,  7  Cow.  58 ;  Myer  v. 
Cole.  12  Johns.  349;  Davis  v.  Stover, 
58  N.  Y.  473 ;  Bloodgood  v.  Sears,  64 
Barb.  71;  Stedman  v.  Fcidler,  20  X. 
Y.  437;  McMahon  v.  Allen,  4  E.  D. 
Smith,  519;  Stanton  v.  King,  8  Hun, 
4;  affd.,  69  N.  Y.  609.  In  New  v. 
XieoU  (12  Hun,  431;  affd..  73  N. 
Y.  127),  real  estate  was  conveyed  by 
deed  to  N.  in  trust,  to  receive  the 
rents,  etc.,  and  after  paying  the  taxes 
and  other  charges  on  the  premises,  to 
apply  the  residue  to  the  use  of  R. 
during  life.  The  trustee  employed  the 
plaiiitill"  to  make  necessary  repairs 
upon  the  building;  but,  having  no 
money  in  hand,  promised  to  pay 
therefor  out  of  the  rents  to  be  subse- 
quently received.  The  plaintiff  did  the 
work,  relying  upon  this  promise  and 
the  trust  estate.  The  trustee  subse- 
(juently  received  siiffieient  money  to 
pay  the  bill,  but  neglected  to  do  so. 
Held,  that  the  estate  was  not  liable 
upon  the  trustee's  promise,  though, 
query,  if  the  trustee  having  no  funds 


in  his  hands,  had  made  a  special  agree- 
ment that  such  expenditure  should  be 
made  on  the  credit  of  the  estate  and 
he  be  exempt  from  all  personal  lia- 
bility therefor,  such  agreement  could 
not  be  enforced  against  the  estate,  iu 
equity.  See  Oilman  v.  Oilman,  6  Sup. 
Ct.  (T.  &  C.)  211;  O'Oara  v.  Clarkin^ 
2  id.  675;  Mesiek  v.  Mesick,  7  Barb. 
120,  124;  Ross  v.  Harden,  42  X.  Y. 
Super.  427;  44  id.  26;  Poland  v.  Day- 
ton, 40  Hun,  563:    2   St.  Rep.    121. 

•'*j  Budlong  V.  Clemens,  3  Dem.  145 ; 
Parker  v.  Day,  155  X.  Y.  383.  If  he 
overpays  an  attorney  for  services,  he 
is  personally  liable  for  the  excess. 
(.Matter  of  Bradley.  1  Connoly,  106; 
Mygatt  v.  Wilcox,  45  X.  Y.  30(1. )  But 
the  attorney  is  not  liable  for  the 
amount  so  paid.  (Shaffer  v.  Bacon,  35 
App.  Div.  248;  54  X.  Y.  Supp.  796; 
alld.,  161  X.  Y.  635.)  See  Bowman  v. 
Tallman,  2  Robt.  385.  In  Hasler  v. 
llasler  (1  Bradf.  248)  it  appeared  that 
A.  and  B.,  co-administrators  of  C,  re- 
tained counsel  in  a  suit  touching  the 
estate,  and  B.  died,  and  A.  was  ap- 
pointed his  administrator,  and  paid  for 
the  counsel's  services  from  B.'s  estate. 
Held,  that  such  payment  was  not  au- 
thorized, unless  the  estate  of  C.  was 
insolvent  at  the  time;  and  the  fact 
that  B.,  before  his  death,  had  individ- 
ually promised  to  pay  it,  made  no 
difference. 


§  552.  Administration  of  Estate,  Etc.  442 

is  individually  lial)le  for  the  value  of  services  performed,  at  his 
request,  iu  preparing  the  joint  account  of  both  executors.^^ 

(Qualifying  executors,  who  honestly  differ  as  to  the  conduct  of 
the  affairs  of  the  estate,  may  each  separately  employ  counsel  to 
render  to  them  professional  services  on  substantially  parallel  lines, 
but  quite  independent  of  each  other,  and  each  executor  is  entitled 
to  be  reimbursed  for  a  reasonable  compensation  paid  by  him  to 
his  counsel. ^^  The  representative  has  no  power,  therefore,  to 
make  an  agreement  with  an  attorney  by  ^vhich  he  creates  a  lien 
upon  the  estate  for  the  amount  of  his  services  rendered  in  an  action 
to  recover  assets,  or  to  assign  the  same  to  him.  He  may  bind 
himself  personally,  but  not  the  estate  which  he  represents.^^ 

Speaking  generally,  the  Surrogate's  Court  has  not  authority  to 
•direct  an  appropriation  of  any  part  of  the  estate,  in  anticipation 
of  the  expenses  of  administration;^  or  to  pass  upon  a  bill  for 
services  rendered,  "with  a  view  of  instructing  the  representative 
whether  or  not,  on  a  submission  of  the  facts  by  the  respective 
parties,  the  bill  should  be  paid;^  nor  has  the  court  powder  to  pre- 
scribe the  terms  upon  which  a  change  of  attorneys  may  be  effected 
in  a  proceeding  before  it,  or  determine  the  amount  of  compensa- 

97  Douglass  V.  Leonard,  44  St.  Rep.  i  Willcox  v.  Smith,  26  Barb.  316. 
293;  17  N.  Y.  Svipp.  .591;  leave  to  ap-  Under  Co.  Civ.  Proc,  §  2672,  the  sur- 
peal  denied,  18  id.  144.  In  that  case  rogate  may  authorize  a  temporary 
it  was  also  held  that  the  question  administrator  to  pay  expenses  of  ad- 
-whether  plaintiff,  employed  as  an  ac-  ministration, —  e.  g.,  legal  expenses 
cointant  by  an  executor,  was  to  be  (Stokes  v.  Dale,  1  Dem.  260)  ;  bu-t 
confined  to  the  estate  for  compensa-  he  has  no  power  to  authorize  him  to 
tion,  in  the  absence  of  an  express  mortgage  the  real  property  for  that 
agreement,  and  where  the  inference  purpose  (Duryea  v.  ]\Iackey,  1.57 
from  the  circumstances  was  doubtful,  N.  Y.  204)  ;  nor  will  he  direct  him  to 
was  for  the  jury.  advance   money   to    procure   witnesses 

98  Matter  of  Delaplaine,  1  Connoly,  on  the  probate.  ( Fricke's  Estate,  4 
1;   19  Abb.  N.  C.  413.  Civ.  Proc.  Rep.   177.)       In  Swenarton 

99  Piatt  V.  Piatt,  105  N.  Y".  488;  v.  Hancoc'--  (22  Hun,  43),  pending  an 
Martin  v.  Piatt,  51  Hun,  429.  An  appeal  from  a  decree  in  a  probate  pro- 
attorney's  claim  for  services  in  pro-  cecding,  the  executors,  upon  petition 
curing  the  probate  of  a  will,  being  to  the  Supreme  Court,  obtained  an 
against  the  executor  personally,  he  has  order  directing  the  surrogate  to  pay, 
no  lien  for  the  amount  upon  the  prop-  out  of  any  funds  of  the  estate  in  his 
erty  of  the  estate  which  may  be  in  his  hands,  $3,000  to  the  executors  or  their 
possession.  (Delamater  v.  McCaskie,  counsel  for  the  expenses  of  the  appeal. 
4  Dem.  549.)  Compare  Arkenburgh  On  appeal,  held  void  for  lack  of  power 
V.  Little,  64  N.  Y.  Supp.  742;  Lee  v.  to  grant  it.  Such  property  belongs 
Van  Voorhis,  78  Hun,  575 :  29  N.  Y.  to  the  beneficiaries  under  the  will,  and 
Siipp.  371;  145  N.  Y.  603:  Kennedy  they  cannot  be  deprived  of  any  part 
V.  Steele,  35  Misc.  105:  71  N.  Y.  Supp.  of  it,  except  by  due  process  of  law; 
237.  As  to  protecting  the  lien  of  an  the  disposition  of  such  property  be- 
attorney  on  the  interest  of  his  client  longs  to  the  executors  under  their  offi- 

(a    legatee)    in   the   estate,   under   an  cial  liability. 

agreement   between   them,   see   Matter  2  Matter    of    Cohn,    5     Dem.     338 ; 

of  Fernbacher,  5  Dem.  219.     See  also  Stokes  v.  Dale.  1  id.  260;   St.  John  v. 

§  48,  ante.  McKee,  2  id.  236 ;  Journault  v.  Ferris, 


443 


Admixistkatiox   of  Estatk,  Etc.      §§  553,  554. 


tion  t<t  which  the  retiring  attorney  is  entitled.'^  Nor  will  the  court 
direct  the  compensation  of  an  accountant,  employed  hy  the  con- 
testant to  examine  the  accounts  of  an  executor  upon  his  account- 
ing,—  at  least,  not  pending  the  accounting.^ 

§553.  Expenses  incurred,  but  not  paid. — ^It  has  been  repeatedly 
lield  that  in  no  event  can  an  allowance  be  made  to  a  representative 
for  an  administrative  expense,  e.  g.,  counsel  fees,  until  he  has 
-actually  paid  it;  at  least,  not  by  a  Surrogate's  Court.^  The  power 
of  the  Supreme  Court  to  direct  an  executor,  on  an  accounting  in 
that  court,  to  pay  an  expense,  incurred  by  him  but  not  paid,  e.  g., 
counsel  fees  on  a  probate  trial  at  circuit  —  has  been  adjudged;" 
and  in  one  case,  a  surrogate's  allowance  of  an  incurred  expense 
^seemingly  unpaid)  was  affirmed  by  the  court  of  last  resort.^ 

§  554.  Expense  of  proving  will. —  An  executor  is  bound  to  pay 
the  expenses  of  the  proof  of  the  will,  and  of  defending  the  probate, 
when  granted,  against  attack  by  appeal  or  otherwise,  and  must 
rely  for  reimbursement  upon  the  settlement  of  his  accounts,  when 
the  beneficiaries  under  the  will  are  entitled  to  be  heard  on  the 
■question  of  the  necessity  and  reasonableness  of  his  expenditures.^ 


id.  320.  See  Oilman  v.  Gilman.  6 
Sup.  Ct.  (T.  &  C.)  211.  An  attorney 
'employed  by  the  representative  should 
present  his  account  for  payment  before 
the  final  accounting,  and  the  repre- 
sentative should  fix  upon  the  amount 
which  is  reasonable  to  be  paid,  and 
pay  it  on  his  own  responsibility,  and 
credit  himse'f  with  such  payment  in 
his  final  accounting,  so  as  to  enable 
the  parties  in  interest  to  interpose 
objections  to  it.  if  it  appears  to  be 
■exorbitant.  (Matter  of  Jarvis,  1  L. 
Bui.  7.) 

3  Matter  of  TTalsev.  1.3  Abb.  K  C. 
3.')3:  Chatfield  v.  Hewlett.  2  Dem.  101. 

4  Matter  of  Smith.  2  L.  Bui.  50. 

5  Matter  of  Bailev,  47  Hun,  477 ; 
Shields  v.  Sullivan.  .3  Dcm.  200;  ^fat- 
ter  of  Van  Xostrand.  3  IMisc.  306; 
Matter  of  Patterson.  X.  Y.  L.  J..  Xov. 
■22,  1S02;  Matter  of  Booth,  id..  Mar. 
«,  1803;  Matter  of  Koch,  33  Mi-c.  153; 
€8  N.  Y.  Supp.  375;  Matter  of  OBrien, 
5  Misc.  136.  The  giving  of  a  note 
<ioes  not  supply  the  want  of  actual 
payment.  (Matter  of  Blair.  40  App. 
Div.  417;  63  N.  Y.  Supp.  678.)  But 
the  representative  may  file  a  supple- 
mental account  after  pa\nnent  and 
then    be    credited    with    the    amount. 

(Matter  of  Blair,  07  App.  Div.   116.) 


6  Douglass  V.  Yost,  64  Hun,  155;  28 
Abb.  N.  C.  370. 

7  Oilman  v.  Oilman,  6  Sup.  Ct.  (T. 
&  C.)   211;  aflfd.,  63  N.  Y.  41. 

8  In  :Matter  of  Jones  (24  Week.  Dig. 
333),  an  allowance  was  made  to  an 
administrator  for  expenses  in  resisting 
successfully  proceedings  for  the  revo- 
cation of  his  letters;  and  in  Matter 
of  Wolfe  (N.  Y.  Daily  Reg..  Dec.  31. 
1883),  where  the  will  directed  the  pay- 
ment of  debts  and  then  created  a  trust 
for  the  distribution  of  the  income  of 
the  residue,  it  was  held  that  the  ex- 
penses incurred  in  proceedings  for  the 
revocation  of  the  will  were  charge- 
able to  the  principal  and  not  to  the 
income.  (Citing  Whitson  \.  Whitson, 
53  N.  Y.  481.)  But  an  administra- 
tor of  a  nonresident  decedent  was  Tiot 
allowed  credit  for  ex]ienscs  incurred  in 
contesting  the  proliate  of  a  will  subse- 
quentlv  found  in  the  decedent's  dom- 
icile. '  (Matter  of  Black.  6  Dem.  331.) 
See  Matter  of  Blair,  28  Misc.  611; 
59  X.  Y.  Supp.  1000).  where  an  ex- 
ecutor of  a  will,  who  was  unsuccessful 
in  procuring  its  admission  to  probate, 
became  liable  for  fees  of  coun^^el  en- 
gaged to  pi-osecute  an  appeal,  and 
afterward,  on  being  appointed  admin- 
istrator,   actually    paid    such    counsel 


§  554.  Administration  of  Estate,  Etc.  444 

"  If  the  executors  cannot  administer  the  trust  devolved  upon  them,, 
either  because  they  have  not  means  sufficient  to  defray  the  expenses 
thereof,  or  from  any  other  cause,  they  should  renounce  the  office."  * 

If  the  executor  resides  at  a  distance, —  e.  g.,  in  another  State, — 
he  will  be  allowed  the  expenses  of  his  journey  hither  and  return, 
and  of  his  board  while  here,  in  the  business  of  proving  the  will; 
for  the  testator  must  have  known  that  such  a  journey  would  be 
necessary.^"  Where,  in  addition  to  proving  the  will  here,  it  is 
necessary  to  prove  it  in  another  State,  his  expenses  thither,  and 
while  there,  wdll  be  allowed.-^^ 

Where  experts  are  employed  as  witnesses  in  a  cause  affecting 
the  estate,  on  the  order  of  the  court,  they  may  be  considered  quasi 
officers  of  the  court,  and  the  court  will  order  them  to  be  compen- 
sated out  of  the  estate.^^ 

As  to  the  executor's  expenses  for  counsel  in  probate  proceedings, 
there  is  no  reason,  either  on  principle,  or  under  the  statute,  for 
contining  the  amount  thereof  to  the  taxable  costs ;  for  if  that  were 
the  case,  "  there  would  be  many  cases  where  the  w^ills  of  testators, 
as  well  as  their  estates,  could  not  be  fairly  protected  without  great 
personal  loss  to  the  executors.  A  testator,  in  naming  an  executor, 
gives  him  an  implied  authority  and  direction  to  do  all  he  reason- 


fees,   he   was   not   entitled   to    include  of  such  order.      Held,  on  appeal,  that 

the   fees    in    his   account    as   adminis-  tlie   physicians   were   quasi   officers   of 

trator,     and     receive     reimbursement  the  court,   and   it  not  being   intended 

from  the  estate,  without  first  having  that   they   should   be   dependent   upon 

the   item   of   the    fees   allowed   ir    his  the  contingency  of  an  action  for  their 

account  as  executor.    (Matter  of  jilair,  compensation,  it  was  made  a   charge. 

67    App.    Div.    IIG:    73    X.    Y.    Supp.  in  anticipation,  upon  the  estate:   that 

675.)  such  order  having  been  made  with  the 

9  Per  Gilbert,  J.,  in  Swenarton  v.  consent  of  all  parties,  the  physicians 
Hancock.  22  Hun,  43.  became  quasi  parties  to  the  action  in 

10  Everts  v.  Everts.  62  Barb.  .577,  whose  favor  a  decree  had  been  entered, 
where  the  executor,  resident  of  Iowa,  and  the  discontinuance  as  to  them, 
traveled  from  that  State  to  Oswego,  without  notice  of  the  proceedings 
in  Ihis  State,  to  attend  the  probate  of  therefor,  was  a  nullity.  And  further, 
the  will,  and  to  qualify.  that  although  their  claim  was   not  a 

11  Young  V.  Brush.  28  X.  Y.  607.  debt   or   demand   against  the   testator 

12  Rollwagen  v.  Powell  ( 8  Hun,  or  the  personal  representative  of  the 
210),  which  was  an  action  in  the  Su-  deceased,  and  it  was.  therefore,  ques- 
preme  Court  to  set  aside  a  will.  An  tionable  if  the  surrogate  could  decree 
order  was  made,  with  the  consent  of  the  payment  thereof:  yet,  as  the  sur- 
all  parties,  appointing  two  physicians  rogate's  order  was  predicated  on  that 
to  inquire  into  the  pregnancy  of  the  of  the  Supreme  Court,  for  the  pay- 
testator's  widow,  their  compensation  ment  of  services  ordered  by  it.  and 
to  be  a  charge  against  the  estate.  The  could  by  that  court  have  been  directly 
court  afterward  awarded  them  $1,000,  ordered  to  be  paid  out  of  the  funds  in 
but  the  suit  was  discontinued  without  the  hands  of  the  administrator,  it  was 
payment  of  the  amount  so  ordered  to  proper,  as  matter  of  form,  to  reach  the- 
be  paid.  On  petition,  the  surrogate  funds  of  the  estate  in  the  hands  nf  the 
■made  an  order  directing  the  adminis-  special  administrator  appointed  by  tbe 
trator  of  the  estate  to  pay  the  amount  surrogate,  and  would  not  be  disturbed. 


445  Administkatiox  of  Estate,  Etc.  §  555. 

ably  can  to  prove  and  carry  out  the  will,  and  this  carries  with  it 
the  right  to  charge  the  estate  with  the  reasonable  expense."  " 

It  is  certain  that  an  executor  has  no  right  to  buy  off  contestants 
of  his  decedent's  will,  and  charge  the  expenditure  against  the 
•estate." 

J<  555.  Expenses  of  litigation  generally. —  The  expenses  incident 
to  the  prosecution  and  defense  of  actions  affecting  the  administra- 
tion of  the  estate,  including  the  employment  of  attorneys  and  coun- 
sel, the  obtaining  of  testimony,  and  the  representative's  personal 
■expenses,  are  always  allowed,  provided  they  are  shown,  on  the 
accounting,  to  have  been  necessarily  or  properly  incurred,  and  the 
.amount  is  just  and  reasonable.^^' 

The  rule  is  not  confined  to  the  cases  where  the  suit  or  proceed- 
ing was  in  the  name  of  the  executor  or  administrator^  as  such ; 
but  if,  acting  in  good  faith,  for  the  benefit  of  the  estate,  and  under 
advice  of  counsel,  they  sue  in  a  manner  apparently  beneficial  to  the 
estate  —  e.  g.,  in  the  name  of  a  third  person,  instead  of  their  own 
names  as  executors  —  and  thereby  are  subjected  to  costs,  they 
may  be  allowed  them  as  against  the  estate.-'*' 

Whether  the  representative  is  entitled  to  be  reimbursed  for  costs 
and  expenses  paid  or  incurred  by  him,  in  the  prosecution  or  de- 
fense of  suits  by  or  against  him,  as  such,  depends  upon  the  nature 


13  Per  Merwin,  J.,  Douglas  v.  Yost,  cided  that  he  died  without  issue,  will 

04  Ilun,  1.).),  sujtra.  not  be  allowed.       (Matter  of  Notting- 

l4Bolles  V.  Bacon,  3  Dem.  43.  ham,   88    Hun,    443;    34   N.   Y.    Supp. 

15  The  expenses  of  himself  and  wit-  404.)  Nor  will  the  representative  be 
nesses,  incurred  in  a  journey  neeessa-  credited  with  amount  paid  to  detec- 
rily  undertaken  in  order  to  testify  in  tives  for  obtaining  and  collecting  tes- 
a  case  involving  the  propertv  of  the  timony.  (^Matter  of  Van  Buien,  19 
estate,  will  be  allowed.  (Elliott  v.  :\Iisc.  "373;  44  N.  Y.  Supp.  3.-)7.)  As 
Lewis.  3  Edw.  40.)  And  the  charge  to  allowance  of  counsel  fees  generally, 
of  counsel  will  not  be  limited  to  the  see  Matter  of  Hutchinson.  84  Hun, 
taxable  costs  of  the  action.  (lb.)  503;  32  N.  Y.  Supp.  809;  :Mutter  of 
See  Betts  v.  Betts,  4  Abb.  N.  C.  323.  Spoorer,  86  Hun,  9;  33  N.  Y.  Supp. 
The  attorney's  costs  recovered  from  130;  Matter  of  Thrall.  30  App.  Div. 
the  defendant  in  an  action  by  the  rep-  271;  51  N.  Y.  Supp.  59.5  (modified  in 
rescntativc.  on  a  collection  of  the  other  respects,  157  N.  Y.  40)  ;  flatter 
claim,  including  costs,  do  not  belong  <>f  Hosford,  27  App.  Div.  427  :  50  X.  Y. 
to  the  latter,  and  he  should  not  be  Supp.  550;  ■Matter  of  Archer,  23  id. 
surcharged  with  them.  (Clute  v.  1041;  Matter  of  Quinn.  10  Misc.  051; 
Gould,  28  Hun.  348.)  An  expendi-  40  X.  Y.  Supp.  732:  Matter  of  Arken- 
ture  for  .a  stenographic  report  of  an  burgh,  13  ^lisc.  744:  35  X.  Y.  Supp. 
examination  of  a  witness  <Jc  hcne  esse,  251  ;  69  St.  Rep.  507.  For  a  case 
which  was  not  read  in  evidence  at  the  where  the  representative  was  con- 
trial,  and  was  never  even  returned  to  cerned  as  attorney,  see  Matter  of  Van 
the  court,  will  not  be  allowed.  (Mat-  Wert,  3  Misc.  503;  24  X.  Y.  Supp. 
ter  of  Henry,  5  Dem.  272.)       The  ex-  719. 

pense  of  searching  for  a  person  or  his        16  Collins  v.  Hoxie,  9  Paige,  81. 
heirs,  after  it  has  been  judicially  de-  • 


§  555.  Abministration  of  Estate,  Etc.  44^ 

of  the  suit,  and  his  good  faith  in  the  matter ;  advice  of  counsel  is 
immaterial.^'  If  the  prosecution  or  defense  was  in  good  faith, 
he  has  not  only  a  claim  against  the  fund,  but  a  right  of  action 
against  the  heneficiaries,  for  "  his  reasonable  costs  and  other  ex- 
penses;" ^*  but  not,  where  the  costs  were  expressly  personally 
charged  to  him  in  the  action  in  which  they  w^ere  incurred,^^  though 
the  fact  that  they  were  not  expressly  charged  to  him,  is  not  con- 
clusive that  they  were  incurred  in  good  faith,  so  as  to  enable  him 
to  their  allowance  in  the  Surrogate's  Court.^^ 

The  fact  that  the  result  of  a  proceeding  instituted  by  the  repre- 
sentative was  favorable  to  him,  in  the  first  instance,  proves  that 
the  proceeding  was  not  altogether  groundless,  notwithstanding  a 
reversal  on  appeal. ^^  The  awarding  of  costs,  on  appeal,  against 
the  estate  is  no  evidence  that  the  court  considered  the  proceedings 
unjustifiable.  Xor  does  such  a  conclusion  follow  from  the  fact 
that  costs  are  awarded  against  the  estate,  in  a  case  where  the  rep- 
resentative is  plaintiff.  It  is  different  where  he  is  defendant.  If 
costs  are  awarded  against  him  in  such  an  action,  it  is  some  evidence 
that  the  claim  was  unreasonably  litigated. ^^  The  fact  that  costs 
were  not  awarded  against  him  personally  is  not  conclusive  of  his 
good  faith. ^^ 

The  good  faith  of  the  representative  in  resisting  the  claim  and 
defending  the  action  will  determine  his  right  to  be  reimbursed. 
Thus,  where  an  executor  unsuccessfully  defended  an  action  brought 
against  him,  individually,  for  the  price  of  a  tombstone,  ordered  by 
him  in  pursuance  of  a  direction  in  the  will,  he  is  entitled  to  be 
reimbursed,  out  of  the  estate,  the  amount  of  the  judgment  paid  by 
him,  which  included  plaintiff's  costs  and  disbursements,   and,  in 


17  Matter  of  Huntley,  13  Misc.  375;  actions  by  and  against  personal  repre- 
35  N.  Y.  Supp.  113.  sentatives,    is    fully   treated    in    subse- 

18  Co.  Civ.  Proc,  §  1916.      See  Boyn-  quent  sections  of  this  chapter. 
ton   V.    Laddy,    32    St.    Rep.    578;    10  2i  Matter  cf  Miller,  4  Redf.  302. 

N.  Y.  Supp.  fi22.  A  surrogate  by  a  22  lb.  Upon  an  application  for  leave 
decree  refusing  probate  to  a  codicil  to  issue  execution  upon  a  judgment 
may  award  costs  to  the  successful  con-  recovered  in  an  action,  which  the  ad- 
testant,  and  if  the  executor  pays  the  ministrator  had  unsuccessfully  de- 
same  before  an  appeal  is  perfected,  he  fended,  and  in  which  the  court  had 
is  protected  in  such  payment,  as  he  is  awarded  costs  against  the  estate  to- 
also  if  no  appeal  is  taken  from  that  the  plaintiff,  the  administrator  can- 
part  of  the  decree  which  awards  such  not  be  allowed  to  reduce  the  amount 
costs.  (Matter  of  Eastman,  25  Week,  in  his  hands  by  a  charge  for  counsel 
Dig.  397.)  fees   for    professional    services,    in    the 

19  Hosack  V.  Rogers,  9  Paige,  461 ;  very  action  in  which  the  judgment 
Matter  of  Miller,  4  Redf.  302.  See  was  recovered.  (Matter  of  Nichols, 
Co.  Civ.  Proc,  §   1836.  4  Redf.  288.) 

20  Tucker  v.  McDermott,  2  Redf.  23  ^Matter  of  Smith,  1  Misc.  269 ;  22. 
319.       The    subject   of   costs,    etc.,   in  N.  Y.  Supp.  1067. 


447 


AUMIMSTKATIOX     OF    E.STATE,     EtC. 


^550. 


addition,  a  reasonable  counsel  fee  paid  to  liis  own  attorney,  it  ap- 
2)earing  that  lie  acted  in  good  faith  in  defending-  the  action. ^^ 

A  representative  is  not  justified,  however,  in  incurring  expenses 
in  contesting  a  claim  presented  against  the  estate,  where  there  is 
no  fund  out  of  which  such  claim  could  be  paid,  if  judgment  were 
recovered ;  nor  in  defending  claims  presented  against  the  estate, 
(lut  of  the  proceeds  of  lands  sold  to  pay  debts  in  proceedings  under 
the  statute,^^  especially  where  the  litigation  is  unnecessarily  pro- 
tracted by  repeated  api^eals  after  the  law  has  been  settled  by  the 
courts.^® 

It  stands  to  reason  that  he  is  not  entitled  to  charge  the  estate 
with  the  expenses  of  his  unsuccessful  resistance  of  an  application 
for  an  order  requiring  him  to  account,  nor  of  his  defense  in  pro- 
ceedings for  contempt  for  neglecting  to  account.^' 

§  556.  What  are  necessary  and  reasonable  expenditures. —  'I  he 
responsi])ility  rests  upon  the  representative,  of  deciding  what  is  a 
necessary  or  reasonable  expense  of  administration,  in  a  particular 
case.  In  general,  the  necessity  and  reasonableness  of  an  expense 
incurred  and  paid  by  him,  will,  upon  his  accounting,  be  presumed, 
and  the  burden  is  upon  the  objector  to  show  that  the  sum  paid 


24  Matter  of  Grout,  15  Him,  361. 
See  Matter  of  Ritch,  76  id.  36;  27 
N.  Y.  Supp.  613. 

25  Matter  of  Wilcox,  11  Civ.  Proc. 
Rep.  11.5  (s.  c.  as  Matter  of  Wood- 
ward. 13  St.  Rep.  161).  So  the  es- 
tate should  not  be  charged  with  costs 
incurred  by  him  in  defending  an  action 
brought  against  him  by  testator's 
widow  to  recover  dower  in  lands  de- 
vised to  her  for  life  by  the  will,  but 
of  which  the  executor  had  received  the 
income  subsequent  to  testator's  death, 
(lb.) 

26  Gross  v.  Moore,  14  App.  Div.  3.")3; 
43  N.  Y.  Supp.  945. 

2'Gilman  v.  Gilman.  2  Lans.  1. 
Compare  Tucker  v.  ]McDermott.  2  Redf. 
320;  Shakespeare  v.  ^Vlarkham,  10 
Hun,  312;  alVd..  72  X.  Y.  400.  In 
Matter  of  Collyer  (1  Connoly,  546) ,  on 
an  administrator's  accounting,  the  fol- 
lowing expenses  were  not  allowed, 
viz.:  Counsel  fee  paid  to  an  attorney 
for  consultations  of  the  administra- 
tor, next  of  kin,  before  his  appoint- 
ment, as  to  the  selection  of  an  admin- 
istrator, such  appointment  being  with- 
out a  contest.  Payment  to  counsel 
for  attendance  and  advice  as  to  the 
making  of  an  inventory.  Payment  of 
a  retaining  fee  to  an  attorney.     Pay- 


ment of  a  counsel  fee  in  a  proceeding 
for  the  revocation  of  the  will,  in  which 
the  administrator  appeared  in  his  rep- 
resentative capacity  as  well  as  next  of 
kin.  where  he  was  a  necessary  party 
only  as  next  of  kin ;  especially  where 
his  attorney  has  received  costs  which 
he  has  not  credited  against  the  charges 
for  services  to  the  administrator.  A 
large  amount  of  money  —  $3,000  — 
paid  to  a  young  attorney  who  was  not 
retained  by  the  administrator,  but 
who,  by  liis  persistent  attendance  in 
the  proceeding,  was  finally  recognized 
Ity  the  administrator  as  one  of  his 
counsel,  such  expenses  not  appearing 
to  be  necessary  or  reasonable.  Search- 
ing for  evidence  by  the  administrator's 
attorney  for  the  purpose  of  bringing 
actions.  A  sum  paid  as  counsel  fees 
for  services  upon  furnisliing  a  new 
bond  on  the  release  of  one  of  the  ad- 
ministrator's original  bondsmen.  Fees 
to  an  attorney  for  services  rendered 
necessary  by  tlie  attorney's  remissness. 
A  charge  of  .$20  a  day  by  the  attorney 
of  the  administrator,  for  attending 
sessions  of  a  reference  where  nothing 
was  done  but  to  adjoiirn  (this  charge 
was  reduced  to  .$10  for  each  of  such 
sittings).  See  :Matter  of  Oakes.  19 
App.  Div.  192;  45  N.  Y'.  Supp.  984. 


§  557.  Administration  of  Estate,  Etc.  448 

Avas  unreasonably  large,"^  provided  the  voucher  shows,  prima  facie, 
an  allowable  claim. ^'"^  The  character  and  amount  of  the  estate,  and 
of  the  business  of  its  administration,  will,  to  a  great  extent,  deter- 
mine this  question. 

But  in  no  case  ought  an  expenditure  to  be  allowed,  which  was 
not  connected  with  the  business  of  administration.  It  must  have 
been,  in  every  case,  for  a  purpose  either  authorized  by  the  will 
or  comprehended  in  his  duty  as  representative.  Thus  an  executor 
will  not  be  allowed  for  the  expenses  of  maintaining  the  testator's 
favorite  horse,  though  requested  verbally  by  the  testator  to  keep 
the  horse  as  long  as  he  should  live  f^  nor  will  he  be  compensated 
for  carrying  on  testator's  business  in  conjunction  with  the  surviv- 
ing partner. ^^ 

The  surviving  partner  of  the  decedent  is  bound,  as  such,  to  col- 
lect the  assets  and  close  the  business,  without  compensation  from 
the  estate  of  his  deceased  partner.^^  An  executor  cannot  be  al- 
lowed, therefore^  the  expenses  of  stocking  and  managing  the  de- 
cedent's farm,  or  in  operating  a  mill,  of  which  he  and  the  decedent 
were  tenants  in  common. ^^ 

§  557.  Representative's  personal  services. —  The  representative  is 
supposed  to  be  fully  compensated  for  his  personal  services  ren- 
dered to  the  estate,  by  the  commissions   allowed  him  under  the 


28  Fowler  v.  Lockwood,  3  Redf .  465.  istration  of  the  estate,   will   be   disal- 

29  ••  Where  an  item  of  an  account  is  lowed.  (Matter  of  Smith,  1  Misc. 
attacked,  the  question  upon  whom  the  269;  22  X.  Y.  Supp.  1067.)  So,  too, 
burden  of  proof  is  imposed  must  be  the  expense  of  col.ecting  rents  and  for 
decided  by  the  test  whether  the  court  taxes,  etc.,_  where  the  widow,  who  is 
can,  from  the  voucher  therefor,  stand-  the  life  tenant,  is  required  by  the  will 
ing  uncontradicted,  justify  his  allow-  to  bear  such  charges.  (Matter  of  Tur- 
ance  thereof  as  establishing  a  prima  fier,  24  N.  Y.  Supp.  91.)  See  Matter 
jacie  case."'  (Per  Ransom,  S.,  Matter  of  Spears,  89  Hun,  49;  35  N.  Y.  Supp. 
of  Graham,  N.  Y.  L.  J.,  Dec.  22,  1892.)  35.  But  the  expense  of  erecting  a  fac- 
In  Matter  of  Swart  (25  St.  Rep.  88),  tory  building  for  use  in  closing  up  the 
a  surrogate's  decree  was  sustained,  estate,  and  which  increases  the  value 
disallowing  liabilities  created  for  pro-  of  the  land,  of  which  the  heirs  have  re- 
fessional  services  and  otherwise,  in  the  ceived  the  benefit,  should  be  credited 
absence  of  proof,  either  that  the  ser-  to  the  executor  and  charged  against 
vices  were  reasonable  in  amount,  or  principal.  (Matter  of  Braunsdorf,  2 
necessary  for  the  estate's  protection.  App.  Uiv.  73;   37  X.  Y'.  Supp.  229.) 

30  Matter  of  Teyn,  2  Redf.  306.  So  31  Matter  of  Taft,  28  St.  Rep.  315; 
the  representative  will  not  be  allowed  s  X.  Y'.  Supp.  282;  Matter  of  Hayden, 
the  expenses  of  lunacy  proceedings  in-  54  Hun,  197;  26  St.  Rep.  911;  aflfd., 
stituted    against   the    widow   and    sole  125  X.  Y.  776. 

legatee  of   the  intestate.       (Underbill        32  Ames  v.   Downing,    1   Bradf.   321. 

V.    Xewburger,    4    Redf.    499.)       Pay-  See   17  Abb.   X.  C.   172,  note, 
ment  by   an  executor   on   a   judgment        33  Larrour   v.    Larrour,    2    Redf.    69. 

against  a  legatee,  and  a  brother  of  the  But  charges  for  threshing  grain  raised 

executor,    which    does    not    appear    to  Ijy  decedent,  if  done  to  prepare  for  sale 

have  any  connection  with  the  admin-  or  market,  are  proper.       (lb.) 


449  Admixistkatiox  of  Estate,  Etc.  §  557. 

statute.^"*  Hence  a  representative,  who,  being  a  lawyer,  appears 
and  acts  in  his  own  behalf,  in  an  action,  in  which  the  estate  is 
interested,  is  not  entitled  to  charge  the  estate  for  such  services,^^ 
although  he  may  employ  his  partner,  provided  he  docs  not  share 
in  the  compensation  for  such  scrvices.^*^ 

He  will  not,  for  example,  bo  allowed  for  the  use  of  his  own 
horse  in  going  about  attending  to  the  business  of  the  estate,  nor 
for  its  feed,  provided  by  himself.^'  Except  in  a  case  where  the 
will  authorizes  it,  the  executors  arc  not  justified  in  employing  one 
of  their  nunilier  to  perform  extra  services  as  elerk  in  keeping  the 
accounts  of  the  estate,  and  allowing  him  a  salary  in  addition  to 
his  statutory  commissions  f^  nor  can  they  charge  the  estate  for  the 
services  of  a  co-executor,  an  attorney,  in  ])rofcssionaIly  defending, 
at  their  re(juest,  an  action  brought  against  the  estate,  though  the 
legatees  and  next  of  kin  united  in  such  request. ^^ 

This  rule  does  not  apply,  however,  to  the  case  of  the  employment 
by  the  executors  of  one  who,  though  named  in  the  will  as  an  execu- 
tor, never  took  out  letters  or  exercised  any  executorial  control  over 
the  estate."" 

The  general  principle  must  be  deemed  settled  that  allowances 
for  the  representative's  personal  work  and  labor,  e.  rj.,  in  the  re- 
pair of  buildings  belonging  to  the  estate,  cannot  be  allowed,  unless 
specifically  authorized  by  the  judicial  act  of  the  surrogate,  or  a 
court  of  competent  jurisdiction,  before  they  are  rendered.  And  in 
case  of  a  guardian  rendering  voluntary  services,  the  broad  rule 
has  been  established  that  it  makes  no  difference  whether  he  applies 
to  the  surrogate  for  a  formal  order  directing  the  performance  of 
such  service,  and  fixing  the  compensation  for  it,  before  the  service 
is  done  (which  the  surrogate  has  no  power  to  grant),  or  whether, 
after  such  a  service  has  been  rendered,  the  surros^ate  ratifies  and 


34  "  Where  the  will  provides  a  spe-  ae  Matter  of  Simpson.  36  App.  Div. 
cific  compcusation,  to  an  executor  or  ,502;  55  N.  Y.  Supp.  697;  affd.,  158 
administrator,    he    is    not    entitled    to  N.  Y.  720. 

any  allowance  for  his  services,  unless  ^7  Pullman  v.   Willets,  4   Dem.  5.36. 

by    a    written    instrument,    filed    with  38  Clinch   v,   Eekford,   8   Pai<:re,  412; 

the   surrofjate.   he   renounces   the    spe-  Vanderheyden  v,   Vanderheyden,  2   id, 

cific  compensation,"      (Co,  Civ,  Proc,  2S7,        But    see    Matter  of  Meilke,  2 

§  2730,  as  amended  1893,  consolidating  Connolv.  97, 

former  §  2737,)  3i»  Collier    v,    Munn.    41    X.    Y.    143 

35  Matter  of  Howard,  23  N".  Y.  Supp,  (three  judges  out  of  eight  dissenting; 
836,  See  INIatter  of  Yan  Wert,  3  but  approved  in  Smith  v.  Albanv,  61 
Misc.    5(13 :    24    N.    Y,    Supp.    719,     A  id.  444), 

mortgage  given  to  an  executor  as  se-  -lo  C;nni)liell   v,  Alackie,   1   Dem.   185. 

curity  for  a  claim  for  his  services  as  Compare  Campbell  v.   Purdy,  5   Redf. 

attorney    in    defending    tlie    estate. —  434. 
Held,  not  binding.     (Bigelow  v.  Davol, 
«9  Hun,  74;  23  N.  Y.  Supp.  494.) 

29 


§  558.  Administration  of  Estate,  Etc.  450 

allows  it,  and  fixes  and  awards  the  charge  against  the  estate,  as 
an  extra  compensation ;  for^  in  each  case,  the  snrrogate  is  asked 
to  act  upon  the  representation  and  proof  of  the  guardian  as  to  the 
necessity,  the  extent,  and  the  value  of  the  services  to  be  rendered, 
or  which  have  been  rendered,  and  hence  there  may  arise  the  in- 
centive, on  the  part  of  the  guardian,  to  create  or  magnify  the  need 
and  to  overrate  the  value  of  the  performance.^^ 

The  rule,  however,  is  not  inflexible,  and  does  not  apply  in  a 
case,  for  example,  where  one  of  the  executors,  at  the  request  of 
his  co-executors,  and  with  the  consent  of  all  parties  in  interest, 
took  charge  of  three  farms  and  for  a  period  of  fifteen  years  spent 
his  time  and  labor  in  managing  their  cultivation  and  collecting 
their  rents  and  profits;  this  was  no  part  of  his  executorial  duty.^^ 

§  558.  Employment  of  agents  and  clerks. —  As  a  representative  is 
not  entitled  to  extra  compensation  for  his  own  services,  in  the  per- 
formance of  his  administrative  duties,  he  cannot  employ,  and 
charge  the  estate  for,  the  services  of  another,  e.  g.,  a  lawyer,  in 
doing  what  he  himself  might  justly  be  expected  to  do.'*^  If  he 
sees  fit  to  employ  another  to  perform  the  usual  and  ordinary  ser- 
vices attendant  upon  the  execution  of  the  trust,  e.  g.,  the  prepara- 
tion of  his  inventory,^'*  the  expense  of  the  employment  is  his  own 
and  not  that  of  the  estate. 

In  ordinary  cases,  a  representative  ought  to  keep  his  o^^^l  ac- 
counts, as  such,  and  will  not  be  allowed  clerk-hire  ;^^  but  cases  are 
easily  conceivable  where  the  magnitude  of  the  estate,  or  the  com- 

41  Matter  of  Hayden,  1  Connolv,  ,5G3.  See  Matter  of  Knapp,  8  Abb.  X. 
454;  modfd..  54  Hun,  197;  affd.,  125  C.  308;  Matter  of  Arkenburgh,  13 
N.  Y.  776;  Morgan  v.  Hannas,  13  Abb.    Misc.  744;  35  N.  Y.  Supp.  251. 

Pr.  (N.  S.)  361,  and  cases  infra.  44  Matter  of  Quin,  1  Connoly,  382. 
Compare  the  Parsee  Merchant's  Case,  See  Pullman  v.  Willets,  4  Dem.  536. 
3  Daly,  ."29;  11  Abb.  Pr.  (N.  S.)  20!);  45  Matter  of  P.each.  1  Misc.  27:  22 
Hooper  v.  Adee,  3  Duer,  235.  But  an  X.  Y.  Supp.  1079;  Matter  of  Richard- 
executor  or  other  trustee  of  a  fund  in-  son.  2  Misc.  288 ;  23  N.  Y.  Supp.  978 ; 
vested  in  land,  who  pays  the  highway  Matter  of  Harbeck,  81  Hun,  26:  30^ 
taxes  thereon  by  his  personal  labor,  is  X.  Y.  Supp.  521 ;  affd.,  145  X. 
entitled  to  be  allowed  the  amount  Y.  648.  An  allowance  as  for  clerk 
thereof  in  his  account,  as  if  it  had  hire  cannot  be  made  to  an  exec- 
been  pa'd  in  m^ney.  (Lansing  v.  utor  for  his  personal  services,  al- 
Lansin?.  45  Barb.  182;  31  How.  Pr.  though  the  affairs  of  the  estate  are 
55.)  But  in  this  case  the  liability  is  such  as  to  have  iustified  the  employ- 
created  and   liquidated  by  law.  ment    of    a    clerk     and    the    executor's 

42  Lent  V.  Howard,  89  X.  Y.  169;  firm  had  been  obliged  to  employ  a 
Matter  of  Meilke.  2  Ccnnoly.  97.  clerk  to  attend  to  the  duties  which  the 

43  Raymond  v.  Dayton,  4  Dem.  333;  executor  would  have  performed,  if  not 
St.  John  V.  McKee,  2  id.  236:  Willson  engaged  in  the  affairs  of  the  estate. 
V.  Willson.  id.  462;  Journault  v.  Per-  (Matter  of  Butler,  1  Connoly,  58;  9 
ris.  id.  320:  Matter  of  Van  Xostrand,  X.  Y.  Supp.  641.) 

3  Misc.  396 ;  Matter  of  Van  Wert,  id. 


451  Ad.ministkatio.v  ok  Estate,  Etc.  §  559. 

plication  of  its  affairs,  would  amply  justify  the  employment  of 
ck'rioal  services. ^^ 

Where  the  employment  of  an  agent  or  clerk,  in  the  management 
of  the  estate,  is  rendered  fit  and  beneficial,  Ly  the  circumstances 
<»f  the  estate,  or  is  authorized  hy  the  will,  tlie  expense  is  a  proper 
charge  upon  the  estate. ^^  Thus,  where  the  decedent,  a  merchant, 
left  a  stock  of  goods  in  the  retail  store  carried  on  by  him,  it  was 
a  fair  exercise  of  discretion,  by  the  representative,  to  employ  a 
clerk  to  continue  the  sale  at  retail,  instead  of  making  a  forced  sale; 
and  there  being  no  proof  of  loss  to  the  estate,  the  wages  of  the 
clerk  were  allowed. ^^ 

Where  business  of  the  estate  is  required  to  be  transacted  at  a 
distance,  the  representative  ought  to  employ  an  agent  on  the  spot, 
instead  of  incurring  the  expense  of  repeated  personal  journeys 
thither. ''^ 

§  559.  Expenses  of  preparing  account  for  settlement. —  IIow  far 
a  representative  is  justified  in  employing  a  lawyer  or  an  accountant 
in  preparing  his  account  for  judicial  settlement  necessarily  de- 
])ends  up(in  the  circumstances  of  each  case.  The  Code  allows  him 
on  a  judicial  settlement  of  his  account,  such  sum  as  the  surrogate 
deems  reasonable  for  his  counsel  fees,  and  other  expenses  not  ex- 
ceeding ten  dollars  for  each  day  occupied  in  the  trial,  and  neces- 
sarily occupied  in  preparing  his  account. ^^  It  is  held,  therefore, 
that  the  representative  may  put  into  his  account  a  charge  for  pay- 
ment to  an  attorney  for  making  up  his  account. """^ 

■i*^'  In  a   proper  case,  the  representa-  the  surrogate  in  the  probate  proceed- 

tive    may    employ    an    attorney    at    a  ings  will  not  constitute  a  bar  to  the 

specified  sum  per  annum.      (Matter  of  allowance    of    a    further    sum    on    the 

Beekman,  1  L.  Bui.  55.)  accounting.      (  Douglas  v.  Yost.  G-i  Hun, 

•47  McWhorter  v.  Benson.  Hopk.  28;  155;  28  Abb.  X.  C.  320. )     An  allowance 

Cairns    v.    Chaubert.    9    Paige,     IGO;  to  an  administrator  under  this  section, 

Fisher  v.  Fisher,   1  Bradf.  .335 ;   Bron-  for   counsel   fees  and   expenses   of   his 

son    V.    Bronson,    48    How.    Pr.    481;  accounting,    is    an    "actual    expense" 

Meeker    v.     Crawford,    5    Redf.    450;  within  section  2557,  and  may  be  made 

:\ratter  of  White.  G  Dem.   375:   Wells  although  the  estate  is  less  than  $1,000. 

V.  Disbrow,  48  St.  Rep.  746;  20  N.  Y.  (Matter  of  Van  Kleeck,2  Connoly,  14.) 

8upp.  518.     In  Matter  of  Steward   (00  51  Matter  of  Selleck,  1  St.  Rep.  575. 

Hun,  04:  35  N.  Y.  Supp.  3Gfi),  a  pay-  Compare  Fowler  r.  Lockwood.  3  Redf. 

ment  to  the  son  of  decedent  for  taking  405;    Underbill    v.    Xowburger.    4    id. 

care  of  the  property  after  the  latter's  4!t0 ;  Betts  v.  Betts,  4  Abb.  X.  C.  323; 

death,  was  allowed.  Hall   v.   Campbell,    1    Dem.    41G:    Hall 

■IS  Cornwall  v.  Deck.  2  Redf.  87.  v.  Hall,  78  X.  Y.  535;  Matter  of  Car- 

4i>  Everts  v.  Everts,  62  Barb.  577.  man,  3  Redf.  46:  Ward  v.  Ford.  4  id. 

50  Co.   Civ.   Proc,    §    2562.      The  al-  34;    ]\Iatter    of    Brown,    16    Abb.    Pr. 

lowance    which    may    bo    made    to   an  (N.   S.)    457.      Where  the  services  of 

executor    on    his    accounting    for    ser-  a  lawyer  in  preparing  an  account  are 

vices  of  his  counsel  in  the  probate  pro-  merely  clerical,  the  statute  limits  the 

ceedings    is    not    limited    to    the    costs  amount    he    is    to    be    paid,    as    above, 

allowable  under  this  section;  and  the  Where  the  services  were  professional, 

previous   allowance   of   such   costs   by  counsel   is   entitled   to   a    professional 


§  560.  Administration  of  Estate,  Etc.  452 

But  failing  to  keep  his  accounts  distinct  from  liis  dealings  witli 
others,  he  is  not  entitled  to  be  allowed,  for  his  own  time  and  ex- 
penses, more  than  would  be  reasonable  for  time  spent  in  keeping 
an  account  in  such  manner  as  the  law  requires.^^  Merely  because 
the  representative  had  not  the  necessary  leisure  to  do  so  himself, 
it  not  appearing  that  the  employment  of  an  accountant  was  neces- 
sary for  any  other  reason,  does  not  justify  an  allowance  for  an 
accountant  in  preparing  the  account.''" 

TITLE  THIKD. 
widow's  quarantine  and  sustenance. 

§  560.  The  statutory  provision. —  In  this  State,  as  in  most,  if  not 
all,  of  the  States,  provision  is  made  by  statute,  taken  from  magna 
charta,  for  the  tarrying  of  the  widow  in  the  chief  house  of  her 
husband  for  the  period  of  forty  days  after  his  death,  without  being 
liable  to  rent,  and  for  her  reasonable  sustenance  in  the  meantime, 
out  of  her  husband's  estate;  and  this,  whether  her  dower  be  sooner 
assigned  to  her  or  not.^'* 

This  right  to  remain  in  the  husband's  house  relates  only,  it  is 
held,  to  lands  of  which  the  widow  was  dowable,  that  is  to  say,  in 
which  the  husband  had  an  estate  of  inheritance.""  Upon  the  ex- 
piration of  the  forty  days,  the  right  ceases,  whether  her  dower 
has  meanwhile  been  assigned  ou  not,  and  thereupon  the  heir  may 
expel  her.^*^ 

fee  to  be  charged  as  an  expense  of  ad-  main   (Moore  v.  Mayor,  etc..  of  X.  Y., 

ministration.        (Matter    of    Graham,  8  X.  Y.  110)  ;  or  by  virtue  of  a  para- 

N.  Y.  L.  J.,  Dec.  22.  1892.)       See  Har-  mount  lien  prior  to  the  marriage  (Van 

rison  v.  McAdam.  .38  Misc.   18.  Duyne  v.   Thayre,   14   Wend.   233;    19 

i'-2  Matter   of  Wilcox,   11   Civ.   Proc.  id.  102)  ;  or  barred  by  a  decree  of  di- 

Rep.   115.  vorce     (Pitts    v.    Pitts,    14    Abb.    Pr. 

53  Matter  of  Quin,  1  Connoly,  382.  [N.  S.]  97;  .52  X.  Y.  -593)  ;  or  by  her 
For  other  cases,  see  chapter  XXII,  on  acceptance  of  a  provision  in  the  hus- 
Costs.  post.  band's    will,    given    in    lieu    of    dower 

54  1  R.  S.  742,  §  17;  L.  1896,  c.  547,  (Lewis  v.  Smith.  9  X.  Y.  517:  Grain 
§  184.  v.  Cavana,  36  Barb.  410;  62  id.  109). 

55  Voelckner  v.  Hudson.  1  Sandf.  See  Matter  of  Mersereau.  .38  Misc.  208. 
215.  A  widow  is  entitled  to  be  en-  As  to  the  effect  of  alienage  on  a  claim 
dowed  of  the  third  part  of  all  the  real  for  dower,  see  Burton  v.  Burton.  1 
property  of  which  her  husband  was  Abb.  Gt.  App.  Dec.  271:  Goodrich  v. 
seized  of  an  estate  of  inheritance  at  Russell.  42  X.  Y.  177.  As  to  lands 
any  time  during  the  marriage  ( 1  R.  held  by  the  husband,  as  tenant  in  com- 
S.  740.  §  1 :  Durando  v.  Durando,  mon  with  a  third  person,  and  as  to 
23  X.  Y.  331).  unless,  of  course,  she  partnership  lands,  see  Smith  v.  Jack- 
has,  by  joining  him  in  a  conveyance,  son.  2  Eqw._  28;  Smith  v.  Smith,  6 
released  her  right  thereto   (Hawley  v.  Lans.   313. 

James.  5  Paige,  318.  543):  or  unless  50  Jackson  v.  0"Donaghy.  7  .Johns. 
the  lands  have  been  taken  from  her  247 :  Siglar  v.  Van  Riper,  10  Wend, 
husband  by  the  right  of  eminent  do-    414. 


453  Administration  of  Estatk,  Etc.      §§  501,  .'('.2. 

§  561.  What  is  a  reasonable  sustenance. —  In  rcj^^ird  t<^  the 
Avidow's  right  to  a  reasonable  sustenance  during  the  fcjrty  days, 
tlie  fact  that  the  estate  is  insolvent  is  not  material/'^  except  as  it 
may  control  the  discretion  of  the  surrogate,  either  in  ordering  the 
amount  to  be  allowed,  av  in  determining  the  reasonableness  of  the 
amount  expended  for  that  purpose  by  the  executor  or  adminis- 
trator. The  reasonableness  of  the  sum  to  be  allowed  for  sus- 
tenance, which  is,  of  course,  in  addition  to  the  articles  set  apart 
for  her,  and  the  one  liundred  and  fifty  dollars  for  furniture,^**  is 
to  be  determined  in  tlie  light  of  all  the  circumstances  of  the  par- 
ticular case,  the  allowance  being  more  or  less  as  the  case  may  seem 
to  require,  or  none  at  all,  perhaps,  if  it  appears  that,  all  things 
considered,  none  ought  to  he  inade.^^  But  the  discretion  is  a  legal 
discretion,  and  is  subject  to  appeal. 

In  a  case  where  all  the  real  and  personal  estate,  except  a  small 
legacy,  was  given  by  the  will  to  the  widow  for  life,  the  surrogate's 
decision  that  she  was  not  entitled  to  an  allowance  for  forty  days' 
sustenance,  nor  to  one  hundred  and  fifty  dollars  for  household 
furniture,  was  sustained  on  appeal.^^  But  the  sustenance  to  be  al- 
lowed for  is,  in  any  case,  that  of  the  widow  herself;  she  cannot  be 
allowed,  by  virtue  of  this  statute,  to  provide  out  of  the  estate  for 
the  maintenance  of  the  children;^^  nor,  as  "sustenance,"  will  she 
be  allowed  her  mourning  outfit,  or  her  personal  expenses  in  at- 
tending her  husband's  funeral.  She  is  entitled  to  the  use  of  the 
sup])lies  left  on  hand  in  the  house  during  her  quarantine,  and  the 
reasonable  cost  of  her  board  during  that  period.'^' 

TITLE  FOURTH. 

keduction  of  estate  to  possession. 

ARTICLE  FIRST. 

PROCEEDINGS   BEFORE    ISSUE    OF   LETTERS. 

§  562.  Extent  of  representative's  authority. —  In  regard  to  the 
collection  of  the  estate,  before  the  grant  of  letters,  there  was  for- 
merly a  great  difference  between  the  powers  of  an  executor  and 
an  administrator.  At  common  law,  an  executor  was  said  to  derive 
his  title  from  the  w^ll  itself,  and  not  from  the  probate ;  the  letters 


57  Johnson  v.  Corbett,  11  Paige,  265.        59  See  Kersey  v.  Bailej-.  52  Me.  199; 

SSSoe     ante.      §      508;      Matter     of    Ilallenbock   v.'Pixlev.    3   Grav,   524. 
Wachter,  16  Misc.  137;  38  N.  Y.  Supp.        <'0  Poi-k  v.   Rlicrwood.  .'.(i  N.   Y.   616. 
S41.  t'l  Johnson  v.  Corbett.  11  Paicfe.  265. 

<!2  Matter  of  Miller.  1  L.  Bui.  48. 


§  563.  Administration  of  Estate,  Etc.  454 

issued  to  him  being  evidence  only  of  his  title,  and  not  the  founda- 
tion of  it.  On  the  other  hand,  the  authority  of  an  administrator 
springs  from,  and  is  founded  on,  the  grant  of  letters  to  him.  " 

Even  a  person  entitled  to  administer  in  preference  to  every  one 
else,  and  competent  in  every  respect,  has  no  right  to  interfere  with 
the  estate  before  the  issuing  of  letters  to  him.  An  executor,  how- 
ever, was  held  to  have  the  right  —  as  a  deduction  from  the  ])rin- 
ciple  that  he  derived  his  authority  immediately  from  the  will  — 
to  do  nearly  all  acts  in  regard  to  the  estate  before  obtaining  letters, 
and  letters,  therefore,  were  only  necessary  to  him  when  he  com- 
menced legal  proceedings  in  which  he  was  obliged  to  prove  his 
title  to  act  as  executor;  which  he  could  only  do  by  showing  a 
grant  of  letters  to  him.  By  the  Revised  Statutes,  however,  the 
powers  of  executors  have  been  considerably  limited,  and  they 
cannot  now  interfere  with  the  estate  further  than  is  necessary  for 
its  preservation,  nor  can  they  dispose  of  any  part  of  it,  except  to 
pay  funeral  charges.^'* 

Any  person,  therefore,  who  takes  into  his  possession  any  of  the 
assets  of  the  decedent,  without  being  authorized  to  do  so  as  ex- 
ecutor, administrator,  or  collector,  is  liable  to  account  for  the  full 
value  of  such  assets,  and  cannot  retain  or  deduct  for  any  debt  due 
to  him.^^ 

§  563.  Effect  of  letters  upon  prior  acts. —  If,  however,  letters  are 
subsequently  granted  to  such  person,  the  letters  are  retroactive, 
and  legalize  the  acts  which  were  before  tortious.^^  But  this  rule 
extends  only  to  those  acts  wdiich  he  might  have  done,  had  he  been 
executor  at  the  time,  and  will  not  protect  an  executor  who,  before 
the  grant  of  letters,  issued  execution  against  a  debtor  of  the  tes- 
tator and  sold  property  thereunder.''" 

G3  Valentine    v.    Jackson,    9    Wend,  letters  to  him  are  inadmissible  against 

302.     See  ante,  §§   130,  131.  liim    in    his    representative    capacity. 

64  2   R.   S.   71,    §    16.      Accordingly,  (Fitzmahony  v.  Caulfield,  87  Hun,  66 ; 

one    to    whom    a    due-bill,    belonging  33   N.  Y.   Supp.   876.) 

to  the  testator's  estate,  purported  to  65  2  R.   S.   81,     §    60.      See    §     130, 

have    been    transferred    by    a    person,  ante. 

as  executrix,  to  whom  the  letters  had  ^6  Executors  cannot  be  charged  with 
not  issued,  acquired  no  title  thereto,  a  devastavit  in  taking  moneys  of  the 
and  is  not  entitled  to  maintain  an  estate  before  they  had  received  their 
action  thereon.  (Humbert  v.  Wurster,  letters  and.  acting  in  good  faith  and 
22  Hun,  40.5.)  Until  letters  are  is-  with  what  then  appeared  to  be  reason- 
sued  to  one  named  executor  in  the  ab'e  prudence,  using  it  to  discharge  an 
will,  he  does  not  represent  the  dece-  apparently  valid  obligation  of  their 
dent  so  as  to  make  service  of  process  testator.  (Matter  of  Denton,  103 
on  him  good  as  binding  the  estate.  X.  Y.  607.)  See  ante,  §  130. 
(Matter  of  Flandrow,  28  Hun,  279.)  nr  Bellinger  v.  Ford.  21  Barb.  311. 
Admissions  of  an  executor  or  admin-  Where  an  executrix,  before  prol)ate, 
istrator  made  before   the   issuance   of  sold   a   part   of  the   estate,   and,   after 


455  Administratiox  of  Estate,  Etc.  §  504. 

So,  formerly,  an  executor  could  begin  a  suit  before  letters  were 
issued  to  him,  and  if  he  obtained  them  before  trial,  so  that  he 
could  then  produce  them  in  evidence,  it  was  enougli;  but  the 
<jlause  of  the  Revised  Statutes  above  mentioned  has  now  changed 
this  rule,  and  he  must  have  letters  to  entitle  him  to  commence 
suit.'"''  Where,  however,  an  executor  or  admiiiistrat(U'  has,  bv 
virtue  of  his  jxtwcr  iiiitlcr  the  statute,  taken  ])ossession  of  the  goo<ls 
of  the  deceased,  which  are  afterward  wrongfully  taken  from  him, 
he  may  sue  to  recover  them  or  their  value  on  the  strength  of  his 
own  possession. 

Collecting  debts  due  the  deceased  is  not,  however,  regarded  as 
necessary  to  the  preservation  of  the  estate,  and  unless  the  ])erson 
iiaiiicd  In  the  will  as  executor  should  afterward  have  letters  issued 
to  him,  payment  to  him  of  a  debt  due  the  deceased  would  not  be 
valid  as  against  the  proper  representative  of  the  estate. 

ARTICLE  SECOXD. 

PURSUIT   OF   LEGAL   REMEDIES   IX   GENERAL. 

§  564.  Continuing  action  brought  by  representative. —  The  pri- 
mary design  of  this  section  is  to  present  the  general  rules  of  proce- 
dure applicable  to  actions  and  special  proceedings  instituted  or 
continued  by  the  representative  of  a  decedent ;  but,  for  the  sake 
of  convenience,  it  includes  also  the  like  rules  api)lying  to  legal 
proceedings  taken  against  them.  The  substantive  general  provi- 
sions concerning  the  liability  incurred  by  the  personal  representa- 
tives of  a  decedent  are  treated  in  the  next  succeeding  title,  under 
the  topic  of  the  care  and  custody  of  the  estate,  and  liabilities 
incurred  therein. 

Wliether  an  action,  or  a  special  proceeding,  by  or  against  a  de- 
cedent may  be  continued  as  to  his  representatives,  depends  upon 
whether  the  cause  of  action,  or  right  to  the  relief  sought,  sur- 

probate,  broiijjht  suit  to  recover  it. —  Brown  v.  Brown.  1  id.  189;   Wever  v. 

Held,  on  a  nominal  judgment,  that  the  Marvin,    14    Barb.    .376;    Humbert    v. 

sum   she   had   received    should   be    ap-  Wurster,  22  Hun.  40o.      While  a  per- 

plied  to  reduce  the  amount  of  her  re-  son,  as  next  of  kin   simply,   may   not 

oovery.      (Thomas  v.  N.  Y.  L.  Ins.  Co.,  sue  to  recover  personal  property  of  a 

.'iO  X.  Y.  Super.   [J.  &  S.l  225.)       See  decea.sed    person,    a   recovery    may    be 

Dutcher  v.  Dutcher.  88  Hun.  221;   34  had,      under      special      circumstances, 

X.  Y.  Supp.  653.      If  perscms  pretend-  without  the  intervention  of  an  admin- 

ing   to   be   executors    take    possession,  istrator.         (Segelken    v.     Meyer.     04 

the  next  of  kin  should  jirocure  an  ad-  X.  Y.  473.) 

ministrator    to   be   apj)ointed.   and    he  ns  Thomas    v.    Cameron,    16    Wend, 

may  recover  the  property.       (Muir  v.  580. 

Trustees  of  the  Leake  it  Watts  Orjihan  •'9  Valentine    v.    Jackson,    9    Wend. 

House,   3    Barb.   Ch.   477.)       And   see  302. 


§565. 


Administkation  of  Estate,  Etc. 


45a 


vivos. '^  An  action  or  special  proceeding  brought  hy  an  executor 
or  administrator  does  not  abate  bj  bis  deatb  or  removal,. but  may 
be  continued  by  bis  successor,  who  must,  upon  bis  application,  be 
substituted  for  that  purpose.^^  One  who  succeeds  another  in  the 
administration  has,  however,  an  election  to  continue,  or  not,  an 
action  commenced  by  the  former  representative.^" 

"  If  an  executor  or  administrator  is  defendant  in  an  action  or 
special  proceeding,  pending  when  his  powers  cease,  the  plaintiff 
may,  in  a  proper  case,  proceed  therein  against  him,  to  charge  him 
personally;  but  a  judgment  or  other  determination,  thereafter 
rendered  or  made  against  him,  is  not  of  any  force,  as  against  the 
estate  of  the  decedent,  or  a  person  succeeding  to  the  administra- 
tion thereof."  ''^ 

§  565,  Extension  of  limitation  of  actions. —  Where  the  decedent 
died,  owning  a  cause  of  action  which  survives,  the  executor  or 
administrator  may  sue  thereon  after  the  limitation  expires,  and 
within  one  year  after  the  death. ^'^ 

Where  the  representative  brings  an  action  to  establish  the  de- 


70  Co.  Civ.  Proc,  §  755,  as  amended 
by  L.  1891.  c.  284.  The  provision  as 
to  special  proceedings  applies  only  to 
cases  where  a  party  dies  after  the 
amendment  took  eflfect.  For  former 
rule,  see  Lea\-v  v.  Gardner,  63  N.  Y. 
625. 

TiCo.  Civ.  Proc,  §§  766.  1828,  2605. 
See  Bonnel  v.  Griswold,  15  Abb.  N.  C. 
470.  But  it  may  be  denied  for  laches. 
(Pringle  v.  Long  Island  R.  Co.,  157 
X.  Y.  100:  Crowley  v.  Murphy.  33 
App.  Div.  456.)  See  Matter  of  Waite, 
43  id.  296:  Van  Brocklin  v.  Van 
Brocklin,  17  id.  226:  Shipman  v.  Long 
Island  R.  Co.,  11  id.  46.  An  action  by 
an  administrator,  who  is  also  sole  next 
of  kin  of  decedent,  to  recover  damages 
for  negligently  causing  the  latter's 
death,  survives  the  plaintiff's  death 
and  may  be  continued  by  the  admin- 
istrator de  bonis  non.  (Meekin  v. 
Brooklyn  Heights  R.  Co.,  164  N.  Y. 
145.)  But  compare  contra,  Mundt  v. 
Gloknpr.  20  Misc.  63. 

72  Bain  v.  Pine,  1  Hill.  615. 

73  Co.  Civ.  Proc,  §   1830. 

74  Co.  Civ.  Proc,  §  402.  See  Mills 
V.  Mills,  115  N.  Y.  80:  Green  v.  N.  Y. 
Cent.,  etc,  R.  R.  Co.,  49  N.  Y.  Super. 
(J.  &  S.)  333:  Scovil  v.  Scovil,  45 
Barb.  517.  See  also  Co.  Civ.  Proc, 
§  405,  for  an  extension  of  limitation, 
in  favor  of  the  representative,   as  to 


bringing  a  new  action  after  reversal, 
etc.  Payments  on  a  debt  which  ig 
barred  by  the  Statute  of  Limitations, 
made  to  the  widow  of  an  intestate, 
though  made  before  she  had  taken  out 
letters  of  administration,  will  take  the 
debt  out  of  the  statute,  so  as  to  enable 
her  to  maintain  a  suit  on  it  as  ad- 
ministratrix, upon  taking  out  letters. 
(Townsend  v.  Ingersoll,  12  Abb.  Pr. 
[N".  S.]  354.)  As  to  pa jTiients,  where 
there  are  both  a  domestic  and  a 
foreign  administration,  compare  Stone 
V.  Scripture,  4  Lans.  186.  The  inser- 
tion, in  an  inventory,  of  a  note  there- 
tofore made  by  the  executor  to  his 
testator,  such  inventory  being  signed 
and  verified  by  the  executor,  to  the 
effect  that  it  was  a  true  inventory  of 
all  just  claims  of  the  deceased  against 
him  (the  executor)  is  a  sufficient 
acknowledgment  of  the  indebtedness 
by  the  executor,  to  take  the  case  out 
of  the  Statute  of  Limitations.  (Mor- 
row V.  Morrow,  12  Hun,  386.)  For 
the  application  of  the  Statute  of 
Limitations  to  an  action  by  an  ad- 
ministrator with  the  will  annexed,  as 
trustee  under  the  Avill,  to  recover  a 
surplus  retained,  on  foreclosure,  by  a 
mortgagee  of  decedent's  lands,  see 
Dunning  v.  Ocean  Nat.  Bank,  61  N.  Y. 
497. 


457  ADMi.NiaTJiATiox  or  Estate,  Etc.  §  505. 

cedent's  will,  lie  must  commence  it  witliiii  six  years  after  the  canse 
of  action  accrues.^^ 

Where  the  representative  brings  an  action  to  recover  personal 
property  taken  after  the  decedent's  death,  and  before  letters  is- 
sued, or  to  recover  damages  for  taking,  etc.,  such  property  during 
that  j)cri(i<l,  the  letters  are  deemed  to  have  issued  within  six  years 
after  the  death  of  the  decedent.""  If  the  decedent,  being  liable  for 
a  <'ause  of  action,  died  without  the  State,  the  claimant  has  until 
eighteen  months  after  letters  are  issued  here,  within  which  to  sue 
the  executor  or  administrator,  in  extension  of  the  ordinary 
limitation." 

But  if,  being  so  liable,  he  died  within  the  State,  the  claimant 
has  an  extension  of  eigliteen  months  after  the  death,  within  which 
to  sue,  in  all  cases,  and,  if  letters  are  not  issued  here  at  least  six 
months  before  that  period  expires,  an  additional  year  after  they 
are  so  issued. '^^  Where  a  claim  against  the  estate  has  been  liqui- 
dated by  the  recovery  of  a  judgment  thereon  in  an  action  in  a 
court  of  record,  or  upon  a  reference  under  the  statute,"^  or  where 
a  legatee  brings  an  action,  or  institutes  a  special  proceeding  against 
an  executor  or  administrator  with  the  will  annexed  to  enforce  pay- 
-iient  of  a  legacy,  the  time  during  which  an  action  is  pending  in 
a  court  of  record  to  recover  from  the  executor  or  administrator 
any  money  or  other  property,  claimed  by  said  executor  or  admin- 
istrator to  belong  to  the  estate  of  the  decedent,  or  is  embraced  in 
inventory  of  the  assets  of  said  decedent's  estate,  and  until  the 
final  determination  thereof,  is  not  a  part  of  the  time  limited  for 
the  commencement  of  an  action  against  an  executor  or  administra 
tor,  for  a  claim  against  the  estate  of  the  decedent. ^^ 


75  Co.    Civ.    Proc.    §    .382.    subd.    6.  It   was   held,   under   the   former   Code 

Where  the  will  has  been  lost,  etc.,  the  (§   102),  that  where,  after  the  aocru- 

cause    accrues   upon   the   discovery   of  in<;  of  a  cause  of  action  as  to  which 

the  facts  upon  which  its  validity  de-  the  six  years'   limitation  applies,  but 

pends.     (lb.,  amended  L.  1804.  c.  307.)  before    the     expiration     of     the     time 

.  7t>  Co.  Civ.  Proc,   §  392.     See  Buck-  limited,  the  debtor  dies,  and  an  action 

lin  v.   Ford.  5  Barb.  393.  is  broufrht  more  than  seven  years  and 

"7  Co.  Civ.  Proc.,  §  391.  a    half   after    the   cause    of   action    ac- 

78  Co.  Civ.  Proc,  §  403.     The  statu-  crued,   and   after  the   lapse   of   a   year 

tory   limitations   of   the   time   to   com-  from  the   issuing  of  letters  of  admin- 

mence  an  action  against  executors  or  istration.  allowed  for  the  bringing  of 

administrators    are   not   applicable   to  action    in    such    cases.,    the    action    is 

an  action  based  upon  a  claim  against  barred.      (Sanford   v.   Sanford.   fi2   N. 

the  decedent,  on  which  a  judgment  has  Y.  553.)      See  Matter  of  Kendrick,  107 

been  recovered  against  his  administra-  id.    104. 

tor.  to  reach   real   property  alleged  to  79  Co.  Civ.  Proc.  §   2718. 
have  been  conveyed  by  the  decedent  in  »<' Co.  Civ.  Proc.  S  403.  as  amended 
fraud  of  his  creditors;  the  only  limita-  1890.     As  to  the  limitation  of  an  ac- 
tion    applicable    is     that     relating    to  tion  upon  a  surrogate's  decree,  see  Co. 
actions    for    equitable    relief    against  Civ.  Proc,  §  382,  subd.  7. 
fraud.     (Kent  v.  Kent,  62  N.  Y.  500.) 


:§§  5GG,  5G7.      Admiis^istration  of  Estate,  Etc.  458 

An  action  against  an  executor  or  administrator,  to  recover  a 
•chattel,  or  damages  for  taking,  detaining,  or  injuring  personal 
property,  by  him  or  the  decedent,  must  be  brought  within  three 
years.**  The  rules  of  the  Code  pertaining  to  the  limitation  of 
actions  apply  also  to  special  proceedings.^" 

^  566.  Extension  of  time  for  representative  to  appeal. —  Where  a 

])arty,  entitled  to  appeal  from  a  judgment  or  order,  or  to  move  to 
set  aside  a  final  judgment  for  error  in  fact,  dies  before  the  expira- 
tion of  the  time  within  which  the  appeal  may  be  taken,  or  the 
motion  made,  the  court  may  allow  the  appeal  to  be  taken,  or  the 
motion  to  be  made,  by  the  personal  representative  at  any  time 
within  four  months  after  such  death. *'^ 

§  567.  Actions  to  be  brought  by  and  against  representative  as  such. 

—  The  Code  abrogates  the  practice  of  bringing  proceedings,  by  or 
against  an  executor  or  administrator  personally,  where  the  cause 
pertains  to  him  only  in  his  representative  character,  and  provides 
that  an  action  or  special  proceeding  commenced  by  him,  upon  a 
cause  of  action  belonging  to  him  in  his  representative  capacity,  or 
commenced  against  him,  unless  the  intent  is  to  charge  him  person- 
ally, must  be  brought  by  or  against  him  in  his  representative 
capacity.^^ 

The  capacity  in  which  the  proceeding  is  taken  should  properly 
appear  in  the  title  of  the  action,  upon  the  process,  complaint,  etc. 
The  designation  of  the  plaintiif,  in  the  title  of  the  action,  as  "A. 
B.,  executor,  etc.,"  without  using  the  word  "  as,"  or  its  equivalent,  is 
mere  descriptio  jiersonce.^^  But,  though  there  be  naught  in  the  title 
of  the  process  or  the  complaint  to  give  a  representative  char- 
acter to  the  plaintiff,  the  frame  and  averments  and  scope  of  the 


81  Co.  Civ.  Proc.  §  383.  subd.  4.  Him,  377;  17  Abb.  X.  C.  431;  112  KY. 

S2  Co.  Civ.  Proc.  §  414.  The  short  661 )  ;  also  that  the  fact  that  an  exec- 
limitation  of  actions  on  disputed  ntor  or  administrator  sues  as  such,  in 
claims  (2  R.  S.  89.  §  38)  is  discussed  a  case  where  he  should  have  svied  indi-- 
in  tit.  G,  art.  1.  subd.  3  of  this  chap-  vidually,  does  not  prevent  his  recover- 
ter;  and  the  limitation  of  proceedings  ing  in  the  action  in  his  individual  ca- 
to  enforce  a  debt  owing  to  the  exec-  pacity.  An  action  involving  a  con- 
utor  or  administrator  by  the  decedent's  tract  made  by  a  representative  with 
estate,  in  tit.  6.  art.  2  of  the  same.  respect  to  the  estate,  should  be  brought 

83  Co.  Civ.  Proc,   §  78.5.  bv.     or     against,     him      individuallv. 

84  Co.  Civ.  Proc.  §  1814:  Gulke  v.  (Morris  v.  Hunke-,  40  App.  Div.  129: 
"L'hlig,  .5.5  How.  Pr.  434.  The  section  .57  N".  Y.  Supp.  712;  Loew  v.  Christ, 
includes  only  such  causes  of  action  as  13  App.  Div.  624:  42  N.  Y.  Rupo. 
accrued  during  the  lifetime  of  fhe  de-  063:  Gross  v.  Gross,  26  Misc.  385:  56 
cedent,    or    are    founded    on    contracts  X.  Y.  Supp.  572.) 

made  bv   him.      (Buckland   v.   Gallup.  s'i  Sheldon  v.  Hoy.  11  How.  Pr.   11: 

105  X.  Y.  453.)      The   same  Avas  held  StHwell    v.    Carpenter,   62   X.   Y.    639; 

in  Bingham  v.  Marine  Xat.  Bank    (41  2  Abb.  X.  C.  238. 


459 


Administkatiox  of  Estate,  Etc. 


§  508. 


•complaint  may  Lc  such  as  to  affix  to  him  such  oliaraetor  and  stand- 
ing in  the  litigation.**'* 

Since  foreign  letters  confer  no  authority  to  sue  here,  and  letters 
-can  issue,  in  this  State,  only  from  a  Surrogate's  Court,  an  appoint- 
ment by  such  a  court  should  be  alleged  by  a  plaintiff  suing  as  a 
representative.^^ 

Jj  568.  Joinder  of  parties  and  causes  of  action. —  In  an  action  or 
special  proceeding  against  two  or  more ,  executors  or  adminis- 
trators, representing  the  same  decedent,  all  are  considered  as  one 
person;  and  those  who  are  first  served  vrith  process,  or  first  appear, 
must  answer  the  complaint.  Separate  answers,  by  different  ex- 
ecutors or  administrators,  cannot  be  required  or  allowed,  except  by 
direction  of  the  court. *^^ 

An  executor  or  administrator  may  sue  without  joining  with  him 
the  person  for  whose  benefit  the  action  is  prosecuted.'*''  ''  One  of 
two  or  more  executors,  to  whom  letters  testamentary  have  not 
been  issued,  is  not  a  necessary  party  to  an  action  or  special  pro- 
ceeding in  favor  of  or  against  the  executors,  in  their  representative 
capacity."  ^^ 


8fi  Beers  v.  Shannon,- 73  N".  Y.  292; 
Cordier  v.  Thompson,  18  Alb.  L.  J. 
498:  8  Daly.  172.  An  error  in  the 
description  of  the  representative  char- 
acter of  the  plaintiff,  as  where  exec- 
utorship is  ailej,'ed.  thoutjh  the  letters 
granted  ^Tcre  of  administration  with 
the  will  annexed,  is  amendable  before 
or  after  judgment,  and  even  by  the 
■General  Term,  on  appeal.  (Rislev  v. 
Wightman.  13  Hun,  163.) 

87  See  Vroom  v.  Van  Home,  10 
Paige,  .549:  Forrest  v.  Mayor.  13  Abb. 
Pr.  350:  Beach  v.  King,  17  Wend.  197. 
A  foreign  administrator  cannot  sue  in 
our  courts  without  taking  out  letters 
here,  and  where  the  action  is  brought 
*'  as  administrator "  it  cannot  be 
■claimed,  in  order  to  avoid  the  effect 
of  a  demurrer,  that  the  action  is  in 
his  individual  capacity.  (Farrington 
V.  American  Loan  &  Trust  Co.,  Is'Civ. 
Proc.   Rep.   135:   9  X.  Y.   Supp.  433.) 

8SCo.  Civ.  Proc.  §  1817.  Judgment 
in  favor  of  the  ])laintift"  may  be  en- 
tered, and,  in  a  j)ropcr  case,  execution 
may  be  issiu^d.  against  all  the  defend- 
ants, as  if  all  had  appeared.  But  this 
section  does  not  affect  the  plaintiff's 
right  to  bring  into  court  all  the  exec- 
utors or  administrators  who  are  par- 
ties. (Tb.)  See  Salters  v.  Pru^^l,  15 
Abb.  Pr.  224. 


89  Co.  Civ.  Proc.  §  449.  Though  he 
may  do  so.  (Peck  v.  Richardson.  17 
App.  Div.  618:   44  N.  Y.  Supp.  919.) 

90  Co.  Civ.  Proc,  §  1818.  Where  one 
of  two  administrators  of  an  estate, 
directed  a  debtor  thereof  to  retain  the 
money  due  from  him.  and  not  to  pay 
it  to  the  other  administrator,  with 
which  direction  the  debtor  complied, 
and  the  other  administrator  thereupon 
brought  action  to  recover  the  debt,  in 
which  the  coadministrator,  refusing 
to  join  as  plaintiff,  was  made  defend- 
ant: Held,  that  the  debtor  could  not 
set  up  the  direction  not  to  pay  as  a 
bar  to  the  action,  the  administrator 
who  gave  it  having  dcuie  so  in  viola- 
tion of  his  duty,  and  that  the  admin- 
istrator suing  was  entitled  to  bring 
the  action  and  join  the  other  as  de- 
fendant. ( Strever  v.  Feltman,  1 
Sup.  Ct.  [T.  &  C]  277.)  In  an 
action  against  executors,  for  a  specific 
])erformance  of  a  contract,  entered 
into  by  the  testator,  persons  claiming 
through  such  testator  are  not  neces- 
sary parties.  The  decree  against  the 
executors,  to  make  the  conveyance, 
would  bind  all  parties  claiming 
throush  the  latter.  (Patterson  v. 
Cojieland,  52  How.  Pr.  460.)  See  Fox 
v.  Carr.  16  Hun,  434. 


§  569.  Administration  of  Estate,  Etc.  460 

The  plaintiff  may  unite,  in  the  same  complaint,  two  or  more 
causes  of  action,  whether  legal  or  equitable,  arising  upon  claims 
against  a  trustee,  by  virtue  of  a  contract,  or  by  operation  of  law.^^ 

''  An  action  may  be  brought  against  an  executor  or  adminis- 
trator, personally,  and  also  in  his  representative  capacity,  in  either 
of  the  following  cases: 

"  1.  Where  the  complaint  sets  forth  a  cause  of  action  against 
him  in  both  capacities,  or  states  facts  which  render  it  uncertain 
in  wliich  capacity  the  cause  of  action  exists  against  him. 

"  2,  Where  the  complaint  sets  forth  two  or  more  causes  of  ac- 
tion against  the  defendant,  in  different  capacities,  all  of  which 
grow  out  of  the  same  transaction  or  transactions  connected  with 
the  same  subject  of  action;  do  not  require  different  places  or 
modes  of  trial;  and  are  not  inconsistent  with  each  other."  ^^ 

§  569.  Pleadings;  set-off. —  "  In  an  action  against  an  executor  or 
administrator,  in  his  representative  capacity,  wherein  the  com- 
plaint demands  judgment  for  a  sum  of  money,  the  existence,  suf- 
ficiency, or  want  of  assets,  shall  not  be  pleaded  by  either  party ;  and 
the  plaintiff's  right  of  recovery  is  not  affected  thereby,  except 
with  respect  to  the  costs  to  be  awarded,  as  prescribed  by  law."  ^" 
An  executor  or  administrator  cannot  be  made  personally  liable  to 
the  adverse  party,  for  a  debt  or  for  damages,  by  reason  of  his 
having  made  a  false  allegation  in  pleading.^^ 

Where  an  executor,  administrator,  or  other  person  is  sued  in  a 
representative  capacity,  he  may  set  forth,  as  a  counterclaim,  a 
demand  belonging  to  the  decedent,  etc.,  in  any  case  where  the 
latter  could  have  done  so,  if  the  action  had  been  against  him.^^ 

''  In  an  action  brought  by  an  executor  or  administrator,  in  his 
representative  capacity,  a  demand  against  tlie  decedent,  belonging, 
at  the  time  of  his  death,  to  the  defendant,  mav  be  set  forth  bv 


91  Co.  Civ.  Proc.,  §  484,  subd.  8.  administrator,  are  awarded  in  an  ac- 

92  Co.  Civ.  Proc,  §  1815.     In  such  a  tion  by  or  against  him  in  his   repre- 
case,  a  judgment  for  the  plaintiff  for  sentative  capacity.      (§   1816.) 

a  sum  of  money,  must  distinctly  show,  93  Co.  Civ.   Proc,   §    1824.     A  judg- 

whether  it  is  awarded  against  the  de-  ment  in  such  an  action  is  not  evidence 

fendant    personally,    or    in    his     repre-  of    assets    in    the    defendant's    hands^ 

sentative    capacity;    and    so    much    of  (lb.) 

the  judgment  as  awards  a  sum  of  94  Co.  Civ.  Proc,  §  1831. 
money  against  him,  personally,  may  95  Co.  Civ.  Proc,  §  .50.5.  But  a  cred- 
be  separately  docketed,  and  a  separate  itor  of  an  insolvent  estate  cannot  pur- 
execution  may  be  issued  thereupon,  as  chase  property  at  an  executor's  cale 
if  the  judgment  contained  no  award  on  credit,  and,  when  sued  by  the  exec- 
against  him  in  his  representative  utor,  counterclaim  a  debt  due  him 
capacity.  The  same  rule  applies  where  from  the  decedent.  (Thompson  v. 
costs,  to  be  collected  out  of  the  in-  Whitmarsh,  100  N.  Y.  35.) 
dividual    property   of   an  executor   or 


461  Administration    of   Estatk,    Etc.  §  570. 

the  defendant  as  a  counterclaim,  as  if  the  action  had  hofii  Krought 
by  the  decedent  in  his  lifetime;  and,  if  a  balance  is  found  to  Ijc 
due  to  the  defendant,  judgment  must  be  rendered  therefor  against 
the  j)laintitf,  in  his  representative  capacity.  Execution  can  .be 
issued  u])()n  such  a  judgment,  only  in  a  case  where  it  could  be 
issued  upon  a  judgment,  in  an  action  against  the  executor  or  ad- 
ministrator." ^*'  It  is  necessary  that  the  demand  sought  to  be  set 
off  should  have  been  due  and  parable  at  the  time  of  the  decedent's 
-death.''^ 

§  570.  Form  of  judgment  against  representatives. —  A  judgnnent 
in  an  action,^^  recovered  against  an  executor  or  administrator, 
without  describing  him  in  his  representative  capacity,  cannot  be 
enforced  against  the  decedent's  property,  except  by  the  special 
direction  of  the  court  contained  therein. ^^ 

'*  Real  property,  which  belonged  to  a  decedent,  is  not  bound, 
or  in  any  way  affected,  by  a  judgment  against  his  executor  or  ad- 
ministrator, and  is  not  liable  to  be  sold  by  virtue  of  an  execution 
issued  upon  such  a  judgment,  unless  the  judgment  is  expresslv 
made,  by  its  terms,  a  lien  upon  specific  real  property  therein  de- 
scribed, or  expressly  directs  the  sale  thereof."  ^  On  a  judgment 
in  favor  of  the  plaintiff,  in  an  action  against  two  or  more  repre- 
sentatives, some  of  whom  did  not  answer,  execution  may  issue,  in 
a  proper  case,  against  all  the  defendants,  as  if  all  had  appeared." 

9G  Co.  Civ.  Proc.  §  oOO.  ties  alleged  to  have  been  in   the  pos- 

97  Jordan  v.  National  S.  &  L.  Bank,  session  of  the  testator  at  the  time  of 

74  N.  Y.  4(57;   affg.   12  Hun,  .512.     In  his    death,    is    against    plaintiffs    per- 

that  case,  in  an  action  commenced  be-  sonally   and   not   avaihible  as   a   coun- 

fore   the   present   Code,   tlie  defendant  terclaim.       (Wakenian    v.    Everett.    41 

.sought,  but  was  not  allowed,  to  set  off  Hun,     278.)      To     the      same     effect, 

the    amount   of    a    note    given    by    the  Starke    v.    Myers,    24    Misc.    577;    5.3 

■decedent,  then  held  by  defendant,  but  N.  Y.  Supp.  (j.50;   U.   S.  Trust  Co.  v. 

which  did  not  become  due  until  after  Stanton,   139  ^.   Y.   531;    54  St.   Rep. 

his  death.   See  Jaeger  v.  Bowery  Bank,  816.       As    to    what    is    a    just   set-off 

8    Misc.    150;    29    N.    Y.    Supp.    303.  against  a  claim  against  the  estate,  see 

Where   one    indebted    to    an   estate    in  Shimer    v.    Kinder,    12    St.    Rep.    728; 

the  hands  of  a   receiver,   executor,  or  Peyman  v.  Bowery  Bank,  14  App.  Div. 

trustee,   is  employed   to   render   neces-  4,32;  Tiiornton  v.  ^loore,  26  Mise.  120. 

aary  services  for  the  benefit  and  pro-  A  defendant,  wlio  is  sued  by  executors 

tection  of  the  estate,  tlu-  value  of  his  on  a  contract  made  witli  tliem,  cannot 

services    is    a    proper    counterclaim    in  counterclaim    on    a    cause    of    action 

an  action  to  recover  the  debt.     (Davis  which    accrued    in   the   testatoi's    life- 

V.    Stover,    58    X.   Y.   473.)      And   see  time.      (Gross  v.  Gross.  26  ilisc.  385; 

Patterson   v.    Patterson.    1    Hun,    323;  56  N.  Y.  Supp.  219;   Jay  v.  Kirkpat- 

modified.    59    X.    Y.    574:     Matter    of  rick,   26   Misc.    550;    57 'X.   Y.    Supp. 

Livingston,  27  Hun,  607.     In  an  action  476.) 

by    executors    upon    a    note   given    by  '■»«  Conuiienced  after  Sept.  1.  1880. 

their  testator,  and  for  advances  made  ^ '■•  Co.   Civ.    Proe..    §    IS  14. 

by  him  to  defendant,  a  claim  in  favor  l  Co.   Civ.  Proc.   §    1823.      See  Mat- 

of  the  defendant  against  the  executors  ter  of  Hesdra.  23  X.  Y.  Supp.  842. 

for   the  conversion   of  certain  securi-  2  Co.  Civ.  Proc,  §   1817. 


§  571o  Administration   of   Estate^   Etc.  462: 

An  sxecutor  or  administrator  may  satisfy  of  record  a  judgment 
in  favor  of  his  decedent,  docketed  in  the  office  of  a  county  clerk  •j'^ 
and  may  move  to  set  aside,  for  error  in  fact,  a  final  judgment  of 
a  court  of  record,  rendered  against  his  decedent  for  a  sum  of 
money,  or  a  chattel,  or  an  interest  in  real  property  which  is  de- 
clared by  law  to  be  assets;'*  and  may  bring  an  action  upon  a  judg- 
ment recovered  in  favor  of,  and  during  the  lifetime  of  the 
decedent,  without  leave  of  court ;  such  an  action  not  being  between 
the  same  parties.^ 

The  executor  or  administrator  of  a  judgment  creditor  may  have 
execution  upon  the  judgment  at  any  time  within  five  years  after- 
its  entry,  and  must  indorse  his  name  and  residence  upon  the  same 
when  issued.^ 

§  571.  Costs  in  actions  by  representatives. —  The  subject  of  the 
award  of  costs  in  favor  of  or  against  the  personal  representatives 
of  a  decedent,  by  a  Surrogate's  Court,  or  on  appeal  from  a  deter- 
mination thereof,  is  discussed  elsewhere.^  So  far  as  actions  are 
concerned,  executors  and  administrators,  etc.,  when  plaintiffs,  are 
entitled  to,  or  liable  to  be  mulcted  in,  costs  like  other  parties;, 
while,  as  defendants,  they  are  specially  protected.  The  Code  de- 
clares that,  "  in  an  action,  brought  by  or  against  an  executor  or 
administrator,  in  his  representative  capacity,  or  the  trustee  of  an 
express  trust,  or  a  person  expressly  authorized  by  statute  to  sue 
or  to  be  sued,  costs  must  be  awarded,  as  in  an  action  by  or  against 
a  person,  prosecuting  or  defending  in  his  own  right;"  ^  "  but  they 
are  exclusively  chargeable  upon,  and  collectible  from,  the  estate,, 
fund,  or  person  represented,  unless  the  court  directs  them  to  l)e 
paid  by  the  party  personally,  for  mismanagement  or  bad  faith  in 
the  prosecution  or  defense  of  the  action. 


»  9 


3  Co.  Civ.  Proc,  §   1200.  7  See  c.  XXII,  vost. 

4  Co.  Civ.  Proc.   §§   1283,  1284.  « Co.   Civ.   Proc,    §    3246.     "Except 

5  Smith  V.  Britton,  45  How.  Pr.  428.  as  otherwise  prescribed  in  "  sections 
For  the  proceedinsrs  to  substitute  an  1835,  1836,  which  relate  to  the  cases 
executor  or  administrator  in  place  of  where  they  are  protected,  as  above 
the  decedent,  where  the  latter  dies  mentioned, —  a  matter  treated  in  an- 
after  the  rendering  of  a  judo-ment  or  other  place  (see  tit.  6  of  this  chap- 
making   of   an   order   which    is   to   be  ter). 

appealed    from,    see    Co.    Civ.    Proc,  9  Co.  Civ.  Proc.  §  3246.     See  §  555. 

§§    1297-1299.      Notwithstanding    the  ante.     The  provisions   of  this   section 

right  to  have  execution  on  the  judg-  do  not  apply  to  actions  by  the  repre- 

ment,  the  executor  may  maintain  an  sentative  upon  causes  arising  after  the 

action  upon   a   judgment   in   favor   of  death    of    the    decedent.       (Mullen    v. 

his     testator     against     the     judgment  Guinn.  88  Hun,   128;   34  N.  Y.   Supp. 

debtor  without  leave  of  court.     (Free-  025;  O'Brien  v.  Jackson.  42  App.  Div^ 

man  v.   Dutcher.  15  Abb.  N.  C.  431.)  171:   58  N.  Y.   Supp.    1044;   revd.,  on. 

6  Co.  Civ.  Proc,  §  137G.  other  points,  107  N.  Y.  31.) 


4G3 


Abministratiox  of  Estatf..  Etc. 


§  572. 


Where  the  cause  of  action  (if  any)  arose  after  the  decedent's 
death,  the  representative  is  personally  liable  for  the  costs  of  an 
action  unnecessarily  brought  by  him,  and  defendant  may  enter 
judgment  against  him  personally,  Avitliout  an  order  of  court. ^*^ 

It  is  said  that  where  costs  are  awarded  generally  to  the  plaintiff, 
in  an  action  against  a  representative,  they  are,  prima  facie,  payable 
out  of  the  estate. ^^ 

§  572.  Security  for  costs.^  in  an  action  originally'"  brought  by 
or  against  an  executor  or  administrator,  in  his  representative 
capacity,  or  the  trustee  of  an  express  trust,  or  a  person  expressly 
authorized  by  a  statute  to  sue,  or  to  be  sued,  the  court  may,  in  its 
discretion,  require  the  plaintiff  to  give  security  for  costs.^^ 

While  an  administrator  appointed  in  this  State,  and  resident 
Mithin  the  jurisdiction  of  the  court  in  which  he  sues,  will  not 
ordinarily  be  required  to  give  security  for  costs,  in  the  absence  of 
mismanagement  or  bad  faith,^^  security  may  be  exacted  from  a 
nonresident  representative'^  though  acting  under  domestic  letters. 


loFcig  V.  Wray,  64  How.  Pr.  391: 
3  Civ.  Proc.  Rep.  159.  Where  the 
cause  of  action  sued  on  by  the  repre- 
!*entative  might  have  been  sued  on  by 
liini  in  his  private  right,  he  cannot, 
if  lie  fails  to  obtain  judgment,  escape 
the  penalty  of  costs  by  suing  in  his 
representative  capacity.  (Holdrige  v. 
Scott.  1  Lans.  303:  overruling  Wood- 
ruff v.  Cook,  14  How.  Pr.  481.)  And 
see  P.rockett  v.  Bush.  IS  Abb.  Pr.  337: 
Dubois  V.  Sands,  43  Barb.  412:  Butler 
V.  Boston  &  Albany  R.  Co.,  24  Hun, 
99 :  Bedell  v.  Barnes,  29  id.  589.  The 
court,  upon  adjudging  that  a  fund  in 
llie  hands  of  an  administrator  defend- 
ant, which  he  claims  belongs  to  his 
decedent,  in  fact  belongs  to  the  plain- 
till",  and  that  neither  the  administra- 
tnr  nor  his  decedent  has  any  interest 
therein,  cannot  direct  the  payment  of 
the  defendant's  costs  out  of  such  fund. 
(Slieehan  v.  Huerste],  4G  N.  Y.  Super. 
f.4.) 

11  Berwick  v.  Halsev,  4  Redf.  IS; 
:\ratter  of  Smith,  1  Misc.  269:  22  N. 
V.  Supp.  10G7. 

12  Sullivan  v.  Remington  Sewing 
Machine  Co.,  27  Hun,  270.  But  not 
where  the  action  was  brought  by  de- 
cedent and  revived.  (Denehy  v.  Mc- 
C:oud,   21    Misc.   541.) 

13  Co.  Civ.  Proc.  §  3271. 

!•*  Drago  V.  Kavanagh.  5^  Ajip.  Div. 
179;    67    N.   Y.    Supp.    622;    Davidson 


v.  Bose,  57  App.  Div.  212;  08  X.  Y, 
Supp.  316;  Podmore  v.  South  Brook' 
lyn  Savings  Inst.,  27  Misc.  120:  57  N. 
Y.  Supp.  406;  McNeil  v.  Merriam,  57 
App.  Div.  164;  68  N.  Y.  Supp.  165. 
And  it  was  so  held  under  the  former 
Code  (§  317),  in  Xorris  v.  Breed.  1 
Sheldon,  271.  A  domestic  administra- 
tor, though  nonresident,  was  not  re- 
quired to  furnish  security  in  Dunn  v, 
American  Surety  Co.,  58  X.  Y.  Supp. 
140.  It  has  been  held  that  the  dis- 
cretion as  to  requiring  security,  un- 
der the  present  Code,  is  not,  in  terms, 
limited  at  all.  Accordingly,  an  ad' 
ministrator  with  the  will  annexed, 
suing  under  letters  ancillary  to  those 
granted  to  an  executrix  in  Georgia,, 
was  reqTiired,  on  defendant's  applica- 
tion, to  file  sec-urity.  (Carney  v. 
Bernheimer,  3  Law  Bui.  24:  citing 
Kimberlev  v.  Stewart,  22  How.  Pr. 
281;  Darby  v.  Condit,  1  Duer,  599.) 
An  administrator  of  an  insolvent  es- 
tate, who  had  concealed  the  fact  that 
another  administrator  had  previously- 
been  appointed,  was  ordered  to  file  se- 
curitv  for  costs  in  Pfeifer  v.  Supreme 
Lodge,  54  App.  Div.  200;  66  X,  Y. 
Supp.   604. 

15  Purslev  v.  Rodgers.  44  App.  Div. 
139;  61  X."  Y.  Supp.  1015.  Compare 
Podjncue  v.-  Seaman's  Bank  for  Sav- 
ings. 30  ]\nsc.  416:  revg.  on  reargu- 
ment,  27  id.  317. 


§§  573,  574.     Admii^istratio]v    of   Estate,    Etc,  464 

The  provisions  of  section  3268  of  the  Code  do  not  apply  to  such 
an  application,  the  reqniring  of  security  being  governed  by  section 
3271,  which  makes  it  purely  a  matter  of  discretion  with  the  court. ^^ 

That  discretion  is  absolute,  and  notwithstanding  there  is  no 
evidence  of  mismanagement  or  bad  faith,  the  court  may  require 
security.  ^"  On  the  other  hand,  the  court  may  limit  the  amount 
of  security  required  to  be  given  by  a  representative,  trustee,  etc., 
to  stay  execution  on  appeal.^* 

ARTICLE  THIRD. 

SPECIAL   PROCEEDIXG   TO    DISCOVER    PROPERTY    COXCEALIfD    OR 

WITHHELD. 

§  573.  By  whom  maintained. —  A  special  proceeding,  summary  in 
its  operation,  is  provided  by  the  statute,  whereby  an  executor  or 
iidministrator  may  obtain  discovery,  and  security  for  the  delivery 
or  an  award  of  possession,  of  money  or  other  personal  property, 
belonging  to  the  estate  of  his  decedent,  and  concealed  or  withheld 
from  him.  The  Code  permits  "  an  executor  or  administrator  " 
to  institute  the  special  proceeding. ^^  The  latter  term,  it  is  believed, 
includes,  in  this  instance,  an  administrator  with  the  will  annexed, 
as  well  as  a  temporary  administrator,  and  a  public  administrator 
after  he  has  become  fully  vested  with  the  power  to  administer, 
though  a  doubt  may  exist  as  to  the  latter  officer,  unless  he  has  actu- 
allv  received  letters  from  the  Surrogate's  Court  to  which  he  ap- 
plies.2« 

§  574.  The  object  of  the  proceeding. —  The  design  of  the  statute 
is  twofold, —  a  discovery  of  personal  property  to  the  end  that  the 
representative  may  obtain  immediate  possession;  or  to  the  end 
that  it  may  be  included  in  the  inventory,  but  cannot  be  so  included 
T^ecause  the  party  proceeded  against  refuses  to  impart  knowledge 
or   information   concerninc;  the   same.^^      It   is   certainly  not   the 


1*5  Pelkey   v.    Town    of    Saranac,    67  surrogate    summary    authority   in   re- 

App.   Div.'  337 ;    73   N.  Y.   Supp.   493.  spect  to  estates  within  his  jurisdiction. 

See  Podmore  v.  Seaman's  Bank,  supra,  which    courts    of    equity    could    have 

1'  Tolman  v.   Syracuse.    B.  &   N.  Y.  used  before  the   adoption  of  the  Con- 

R.  Co..  02  X.  Y.  353.  and  cases  supra,  stitution.      (Matter  of  Currv,  25  Hun, 

18  Co.  Civ.  Proc,  §  1312.  321:    1    Civ.    Proc.    Rep.    SlO:    distin- 

1!>  Co.  Civ.  Proc.  §  2707,  as  amended  guishing    Matter    of    Beebe,    20    Hun, 

1803.     consolidating    former     §     2706.  462.) 

These  provisions  of  the  Code  are  not  20  See  §  376.  ante. 

unconstitutional   because  ihey  ^o  not  21  Matter  of  O'Brien,   65  App.  Div. 

provide  for  a  trial  by  jury.   The  Legis-  282. 
lature  has  power  to  confer  upon  the 


465  Admi.mstkatiox   of  Estate,  Etc.      §§  575,  576. 

object  of  the  proceeding  to  enable  the  representative  to  collect 
debts  due  the  decedent,""  and  was  not  intended  as  a  substitute 
for  ordinary  civil  remedies  in  cases  where  the  latter  are  appro- 
priate."^ 

§  575.  Petition  for  citation. — The  proceeding  is  to  be  instituted 
by  a  "  written  petition^  duly  verified,  setting  forth,  on  knowledge, 
or  information  and  belief,  any  facts  tending  to  show  that  money 
or  other  personal  property,  which  ought  to  be  delivered  to  the  peti- 
tioner, or  included  in  an  inventory  or  appraisal,  is  in  the  posses- 
sion or  under  the  control  or  within  the  knowledge  or  information 
of  a  person  who  withholds  the  same  from  him,  or  who  refuses  to 
impart  knowledge  or  information  he  may  have  concerning  the 
same,  or  to  disclose  any  other  fact  which  will  aid  such  executor 
or  administrator  in  making  discovery  of  such  property,  so  that  it 
cannot  be  inventoried  or  appraised ;  and  praying  an  inquiry  re- 
specting it,  and  that  the  person  complained  of  may  be  cited  to 
attend  the  inquiry,  and  be  examined  accordingly.  The  petition 
may  be  accompanied  with  an  affidavit  or  other  evidence,  written 
or  oral,  tending  to  support  the  allegations  thereof."  ^^ 

Where  there  are  two  or  more  representatives,  all  of  them  should 
be  made  parties. ^^  But  the  proceeding  cannot  be  maintained  by 
one  of  two  representatives  against  the  other,  for  the  reason  that 
each  of  them  has  full  control  of  the  assets,  and  may  dispose  of 
them  without  the  co-operation  of  the  other.^^ 

§  576.  To  whom  petition  presented.—  The  petition  must  be  pre- 
sented to  the  Surrogate's  Court  from  which  letters  were  issued  to 
the  applicant ;  or  if  that  surrogate  is  absent,  it  may  be  presented 
to  the  county  judge,  the  special  county  judge,  or  the  special  sur- 
rogate, or  to  a  justice  of  the  Supreme  Court,  or,  except  in  New- 
York  or  Kings  county,  to  the  mayor  or  recorder  of  a  city  within 
the  surrogate's  coiinty.^^ 

An  officer,  other  than  the  surrogate,  to  whom  it  is  so  presented, 

22Mattpr   of   Knittel,    5   Dem.   371;  25  Matter   of   Slingerland.    .Sfi    Hun, 

7  St.  Rep.  752;   Matter  of  Nay,  6  id.  575;    revg.    Tracey    v.    Slingerland,    3 

340:   19  St.  Rep.  259:   Matter  of  Carev,  Dem.   1. 

11  App.  Div.  289;  42  N.  Y.  Supp.  346;  2(5  Matter  of  Prime,  N.  Y.  L.  J.,  Nov. 
Matter  of  Stewart,  77  Hun.  564;  28  24,  1891.  The  proper  proceeding  for 
N.  Y.  Supp.  1048;  sub  nom.  Matter  petitioner  to  liave  taken  was  that  pro- 
of Russell,  60  St.  Rep.  505.  vided  by  Co.  Civ.  Proc.,  §  2602.      See 

23  Matter    of    Cunard.    27    St.    Rep.  §  520,  (t»/c. 

128 ;  7  N.  Y.  Supp.  553.  27  Co.  Civ.  Proc,  §§  2707,  2708.  as 

24  Co.  Civ.  Proc.,  §  2707,  as  amended  amended  1S95.  See  §  4.  ante,  as  to 
1893,  consolidating  former  §§  2706,  the  officer  designated  "special  surro- 
2707.  gate." 

30 


§§  577,  578.     Administkation    of   Estate,    Etc.  466 

lias  the  same  power  as  the  surrogate,  with  respect  to  all  the  pro- 
ceedings, and  must  issue  a  citation  and  an  order,  returnable  before 
him,  or  as  hereafter  mentioned ;  and  he  may,  at  any  stage  of  the 
proceedings,  make  an  order  transferring  them  to  the  surrogate, 
who  must  thereupon  complete  them,  in  like  manner,  as  if  he  had 
issued  the  citation. ^^ 

§  577.  When  citation  will  be  denied. —  Although  the  statute  per- 
mits the  applicant  to  adduce  oral  evidence  in  support  of  his  written 
allegations,  it  requires  that  the  surrogate  shall  be  satisfied  "  upon 
the  papers  so  presented."  The  moving  papers,  therefore,  should 
be  sufficient  to  justify  the  granting  of  a  citation  and  order.  The 
statute  requires  the  petition  to  set  forth  facts.  These  should  be 
detailed  as  fully  as  practicable.  It  is  not  necessary,  however,  that 
anything  amounting  to  legal  evidence  of  a  concealing  or  withhold- 
ing of  property  should  be  alleged ;  but  facts,  from  which  there 
arises  a  reasonable  suspicion  thereof,  should  be  stated. ^^ 

It  is  said  that  the  allegations  on  the  part  of  the  petitioner  may 
be  exclusively  on  information  and  belief,  without  disclosing  the 
sources  or  grounds  thereof;  the  only  prerequisite  to  the  issuing  of 
a  citation  being  the  satisfaction  of  the  surrogate  that  there  are 
reasonable  grounds  for  the  inquiry.^*^ 

But  a  petition  only  stating  petitioner's  belief  as  to  the  respond- 
ent's possession  of  certain  property,  without  disclosing  any  facts, 
is  fatally  defective.^^ 

Delay  in  making  the  application,  e.  g.,  eleven  years  after  dece- 
dent's death,  will  defeat  it ;  especially  w^here  the  application  is 
apparently  for  inquisitorial  purposes  only.^^ 

§  578.  Citation  and  order,  and  service  thereof. —  Assuming  that 
the  surrogate  is  present,  if  he  is  satisfied,  upon  the  papers  pre- 
sented, "  that  there  are  reasonable  grounds  for  the  inquiry,  he  must 
issue  a  citation  accordingly ;  which  may  be  made  returnable  forth- 
with, or  at  a  future  time  fixed  by  the  surrogate,  and  may  be  served 
at  any  time  before  the  hearing.  "Where  the  person,  or  any  of  the 
persons,  to  be  cited,  does  not  reside,  or  is  not  within  the  county 
of  the  surrogate,  the  citation  may,  in  the  surrogate's  discretion, 
require  him  to  appear  at  a  specified  time,  at  a  place  within  the 


28  Co.  Civ.  Proc,  §  2708.  31  Matter  of  Robbing,  N.  Y.   L.   J., 

29  See    Public    Adm'r    v.     Ward,    3  Jan.  27,  1891. 

Bradf.   244.  •'52  Matter    of    Cunard.    24    St.    Rep. 

30  Walsh    V.    Downs,    3    Dem.    202;  319.  supra;  Matter  of  Fogal,  N.  Y.  L. 
Mead  v.  Sommers,  2  id.  296.    See  Mat-  J.,  June  23,  1892, 

ter  of  Paramore,  15  St.  Rep.  449. 


407  Ad.mim.stkatiux  of  Estate,  Etc.  §  579. 

county  where  he  resides  or  is  served,  before  a  judge,  a  justice  of 
the  peace,  or  a  referee,  designated  in  the  citation,  or  before  the 
surrogate  of  that  county."  ^^  "  The  surrogate  must  annex  to  or 
indorse  upon  the  citation,  an  order,  requiring  the  party  cited  to 
attend,  personally,  at  the  time  and  place  therein  specified.  The 
citation  and  order  must  be  personally  served;^'*  and  service  thereof 
is  ineifectual,  unless  it  is  accompanied  with  payment  or  tender  of 
the  sum  required  by  law  to  bo  paid  or  tendered  to  a  witness,  who 
is  subpoenaed  to  attend  a  trial  in  the  Supreme  Court.  A  failure 
to  attend,  as  required  by  a  citation  and  order  personally  served, 
may  be  jiunishod  as  a  contempt  of  the  court." '"^ 

§  579.  Dismissal  of  proceeding,  on  answer. —  On  the  return  day, 
or  subsequently,  pending  the  examination,"'''  the  person  cited  may 
interpose  a  written  verified  answer  to  the  petition,  alleging  that 
he  is  the  owner  of  the  property  in  question,  or  is  entitled  to  its  pos- 
session by  virtue  of  a  lien  thereon  or  special  property  therein.  In 
case  of  the  interposition  of  such  answer,  the  surrogate  is  required 
to  dismiss  the  proceeding  as  to  the  property  so  claimed  by  the  re- 
spondent f^  the  reason  being,  that  Surrogates'  Courts  cannot  try 
questions  of  title.  Thus,  where,  at  the  testator's  death,  his  widow 
was  possessed  of  certain  coupon  bonds,  which  she  subsequently 
sold,  claiming  that  they  were  her  own  property,  investments  of 
the  proceeds  of  her  own  labor,  and  in  her  own  possession  prior  to 
her  husband's  death,  it  Avas  held  that  it  was  not  proper  to  issue  a 
warrant,  because,  first,  the  bonds  were  held  under  fair  color  of  title 
adverse  to  the  decedent,  and  not  throuffh  him  ;  and  second,  because 


33  Co.  Civ.  Proo.,  §  2707.  as  amended  examination   of   the   party  cited.       In 

1S0.3.  this  matter,  the  answer  proposed  will 

■"•■4 "  It  is  only  necessary  to  person-  be    received    and    the    proceedinc:   then 

ally  serve  the  citation,  and  order  in-  dismissed,    upon    the    respondent    pay- 

dorsed   thereon,   reqnirinji   the   parties  inpf   tlie   petitioner   $10   costs     of    this 

cited     to     attend     personally     at     the  motion,  and  the  taxable  disbursements 

time  and  place  therein  specified.    Rule  of  the  petitioner." 

8  of  this  court  does  not  applv."     (Per        -"^T  Co.  Civ.  Proc.  §  2709.  as  amended 

Ransom,  S.,  Matter  of  Hotchkiss.  N.  Y.  189.3    (former    §    2710).       See   Matter 

L.  .T.,  Julv  20,  1892.)      See  next  note,  of  Hastinors.  C  Dem.  42.3:    16  St.  Rep. 

35.C0.  Civ.  Proc,  §  2708.      The  cita-  980:    ^Matter   of   McCarthy.   47    X.   Y. 

tion  can  only  be  issued  by  the  surro-  Supp.   1127:  Matter  of  Raseh.  24  Civ. 

<;ate    (not  by  the  clerk  of  the  court).  Proc.  Rep.  264;   33  N.  Y.  Supp.  424; 

and  a  copy  of  the  petition  and  order  ]\Iatter  of  Lynch,  83  Hun.  39:  31  X.  Y. 

must    be    personally    served,  and    the  Supp.     767.       As    to     the     surrogate's 

original  exhibited,  or  the  service  will  power  to  investigate  the  truth  of  the 

rot    bring    the    party    into    contempt,  answer,  and  when  an  answer  may  en- 

(Mauran  v.  Hawlev.  2  Dem.  396.)  title    respondent    to    a    dismissal,    see 

36  In  Matter  of  McKenna   (X.  Y.  L.  Doyle  v.   Doyle.   1,5   St.  Rep.  318.  and 

J.,   Apr.   8.    1892).   Ransom.   S..   said:  Matter  of  Masterton.  6  Dem.  460.     As 

'■  I  am  of  the  opinion  that  an  answer  to  whether  an  affidavit  is  an  answer, 

in  a   discovery  proceeding  may  be  re-  see  Matter  of  Elias,  4  Dem.  139. 
ceived    by  the   surrogate   pending  the 


§  579.  Administration  of  Estate,  Etc.  468 

they,  having  been  sold,  could  not  be  deemed  to  be  concealed  or 
withheld,  within  the  meaning  of  the  statute.^*  The  answer  need 
not  set  forth  the  particulars  of  the  respondent's  ownership;  to  al- 
lege that  he  is  the  owner  of  the  property  is  sufficient  f^  but  where 
he  claims  to  be  "  entitled  to  the  possession  thereof,  by  virtue  of  a 
lien  thereon  or  special  property  therein,"  he  must  allege  the  facts 
necessary  to  sustain  the  claim. ^*^  An  answer  alleging  that  the  prop- 
erty is  held  by  virtue  of  letters  of  temporary  administration 
granted  in  another  State,  does  not  require  a  dismissal,  as,  in  such 
case,  the  respondent  is  merely  a  custodian  of  the  property  and  not 
the  holder  of  "  a  lien  thereon  or  special  property  therein."  ^^  The 
proceeding  is  for  the  determination  of  the  question  of  possession, 
and  not  of  title,^^  and  delivery  to  the  representative  of  the  decedent 
can  be  decreed,  only  after  it  clearly  appears  that  possession  is 
wrongfully  withheld. ^^  Therefore  the  president  of  a  savings  bank 
will  not  be  examined  as  to  a  deposit  in  his  bank,  claimed  to  have 
been  made  for  the  benefit  of  the  decedent.^*  So  the  surviving  part- 
ners of  a  decedent,  having  a  right  to  settle  up  the-  business  of  the 
firm,  cannot  be  required  to  turn  over  the  decedent's  interest  therein 
to  his  personal  representative,  until  after  the  payment  of  part- 
nership debts,  and  an  accounting  whereby  the  amount  of  such 
interest  is  determined.*^  So  an  answer  that  the  respondent  had 
held  the  property  in  question  under  an  agreement  with  decedent 
that  he  should  hold  the  same  as  security  for  certain  advances  which 
had  been  made,  and  that  the  respondent,  as  by  agreement  it  was 

38  Public  Adm'r  v.  Ward,  3  Bradf.  take  possession  of  an  intestate's  es- 
244.  tate,     and     received     certain     moneys 

39  But  it  is  not  enough  to  allege  claimed  by  B.  as  belonging  to  her,  and 
that  he  is  the  owner  of  all  the  prop-  afterward  delivered  the  same  to  B., 
erty,  or  entitled  to  the  possession  and  there  was  sufficient  evidence  to 
thereof.  (Matter  of  Peyser,  35  App.  show  that  A.  must  have  known  that  B. 
Div.  447;   54  N.  Y.   Supp.   832.)  Avas  not  entitled  thereto,  it  was  held 

40  Metropolitan  Trust  Co.  v.  Eogers,  that  A.  must  be  considei-ed  a  principal 
1  Dem.  365 ;  Matter  of  Motz,  5  St.  wrongdoer,  and  personally  liable  to 
Rep.  343.  Of  course,  the  executor  or  the  public  administrator  for  the  mon- 
administrator  has  a  remedy  by  action  eys  that  came  into  his  hands.  (Post 
against  any  person  withholding  any  v.  Ketchum,  1  N.  Y.  Leg.  Obs.  261.) 
part  of  the  estate.  In  one  case,  where  41  Matter  of  O'Brien,  65  App.  Div. 
several   persons  had   colluded   to  keep  282. 

from  the   administrator  money  found  42  Matter  of  Scott.  34  Misc.  446 :  70 

among  the  intestate's  effects,  under  a  N.  Y.  Supp.  425 :  Thomas  v.  Troy  City, 

false  claim  of  one  of  them  that  it  had  etc.,    Bank,    19    Misc.    470:    44    X.    Y. 

been  given  to  her  by  the  intestate,  and  Supp.  1039;  Matter  of  Richardson,  31 

subsequently  deposited  with  the  intes-  Misc.  666 ;   66  N.  Y.  Supp.  94. 

tate    for    safe-keeping,    they    were    all  43  Matter    of    Curry,    25    Hun.    321; 

held   liable   for   the   amount,   with   in-  1   Civ.   Proe.  Rep.  319. 

terest  from  the  grant  of  letters.     (Sec-  44  Matter  of  Knittel,  5  Dem.  371. 

ville  V.   Post.   3   Edw.   203.)       In   an-  45  Camp  v.  Fraser,  4  Dem.  212. 

other   case,    where   A.    assisted   B.    to 


469  Ai)MiMSTi{ATi(j.\   oi-  EsTATK,  Etc.      §§  580,  581. 

])rovide(l  he  might,  had  disposed  of  the  property  in  the  lifetime 
<if  the  deceased,  and  applied  the  proceeds  to  his  reimbursement, 
was  held  good,  and  the  proceeding  was  dismissed.^^  But  an  answer 
setting  up  title  to  a  part  only  of  the  property  referred  to  in  the 
moving  affidavit,  and  denying  possession  of  the  balance,  does  not  in- 
terpose a  i)lca  of  title  which  will  oust  the  surrogate  of  jurisdic- 
tidii  as  to  such  balance;'  nor  will  a  statement  that  the  respondent 
returned  such  ]iropcrtv  to  the  decedent  in  his  lifetime  have  that 
effect.-*^ 

§  580.  The  examination  of  respondent. —  If  the  surrogate  enter- 
tains the  proceedings, —  that  is,  there  being  no  answer  raising  an 
issue  of  ownership, —  and  the  respondent  attends  in  obedience  to 
the  citation,  he  may  be  examined  fully  and  at  large,  respecting 
property  of  the  decedent,  or  of  which  the  decedent  had  possession 
at  the  time  of,  or  within  two  years  before,  his  death.  A  refusal 
to  he  sworn,  or  to  answer  any  questions  which  the  officer  conduct- 
ing the  examination  determines  to  be  proper,  is  punishable  by  the 
officer  or  referee  conducting  the  examination,  in  the  same  manner 
as  a  like  refusal  by  a  witness,  subpcenaed  to  attend  a  hearing  before 
the  surrogate.'*^  The  surrogate  acts  judicially,  in  conducting  the 
examination,  and  the  testimony  receivable  therein  is  subject  to 
tlic  i-cstrictions  of  the  Code  relating  to  the  admission  of  evidence 
gi^•en  by  ]")ersons  interested,  etc.,  as  to  personal  transactions  or 
coniiiiunications  with  the  deceased.'*^  After  the  examination  of 
all  the  parties  cited  is  completed,  if  no  answer  is  interposed,  un- 
less one  or  more  of  them  give  security,  as  hereinafter  mentioned, 
eitlier  nnrty  may  ]iroduce  further  evidence,  in  like  manner  and 
Willi  like  effect  as  upon  a  trial. ''^"  The  inquiry  is  limited  to  per- 
sonal property  capable  of  delivery;  testimony  tending  to  show 
that  a  trust  was  imposed  upon  real  property  which  had  been  trans- 
ferred by  the  decedent  to  the  respondent,  is  inadmissible.^^ 

?  581.  Decree  of  possession.— '^  AMiere  it  appears  to  the  surrogate 
'IT  other  officer  who  issued  the  citation,  from  the  examination  and 
other  testimony,  if  any,  that  there  is  reason  to  suspect  that  proj>- 
'^rtv  of  the  decedent  is  withheld  or  concealed  by  the  person  cited, 
he  must,  unless  that  person  gives  the  security,"  mentioned  helow, 

•i«:\rattor    of    Wins.    41     TTun.    4,52.  -tnTilton    v.    Ormsby.    10    Hun.    7; 

Compare    :\rnttor    of    TJichardson.    .31  affd..  70  X.  Y.  000.    See  Co.  Civ.  Proc, 

^risc.  000:  00  y.  Y.  Supp.  94.  §  820. 

^"  Public     Adm'r    v.    Elias.    4    Dem.  W  Co.  Civ.  Proc..  §  2709.  as  amended 

1:^0.     See   :\ratter  of  Pevser.   25   :\rise.  1S93    f former  §  2711). 

70:  afTd..  .35  App.  Div.  447.  •'''i  ATatter  of  Tone,  N".  Y.  L.  J..  Mar. 

4RCo.  Civ.  Proc.  §  2709,  as  amended  28.   1892. 
1893    (former   S  2710). 


§  582.  Administration  of  Estate,  Etc.  470 

*'  make  a  decree,  reciting  the  ground  of  making  it,  and  requiring 
the  person  cited  to  deliver  possession  of  the  property  to  the  peti- 
tioner. The  decree  must  specify  the  sum  of  money  or  describe  the 
other  property.  Where  it  is  made  by  an  officer,  other  than  the  sur- 
rogate or  temporary  surrogate,  it  must  be  entered,  and  may  be  en- 
forced, as  a  decree  of  the  Surrogate's  Court."  ^"  The  surrogate 
must  find,  as  a  fact,  that  the  property  belonged  to  the  estate ;  it  is 
not  enough  to  determine  that  there  was  probable  cause  to  believe 
that  it  belonged  thereto.  The  decree  should  distinctly  specify  the 
property,  delivery  of  which  is  required ;  if,  after  specifying  cer- 
tain articles,  it  continues,  "  and  all  other  property,  goods,  etc.,  of 
the  said  deceased,  in  her  possession  or  under  her  control,  at  her 
place  of  residence,"  it  is  too  broad.^^ 

§  582.  Security  to  prevent  decree. —  The  security,  to  be  given  to 
prevent  a  decree  for  delivery,  "  must  be  a  bond  to  the  petitioner, 
executed  by  the  person  cited,  with  such  sureties  and  in  such  a 
penalty  as  the  surrogate  approves ;  describing  the  property  or 
specifying  the  sum  of  money;  and  conditioned  that  the  principal 
in  the  bond  will  pay  to  the  obligee,  or  his  successor,  the  money ; 
•or  that  he  will  deliver  to  him  the  property,  or,  in  default  thereof, 
pay  to  the  obligee  the  full  value  of  the  property ;  and,  in  either  case, 
that  he  will  pay  all  damages  awarded  against  him  for  withholding 
the  property,  whenever  it  is  determined,  in  an  action  or  special 
proceeding  to  be  brought  by  the  obligee  or  his  successor,  that  it  be- 
longs to  the  estate  of  the  decedent.  On  the  presentation  of  such  a 
bond,  and  the  payment  of  the  costs,  if  any,  which  the  surrogate 
or  other  officer  awards  to  the  petitioner,  within  such  a  time^^  as 
the  surrogate  or  other  officer  fixes  for  that  purpose,  an  order  must 
be  made,  dismissing  the  proceeding."  ^^  The  giving  of  security 
cannot  be  compelled ;  if  it  is  not  given,  the  person  against  whom 
the  decree  issues  has  an  option  to  deliver  the  property  or  submit 
to  a  warrant. ^^ 

52  Co.  Civ.  Proc,  §  2709,  as  amended  ^-i"  Within    such    time    as    the    siir- 

1893    (former  §  2712).  rotate   or  other   oflRcer   fixes  for  that 

s."?  Tilton    V.    Ormsby.    10    Hun,    7  ;  purpose,"  relates  solely  to  the  payment 

affd..  70  N.  Y.  609;  Matter  of  Mapes,  of  costs,  the  time  for  which  cannot  be 

6    St.   Rep.    668 ;    Camp   v.    Fraser,    4  fixed  except  upon  presentation  of  such 

Dem.  212.     An  order  of  the  surrogate,  a  bond.       (De   Lamater   v.   McCaskie, 

deciding   that   the   administrator   was  5  Dem.  8.) 

entitled  to  the  custody  of  a  bank-book.  55  Co.  Civ.  Proc,  §  2710,  as  amended 

is  not  an  adjudication  of  his  title  to  1893,    consolidating    former    §§    2713, 

the  funds  represented  thereby.     (Wes-  2714. 

tervelt  v.  Westervelt.  46  N.  "Y.  Supp.  56  See  Matter  of  McCabe,  2  L.  Bui. 

298.)      As  to  proceeding  being  res  ad-  72. 
judicata,   see   Spreen's   Estate,   1   Civ. 
Proc.  Rep.  375. 


471  Admixistkation   of   Estate,  Etc.     §§  583,  584. 

§  583.  Enforcement  of  decree;  warrant. —  ^'  Where  the  decree  re- 
<jinres  the  person  cited  to  deliviT  inoney,  disobedience  thereof  may 
be  punished  as  a  contempt  of  the  court.  Where  it  requires  him  to 
deliver  possession  of  other  property,  a  warrant  must  be  issued, 
upon  the  application  of  the  petitioner,  directed  to  the  sheriff,  or, 
generally,  to  any  constable  of  the  county,  or  any  marshal  of  the 
city  where  the  property  may  be  found ;  commanding  him  to  search 
for  it,  to  seize  it,  if  it  is  found  in  the  possession  of  the  person  cited, 
or  his  agent,  or  a  person  deriving  title  from  him  since  the  pre- 
sentation of  the  petition,  and  for  that  purpose,  if  necessary,  to 
break  open  any  house  in  the  daytime;  to  deliver  the  property  so 
seized  to  the  petitioner ;  and  to  return  the  warrant  within  sixty 
■days  thereafter.  If  the  decree  was  made  by  the  surrogate  or  tem- 
porary surrogate,  the  warrant  must  be  under  the  seal  of  the  Surro- 
gate's Court ;  if  by  any  other  officer,  it  must  be  under  his  hand, 
and  returnable  before  him.  The  issuing  of  such  a  warrant  does  not 
pflFeet  the  power  of  the  court  to  enforce  the  decree,  or  any  part 
thereof,  by  punishing  a  disobedience  thereof."^' 

.     ARTICLE  FOURTH. 

GIFTS    CAUSA    MORTIS. 

§  584.  Characteristics  of  such  gifts. —  There  is  a  species  of  in- 
terest in  a  decedent's  property,  termed  donatio  mortis  causa,  which 
the  personal  representatives  have  no  right  to  reduce  to  possession, 
inasmuch  as  it  vests  neither  in  them,  nor  in  the  husband  or  wife 
or  next  of  kin.  The  doctrine  and  denomination  are  each  taken 
from  the  civil  law.  It  may,  however,  become  the  right  and  duty 
of  the  executor  or  administrator  to  oppose  the  claim  that  such  a 
gift  has  been  made,  with  a  view  to  securing  its  subject  as  part  of 
the  assets,  to  be  administered  ;  and  questions  of  this  character  are 
liable  to  be  presented  to  the  surrogate,  for  his  determination.^^ 

Such  gifts  resemble  testamentary  dispositions  in  certain  particu- 
lar? ;  the  only  essential  diiference  between  such  a  gift  and  a  nun- 
cupative will  being,  that,  in  the  former,  a  delivery  of  the  property 
by  the  donor  to  the  donee,  or  to  some  agent  or  trustee  for  him,  is 
indispensable  to  the  validity  of  the  gift ;  while  in  the  latter,  de- 
livery is  not  essential.  Such  a  gift  differs  from  a  gift  infer  vivos. 
in  that  it  is  ambulatory,  incomplete,  and  revocable  during  the 
testator's  life,  and  is  also  liable  for  the  debts  of  the  testator  on  de» 


^~  Co.  Civ.  Proc,  §  27 K),  as  amended        f^s  See   Younfr   v.   Young.    SO    X.   Y. 
1893.  422;  Fowler  v.  Lockwood.  3  Redf.  465. 


§  585.  Administration  of  Estate,  Etc,  472" 

fieiency  of  assets.^^  It  differs  from  a  legacy,  in  that  it  need  not 
be  proved  in  the  Surrogate's  Court ;  and  no  act  or  assent  on  the 
part  of  the  executor  or  administrator  is  necessary  to  perfect  the 
donee's  title.  These  gifts  having  many  of  the  qualities  of  testa- 
mentary donations,  the  same  considerations  of  prudence  and  cau- 
tion which  induced  the  Legislature  to  require  wills  of  personal 
property  to  be  executed  publicly  and  attested  with  great  formality, 
would  seem  to  forbid  these  informal  dispositions  of  property,  in 
expectation  of  death.  The  temptation  to  fraud  and  imposition 
in  regard  to  these  gifts  is  as  powerful  and  as  dangerous  as  in  the 
cases  of  wilh,  and  yet  they  have  been  left  unchecked  and  unregu- 
lated by  statute.  It  is  said,  therefore,  that  the  courts  ought  not 
to  tolerate  them,  unless  they  are  attended  by  all  the  requisites 
which  the  common  law  prescribes,  to  give  them  validity. ^^ 

§  585.  The  subject  of  the  gift. —  Only  personal  property  capa- 
ble of  delivery  is  the  subject  of  a  gift  mortis  causa;  and  it  may 
embrace  all  the  testator's  personal  estate,  however  large  the 
amount  and  value.^^  A  bond  and  mortgage,  stocks,  or  any  other 
chose  in  action,  whether  negotiable  or  not,  may  constitute  the  sub- 
ject-matter of  a  good  gift  mortis  causa,  and  pass  by  delivery  to 
the  donee,  without  any  formal  assignment  by  the  donor. ^^  And 
a  delivery  of  a  formal  written  assignment  of  the  contract,  as  the 
symbol  of  the  delivery  of  the  gift,  may  be  sufficient  to  perfect  the 
gift,  even  without  the  delivery  of  the  contract  or  instrument 
itself.®^     The  delivery  of  a  mortgage  as  a  gift  mo7'tis  causa  is 

59  Curtiss  V.  Barrus,  38  Hun,  165.  and  so  continued  until  his  death. 
See  House  v.  Grant,  4  Lans.  296;  which  occurred  about  five  months 
Hoar  V.  Hoar,  5  Redf.  637 ;  Johnson  thereafter.  Held,  that  this  was  a 
V.  Spies,  5  Hun,  468.  valid    gift    mortis    causa;     that    the 

60  Harris  v.  Clark,  3  N.  Y.  121.  See  equitable  title  to  the  stock  passed  by 
also  Kenney  v.  Public  Adm"r,  2  Bradf .  the  assi^nmeat ;  that  the  defendant 
319;  Champney  v.  Blanchard,  39  N.  "was  trustee  for  the  plaintiff  by  opera- 
Y.   Ill;  Grey  v.  Grey,  47  id.  .5.52.  tion  of  law,  to  make  the  gift  effectual, 

61  Meach  v.  Meach,  24  Vt.  .591 ;  and  that  a  judgment  requiring  him  to 
White  V.  Wager,  32  Barb.  250.  produce    the    certificate    and    cause    a 

62  See  Hackney  v.  Vrooman,  62  Barb,  transfer  of  the  twenty  shares  to  be 
650;  Reed  v.  Reed,  52  N.  Y.  651;  made  to  the  plaintiff  was  proper.  In 
Montgomei-y  v.  Miller,  3  Redf.   154.  another   case    (Westerlo   v.    De    Witt, 

esGrymes  v.  Hone,  49  N.  Y.  17.  In  36  jST.  Y.  340)  the  deceased,  being  con- 
that  case,  the  defendant's  testator  be-  scions  that  her  death  was  near,  re- 
ing  the  owner  of  120  shares  of  bank  quested  B.  to  give  her  a  parcel,  out  of 
stock,  included  in  one  certificate,  made  which  she  took  money  to  pay  some 
an  absolute  assignment,  in  writing,  of  debts,  and  returned  the  rest  of  the 
twenty  shares  to  the  plaintiff.  This  parcel,  including  some  money  and  a 
he  handed  to  his  wife,  to  be  kept  by  certificate  of  deposit,  to  B.,  saying 
her  and  delivered  to  the  plaintiff  upon  that  she  gave  it  to  the  latter  for  her 
his  death.  At  the  time  of  executing  own  use.  The  certificate  was  unin- 
the  assignment,  the  donor  was  about  dorsed.  Held,  that  this  was  sufficient 
eighty  years  of  age,  in  failing  health,  evidence  of   a  gift  of  the   certificate. 


473 


Administration    of   Estate,    Etc.      §§  586,  587. 


treated,  not  as  a  coiui)lete  act  passing  the  property,  but  as  creat- 
ing a  trust  by  operation  of  law,  in  favor  of  the  donee,  which  a 
court  of  equity  will  enforce  in  the  same  manner  as  it  would  the 
right  of  the  donee  to  a  bond.""*  A  delivery  of  the  donor's  promis- 
sory note,  without  other  contract,  by  which  he  undertakes  to  pay 
money,  cither  during  his  life  or  out  of  his  estate  after  his  decease, 
will  not  constitute  a  vklid  gift  mortis  causa;  and  a  draft  unac- 
cepted is  equally  incapable  of  becoming  the  subject  of  such  a  gift.*""'' 
The  delivery  of  h  bank  pass-book,  accompanied  with  a  cheek,  on 
the  saviiigs  bank,  made  payable  four  days  after  the  doj)ositor's 
(loath,  is  not  a  good  gift  causa  mortis.^^  But  delivery  of  a  bank- 
book, indorsed  ''in  case  of  my  death  my  daughter,"  naming  her, 
is  sufficient."^ 

§586.  Requisites  of  ^ft  enumerated. —  To  constitute  a  valid  gift 
in  view  of  death,  it  must  appear:  1.  That  the  gift  was  made  with 
a  view  to  the  donor's  death  from  present  illness  or  from  external 
and  apprehended  peril.  2.  The  donor  must  die  of  that  ailment 
or  peril.  3,  There  must  be  a  delivery  of  the  subject  of  the  gift. 
4.   The  gift  must  be  absolute. 

§  587.  Gift  must  be  in  view  of  death It  is  not  necessarv  that 

the  donor  should  be  in  extremis,  or  that  he  should  die  from  the 
very  disease  in  apprehension  of  which  the  gift  was  made;  it  is  only 
necessarv  that  he  shall  not  recover  from  the  disease  from  which 


iindor  all  the  cirnimstances.  ^Yhere 
decedent  purchased  government  bonds 
and  kept  them  in  a  ho\-  which,  with 
the  key  thereof,  he  intrusted  to  his 
wife,  and  from  time  to  time  collected 
the  interest  and  paid  over  the  same 
to  his  daufihters.  these  facts  were  held 
sufficient  to  sustain  a  gift  of  the 
bonds,  causa  niorfift.  to  the  daughters. 
(Fowler  v.  Lockwood.  3  TJedf.  405.) 
And  see  Corne'l  v.  Cornell  (12  Ilun. 
312),  which  was  a  case  of  donation, 
by  a  decedent,  in  his  old  age  and  last 
illness,  to  his  wife,  without  assign- 
ment, of  railroad  stocks  and  bonds, 
municipal  bonds,  and  bonds  and  mort- 
gages of  individuals.  The  gift  was 
ui)li(dd,  as  one  caufia  mortis.  See 
Shuttleworth  v.  Winter.  .55  N.  Y.  629 ; 
Stevens  v.  Stevens,  3  "Redf.  507;  Conk- 
lin  V.  Coiikliii.  20  Hun.  27S :  Kurtz  v. 
Sniither,  1  T)em.  300 ;  Kirk  v.  McCus- 
ker,  3  :Misc.  277:  22  N.  Y.  Supp.  780: 
Tusch  V.  German  Sav.  Bank,  23  App. 
Div.  279;  48  K  Y.  Supp.  221:  Plas- 
terstein  v.  Hoes.  37  App.  Div.  421 ;  56 
X.  Y.   Supp.   103. 


•14  1  Story's  Eq.  Jur.,  §  607.  A  gift 
of  a  bond  and  mortgage  i)ttcr  viros 
may  be  effected  by  a  simple  delivery 
of  the  security.  (Taber  v.  Willets.  44 
Hun,  346.) 

65  Harris  v.  Clark,  3  X.  Y.  03: 
2  Barb.  94;  Coutant  v.  Schuyler.  1 
Paige,  316.  See  Craig  v.  Craig.  3 
Barb.  Ch.  76:  Wilson  v.  Baptist  Edu- 
cation Society,  10  Barb.  315:  Hunting- 
ton V.  Cilmore.  14  id.  243:  Fulton  v. 
Fulton,  48  id.  581.  Tt  is  well  settled 
that  one  may  remit  a  debt  due  him,, 
by  way  of  a  gift  mortis  ctusa.  by  a 
formal  surrender  of  the  securities, 
with  a  verbal  declaration  of  intention 
to  that  effect.  (  Moore  v.  Darton.  7 
Eng.  Law  &  Eq.  134.)  And  see  Gray 
V.  Barton.  55  X.  Y.  68. 

n'i  Curry  v.  Powers,  70  X.  Y.  212. 
The  delivery  of  the  check  did  not 
traiisftT  the  funds,  nor  did  the  deliv- 
eiy  of  the  jiass-hook:  the  depositor  did 
not  absolutely  part  with  his  control  of 
the  funds.      (lb.) 

RTAekerman  v.  Tlerrick,  71  Hun, 
190;  24  X.  Y.  Supp.  606. 


§  588.  Administration    of   Estate^    Etc.  474 

lie  then  apprehended  death.^^  Whether  the  testator  was  so  seri- 
ously ill  as  to  be  apprehensive  of  death^  so  that  he  was  legally 
acting  "  in  view  of  death,"  must  depend  upon  the  circumstances 
of  each  case.  A  vague  and  general  impression  that  death  may 
occur  from  those  casualties  which  attend  all  human  affairs,  but 
which  are  still  too  remote  and  uncertain  to  be  regarded  as  objects 
of  present  contemplation  and  apprehended  danger,  is  not  sufficient 
to  sustain  a  gift  mortis  causa.^^  Therefore,  the  delivery,  by  one 
about  entering  the  army,  of  a  promissory  note  to  his  brother,  with 
directions  to  give  it  to  his  mother,  if  he  should  not  return  alive,  is 
not  a  valid  gift  to  the  mother.^°  But  a  donor  may  make  a  valid 
gift  causa  mortis  in  the  apprehension  of  death  from  a  surgical 
operation  to  be  performed  in  the  future  to  which  he  intends  volun- 
tarily to  expose  himself.  Death  from  a  surgical  operation,  made 
necessary  by  a  present  disease,  is,  in  a  proper  sense,  death  from 
the  disease,  and  the  gift  may,  in  such  case,  be  upheld  as  made  in 
the  apprehension  of  death  from  the  disease.'^^  The  time  of  the 
death  is  not  material,  except  as  the  fact  bears  upon  the  question 
of  the  testator's  apprehension  of  that  event.  There  is  no  rule 
which  limits  the  time  within  which  the  donor  must  die,  to  make 
the  gift  valid. ^"  Where  it  appears  that  the  gift  was  made  during 
the  testator's  illness,  and  only  a  few  days  or  weeks  before  his 
death,  the  law  presumes  that  the  gift  was  made  in  contemplation 
of  death.'^''^ 

§  588.  Death  of  donor. —  The  death  of  the  donor  is  essential  to 
the  validity  of  the  gift.  If  the  gift  be  made  during  the  donor's 
last  illness,  the  law  infers  the  condition  that  the  donee  is  to  hold 
the  gift,  only  in  case  the  donor  die  of  that  indisposition.  It  is  not 
essential  that  the  donor  should  expressly  declare  that  the  gift  is 


68  Ridden  v.  Thrall,   125  IST.  Y.  572;  cannot   be    sustained   as   a   gift   causa 

35  St.  Rep.  913:  Langworthy  v.  Cris-  mortis     from     the     ancestor     to     the 

sey,  10  Misc.  450;  31  N.  Y.  Supp.  85.  grantee,  for  want  of  delivery,  and  also 

*''■>  Irish    V.    Nutting,    47    Barb.    370,  because   such   a  gift   must  clearly  ap- 

A  gift   made   during   the   donor's  last  pear  to  have  been  made  in  contempla- 

illness,  but  which  she  did  not  expect  tion  of  death.      (Champlin  v.   Seeber, 

would  result  fatallv,  is  not  sufficient.  56  How.  Pr,  46.) 

(Partridge    v.    Kearns,   32    App.    Div.  7i  Ridden  v.  Thrall,  125  N.  Y.  572; 

483;   53  N.  Y.  Supp.   154.)      See  Alsop  3:.  St,  Rep.  913, 

V.    Southold,   etc.,    Bank,   50   St,   Rep,  T2  Gr.^Tnes  v.  Hone.  49  N,  Y,   17. 

672.  T.'i  Merchant   v.    Merchant,   2    Bradf. 

"0  Sheldon   v.    Button,   5    Hun,    110.  432.      And  see  Vandermark  v,  Vander- 

A  voluntary  conveyance,  by  a  parent  mark,  55  How.  Pr,  408 ;  Bliss  v.  Fos- 

to  a  child,  of  land' inherited  from  the  dick,    86    Hun,    162;    33   N,    Y,    Supp. 

grantor's  ancestor,   pursuant  to  a  re-  317:   affd.,   151   N,  Y,  625:   Matter  of 

quest  made  by  the  latter  a  few  days  Swade,    65   App.   Div.    592 ;    72   N.   Y. 

"before  the  commencement  of  the  sick-  Supp.  1030. 
ness  which  terminated  with  his  death, 


475  Administration    of   Estate,    Etc.  §  589. 

to  take  effect  only  on  his  deatli.     Until  death,  the  donor  may  re- 
claim the  gift,  and  his  recovery  makes  the  gift  void.'* 

§  589.  Delivery. —  It  is  also  requisite,  in  order  to  give  effect  to 
the  gift  (if  by  pa.rol),  that  the  donor  should,  at  the  time  of  the 
delivery,  part  with  the  possession  of  the  subject  of  the  gift."^^  The 
<lelivery  of  possession  need  not  be  to  the  donee  personally,  but 
may  be  given  to  a  third  party  for  the  donee's  use.^°  Delivery 
must  be  made  according  to  the  nature  of  the  subject  of  the  gift, 
not  according  to  the  capability  of  the  donor.^'  So  far  as  possible, 
there  must  also  be  an  acceptance  of  the  thing  by  the  donee.  The 
mere  fact  that  it  has  passed  into  the  possession  of  the  donee,  even 
by  the  act  of  the  donor  himself,  is  said  not  to  be  enough.  Thus, 
"where  the  deceased,  in  his  last  illness,  expressed  a  desire  to  his 
daughter  that  she  should  have  his  carriage  and  horses,  but  did  not 
request  her  to  take  possession  of  them,  nor  direct  the  stable-keeper 
to  deliver  them  to  her,  and  it  did  not  appear  that  there  had  been 
any  actual  transfer  or  change  of  possession,  though  they  were 
afterward  used  l)y  her,  it  was  held  not  such  a  delivery  as  was  nec- 
essary to  complete  the  gift.'^^  Where  the  nature  of  the  subject- 
matter  of  the  gift  will  not  admit  of  a  corporal  delivery,  the  de- 
livery of  the  means  of  obtaining  possession,  or  making  use  of  the 
thing  given,  amounts  to  a  delivery  of  the  thing  itself.  Thus,  the 
delivery  of  the  key  of  a  trunk  or  bureau,  by  the  donor,  accom- 
panied by  the  declaration  of  the  donor  that 'he  gave  all  his  prop- 
erty to  the  donee,  is  a  good  delivery  of  the  contents,  though  they 

74  Hayes  v.  Kerr,   19  App.  Div.  91:  want   of   sufficient   delivery.      (Turner 

45  N.  Y.  Supp.   1050.  V.    Brown,    G    Hun,    331.)'      To    same 

"5  Grvmes  v.  Hone,  49  N.  Y.  17:  offeet,  Matter  of  Sonierville.  2  Con- 
Brink  V.  Gould,  43  How.  Pr.  289.  See  noly,  86 ;  20  N.  Y.  Supp.  70. 
Gray  v.  Barton,  55  N.  Y.  68:  Johnson  7*8  Delniotte  v.  Taylor.  1  Redf.  417. 
V.  Spies,  5  Hun,  468;  flatter  of  Ward,  See  Martin  v.  Funic,  75  X.  Y.  134; 
2  Redf.  251;  Hoar  v.  Hoar,  5  id.  037.  Fowler  v.  Lockwood,  3  Redf.  405; 
See   [Montgomery  v.   Miller.   3   id.    155.  ]\Iatter    of    Goss.    71     Hun.    207.       In 

TisGrymes    v.    Hone,    49    X.    Y.    17;  Gescheidt   v.    Drier    (20   X.   Y.    Supp. 

Callanan    v.    Clement,    18    Misc.    021;  11).  the  evidence  tended  to  show  that 

42  X.  Y.  Supp.  514.  deceased  promised  to  give  a  bank  pass- 

""  Accordingly,  where  the  owner  of  book  to  defendant  when  she  died,  but 
articles  of  furniture,  situated  in  rooms  did  not  show  any  completed  gift  be- 
occujjied  by  herself  and  husband,  while  foro  the  day  of  deceased's  death.  On 
lying  in  bed  and  in  cxtmni.t.  called  the  morning  of  that  day.  defendant  got 
the  claimant  to  her.  and.  after  giving  the  book  from  a  place  pointed  out  by 
directicms  as  to  the  disposition  of  cer-  deceased  in  her  wardrobe,  and  after- 
tain  articles,  said,  "  all  the  rest  of  ward  put  it  back  again,  locked  the 
my  things  I  give  to  you.  ♦  »  «  |  wardrolic.  and  i)ut  tlu'  keys  under  de- 
want  you  to  take  all  the  things  and  cedent's  pillow.  The  book  remained 
use  them."  etc..  and  died  the  same  in  the  wardrobe  until  after  the  avmt'a 
<iay.  the  articles  remaining  in  use  in  death.  Held,  no  sufficient  delivery  to 
the   rooms.      Held,   to  be   no   gift,   for  support  a  gift. 


§  590. 


AUMINISTKATIOX     OF     EsTATE,     EtC. 


47ft 


were  not.  removed."^  Tn  regard  to  the  delivery  of  things  in  ac- 
tion, it  is  well  settled  that  all  that  is  necessary  is  a  delivery  of  the- 
contract  or  note  npon  which  the  cause  of  action  is  founded.^*'  A 
gift  of  a  savings-bank  deposit  is  sufficiently  consummated  by  the 
delivery  of  the  pass-book,  and  this,  although  a  rule  of  the  saving!* 
bank  required  an  order  or  power  of  attorney  from  one  seeking: 
to  draw  money  for  a  depositor.*^  The  donor's  retention  of  the 
pass-book  is  not  necessarily  inconsistent  w^th  the  completeness  of 
the  gift,®^  nor  is  mere  possession  by  the  donee  conclusive  of  the 
transfer.**^ 

§  590.  Gift  should  be  absolute. —  In  order  to  make  a  valid  gift 
causa  mortis  there  must  be  a  renunciation  by  the  donor,  and  an 
acquisition  by  the  donee,  of  all  interest  in  and  title  to  the  subject 
of  the  gift.^^  The  rule  is  the  same  as  in  the  case  of  a  gift  inter 
vivos.  One  cannot,  without  a  written  transfer  or  declaration  of 
trust,  make  a  valid  gift,  in  prcesenti,  of  an  instrument  securing 
the  payment  of  money,  reserving  to  himself  the  accruing  interest 
during  life,  unless  there  is  an  absolute  delivery  of  the  security  to 
the  donee,  vesting  the  entire  legal  title  and  possession  in  him.^^ 


'9  Cocper  V.  Burr.  45  B^irb.  9:  Mat- 
ter of  Svvade,  65  App.  Div.  592;  72 
N.  Y.  Supp.  1030;  Allerton  v.  Lang, 
10  Bosw.  362.  In  the  latter  case  the 
deceased,  shortly  before  her  death, 
took  from  her  drawer  a  cloth  pocket 
containing  a  pocket-book,  and  took  out 
the  pocket-book,  and,  after  giving 
away  money  which  she  took  from  it, 
•and  expressinir  her  intentions  as  to  a 
devise  of  real  property,  replaced  the 
pocket-book  in  the  cloth  pocket,  and 
gave  it  to  her  daughter-in-]aw,  saying, 
'•  Here,  I  give  you  this.  I  make  you  a 
present  of  it.  I  have  another,  and 
Avant  you  to  wear  them,  they  are  so 
very  handy."  Held,  that  this  was  a 
valid  gift  to  the  latter  of  stock  be- 
longing to  the  giver,  a  certificate  for 
which,  in  the  giver's  name,  was  then 
contained  in  the  pocket-book.  In  Van- 
dermark  v.  Vandermark  ( 55  How.  Pr. 
408 ) .  the  decedent  during  his  lifetime 
made  a  deposit  in  a  savings  bank,  to 
the  credit,  and  in  the  name  of  the  one 
claiming  as  donee;  and,  being  in  ad- 
vanced age.  about  two  weeks  before 
his  death,  left  with  a  third  person  a 
box  containing  the  bank-book,  saying 
that  he  intended  it  for  the  claimant, 
and  that  no  other  person  must  have  it. 
The  court  upheld  the  transaction  as  a 
valid   gift   causa    mortis,   though    the 


key  to  the  box  was  retained  by  dece- 
dent, and  found  in  his  pocket-book 
after  his  death. 

80  S(ie  Bedell  v.  Clark.  33  X.  Y.  581  ; 
Matter  of  Crosby.  46  St.  Rep.  442. 

81  Ridden  v.  Thrall,  supra :  \Valsh 
v.  Bowery  Sav.  Bank.  28  St.  Rep.  402 : 
7  N.  Y.  Supp.  669.  See  Board  of 
Domestic  ^Missions  v.  Mechanics,  etc.^ 
Bank.  40  App.  Div.  120;  57  N.  Y. 
Supp.   582. 

82  Martin  v.  Fimk.  75  N.  Y.  134. 
See  Sherwood  v.  Mer.  Mut.  Ins.  Co., 
5  Hun,   115. 

S3  See  Podmore  v.  Dime  Sav.  Bank, 
29  Misc.   393;    60  N.  Y.   Supp.   533. 

84Wetmore  v.  Brooks.  44  St.  Rep. 
327;  18  N.  Y.  Supp.  852,  and  case* 
cited. 

85  Young  V.  Young.  80  X.  Y.  422. 
Accordingly,  where  the  owner  of  cou- 
pon bonds  inclosed  them  in  two  envel- 
opes, indorsed  with  memoranda  that 
he  owned  and  reserved  the  interest 
during  life,  but  that,  after  his  death, 
the  securities  belonged  absolutely  and 
entirely  to  his  two  sons,  respectively^ 
with  one  of  whom  he  lived,  and  placed 
and  kept  the  envelopes  in  a  safe  used 
by  him  in  common  with  one  of  the 
sons  and  a  grandson,  and  also  exhib- 
ited the  envelopes  to  the  sons'  wives, 
and  spoke  of  the  contents  as  belong- 


477 


Admixistkatiox    of    Estate,    Etc.      §§  501,  592. 


§  591.  Gift  void  as  against  creditors. —  'I'he  statutory  provision 
to  the  effect  that  persons  who,  in  fraud  of  creditors  and  others, 
liave  received  the  estate  of  a  deceased  person,  are  lialjle  to  the 
representative  of  the  estate  therefor,  aj)plies  to  ^  gift  causa  mor- 
iis.^^'  Ilence,  where  the  alh'ned  gift  was  of  all  the  decedent's 
estate  which,  if  allowed,  would  leave  the  estate  insolvent,  and 
decedent's  creditors  unpaid,  the  gift  is  void.^^ 

Jj  592.  Revocation  of  gifts. —  A  gift  mortis  causa  is  revocable  in 
case  the  donor  recover,  and  this,  notwithstanding  the  gift  was  in 
express  terms  absolute,  and  the  delivery  was  absolute.*"*  It  may 
be  revoked  in  the  donor's  lifetime,  by  his  resumption  of  posses- 


ing  to  the  boys,  hut  cut  off  the  coupons 
as  they  maturod,  and  retained  do- 
minion over  the  bonds,  giving  one  of 
them  to  a  third  person,  before  his 
<leath,  which  occurred  about  a  year 
and  a  lialf  after  tlve  deposit,  it  was 
lield  that,  as  the  memoranda  showed 
the  disposition  intended  not  to  be  of  a 
testatneiitary  character,  the  transac- 
tion could  be  uplield  only  as  an  exe- 
cuted gift,  or  a  declaration  of  trust; 
but  that  the  former  theory  was  un- 
tenable for  want  of  delivery,  and  the 
latter,  because  an  attempt  was  not 
made  to  create  a  trust  but  only  to 
vest  a  remainder  directly  in  the 
donees.  (lb.)  See  a  somewhat  simi- 
lar case.  (Trow  v.  Shannon.  78  N.  Y. 
446.)  And  see,  further,  as  to  a  gift 
of  a  bank  deposit.  Matter  of  Ward, 
2  Redf.  2.)1:  Hoar  v.  Hoar,  5  id.  037; 
Matter  of  Hermes,  1  L.  Bui.  72 ;  Ack- 
■erman  v.  Herriek,  71  Hun,  190;  Cos- 
griff  V.  Hudson  City  Sav.  Inst.,  24 
Misc.  4;  52  N.  Y.  Supp.  189;  Louck 
V.  Johnson,  70  Hun,  .56.');  24  N.  Y. 
Supp.  267 ;  Podmore  v.  South  Brook- 
lyn Sav.  Inst..  4S  App.  Div.  218;  (!2 
N.  Y.  Supp.  961.  For  the  case  of  a 
gift  by  a  husband  of  a  joint  deposit  in 
the  names  of  himself  and  wife,  see 
Wetherow  v.  Lord.  41  App.  Div.  41.3. 
In  pursuance  of  an  antenuptial  prom- 
ise, but  without  other  consideration, 
decedent  transferred  a  mortgage  to  his 
wife,  by  a  written  assignment,  wliich 
provided  that  "the  interest  on  said 
mortgage  and  the  money  thereby  se- 
cured "'  were  to  belong  to  the  assignor 
during  his  lifetime:  and  delivered  to 
her  the  mortgage  and  assignment,  re- 
taining the  bond  in  his  own  posses- 
sion. Upon  her  accounting,  as  execu- 
trix,  the   widow   claimed   title   to  the 


mortgage  as  donee.  Held,  that  the 
transfer  could  only  be  sustained,  if  at 
all,  as  a  gift  inter  vivos;  and  that  it 
was  invalid  as  such,  by  reason  of  the 
interest  retained  in  the  subject  bv  de- 
cedent. I  Matter  of  Wirt.  ,5  Dem.  179.) 
The  owner  of  bonds  caused  them  to  be 
registered  in  the  name  of  the  donee 
witli  intent  to  vest  the  title  in  the 
latter.  Held,  that  he  had  absolutely 
divested  -himself  of  his  dominion  and 
control  over  the  property  and  that 
title  vested  in  the  donee  as  a  gift,  not- 
withstanding the  fact  that  the  donor 
retained  the  actual  custody  of  the 
bonds  and  collected  the  interest  ac- 
cruing on  thera  during  his  lifetime. 
(Matter  of  Townsend.  .5  Dem.  147.) 
So  held,  also,  as  to  moneys  deposited 
in  a  trust  company  in  the  name  and 
to  the  credit  of  the  donee,  whose  sig- 
nature was  delivered  by  the  depositor 
to  the  bank  for  its  guidance  in  paying 
out  the  moneys.      (lb.) 

sii  .Tones  v.  Jones,  41  Hun,  163:  4 
St.  Rep.   141. 

S"  Wetmore  v.  Brooks.  44  St.  Rep. 
327;    18  X.  Y.  Supp.  8.52. 

«8  A  gift  deed  was  executed  by  the 
grantor  when  very  sick  and  under  ap- 
prehension of  death,  and  was  delivered 
to  a  third  person.  Held,  that  this 
was  a  gift  causa  lyiortis,  and  a  sub- 
sequent delivery  of  the  deed  to  the 
grantee  by  grantor's  direction  did  not 
of  itself  convert  the  gift  into  one  infer 
fi'ro.s'.-  and.  therefore,  upon  the  grant- 
or's recoverv  the  deed  became  revoked. 
(Curtiss  v!  Barrus.  38  Hun.  16.5.) 
See  Bliss  v.  Fo.sdick.  86  id.  162;  33 
K.  Y.  Supp.  317;  affd..  151  X.  Y.  625 ; 
Collins  V.  Collins,  11  Misc.  28;  31  N. 
Y.  Supp.  1017. 


§  593,  Administration   of   Estate,    Etc.  478 

sion.  It  is  not  necessary  that  the  donor  should  actually  regain 
the  possession  of  the  subject  of  the  gift;  it  is  sufficient  if  he  re- 
claims it  from  the  donee,  or  from  the  person  to  whom  it  had  been, 
intrusted,  with  intent  to  recall  the  gift.  It  is  not  even  necessary 
that  the  reclamation  should  be  made  with  the  knowledge  of  the 
donee  at  the  time,  and  if  the  donee  subsequently  resume  the  pos- 
session of  the  subject-matter  of  the  gift,  without  the  consent  of 
the  donor,  or  after  his  decease,  and  retain  such  possession,  claim- 
ing it  as  his  property  by  virtue  of  the  gift,  he  may  be  compelled 
to  surrender  it  to  the  personal  representative  of  the  donor,  or,  if 
he  be  himself  such  representative,  to  account  for  it  as  belonging' 
to  the  estate.*^  It  has  been  held  that  any  act,  such  as  the  subse- 
quent birth  of  a  child,  which  operates  to  revoke  a  will,  should 
have  the  same  effect  in  regard  to  a  gift  mortis  causa. ^^  But  the 
bequest  of  all  the  testator's  property  to  another  will  not  operate 
to  revoke  such  a  gift,  since  the  will  only  becomes  operative  at  the 
death  of  the  testator,  when  the  gift  also  becomes  irrevocable.^^ 

§  593.  Evidence  of  gift. —  "Where  the  personal  representative 
sues  to  recover  effects  claimed  by  one  as  a  gift  mortis  causa  from 
the  decedent,  and  the  only  substantial  question  is  the  fact  of  the 
gift,  the  burden  of  establishing  it  is  upon  the  defendant.^^  The 
most  clear,  circumstantial,  and  satisfactory  proof  will  be  required 
to  support  such  a  disposition.^"  It  is  not  necessary  that  the  donee, 
in  order  to  sustain  the  claim,  should  show  affirmatively,  and  witli 
minuteness,  the  circumstances  under  which  the  alleged  gift  was 
made,  nor  is  he  required  to  prove  affirmatively  that  the  donor 

89  Merchant   v.   Merchant.   2    Bradf.  N".    Y.    Siipp.    142:    Remolds   v.    Rev- 

432:   Kirk  v.  McCusker,  3  Misc.  277;  nolds,  20   Misc.   2,54;    4.5   N.  Y.   Supp. 

22  N.  Y.  Supp.  780.  338:    McMath    v.    OX'onnor.    11    App. 

fto  Bl-omer  v.  Bloomer.  2  Bradf.  340.  Div.    627.       It    is    competent    for    the 

91  2  Redf.  on  Wills.   331.     The  pre-  party  seeking  to  establish  it  to  prove^ 

sumption  is  that  a  gift  made  during  in   corroboration,   a    letter   written    at 

a  last  sickness  is  intended  to  take  ef-  about    the    same   time    by   the    alleged 

feet  at  the  donor's  death,  even  though  donor  indicating  an   intention  to  ffive 

not  so  declared  in  express  terms,  and  the   property   to    the   donee.       (Ridden 

if  such  is  the  intent  the  donor  has  a  v.  Thrall,  125  X.  Y.  572:   35  St.  Rep. 

right  to  revoke  it.      (Jennings  v.  Jen-  913.)      In   Farmer   v.   Devlin    (32   St. 

nings.  23  Week.  Dig.  457.)  Rep.   168).  the  only  witness  to  estab- 

92Conklin  v.  Conklin.  20  Hun.  278:  lish   the  gift  was   the  alleged  donee's 

Chalker  v.  Chalker.  5  Redf.  480:  Flood  husband,  and  he  testified  that  he  never 

V.  Cain.  78  Hun.  378:  29  N.  Y.  Supp.  talked  the  matter  over  with  her.  until 

150:  art'd.,  150  X.  Y.  573.  after  the  death  of  the  donor's  admin- 

93Delmotte  v.  Taylor.  1  Redf.  417:  istrator.    and    she    testified,    that    she 

Bedell  v.  Carll.  33  X.  Y.  581 :   Matter  had    never    spoken    about    the    matter 

of  Essex,  20  X.  Y.  Supp.  02 :  Alsop  v.  with   her   husband.      Held,   in  view   of 

Southold  Sav.  Bank,  21  id.  300:  Wet-  the  suspicious  character   of  the  testi- 

more  v.    Brooks,  44   St.  Rep.   327:    18  mony,  a  finding  that  there  was  no  gift 

N.  Y.  Supp.  852.  See  Tilford  v.  Bank  causa  mortis  would  not  be  disturbed. 
for    Savings,    31    App.    Div.    565;    52 


479  AjJMlAItJTKATluN     OF     EsTATK,     EXC.  §  5U4. 

was  of  sound,  disposing  mind  and  memory,  when  he  made  the 
gift,  and  that  the  delivery-  of  the  subject  was  his  free  and  volun- 
tary act.^^  He  establishes  a  prima  facie  ease  when  he  shows  that 
the  disposition  has  been  attended  l»y  all  the  requisites  which  the 
common  law  prescribes,  to  give  it  validity.^^ 

•  TITLE  FIFTH. 

DEALING    WITH    ESTATE 

ARTICLE  FIRST. 

SOURCES    OF    AUTHORITY    AND    MODE    OF    EXERCISE. 

§594.  Exercise  of  power  to  sell,  under  will. —  As  the  powers  of 
a  personal  representative  are  personal  and  cannot  be  delegated,  he 
cannot  empower  an  agent  to  contract  for  the  sale  of  the  trust 
pr()i)erty;  and  a  contract  by  an  agent  is  void,  though  the  principal 
may  render  it  valid  by  ratifying  it,  with  full  knowledge  of  all  the 
facts.  In  ratifying  it,  he  exercises  the  personal  qualities  essential 
to  the  due  execution  of  the  trust. ^'"^  An  executor's  power  to  sell 
must  be  exercised  in  the  mode  prescribed  by  the  will;  and  any 
sale  made  in  contravention  of  the  trust  is  void."^  If  the  will 
directs  a  sale  of  real  estate  by  public  auction,  to  pay  off  legacies 
as  tlicy  become  due,  and  the  executor  sells  at  private  sale,  and 


94  See  ;Matter  of  Hall,  16  Misc.  174;  of  failure  to  clearly  describe  the  prop- 

38  X.  Y.  Supp.  1185.  ertv  or  the  donees  or  tlie  intention  to 

'■T.  Bedell  v.  Carll,  33  N.  Y.  581.     In  make   a   gift,   in   Halstead  v.    Sherrill 

Turner  v.  Brown   (G  Hun,  331'),wliere  (G  St.  Rep.  15). 

the  property  claimed   as  a  gift  causa  9G  Xewton  v.  Bronson,  13  N.  Y'.  587. 

morlis   from    a   married    woman,    con-  A  power  in  two  executors  "  to  sell  all 

sisted   of  articles   of   furniture   in   the  said  real  estate  from  time  to  time,  as 

possession     of    herself    and    husband,  the   same  can  be   sold   to  advantage,"' 

being   in   rooms   occupied  by  them,   it  involves  the  exercise  of  the  discretion. 

was  held  that  the  possession  was  pre-  of  both,  and  the  power  cannot  be  ex- 

sumptively  that  of  the   husband;    but  ereised   by   one   alone,   nor   can   it   be 

that    such"    presumption    might    be    re-  delegated  to  an  agent;   and  its  execu- 

butted    by    proof   of   conversations   be-  tion  by  an  agent  cannot  be  ratified  by 

tween    tliem.    in    which    the    husband  parol.       (\Vhitlock    v.     Washburn.    (V2 

admitted    that   the    property    belonged  Hun.  300:    43  St.   Rej).  4.)      The  will, 

to  his  wife,  and  that  he  stood  silently  giving  explicit   directions  to  the  exec- 

by    when    she    asserted    title    thereto,  utors     concerning     the     entire    estate. 

As   to   the  competency  of  evidence  of  with    a    power    to    sell,    requires    no 

declarations   of   the   decedent,   to    sup-  specilic    use    of    tlie    word    "  trustees,'' 

])ort  the  claim  of  such  gifts,  in  view  nor  a   specific  devise  of  the   i)roperty 

of  the  restrictions  of  tlie  Code  of  Civil  to    them,    the    purposes    of    the    trust 

Procedure   (§  820),  see  Trow  v.  Shan-  being  sufliciently  declared   to  validate 

non.  S  Daly.  230;  Montgomery  v.  Mil-  it.     (Wright  v.  Mercein.  34  Misc.  414; 

ler,  3  Redf!^  154.     Language  claimed  to  <!0  X.  Y.  Supp.  03(1.) 

establish  a  gift  causa  mortis  was  held  97  L.   189G,  c.  547.  §  85. 
insufficient  for  that  purpose,  by  reason 


S  594. 


Administration   of   Estate,    Etc. 


480 


before  the  legacies  become  due,  the  sale  is  void.''''*  And  so,  in  a 
conveyance  under  a  power  in  a  will,  the  forms  prescribed  by  the 
power  must  be  followed.'"^'*'  So  long  as  the  executor  keeps  within 
the  limits  of  his  power,  he  may  bind  the  estate  by  an  executory 
contract  of  sale,  but  the  moment  he  steps  outside  of  the  same,  his 
promises  are  void  and  cannot  be  enforced  against  the  estate.^ 
Thus  a  naked  power  to  sell  does  not  authorize  an  executor  to  con- 
tract to  convey  with  covenants  of  warranty.^  Under  an  ordinary 
power  of  sale,  the  executors  are  not  authorized  to  sell  the  real 
estate  for  the  purpose  of  forming  a  mining  corporation,  receiving 
stock  of  the  corporation  in  payment.^  An  executor's  authority 
to  sell  real  estate  is  derived  from  the  will  either  when  it  gives  him 
a  power  in  trust  to  sell  and  apply  the  proceeds  for  certain  specific 
objects,  or  when  it  contains  a  general  power  and  direction  to  sell, 


08  Pendleton  v.  Fay,  2  Paige,  202. 
See  McDermut  v.  LoiiUard.  1  Edw. 
Ch.  273.  The  statute  prescribes  that 
sales  of  real  estate,  made  by  executors 
in  pursuance  of  an  authority  given  by 
\vill,  unless  otherwise  directed  in  the 
wi  1,  may  be  public  or  private,  and  on 
such,  terms  as,  in  the  opinion  of  the 
€xecutor,  will  be  most  advantageous 
to  those  interested  therein.  (L.  1883, 
c.  65,  §  1.)  The  act  confirms  and  de- 
■clares  valid  in  every  respect,  sales 
made  since  September  1.  1880:  but  the 
act  does  not  affect  any  pending  suit 
to  set  aside  any  private  sale  by  exec- 
utors made  since  that  date.     (Id.,  §  2.) 

c9See  Waldron  v.  McComb.  1  Hill, 
111,  115.  But  where  the  grantor  of  a 
power  has  directed  any  formality  to 
be  observed  in  its  execution,  in  addi- 
tion to  those  which  would  be  sufficient 
ty  law  to  pass  the  estate,  the  observ- 
ance of  such  additional  formality  is 
not  necessary  to  the  valid  execution 
of  the  power.  (L.  1896,  c.  547,  §  150; 
1  R.  S.  736,  §  119.)  So,  too,  where 
the  conditions  annexed  to  a  power  are 
merely  nominal,  and  e^'^nce  no  inten- 
tion of  actual  benefit  to  the  party  to 
whom,  or  in  whose  favor,  they  are  to 
be  performed,  they  may  be  wholly  dis- 
regarded in  the  execution  of  the  power. 
(L.  1896,  c.  547,  §  151 ;  1  R.  S.  736, 
§   120.) 

iln  Bostwick  v.  Beach  (31  Hun, 
343),  the  power  was  "to  rent,  sell,  or 
convey  my  real  estate,"  etc.  Held, 
that  though  the  executor  might  con- 
tract for  the  sale  of  the  testator's  in- 
terest in  land  as  of  the  time  of  his 
death,  he  could  not  bind  the  estate  by 


covenants  in  a  contract  of  sale  to  buy 
oflF  the  widow's  dower  right,  and  pay 
ofT  mortgage  incumbrances  which  the 
testator  was  not  personally  liable  to 
pay.  The  failure  of  an  executor  who 
has  contracted  to  sell  land  of  the 
estate,  to  disclose  the  fact  that  his 
authority  to  sell  is  in  litigation,  is 
his  per.sonal  act  and  justifies  render- 
ing a  judgment  against  him  personally 
for  the  return  of  the  purchase  money 
paid.  (Warren  v.  Banning,  50  St. 
Rep.  810;   21   N.  Y.  Supp.  883.) 

2  Ramsey  v.  Wandell,  32  Hun,  482. 
Trustees  under  an  active  trust  may 
grant  an  easement  over  lands  belong- 
ing to  the  estate.  (Valentine  v. 
Schreiber,  3  App.  Div.  235.) 

3  Adair  v.  Brimmer,  74  N.  Y.  539. 
The  fact  that  the  testator,  in  his  life- 
time, was  willing  to  make  such  a  dis- 
position of  the  lands  does  not  enlarge 
the  powers  of  the  executors ;  it  is  only 
material  as  bearing  upon  the  question 
of  their  good  faith  in  the  transaction, 
(lb.)  In  Boskowitz  v.  Held  (15  App. 
Div.  306:  44  N.  Y.  Supp.  136; 
aflfd.,  153  N.  Y.  666),  real  estate 
was  devised  to  executors  in  trust 
for  testator's  daughter  for  life,  with 
a  general  power  to  lease,  sell,  and 
mortgage  and  convert  into  personalty, 
and  to  make  advances  to  the  life  ten- 
ant,—  Held,  that  the  executors  had  no 
power  to  give  a  mortgage  to  secure 
notes  made  by  a  corporation,  though 
the  estate  and  the  life  tenant  were  in- 
terested in  the  corporation,  the  pro- 
ceeds of  the  note  not  going  to  the 
estate  nor  to  the  life  tenant. 


481 


Administration   of  Estate,   Etc. 


§  504. 


for  the  purposes  of  the  administration  of  the  estate  generally.* 
Probate  and  letters  testamentary  are  necessary  to  give  him  author- 
ity to  sell  under  a  general  direction  in  the  will."'"'  Jf  the  will  gives 
the  executors  no  authority  to  sell,  they  cannot  sell  any  portion  of 
the  real  estate  for  the  purposes  of  division  or  otherwise.''  If  they 
are  merely  directed  to  sell  real  estate,  "  as  they  shall  deem  expedi- 
ent, and  for  the  best  interests  "  of  certain  legatees  named,  they 
have  a  power  in  trust,  without  an  interest.  Such  a  ])OAver  is  not 
well  executed  by  the  delivery  of  a  deed  upon  the  consideration  of 
a  j)urchase-money  mortgage  for  the  full  amount,^  nor  by  a  con- 
veyance to  one  of  the  legatees  of  a  portion  of  the  real  estate  of 
the  testator,  in  payment  of  a  debt  due  from  the  testator  to  the 
legatee,  except  upon  an  order  of  the  surrogate,  on  application  to 
sell,  to  pay  debts,  after  the  personal  estate  is  exhausted.®     The 


4  An  authority  to  let  land,  "  and 
after  the  decease  of  my  wife  to  sell 
«ai(l  land  on  such  terms  as  may  seem 
rifjht,"  justifies  the  executors  in  re- 
taiuiiirr  ((//  the  real  estate  until  ;ifter 
the  widow's  death,  even  thnufijh  it  re- 
stricts a  previous  clause  in  the  will 
authorizing  a  division  of  the  residue 
of  the  estate.  (Ilancox  v.  Meeker,  95 
K  Y.  528.)  See  Hancox  v.  Wall,  28 
Hun,  214.  A  power  of  sale  may  be 
implied  in  executors  where  it  appears 
that  it  was  the  testator's  intention  to 
make  a  complete  distribution  of  his 
property.  (Messenger  v.  Casey,  18 
Week.  Dig.  71.)  See  Murdock  v. 
Kelly,  62  App.  Div.  502;  71  N.  Y. 
Supp.  152;  Cahill  v.  Russe'l,  140  N. 
Y.  402 ;  Corse  v.  Chapman,  153  id. 
400;  Meehan  v.  Brennan,  10  App.  Div. 
t?95.  Where  executors  are  empowered 
to  lease  and  mortgage,  in  addition  to 
their  powers  to  sell,  and  reinvest  as 
thcv  may  see  fit,  they  are  to  be  re- 
garded as  trustees  and  hold  the  legal 
title  until  the  final  division  of  the 
estate.  (Wetmore  v.  Peck,  00  llow. 
Pr.  54.)  See  IMacy  v.  Sawyer,  id.  381 ; 
Danziger  v.  Deline,  25  Misc.  035.  But 
where  no  power  to  mortgage  is  given, 
the  executor  cannot  create  one  by  a 
transaction  which  is  a  mere  evasion 
■of  the  provisions  of  the  will.  (Arnoux 
V.  Phvfe,  0  App.  Div.  005;  Griswold 
v.  Caldwell.  05  id.  371.) 

•'■'2  B.  S.  71.  §  10.  See  Conover  v. 
ITofTman,  1  Bosw.  214;  ShiflTer  v. 
Dietz,  53  How.  Pr.  372.  As  to  whether 
an  executor,  who  is  also  a  donee  of  a 
power  of  sale,  may  execute  the  power 
before  probate,  see  Bolton  v.  Jacks,  6 

31 


Robt.  100,  and  §  531.  note  1.  ante. 
An  executor  appointed  here  may, 
where  the  power  to  do  so  is  contained 
in  the  will,  convey  land  situated  in 
another  State.  In  so  conveying,  he 
acts  as  the  devisee  of  a  power,  not 
under  an  authority  conferred  by  the 
surrogate  (Newton  v.  Bronson.  13  X. 
Y.  587)  ;  but  sales  of  lands  in  another 
State  must  be  governed  by  the  law  ct 
such  State.  (Hawley  v.  James.  5 
Paige,  318,  470.)  Power  of  sale,  given 
by  a  foreign  will,  is  independent  of  the 
issue  of  letters  here.  (Pollock  v. 
Hooley,  67  Hun,  370;  22  N.  Y.  Supp. 
215.)  An  unlimited  power  of  sale  not 
connected  with  any  trusts  attempted 
to  be  created  may  be  executed,  tliougii 
such  trusts  are  void,  and  even  for  the 
purp:<se  of  distribution,  to  avoid  the 
expense  of  partition.  (Lindo  v.  Mur- 
ray, 91  Hun,  335;  70  St.  Rep.  805.) 
See  Taber  v.  Willetts,  1  App.  Div. 
285;  37  N.  Y.  Supp.  233;  McCready 
V.  Metropolitan  Life  Ins.  Co..  83  Hun, 
520;  32  N.  Y.  Supp.  489;  afl'd.,  148  X. 
Y.  701. 

c  Craig  v.  Craig.  3  Barb.  Ch.  76. 
See  O'Donoghue  v.  Boies.  92  Hun.  3 ; 
37  N.  Y.  Supp.  901;  alYd..  159  X.  Y. 
87. 

TWinslow  V.  Miller,  10  App.  Div. 
400;  41  X.  Y.  Supp.  1073. 

8  Russell  v.  Russell.  30  X.  Y.  5S1. 
Compare  Hurrell  v.  Hurrell.  05  App. 
Div.  527  ;  Kinnier  v.  Rogers.  42  X*.  Y. 
531  ;  Benedict  v.  Ariioux.  7  App.  Div. 
1  ;  39  X.  Y.  Supp.  793;  revd..  on  other 
points.  154  X.  Y.  715.  See  Stokes  v. 
Hyde.  14  App.  Div.  530.  As  to  the 
joint   authority   of   several    executors, 


§§  595,  596.     Administratiox   of   Estate,   Etc.  482 

statute  provides  that  where  the  consent  of  two  or  more  persons 
to  the  execution  of  a  power  is  requisite,  all  must  consent;  but  if, 
before  its  execution,  one  or  more  of  them  die,  the  consent  of  the 
survivor  or  survivors  is  sufficient,  unless  otherwise  prescribed  br 
the  terms  of  the  power.^ 

§  595.  Administrator's  want  of  power  over  realty Until  there 

is  a  deficiency  of  personal  assets  to  pay  the  debts  of  the  intestate, 
an  administrator  has  no  control  of  his  intestate's  real  estate,  or 
its  proceeds. ■'^  Hence,  a  contract  of  an  administrator  to  convey 
the  lands  of  his  intestate,  on  obtaining  the  authorization  of  the 
Surrogate's  Court,  is  void  and  vests  no  interest,  though  an  order 
of  the  surrogate  authorizing  a  sale  be  afterward  obtained  ;^^  and 
so,  a  bond  given,  by  an  administrator  to  convey  his  intestate's  real 
estate,  in  contemplation  of  an  order  of  sale  by  the  surrogate,  is 
void.-'^  The  statute  requires  the  heir  to  satisfy  the  mortgage  of 
his  ancestor  without  resorting  to  the  administrator.^^ 

§  596.  Discretion  as  to  time  of  sale. —  As  to  the  time  of  sale, 
where  the  executors  are  directed,  by  the  will,  to  convert  the  residu- 
ary estate  into  money,  they  are  clothed  with  a  reasonable  discre- 
tion as  to  the  proper  time  for  the  sale,  which  they  are  bound,  how- 
ever, to  exercise  in  good  faith;  but  the  reasonableness  of  any 
delav  must  be  determined  by  the   circumstances  of  each  case.^"* 


see  ante,  §  524.     As  to  powers  of  sur-  Johnson  v.  Corbett,   11   id.  265;   HilK 

A-iving  executor,  etc.,  see  ante,   §  526.  man  v.  Stephens,  16  N.  Y.  278. 

An    executor    who    makes    a   collusive  13  L.    1896,   c.   547,   §   215;    1   R.   S.. 

sale  under  a  power  may  be  surcharged  749,   §  4.     In  Estate  of  Dooley    (3  L. 

with    the   difference   between   what   he  Bui.  18),  an  application  to  the  surro- 

received   and  the   actual  value   of  the  gate  to  compel  a  special  administrator 

land.      (Matter  of  Vandevort,  8  App.  to  pay  or  purchase  a  mortgage  which 

Div.   341:    40  N.  Y.   Supp.   791.)      Or  was    in    process    of    foreclosure,    as    a 

the  beneficiary  may  treat  the   sale  as  lien   upon    the    decedent's    real     estate 

lawful  and  recover  of  the  executor  his  was  denied:    Surrogate  Calvin  saying, 

share  of  the  purchase  money.      (Ferris  "The  functions  of  a   special   adminis- 

A-.  Nelson.  60  App.  Div.  430;  69  N.  Y.  trator   are   only   to   preserve   and   pro- 

Supp.  999.)  tect   the   personal    estate,   and   he   has 

9  L.  1896,  c.  547,  §  154  (taking  no  control  over  decedent's  realty,  nor 
effect  Oct.  1,  1896).  This  statute  is  can  the  surrogate  enlarge  his  powers, 
not  retroactive.  Prior  to  its  going  Besides,  an  administrator  has  no  right 
into  effect  the  rule  established  was  to  use  personal  assets  to  pay  a  mort- 
otherwise.  See  Gulick  v.  Griswold,  gage  upon  decedent's  real  estate,  for 
160  X.  Y.  399:  Correll  v.  Lauterbach.  such  real  estate  constitutes  the  pri- 
12  App.  Div.  531:  affd.,  159  X.  Y.  mary  means  or  source  of  pa\Tnent, 
553;  Suarez  v.  De  Montigny,  1  App.  and  the  heir  or  devisee  must  satisfy 
Div.  494:  affd.,  153  N.  Y.  678.  it."     Compare  Matter  of  Rolph,  29  St. 

10  See  §  530,  ante.  Rep.  64;   9  N.  Y.  Supp.  293. 

11  Bridgewater  v.  Brookfield,  3  Cow.  14  Matter  of  Fargo,  20  Misc.  137 : 
299.  45   X.  Y.   Supp.    732;    Matter  of  Hos- 

iSHerrick   v.    Grow.    5    Wend.    580;  ford.    27    App.    Div.    427:     .50    X.    Y. 

S.  P..  Breevort   v.   McJimsey,   1   Edw.  Supp.  550:    Champlin  v.  Champlin,   3 

551:    Halsey  v.    Reed,   9    Paige,   446;  Edw.  Ch.  571;   Selden  v.  Vermilyea,  1 


4S3 


Administration   of   Estate,    Etc. 


§  507. 


Where  tliej  forbear  to  sell,  in  the  exercise  of  an  honest  judgment, 
and  loss  results  to  the  estate,  they  are  not  liable  for  this  error  of 
judgment.^''  There  is  no  rigid  or  arbitrary  standard  by  which  to 
measure  the  "'  reasonable  time  "  within  which  an  executor,  di- 
rected to  convert  an  estate  into  money,  may  exercise  his  discre- 
tion, and  beyond  which  he  may  not  delay  in  complying  with  that 
direction;  what  is  a  reasonable  time  must  depend  upon  the  cir- 
cumstances of  each  particular  case.  It  seems,  that  when  no  special 
iiKjdifying  facts  are  shoAvn  to  shorten  or  lengthen  the  reasonable 
time,  the  period  allowed  before  the  executor  can  be  compelled  to 
account,  may  serve  as  a  just  standard.^^ 

§  597.  Application  of  proceeds  of  sale  under  a  power —  "Where  the 
will  directs  a  particular  application  of  the  proceeds  of  lands  sold 
under  a  power,  the  executor  is  bound  so  to  apply  them.  Thus 
the  proceeds  of  a  sale  of  lands  under  a  power  "  to  sell  all  or  any 
of  my  real  estate  to  pay  my  debts  and  settle  up  my  estate"  (the 
lands  being  devised  beneficially),  can  be  applied  only  to  the  pay- 
ment of  debts,  as  to  which,  but  for  the  will,  the  personal  estate 


Barb.  58;  Campbell  v.  Purdy,  5  Redf. 
434;  Wilcox  v.  Quimby,  47  St.  Rep. 
423 ;  Matter  of  Prentice,  25  App.  Div. 
209;  49  N.  Y.  Supp.  353;  atfd., 
I(i0  N.  Y.  568.  As  to  what  words 
in  a  will  confer  a  discretion  as  to 
time  of  sale,  see  Hancox  v.  Meeker, 
()2  How.  Pr.  336;  Carpenter  v.  Bon- 
ner, 26  App.  Div.  462;  50  X.  Y.  Supp. 
298;  Matter  of  Ryder,  41  App.  Div. 
247;  58  N.  Y.  Supp.  635.  Where  an 
absolute  power  of  sale  is  conferred, 
the  addition  of  words  suggesting  a 
time  for  its  exercise  does  not  limit 
tlie  action  of  the  executor.  (Chanler 
V.  N.  Y.  Elevated  R.  R.  Co.,  34  App. 
Div.  305:  54  N.  Y.  Supp.  341.)  The 
court  will  not  ordinarily  compel  a 
sale,  the  time  of  which  is  discretion- 
arv  with  the  executors.  (Trask  v. 
Sturges,  31  Misc.  195;  56  App.  Div. 
625:    l(i7  X.  Y.  575.) 

i5:Matter  of  Hosford,  27  App.  Div. 
427:   50  X.  Y.  Supp.   550. 

lii  Estate  of  Weston.  91  X.  Y.  502; 
afTg.  Weston  v.  Ward.  4  Redf.  415. 
Compare  Matter  of  Grav,  27  Hun, 
455:  Hancox  v.  Wall,  28  id.  214; 
Gillespie  v.  Brooks,  2  Redf.  355 :  Lock- 
hart  V.  Public  Adm'r,  4  Rradf.  21. 
In  ]\Iatter  of  Quin  (1  Connoly,  382). 
the  testator  devised  three  parcels  of 


real  estate,  two  of  which  were  incum- 
bered, in  trust,  to  his  three  children 
respectively,  and  it  appeared  from 
the  will  that  he  wished  to  equalize 
these  devises  by  giving  the  executors 
authority  to  sell  certain  other  specific 
real  estate,  and  he  directed  them  to 
pay  off  the  incimibrances  on  the  two 
parcels  already  mentioned.  Held,  that 
the  executors  were  bound  to  sell  the 
specified  parcels  of  real  estate  to  raise 
the  necessary  funds  as  soon  as  they 
possibly  could  without  sacrificing 
them,  and  where  they  have  refused  a 
reasonable  offer  at  auction  therefor, 
the  pajTiients  of  interest  accruing  on 
the  mortgages  on  the' two  incumbered 
l)arcels,  since  the  date  of  tlio  auction, 
should  be  disallowed  them.  Interest 
on  the  mortgages  accruing  prior  to  the 
time  of  the  auction  should  be  charged 
to  the  general  estate.  Where  the 
residuary  estate  is  to  be  converted 
into  money,  and  annuities  paid  out  of 
the  income;  and  after  the  death  of 
the  widow,  the  executors  are  to  make 
distribution,  a  power  of  sale  being 
given  by  a  subsequent  clause,  such 
power  may  be  exercised  after  the  death 
of  the  widow.  I  Matter  of  Prentice, 
25  App.  Div.  209;  49  X.  Y.  Supp. 
353;  affd.,  160  X.  Y.  568. 


§  598.  Administration   of   Estate,    Etc.  484 

■would  have  been  the  primary  finid.^'  So,  although,  under  a  gen- 
eral power  of  sale,  an  executor  may  compound  with  any  person 
having  an  interest  in  the  real  estate,  he  cannot  apply  the  proceeds 
of  sale  to  the  payment  of  the  widow's  dower  right,  before  or  with- 
out admeasurement.^^  But  where  a  will  empowers  the  executors 
to  sell  the  real  estate  when  in  their  judgment  they  deem  it  for  the 
best  interests  of  the  estate,  they  are  entitled  to  reimburse  them- 
selves from  the  proceeds  of  such  sale  for  debts  paid  by  them  in 
excess  of  the  personal  estate,  irrespective  of  whether  the  power 
w^as  given  for  the  purpose  of  paying  debts.^^  The  executor  may, 
tliough  it  was  formerly  held  that  he  was  not  required  so  to  do,^*^ 
bring  the  proceeds  of  real  estate,  under  a  power  in  the  will,  into 
the  Surrogate's  Court  wdiere  the  will  was  proved,  which  court  has 
authority  to  make  distribution.^^  Otherwise,  the  executor  is  ac- 
countable for  the  proceeds  as  a  part  of  the  personal  estate." 

§  598.  Sales  of  personal  property. —  The  statute  provides,  that  if 
any  executor  or  administrator  shall  discover  that  tlie  debts  against 
any  deceased  person,  and  the  legacies  bequeathed  by  him,  cannot 
be  paid  and  satisfied  without  a  sale  of  the  personal  property  of  the 
deceased,  the  same,  so  far  as  may  be  necessary  for  the  payment  of 
fueh  debts  and  legacies,  shall  be  sold.^'^  But  the  right  of  an 
executor  or  administrator  to  sell  personal  assets  is  not  limited  by 
this  statute  to  a  case  of  necessity  for  the  payment  of  debts;  and  to 
sustain  such  a  sale  made  by  an  executor  or  administrator,  it  is 
not  essential  to  show  the  necessity  of  the  sale,  in  order  to  pay 
debts. ^^     The  sale  of  personal  property  for  debts  or  legacies  may 

17  Van  Vechten  v.  Keator,  63  N.  Y.  22  See  Stagg  v.  Jackson,  1  N.  Y.  206. 
52:  Erwin  v.  Loper,  43  id.  521.  In  23  Co.  Civ.  Proc,  §  2717.  as  amended 
Hopkins  v.  Gourand  (23  N.  Y.  Supp.  1893,  adopting  2  K.  S.  87.  §  25.  See 
189),  the  will  directed  that  the  pro-  Matter  of  Fidelity  Loan.  etc..  Co..  23 
ceeds  of  a  certain  mortgage  owned  by  Misc.  211;  51  N.  Y.  Supp.  1124. 
testatrix  should  be  used  to  pay  an  24  Sherman  v.  Willett.  42  X.  Y.  146 ; 
exi>;ting  mortgage  against  the  estate.  Leitch  v.  Wells,  48  id.  585.  A  legatee 
Before  her  death,  the  mortgage  was  who  is  entitled  under  the  will  to  the 
paid  to  her,  and  she  invested  the  pro-  use  and  enjoyment  of  personal  prop- 
ceeds  in  certain  railroad  bonds.  Held,  erty  is  not  liable  to  the  executor  for 
that,  as  the  bonds  were  traceable  to  retaining  possession  thereof,  for  her 
the  immediate  proceeds  of  the  mort-  personal  benefit,  where  it  was  not 
gage,  they  were  proceeds  thereof,  shown  that  it  was  needed  for  the  pay- 
within  the  meaning  of  the  will.  ment  of  debts,  for  which  purpose  the 

18  Kyle  V.  Kyle.  3  Hun.  458.  Com-  will  limited  the  executor's  power  of 
pare  Eagle  v.  Emmet.  4  Bradf.  117;  sale  in  respect  to  it.  (Champion  v. 
3  Abb.  Pr.  218;  Matter  of  Smith,  1  Williams.  .36  St.  Rep.  706:  12  N.  Y. 
Misc.  269;  22  N.  Y.  Supp.  1067.  Supp.  697.)     If  an  expense  is  involved 

19  Matter  of  Bolton,  146  N.  Y.  257 ;  in  keeping  the  property,  it  becomes 
66  St.  Rep.  630.  the  duty  of  the  executor  to  dispose  of 

20  Holmes  v.  Cock,  2  Barb.  Ch.  426.  it.      (Matter  of  Spears,  10  Misc.  635; 

21  See  §§  530,  531,  ante.  aflfd..  89  Hun.  49.) 


485  Administration   of   Estate,    Etc.  §  599. 

he  public  or  private,  and,  oxcoj)t  in  ilie  city  of  Xew  York,  may 
be  on  credit,  not  exceeding  one  year,  with  approved  security.^' 
The  executor  or  adniini.-trator  is  not  responsible  for  any  loss  hap- 
])ening  by  such  sale,  when  made  in  good  faith,  and  Avith  ordinary 
prudence.^*^  Tn  making  such  sales,  such  articles  as  are  not  neces- 
sary for  the  support  and  subsistence  of  the  family  of  the  deceased, 
or  as  are  not  specifically  bequeathed,  must  be  first  sold;  and  articles 
so  becpieathed  must  not  be  sold  until  the  residue  of  the  personal 
estate  has  been  applied  to  the  payment  of  debts.""  If  a  purchaser, 
at  the  sale,  have  knowledge  of  the  representative's  misappropria- 
tion of  the  assets,  he  cannot  acquire  title,  but,  in  the  absence  of 
fraud  and  collusion,  the  bare  act  of  the  sale  is  a  sufiicient  indemnitv 
to  the  purchaser.^®     The  sale  should  be  for  cash  or  its  equivalent.^^ 

§  599.  Sale  of  stale  or  doubtful  claims. —  The  statute  authorizes 
the  surrogate,  on  good  and  sufficient  cause  shown,  to  authorize  the 
executor  or  administrator  to  sell  at  public  auction,  on  such  notice 
of  sale  as  he  may  prescribe,  any  uncollectible,  stale,  or  doubtful 
debt  or  claim  belonging  to  the  estate. ^° 

2.'»  Co.  Civ.  Proc,  §  2717,  as  amended  city  was  sold  at  publio   auction  upon 

1893.     In  other  oases  the  executor  has  due  notice,  and  it  appears  that  there 

no   riglit    to   sell   on   credit.      (Matter  was  an  adequate  attendance  and  that 

of  Woodbury,  13  Misc.  474;   35  N.  Y.  the  sale  was  fairly  conducted,  and  that 

Supp.  485.)      The  "  approved  security  "  much  of  the  machinery  was   old   and 

which  an  executor  is  required  to  take  was    located    in    a    place    from    which 

on  a  sale  on  credit  consists  solely  of  transportation     was     difficult. —  Held, 

national   and    State   bonds   or   real   e?^-  that     the     executors     should     not     be 

tate  mortgages,  and  must  be  approved  charged   with   more  than   the   amount 

by  the  surrogate  before  its  acceptance,  which    it    brought    at    such    sale,    al- 

(Ib. )                                              ■  though   it   had   been    inventoried   at   a 

2"  Co.  Civ.  Proc,  §  2717,  as  amended  much  greater  sum.    (Matter  of  Bolton, 

1893.      Tn   Matter   of   Beach    (1    Misc.  141  X.  Y.  554.)      See  Matter  of  .Tohn- 

27;   22   N.  Y.   Supp.    1079),  the  exec-  ston,   74   Hun,   618;    20    N.   Y.    Supp. 

utor  sold,  on  credit,  personal  property  9(i(i ;   aflfd.,  144  X.  Y.  563. 

of  the  estate  to  an  irresponsible  party,  27  Co.  Civ.  Proc,  §  2717,  as  amended 

who  was   indebted   to   him   personally,  1803. 

and  who  failed  to  furnisli  security  as  28  See  Sutherland  v.  Brush.  7  Johns, 

required  bj^  the  terms  of  the  sale;  the  Ch.    17:   Colt  v.  Lasnier,  9  Cow.   320; 

executor  took  a  mortgage  back  on  such  Bogert  v.  Hertell,  4  Hill,  492 ;   Leitch 

property  to  secure  his  own  debt,  and  v.  Wells.  48  X.  Y.  585.     See  Benedict 

allowed  the  purchaser  to  retain  it  for  v.   Arnoux,   154   id.   715:    iLihaney   v. 

some    time;    his   mortgage    was    after-  Walsh,    16    App.    Div.    601:    44   N.   Y. 

ward  released,  and  the  property  taken  Supp.  960.     See  §§  522,  523.  ante. 

back  and  resold  by  the  executor  at  a  29  Powers    v.    Powers,   48    How.    Pr. 

loss.      Held,    that   the   executor    must  389. 

account    for    the   amount   of   the    first  'J"' Co.  Civ.  Proc,  §  2719,  as  amended 

sale.      Where   machinery   in    property  1893. 
of  the  estate  which  was  taken  by  the 


§§  600-602.      Administration  of  Estate,  Etc.  486 


AKTICLE  SECOXD. 

CARE  AND  CUSTODY  OF  ESTATE  PENDING  ADMINISTRATION,  AND  LIA- 
BILITIES   INCURRED    THEREIN. 

§  600.  Who  entitled  to  physical  custody  of  assets. —  On  the  suppo- 
sition that  the  representative  has  got  in  the  estate,  we  now  come 
to  consider  his  dntv  and  liabilities  in  respect  to  its  safe-keeping, 
investment,  and  the  general  management  of  its  affairs,  pending 
the  administration,  until  the  debts  are  paid,  and  the  surplus  is 
distributed  among  the  legatees  or  next  of  kin,  as  the  case  may  be. 

We  have  pointed  out  that  the  estate  of  two  or  more  executors 
or  administrators  is  a  joint  tenancy;  they  are  to  be  considered 
as  one  person,  and  as  having  but  one  joint  and  entire  estate  in 
the  property.  Consequently,  as  a  general  rule,  the  acts  of  any 
one  of  two  or  more  executors  or  administrators  relating  to  the 
management  and  disposition  of  the  assets  are  to  be  deemed  the 
acts  of  all.^^  Neither  one,  as  against  the  other,  has  any  right 
to  claim  the  right  to  the  sole  and  exclusive  custody  of  the  assets. 

§  601.  Where  trustee  is  a  beneficiary. —  There  is  an  exception  to 
this  rule,  in  a  case  where  one  of  several  trustees  is  a  beneficiary 
of  a  trust  created  by  the  will,  with  remainder  over.  Such  a  bene- 
ficiary cannot  act  both  as  trustee  and  cestui  que  trust,  and  tluj 
other  trustees  must  take  the  exclusive  control  and  management.^^ 
The  statute  provides,  however,  that  a  person  beneficially  inter- 
ested in  the  whole  or  a  part  of  the  income  of  a  trust  estate  for  a 
life  or  lives,  or  a  shorter  term,  and,  at  the  same  time,  is  entitled, 
on  the  termination  of  the  trust,  to  the  remainder,  in  the  whole 
or  any  part,  of  the  principal  fund,  may  terminate  the  trust,  as 
to  his  interest,  by  a  release  of  such  interest  in  the  income;  and 
thereupon  the  estate  of  the  trustee  or  trustees,  as  to  the  Avliole 
or  such  portion  of  the  principal  fund,  will  cease  and  determine, — 
the  trust  estate,  so  far  as  it  affects  the  whole  or  such  portion  of 
the  income  and  principal  fund,  becoming  merged  in  the  remainder 
or  reversion. ^^ 

§  602.  Liability  for  misconduct  of  cotrustee The  English  rule, 

which  holds  a  trustee  to  a  stricter  accountability  than  an  execu- 
tor, for  the  misconduct  of  his  cotrustee,  is  not  recognized  in  this 

31  See  ante,   §  524.  33  i  R.  S.  730.   §  63,  as  amended  L. 

32Bundy  v.   Bundy,  38   N.  Y.   410;     1893,  e.  4.52.      See  also  L.  1896,  c.  547; 
Postley  V.  Cheyne.  4  Dem.  492;    s.  c.    id.  c.  553;  L.  1897,  c.  417,  §  83. 
as  Estate  of  Sterling,  9  Civ.  Proc.  Rep. 
448. 


487  Admixistkation  of  Estate,  Etc.  §  602. 

State. ■'^■*  It  is  rllfficult  to  find  any  sound  reaison  for  the  distinc- 
tion. The  general  rule  undoubtedly  is,  that  trustees,  like  execu- 
tors, are  liable  only  for  their  o\\'n  acts  and  receipts,  subject  to 
the  exception  that  they  cannot  be  excused  for  negligently  suffer- 
ing a  cotrustee  to  receive  and  waste  the  fund,  when  there  arc 
means  of  preventing  it,  by  the  exercise  of  reasonable  care  and 
diligence.  It  is  the  positive  duty  of  each  trustee  to  protect  the 
trust  estate  from  any  misfeasance  on  the  part  of  liis  cotrustee, 
and  to  institute  such  proceedings  as  shall  prevent  it;  and  it  is 
only  in  case  of  his  neglect  or  refusal  so  to  do,  or  his  connivance 
in  the  fraud,  that  the  beneficiaries  of  the  trust  can  maintain  the 
necessary  action  in  their  own  name,  for  the  protection  of  their 
violated  interests. ^^  The  duty  of  a  trustee,  or  of  an  executor  or 
ndniinistrator,  to  exercise  vigilance  in  protecting  the  property 
and  funds  of  the  estate  is  not  fulfilled  by  merely  seeing  to  it  that 
they  have  come  into  the  hands  of  his  co-representative  in  due 
course  of  administration.  Although  his  being  merely  passive, 
and  not  obstructing  the  collection  or  receipt  of  assets  by  his  asso- 
ciate vdW  not  render  him  liable  for  the  latter's  waste,  yet  where 
he  knows  and  assents  to  a  misappropriation,  or  negligently  suffers 
his  co-executor  to  receive  and  waste  the  estate,  when  he  has  the 
means  to  prevent  it,  he  becomes  liable  for  a  resulting  loss  which 
might  have  been  prevented  by  reasonable  diligence  on  his  part.^** 
The  fact  that  he  omitted  to  make  a  separation  of  a  particular 
trust  fund,  as  contemplated  by  the  will,  where  such  omission 
does  not  induce  or  cause  the  despoliation  of  the  estate  by  the  co- 
executor,  and  which  would  not  have  been  prevented  if  the  sepa- 
ration  had  been   made,   does   not  render  him   liable. •'^'     It   must 

■'i-i'Nratter  of  Browii.  10  Abb.  Pr.   (X.  In   Matter   of   Barrett    (58   App.   Div. 

S.)    457;    Matter   of  Adams,   51    App.  45;    68   X.   Y.    Supp.    580).   the   exec- 

Div.   619;    64   X.   Y.   Supp.   501:    affd.,  iitor,     sought     to     be     charged,     had 

166  X.  Y.  623.  been    excluded   from   the   management 

35  Knight   V.    Plymouth,    1    Dickens,  of  the  estate.     Held,  not   responsible. 

120:    Ex    p.    Belchier,    Amb.    21S:    ap-  especially  after  a   lapse  of   five  years, 

proved,  Thompson  v.  Bro\vn,  4  Johns.  The    fact     that     the     surviving    exec- 

Ch.   610.  628.  utrix    participated    in    acts    of    negli- 

3t'  Wilmerding     v.     McKesson,     10.3  gence   resulting   in   loss   to   an   estate. 

N.   Y.   320;    Matter   of   Xiles.    113   id.  cannot  be   set  up   in  a   proceeding  by 

547.       To   same   effect.    Croft   v.    Wil-  such  surviving  executrix,  representing 

liams,  88  X.  Y.  384 ;   ^McCabe  v.  Fow-  the  estate,  to  have  charged  against  the 

ler.  84  id.  314;  Sherman  v.  Parish.  53  estate    of    deceased    executor,    moneys 

id.  483 ;  Adair  V.  Brimmer,  74  id.  530;  lost    to   the   estate   througli    his    negli- 

Ormiston  v.  Olcntt,  84  id.   330:    Earle  gence.      Her    individual    liability   must 

V.  Earle.  03  id.   104:    Matter  of  West-  be  ascertained  and  fixed  in  some  other 

erfield,   32   App.   Div.   324;   also   s.   c,  suit  or  proceeding  against  her  for  con- 

48     id.     542;     63     X.     Y.     Supp.     10  tribution.       (Matter     of     Scudder.     21 

(163  X.  Y.  209)  ;   Matter  of  Peck.  31  Misc.   170:   47  X.  Y.  Supp.   101.) 
App.  Div.  407:   52  X.  Y.  Supp.   1028;         37  Wilmerding   v.   McKesson,   supra. 
161  X.  Y.  655,  and  cases  cited   infra. 


§  603. 


Administkation  of  Estate,  Etc. 


488. 


appear  that  he  had  some  reason  to  apprehend  that  a  loss  might 
he  the  consequence  of  his  acts.'^^ 

§  603.  Intrusting  property  to  co-executor. — As  mere  passivity  is 
not,  of  itself,  enough  to  hold  one  executor  for  the  devastavit  of 
his  associate,  so  it  is  not,  per  se,  actionable  negligence  for  one 
executor  to  intrust  his  co-executor  with  the  trust  property,  for  sale, 
on  the  latter's  promise  to  pay  the  proceeds  into  the  general  fund, 
which  he  failed  to  do."''^     So  where  both  executors  signed  a  con- 


38.Cock9  V.  Haviland,  124  N.  Y.  426; 
36  St.  Rep.  408.  The  same  estate  was 
in  the  Surrogate's  Court,  on  an  ac- 
counting, when  the  court  held  the  co- 
executor  who  had  permitted  funds  of 
the  estate  to  renifrin  in  the  control 
of  his  co-executors,  men  of  supposed 
large  means  and  integrity,  was  not 
Mable  for  a  loss  occasioned  through 
the  investment  of  such  funds  by  them 
in  their  business,  without  her  knowl- 
edge. (Matter  of  Cocks,  1  Connoly, 
.347;  9  X.  Y.  Supp.  402.)  Hence,  where 
two  executors  and  trustees  divided  the 
trust  funds  and  securities  between 
them,  and.  though  the  accounts  were 
kept  together,  each  managed  his  own 
])art  of  the  business,  and  one  of  them 
died  insolvent  and  owing  the  estate, 
his  co-trustee  was  held  not  liable  for 
the  amount  of  the  loss.  (Matter  of 
Smith.  39  St.  Rep.  386;  15  N.  Y. 
Supp.  771.)  Where  one  of  the  execu- 
tors becomes  the  acting  executor  by 
the  consent  of  the  others,  the  circum- 
stance of  the  individual  custody  of 
assets  by  the  former  is  not  a  breach 
of  trust  in  the  others,  and  they  are 
not  rendered  liable  for  his  act  in  col- 
lecting and  converting  to  his  own 
use,  a  fund  without  their  knowledge. 
(Banks  v.  Wilkes,  3  Sandf.  Ch.  108.) 
Merely  permitting  the  other  to  receive 
the  assets  does  not  render  him  answer- 
able therefor.  (Sutherland  v.  Brush, 
7  Johns.  Ch.  17;  Monell  v.  Monell,  5 
id.  283:  Mumford  v.  Murray.  6  id.  1.) 
See  Manahan  v.  Gibbons,  19  Johns. 
427.  In  Wright  v.  Dugan  (15  Abb. 
X.  C.  107),  at  the  time  of  making  the 
inventory,  one  of  the  executors  pro- 
duced from  a  room  in  his  own  house 
the  securities  of  the  estate  before  the 
appraisers,  and  permitted  the  other 
executor,  without  protest,  to  take 
them  away.  Held,  that  the  executor 
who  parted  with  the  possession  of  the 
securities  under  these  circumstances 
was  not  liable  for  a  subsequent  mis- 
appropriation and  waste  by  the  co- 
executor.     An   inventorv  and  account. 


filed  by  co-executors,  though  evidence 
of  a  joint  possession  of  securities  and 
receipt  of  moneys  by  them,  is  not  con- 
clusive soas  to  preclude  proof  that  the 
same  were  in  fact  held  and  received 
exclusively  by  one  of  their  number. 
(Taylor  v.  Shuit,  4  Dem.  528:  dis- 
tinguishing Glacius  v.  Fogel,  88  X.  Y. 
434.)  In  Matter  of  Hall  (5  Dem.  42 ; 
14  St.  Rep.  540),  an  administratrix, 
having  confidence  in  the  co-adminis- 
trator and  his  financial  position,  per- 
mitted him  to  retain  the  custody  of 
the  funds  of  the  estate,  and  also  her 
own  personal  funds,  for  management 
and  investment,  without  any  knowl- 
edge of  the  fact  that  he  was  improp- 
erly using  the  funds  of  the  estate  for 
his  own  purposes;  held,  not  liable  for 
the  devastavit  of  the  latter. 

39  Adair  v.  Brimmer,  74  X.  Y.  539. 
If  excessive  payments  have  been  made 
by  one  of  several  executors,  without 
the  authority  or  consent  of  the  others, 
out  of  moneys  which  have  come  to  his 
hands  severally,  and  which  have  never 
come  under  the  control  of  the  other 
executors,  that  one  will  be  held  solely 
responsible  for  so  much  of  the  fund  as 
has  thus  come  to  his  hands,  and  be 
credited  only  with  such  amounts  as 
have  been  legally  paid,  or  which,  if 
himself  a  legatee,  he  was  legally  enti- 
tled to  retain.  But  if  excessive  pay- 
ments are  made,  or  moneys  drawn,  by 
one  executor,  with  the  consent  or  ac- 
quiescence of  the  others,  out  of  a  fund 
which  has  been  collected,  and  has  come 
into  the  possession  of  such  other  ex- 
ecutors, or  the  joint  possession  and 
control  of  all,  they  all  become  liable, 
not  only  to  make  good  to  the  other 
distributees,  on  the  final  distribution, 
any  excess  of  advances  so  made,  but 
at  all  intermediate  stages  to  make 
good  all  payments  which  become  due 
or  payable,  under  the  jjrovisions  of  tlie 
will,  to  such  distributees.  ( lb.  |  See 
another  phase  of  this  case,  95  X.  Y.. 
35. 


4SU 


ADMlAliiTKATlO.N    Ul'    EsTATE,    EtC. 


g003. 


tract  of  sale,  and  the  purchaser  made  a  payment  on  account  in  the 
presence  of  both,  which  one  of  them  took  without  objection  from 
the  other,  and  subsequently  misaijpropriated,  the  latter  was  held 
iKtt  liable,  there  being  no  evidence  of  negligence  on  his  part.  The 
mere  fact  of  the  insolvency  of  the  defaulting  executor  was  not,  of 
itself,  sufficient  to  so  charge  him.'*'^  And  an  executor,  not  trustee 
under  the  will,  who  pays  the  proceeds  of  a  sale  of  property  belong- 
ing to  the  estate  to  his  co-executor,  who  is  a  trustee,  for  investment 
according  to  the  terms  of  the  trust,  is  not  liable  to  the  estate  for 
a  subsequent  misappropriation  of  the  funds."*^  But  a  payment 
to  a  co-executor  is  not  of  itself  a  discharge  of  all  liability  for  such 
co-executor's  faithful  application  of  the  moneys  so  paid.  In 
other  words,  an  executor  or  trustee  who  parts  with  the  possession 
of  the  funds  of  the  estate,  whether  to  a  stranger  or  to  a  co-trustee,, 
does  so  at  his  peril.^^  Thus,  where  the  funds  were  drawn  from 
bank  by  one  trustee,  on  the  joint  check  of  the  two,  and  by  him 
deposited  with  a  private  banker,  both  trustees  are  liable  for  the 
consequent  loss  of  the  fund."*"  So  an  express  assent  by  one  trus- 
tee that  the  other  shall  use  money  of  the  fund,  taking  back,  as 
security,  a  bond  which  he  is  afterward  obliged  to  surrender  ta 
the  laAvful  owner,  will  make  the  former  liable  for  the  loss  to  the 


estate. 


44 


40  Croft  V.  Williams.  88  X.  Y.  .'^84. 
To  the  same  effect  is  Paulding  v.  Shar- 
key,  id.   4:12. 

•ii  Paulding  v.  Marvin,  3  Redf.  .36."), 
note:  more  ftillv  on  appeal,  as  Pauld- 
i!i<r  V.  Sharkey."  88  N.  Y.  4.32:  Taylor 
V.  Shuit.  4  'Dem.  528;  Matter'  of 
Smith,  40  App.  Diy.  318;  61  N.  Y. 
Supo.  716:   nffd..  106  N.  Y.  620. 

42  Matter  of  Storm,  28  Hun,  499; 
Thoni'json  y.  Hicks,  1  App.  Diy.  275 ; 
37  N.  Y.  Supp.  340;  Matter  of  Litzen- 
berger.  85  Hun,  512;  33  N.  Y.  Supp. 
155.  An  executiir  who  pays  to  his  co- 
(^xeeutor  a  debt  due  from  liimself  iiuli- 
yidually  to  the  estate,  is  mt  liable  for 
the  diversion  or  waste  thereof  by  the 
co-executor,  unless  he  has  knowledge 
or  information  of  the  misapplication 
intended  or  in  progress.  (Matter  of 
Den.arest.  1  C.  nnoly,  200;  9  N.  Y. 
Sup]).  292.)  See  Al'tman  v.  Wile,  46 
St.  Pep.  517;  19  N.  Y.  Supp.  500. 
The  liability  of  an  executor  for  the 
)ii()cceds  of  a  mortgage  due  the  istate 
is  not  affected  by  the  fact  that  the 
widow  of  the  decedent,  who  was  enti- 
tled to  the  money,  had,  as  co-executrix, 
collected  the  same,  she  not  haying  ap- 
plied them  to  her  personal  use.     (Mat- 


ter of  Clark,  34  St.  Rep.  523;  11  X.  Y. 
Supp.  911.)  In  Matter  cf  Grant  (40 
St.  Rep.  944;  16  X.  Y.  Supp.  716), 
the  will  gave  the  widow  the  right  to 
possess  and  enjoy  the  rents  and  profits 
of  the  entire  estate  during  life,  with 
the  remiinder  over,  and  provided  that, 
if  the  use  and  profits  were  not  suffi- 
cient for  her  support,  a  sale  might 
be  made  therefor,  and  appointed  the 
widow  one  of  the  executors,  but  ap- 
pointed no  trustee. —  Held,  the  ex- 
ecutor wa,s  not  chargeable  with  the 
moneys  expended  for  her  support,  in- 
cluding the  purchase  of  a  house,  nor 
for  tlie  amount  slie  paid  to  a  creditor 
of  the  estate  in  satisfaction  of  his 
claim. 

4:i  Bruen  v.  Gillet,  115  X.  Y.  10.  In 
Wyckoff  y.  Van  Siden  (3  Dem.  75), 
it  was  held  that  an  executor  who 
handed  a  sum  of  money  to  his  co-ex- 
ecutor, who  was  in  good  standing,  with 
which  to  pay  the  del)ts  of  decedent  at 
his  place  of  business,  pursuant  to  ad- 
vertisement, was  liable  for  the  latter's 
mi-appropriation  of  the  money. 

44  Matter  of  Smith,  39  St.  Rep.  386; 
15  X.  Y.  Supp,  771. 


•§§  604,  605.       Administration  of  Estate,  Etc.  490 

§  604.  Evidence  of  connivance  or  assent. — If  one  of  two  or  more 
representatives,  who  join  in  rendering  an  account,  w^iicli  includes 
an  unauthorized  investment,  claims  to  be  exempt  from  liability 
on  any  of  the  investments,  the  burden  is  on  him  to  prove  the 
facts  on  which  he  founds  a  claim  of  immunity.^"  The  mere  fact 
that  the  other  executors  had  charge  of  the  books  of  the  estate, 
drew  checks  in  their  joint  names,  and  made  the  illegal  invest- 
ment out  of  money  received  by  them,  does  not  prove  that  such 
investment  was  made  without  his  consent.'*^  The  fact  that  execu- 
tors, Avho  were  ordered  by  the  court  to  have  certain  securities  of 
the  estate  registered  in  their  joint  name,  repeatedly  requested 
their  co-executor  to  have  them  so  registered,  but  on  his  failure  to 
do  so,  neglected  to  enforce,  by  legal  proceedings,  observance  of 
the  order,  or  to  bring  the  matter  to  the  notice  of  the  court,  is 
enough  neglect  to  render  them  liable  for  such  co-executor's  mis- 
appropriation of  the  securities.^' 

§  605.  Liability  for  waste  of  agent. —  An  executor  or  adminis- 
trator who  permits  a  third  person  to  manage  and  control  the 
estate,  adopts  him  as  his  agent;  he  is  responsible  for  the  agent's 
-conduct,  and  is  liable  for  losses  occasioned  by  his  improper  or 
negligent  management  of  the  affairs  of  the  estate. ^^  He  cannot 
avoid  liability  for  a  loss  of  the  fund,  through  the  misconduct  of 
the  agent,  on  the  ground  that  his  co-executors  were  mainly  active 
in  the  administration  of  the  estate,  and  mainly  instrumental  in 
passing  the  fund  into  the  hands  of  such  agent,  if  he  tacitly  as- 
sented thereto  when  he  had  opportunity  and  reasonable  cause  to 
object.  The  fact  that  the  parties  interested  in  the  estate  knew 
of  the  emplo\nnent  of  such  agent  to  make  investments,  does  not 

45  But    the   joining    in   the    account  owned  by  the  testator,  being  assets  of 

does  not  necessarily  make  him  liable  the    estate,    which    they    ought    previ- 

for  a  devastarit  by  his  co-trustee  sub-  ously  to  have  disposed  of;   and  it  ap- 

sequent   to   the    filing   of   the   account,  peared    that    the    executrix    knew,    all 

although   known   to   him   at   the   time  along,  that  the  estate  held  the  stock, 

the   decree   was   entered.      (Matter   of  and  made  no  effort  to  se'.l  it,  nor  even 

Westerfield,  32  App.  Div.  324.)  asked    the   executors    so    to    do.      The 

4C  Lacey  r.  Davis,  4  Redf.  402.  By  executrix,  having  acquiesced  in  keep- 
including  the  illegal  investment  in  her  ing  the  stock  on  hand,  was  held  liable, 
account,  the  executrix  declares  her  with  her  co-executor,  for  the  eonse- 
knowledge  of  its  existence,  and  if  there  quences  of  so  doing, 
is  no  evidence  that  she  made  an  effort  47  Matter  of  Macdonald,  4  Redf.  321. 
to  collect  it,  or  that  it  could  not  be  48  Earle  v.  Earle,  93  X.  Y.  104.  See 
collected,  she  is  liable  for  the  devas-  Clark  v.  Clark,  8  Paige.  152 ;  Mesick 
tavit  of  her  co-executor.  (lb.)  In  the  v.  Mesick,  7  Barb.  120;  Douglass  v. 
same  case  again  (5  Redf.  301),  it  ap-  Satterlee,  11  .Tohns.  16:  Whitney  v. 
peared  that  the  executors  subscribed  Phoenix.  4  Redf.  180;  Johnson  v.  Cor- 
for  bonds  to  the  amount  of  $10,000,  b^tt,  11  Paige,  265. 
to     protect     certain     stcck     formerly 


401  Admixistka'i'io.n   ok  Estate,  Etc.  §  606. 

preclude  them  from  holding  the  executor  responsible,  especially 
where  there  is  no  ground  for  holding  them  estopped.^'"*  But  in  a 
matter  where  the  employment  of  an  agent  or  broker  is  necessary, 
or  is  according  with  the  usage  of  business,  the  English  rule  is,, 
that  the  trustee  is  not  liable  for  the  fraud  or  misconduct  of  the 
agent  in  his  employment.'''^  It  was  therefore  held,  that  a  trustee 
investing  trust  funds',  who  employed  a  broker  to  procure  securi- 
ties authorized  by  the  trust,  and  paid  the  purchase  money  to  tho 
broker, —  such  being  the  usual  and  regular  course  of  business  of 
persons  acting  with  reasonable  care  and  prudence, —  on  their  ac- 
count, w^as  not  liable  for  the  loss  of  the  money  through  the  fraud 
of  the  broker.^^ 

§  606.  Liability  of  estate  on  contracts  of  representative. —  We 
have  already  adverted  to  the  principle  that  an  executor  or  admin- 
istrator may  disburse  and  use  the  funds  of  the  estate  for  purposes 
authorized  by  law,^^  but  may  not  bind  the  estate  by  an  executory 
contract,  and  thus  create  a  liability  not  founded  upon  a  contract 
or  obligation  of  the  testator.'''^  He  may,  of  course,  by  a  special 
promise,  make  himself  personally  liable  to  pay  a  debt  of  the 
deceased,  but  such  promise  is  not  enforceable,  unless  it  is  evi- 
denced in  the  manner  prescribed  by  the  Statute  of  Frauds.  As 
such  promise,  however,  constitutes  a  right  of  action  against  the 
■executor  or  administrator  personally,  and  not  in  his  character 
as  such,  it  is  not  enforceable  in  the  Surrogates'  Courts.  But  the 
rule  is  well  settled  that  personal  representatives  have  no  power  to 
bind  the  estate  through  an  executory  contract,  having  for  its 
object  the  creation  of  a  new  liability,  not  founded  upon  the  con- 
tract or  obligation  of  the  decedent.  They  take  the  personal 
property  as  owners,  and  have  no  principal  behind  them  for  whom 
they  can  contract.^"*     The  title  vests  in  them  for  the  purposes  of 

49  Matter    of    Brown,    16    Abb.    Pr.  53  See  ante,  §   552  ct  scq.     See  also 

<N.   S.)    457.  Cary  v.  Grefiory,  38  N.  Y.  Siipp.  127; 

ai  Knight  v.  Plymouth,  1  Dickens,  Xorling  v.  All'ee.  .31  St.  Rep.  412; 
120:  Ex  />.  Hekh'ior.  Amb.  218;  ap-  Glenn  v.  Burrows,  37  Hun,  602;  fur- 
proved,  Thompson  v.  Brown,  4  Johns,  ther  decision,  26  St.  Rep.  588 ;  affd., 
Ch.   619,   628.  119    N.    Y.    660;    Carv   v.    Doolev.    19 

51  Speight  V.  Gaunt,  2  Ch.  Div.  727.  Misc.  553;   43  N.  Y.  Supp.  399:'Dar- 

And  see  Lamar  v.  :\Iieou,  112  V.  S.  468.  ling  v.  Powell,  20  Misc.  240;  45  X.  Y. 

82  One     of     two     executors     acting  Supp.     794;     Mulrein    v.    Sniillie,    25 

within  the  scope  and  authority  of  his  App.    Div.    135;    48   N.   Y.    Supp.    994. 

office,  may  hind  the  estate  bv  contract.  Olcott  v.  De  Jorrin,  36  Misc.  735;    74 

(Barry   v.    Lambert.    98    N."   Y.    300.)  N.  Y.  Supp.  393;   O'Brien  v.  .Tack.son, 

See    Alexander    v.    Greacen,    36    Misc.  167  N.  Y.  31  ;  Oin  v.  Arendt,  27  Misc. 

526.     An  executor  may  settle  or  state  270 :  58  N.  Y.  Supp.  429. 

an    account    or    liabilitv    incurred    by  M  See    Metropolitan    Trust     Co.     v. 

the  decedent.     ( Schutz  v.  Morrette,  s'l  McDonald,  52  App.  Div.  424. 
Hun,  578;   31  N.  Y.  Supp.  39.) 


§  GOT.  Administration  of  Estate,  Etc.  492 

administration,  and  they  must  account  as  owners  to  the  persons 
ultimately  entitled  to  distribution.  In  actions  upon  contracts 
made  by  them,  however  they  may  describe  themselves  therein, 
they  are  personally  liable,  and,  in  actions  thereon,  the  judgment 
must  be  de  bonis  propriis.  Therefore,  if  an  executor  accept  nego- 
tiable paper,  he  Avill  be  held  personally  liable,  even  if  he  adds  to 
his  own  name  the  name  of  his  office.  Signing  as  executor  will 
be  deemed  only  a  part  of  his  description,  or  wall  be  rejected  as 
surplusage.^^  An  executor  has  not  only  no  pow'er  to  bind  the 
estate  by  a  new  contract,  but  he  cannot  revive  a  demand  which 
has  once  expired;  neither  his  contracts  nor  admissions  can  have 
the  effect  of  creating  the  one  or  reviving  the  other. ^^  The  rule 
that  a  representative  has  no  power  to  confess  judgment,  applies 
only  to  cases  in  which  he  attempts  to  give  a  preference  against 
an  estate. ^^ 

§  607.  Representative  may  borrow  money  for  estate. —  To  justify 
the  representative  in  borrowing  money,  at  the  expense  of  the 
estate,  it  must  clearly  appear  either  that  he  had  authority  to  do 
so  under  the  will,  or  that  the  necessities  of  the  estate  required 
it.  He  should  be  able  to  show,  on  his  accounting,  that  the  ex- 
penditure, like  any  other  administrative  expense,  was  for  the 
advantage  of  the  estate,  and  to  the  benefit  of  the  parties.^*     But 

55  Schmittler   v.    Simon,    101    X.    Y.  firm  of  which  decedent  and  the  exec- 

554.      This  case  overrules  the  case  of  utors  were  partners, 
the  same  title,  25  Hun,  76.      See  Scott        58  Adair  v.  Brimmer,  74  N.  Y.  540; 

V.  McMillan.  16  St.  Rep.  795;  Westphal  Wheelwright   v.    Rhoades.  28   Hun,  57  ; 

V.  Carter.  1  Misc.  403;  20  N.  Y.  Supp.  11    Abb.   X.    C.   3"^2.       One   of   several 

945;  Jenkins  v.  Phillips,  41  App.  Div.  executors  has  no  authority  to  borrow 

389;    58   N.   Y.   Supp.    788.       The  fact  money     Avithout     the     assent     of     the 

that  the  note  was  given  in  payment  of  others,   and   such   assent   is   not  to   be 

a  claim  against  the  estate  is  immate-  assumed   from   the  fact  that   the   loan 

rial,  where  no  proof  is  given  to  rebut  was    ^or    the     benefit    of    the    estate, 

the   presumption   that  the   representa-  (Bryan    v.    Stewart,    83    N.    Y.    270.) 

tive    had    assets    to    meet    the    claim.  Compare     Barry    v.    Lambert,    98    id. 

Compare    Hamlin   v.    Smith,    72    App.  300.     Where  executors  apply  moneys, 

Div.    001.  borrowed  upon  their  promissory  note, 

5'j  Barry  v.  Lambert,  98  N.  Y''.  300 ;  to  the  payment  of  valid  claims  against 

McLaren    v.     McMartin,     36     id.     88;  the  estate,  the  note  is  a  personal  lia- 

Ferrin  v.  Myrick,  41   id.  315:   Austin  bility  of  the  executors  and  cannot  be 

v.  Munro,  47  id.  366;  Martin  v.  Piatt,  enforced    against    the    estate    directly. 

51  Hun,  429;  Glenn  v.  Burrows,  37  id.  In  such  a  case  the  executors  are  enti- 

C02.     Compare   Broome  v.  Van  Hook,  tied   to  be   reimbursed   out  of   the   es- 

1  Redf.  444 ;  Guarantee  Sav.,  etc.,  Co.  tate    to    the    extent    of    the    borrowed 

V.  Moore.  35  App.  Div.  421;   54  N.  Y.  moneys    which    they    have    applied    to 

Supp.  787.  the   payment   of   valid   claims   a.gainst 

5"  Columbus  Watch  Co.  v.  Hodenpyl,  the  same,  and  this  being  so,  the  per- 

61    Hun.    557;    16    X.    Y.    Supp.    337;  son  who  advanced  the  moneys  is  enti- 

aflfd..  135  X.  Y.  430.    In  that  case,  the  tied,  in  the  event  of  the  failure  of  the 

parties,   in   favor   of   whom   judgment  executors    to    repay    the    same,    to    be 

Avas  confessed,   were   creditors   of  the  subrogated  to  the  rights  of  the  execu- 


493  Administeation  of  Estate,  Etc.      §§  608,  609. 

it  is  clear  that  executors  aro  not  entitled  to  be  credited,  in  their 
iiccounts,  with  interest  paid  to  raise  money  for  advances  to  bene- 
ficiaries in  excess  of  their  distributive  shares.^'**  In  regard  to  the 
right  of  the  lender,  if  he  receives,  as  security  for  the  loan,  assets 
of  the  estate,  with  knowledge,  or  reason  to  suspect,  that  the 
money  was  not  borrowed  for  the  benefit  of  the  estate,  but  for 
the  private  use  of  the  representative,  he  cannot  Hold  the  security 
as  against  the  parties  in  interest. *"" 

g  608.-  Liability  on  failure  to  terminate  decedent's  tenancy As 

to  rent  falling  duo  after  the  tenant's  death,  the  lessor  would  seem 
to  have  an  option  to  sue  the  representative  of  the  lessee,  either 
personally,  as  assignee,  or  as  executor  or  administrator."^  It  has 
been  held,  in  this  State,  that  executors  of  a  tenant  from  year  to 
year,  who  omitted  to  terminate  the  tenancy,  and  continued  to 
occupy  the  premises  from  year  to  year,  were  lial)le  in  their  repre- 
sentative capacity,  for  the  rent  accruing  during  such  occupancy 
by  theni.*^^  Where  the  representative  is  a  tenant  in  common, 
with  another,  of  the  demised  premises,  his  mere  occupation  of 
them,  in  the  absence  of  an  agreement  to  pay  rent,  does  not  ren- 
der him  liable  to  account  to  his  co-tenant,  for  the  rent  of  the 
premises.*'^ 

^  609.  Liability  on  covenants  in  lease. —  An  executor  is  liable  as 
such,  upon  the  covenants  contained  in  a  lease,  executed  by  his 
testator,  Avhether  he  enters  into  possession  of  the  demised  prem- 
ises or  not;  but  if  he  does  enter  into  possession,  he  thereby  be- 
comes personally  liable,  upon  such  covenants,  as  an  assignee  of 
the  lease.^"*  He  is  therefore  bound  to  perform  his  testator's 
covenant  to  rebuild,  in  case  of  the  destruction  by  fire  of  the 
■demised  premises.®^  A  foreign  executor^  as  such,  cannot  be  sued, 
in  a  legal  action  in  our  courts,  for  rent  accruing  under  a  lease 
for  a  term  of  vears,  lield  bv  the  testator  at  the  time  of  his  death. *^° 


tors    and    to    comppl    payment    of   his  Fisher  v.   Fisher.   1   Bradf.   HG").      And 

claim  out  of  the  estate.      (Hamlin  v.  see  post.  tit.  fi,  art.  2.  of  thi>  chapter. 

Smith.  72   App.   Div.  601.)  'iS  Woclever  v.  Knapp.  IS  Barh.  265; 

M  Adair  v.  Brimmer.  74  N.  Y.  .540.  Dresser  v.  Dresser.  40  id.  .SOO :  Rose- 
See  Hosack  V.  Rogers,  9  Paige.  461 ;  boom  v.  Roseboom.  \3  Hun.  .SO!) :  Mat- 
Mann  V.  Lawrence.  3  Bradf.  424.  tor  of  Dunn.  X.  Y.  L.  J..  Ju  y  .30.  ISOl. 

'■'0  White  V.  Price.  .30  Hun.  304:   Le  <:•!  Howard   v.   Heinerschit'.    16   Hun, 

Baron  v.  Long  Island  Bank.  .53  How.  177. 

Pr.  286.      Compare  Hamlin  v.   Smith.  <^  Chamberlain  v.  Dunlop.  126  X.  Y. 

^upra.     Sec  post.  c.   XIX.  tit.    1.  45:   36  St.  Rep.  373. 

'ilWms.    on    Exrs.     (6th    Am.    ed.)  <«  Field    v.    Gibson.    20    Hun.    274. 

1619.                                                        ,  But.     it     seems,     the    landlord     could 

'!2  Puprsloy  V.   Aikin.   11    N.  Y.   494.  maintain   an   action  in  equity  for   an 

As  to  the  duty  and  liability  of  execu-  accounting.      (lb.) 
i;ors,  in  respect  to  terms  for  years,  see 


§§  610,  Gil.       Administration  of  Estate,  Etc.  494r 

§  610.  Continuing  decedent's  business. —  The  executor  or  admin- 
istrator has  no  authority  to  bind  the  estate  for  debts  incurred  hj 
him  in  continuing-  the  business  or  trade  of  decedent,  after  his 
death,  except  so  far  as  such  continuance  is  reasonably  necessary 
for  the  preservation  and  profitable  disposition  of  the  money  and 
property  invested  therein;''^  or  unless  such  continuance  is  ex- 
pressly authorized  by  decedent's  will;  but  such  authority  will  not- 
be  implied  except  froiu  unequivocal  language. °^  This  does  not 
mean  that  the  representative  is  bound  immediately  upon  th& 
decedent's  death  to  convert  into  cash  the  assets  employed  in  his 
trade;  on  the  contrary,  where  the  best  interests  of  the  estate  re- 
quire it,  he  may,  within  reasonable  limits,  make  purchases  and 
incur  liabilities  Avhich  will  bind  the  estate,^®  and  may  sue,  in  his 
character  of  representative,  for  goods  sold  by  him  in  such  con- 
tinued business.^*^ 

§611.  Debts  incurred  in  continued  business. —  But  the  power 
conferred  by  the  will  on  the  executor,  to  carry  on  the  testator's 
business,  after  his  death,  does  not  authorize  the  executor  to 
create  debts  in  the  execution  of  that  trust,  which  can  be  col- 
lected out  of  the  general  assets.  lie  cannot  lawfully  use  the 
general  assets  for  the  purpose  of  supporting  the  special  business 
carried  on  by  the  testator  in  his  lifetime;  and  all  persons  dealing- 
with  him  are  charged  with  knowledge  of  the  limitations  of  his 
powers. ^^     It  follows  that  one  having  a  claim  for  goods  purchased 

67  Hannahs    v.    Hannahs,    68    X.    Y.  marked   out.       There  is  but   one   way 

610;    Thompson    v.    Brown.    4    Johns,  to  manage  the  estate,  whether  the  ex- 

Ch.    619;    Johnson    v.    Kellogg,    8    St.  ecutor   or   trustee   be    of   the   blood   of 

Rep.  413;  Ames  v.  Downing,  1   Bradf.  the  testator   and   the  beneficiaries,  or 

321:    Hooley   v.    Gieve,    9    Daly,    104;  a    stranger.       (Hannahs    v.    Hannahs^ 

9  Abb.   X.   C.   8.   and  note.     Compare  supt-a.) 

Luers  v.  Brunjes.  5  Redf.  32;  Boulle  68  Willis  v.  Sharp,  113  X.  Y.  .586; 
V.  Tompkins,  id.  472 ;  Oilman  v.  Wil-  Saperstein  v.  Ullman.  49  App.  Div, 
ber,  1  Dem.  547.  The  personal  rep-  446 :  63  X.  Y.  Supp.  626. 
resentatives  of  a  part  owner  of  a  C9  Matter  of  Sharp,  5  Dem.  516> 
Aessel  are  not  boimd  to  incur  a  lia-  Thus  an  executor  is  not  personally 
bility  for  repairs,  etc.  ( Lunt  v.  Lunt,  liable  for  a  loss  occasioned  by  his  car- 
8  Abb.  X.  C.  83.)  See  flatter  of  Chap-  rying  on  a  seminary  for  the  balance- 
man,  32  Misc.  187;  66  X.  Y.  Supp.  of  a  year  in  the  midst  of  which  the 
23.5.  The  courts  will  not  favor  a  prir.cipal,  defendant's  testator,  had 
claim  upon  the  part  of  an  executor  died.  (Matter  of  Benedict,  13  Abb. 
(who  was  the  surviving  partner  of  X.  C.  67.)  The  surrogate  may  allow 
the  decedent),  to  charge  the  benefi-  the  continuance  of  the  business  pend- 
ciaries  as  his  tenants,  or  otherwise,  ing  a  contest  of  the  probate  of  the 
for  the  use  of  his  property,  where,  in-  will,  on  proper  security  being  fur- 
stead  of  settling  up  the  estate  placed  nished.  (Matter  of  Dinsmore,  2  L. 
in  his  charge,  he  has  kept  it  open  and  Bui.   28.) 

umdjusted.   mingling   its   affairs  with        "P  Varnum  v.  Taylor,  59  Hun.  554; 

his  own,  without  ascertaining  what  is  14  X.  Y.  Supp.  242. 
due  and  payable  to  each  of  the  bene-        "i  Delaware   &    Lackawanna    R.    Co. 

ficiaries    in     the    way    the     law    has  v.    Gilbert,    44    Hun.    201:    affd.,    112 


495 


Administkatiox   of  Estate,  Etc. 


611. 


by  tlio  executor,  consiinioil  in  continuing  the  business,  is  not  a 
creditor  of  the  estate  so  as  to  entitle  him  to  intervene,  as  an 
interested  party,  on  the  executor's  accounting.'^  There  seem  to- 
be  two  exceptions  to  the  general  rule  that  obligations  incurred 
by  an  executor  in  the  continuation  of  decedent's  business,  even 
where  the  will  directs  such  continuation,  are  not  a  charge  against 
the  estate,  but  against  the  executor  personally.  The  first  is,  that 
when  the  will  authorized  the  expenditure  of  assets  for  a  particular 
])uq)Ose,  which  expenditure  is  necessary  for  the  protection,  repa- 
ration, or  safety  of  the  estate,  and  the  executor  has  no  funds, 
and  is  not  "willing  to  make  himself  personally  liable,  he  may  by 
express  agreement  make  the  expenditure  a  charge  upon  the 
estate.^^  The  other  exception  is  the  insolvency  of  the  executor 
wlio  continued  the  business  and  contracted  the  debt.  In  such 
case,  the  general  assets  may  be  made  liable,  in  equity,  for  the 
debts  incurred  in  such  continued  business.'^  The  judgment,  in 
such  an  action,  can  only  be  collected  upon  the  settlement  of  the 
estate  in  the  Surrogate's  Court,  or  b^'  either  of  the  special  pro- 
ceedings pro\dded  in  the  Code.'^     It  is,  therefore,  erroneous  to 


N.  Y.  073.  In  that  case,  which  was 
un  action  for  such  a  claim  in  the 
ordinary  common-hiw  form  against 
the  executor  in  his  representative 
capacity,  held,  that  the  court  was 
not  authorized,  after  trial  and  ver- 
dict for  the  plaintiff,  to  direct  en- 
try of  a  judgment  providing  that  it 
shall  be  enforced  against  the  proj)erty 
of  the  decedent's  estate  invested  in 
the  business  carried  on  by  the  defend- 
ant as  executor,  as  such  direction  was 
an  attempt  to  change  the  action  to 
one  in  equity,  which  is  not  maintain- 
able without  showing  insolvency  of 
tlie  estate  or  some  other  ground  for 
e(|uitable  interference.  See  ]Matter  of 
Hickev,  34  Misc.  3(50;  0!)  N.  Y.  Supp. 
844. 

"2  Matter  of  Sharp,  5  Dem.  51(!.  It 
had  been  previously  decided  in  tlu' 
sanu»  estate  ( Matter  of  Sharp,  N.  Y. 
Daily  Reg.,  Aug.  3.  188(5),  that  sudi 
a  claim  was  not  "  a  debt  "  within  the 
provision  of  the  Code  which  entitles  a 
creditor  of  the  d£eedent  to  petition  for 
the  })aynu;nt  of  his  debt ;  and  more 
recently,  in  Matter  of  Stern  (N.  Y. 
L;iw  J.,  Feb.  13,  1890),  it  was  held, 
tliat  a  party  to  whom  a  firm,  composed 
of  the  siu'viving  partner  of  the  dece- 
dent and  the  executor  of  the  latter 
(under     a     power     couti^incd     in     the 


will),  owed  a  debt  for  goods  sold,  was 
not  "a  creditor"  of  the  estate  of  the 
deceased  partner  so  as  to  entitle  him 
to  apply,  under  section  2G8.5  of  the 
Code,  for  the  revocation  of  the  execu- 
tor's  letters. 

■^3  In  Clapp  V.  Clapp  (14  Hun.  4.51)^ 
a  testator  left  the  control  of  his  busi- 
ness to  his  son  and  executor  with  di- 
rections to  continue  the  same;  the 
latter  employed  an  attorney  to  render 
services  for  the  benefit  of  the  estate,, 
and  which  were  of  value  to  it,  under 
a  special  agreement  that  such  services. 
should  be  paid  out  of  the  estate,  the 
executor  himself  being  insolvent  and 
having  no  trust  funds  in  his  hands  to- 
pay  such  claim;  and  it  appeared  that 
tlie  contract  with  the  attorney  haa 
been  actjuiesced  in  and  ralifii'd  by  the 
other  parties  interested  in  the  estate. 
Held,  that  the  claim  might  be  sus- 
tained as  one  against  the  estate. 
Compare  John>on  v.  Kellogg.  8  St. 
Rep.  413;  Zinnner  v.  Chew,  34  App. 
Div.  504;   54  X.  Y.  Supp.  085. 

T-i  So  held,  on  demurrer,  in  Willis  v> 
Sharp,  113  X.  ^■.  5S0 ;  s.  p.,  Xew  v. 
Xicol,  73  id.  131,  and  cases  ante^ 
§  552. 

TSCo.Civ.  Proc.,  §§  1825,  1827;  and 
§  2722,  as  amended  1893,  consolidat- 
ing former  §§  2117,  2718. 


§  612.  Administration  of  Estate,  Etc.  496 

appoint  a  receiver,  and  direct  him  to  pay  the  judgment.  Cred- 
itors of  the  decedent  at  the  time  of  his  death,  unless  they  have 
assented  to  the  carrying  on  of  the  business,  have  the  right  to 
insist  that  the  estate,  as  it  existed  at  the  time  of  decedent's  death, 
should  be  applied  to  the  payment  of  their  claims,  to  the  exclusion 
of  debts  contracted  subsequently  by  the  executors,  while  the 
-creditors  of  the  business,  if  it  prove  successful,  are  alone  entitled 
to  the  increase.  On  the  other  hand,  if  the  business  was  carried 
on  by  the  executors  with  the  assent  of  the  original  creditors,  they 
and  the  creditors  of  the  business  are  entitled  to  share  p7^o  rata  in 
the  whole  estate. ''^^  Where  the  business  is  continued  by  the  ex- 
ecutors, pursuant  to  authority  in  the  will,  they  are  entitled  to  the 
use,  for  that  purpose,  of  the  testator's  real  estate  employed  in  the 
business,  and  may  charge  the  profits  with  all  bad  debts  contracted 
in  the  business,  before  the  division  among  the  beneficiaries. 
Losses  by  bad  debts,  and  the  cost  of  personal  property  purchased 
to  replace  similar  articles  worn  out  or  used  up  in  conducting  the 
business  by  the  executors,  and  expenditures  for  ordinary  repairs 
■on  the  real  estate"  used  therefor,  are  properly  charged  against, 
and  deducted  from,  the  income  payable  to  the  life  tenants.^^ 
!N"evertheless,  the  continuance  of  the  business  is  largely  at  the 
personal  risk  of  the  representatives,  and  they  may  be  held,  on 
their  accounting,  to  be  liable  to  the  estate  for  losses  in  the  busi- 
ness sustained  through  their  fault  or  negligence. '^^ 

§  612.  Continuing  decedent's  interest  in  a  copartnership. —  It  is 
€ntirely  competent  to  provide,  in  articles  of  copartnership,  that 

76  Willis  V.    Sharp,    115   K   Y.   396.  tors  to  carry  on  the  business,  it  was 

TT  Matter  of  Jones,  103  N.  Y.  621;  largely    at    their    risk,    since    if    any 

affg.  37  Hun,  430;   s.  c.  as  Daunat  v.  profits   were    realized   they    went   into 

Jones,  2  Dem.  602.      In  that  case,  the  the    corpus    of    the    estate,    while    if 

language    of    the    will    authorized   the  losses    were    sustained,    through    the 

deduction   of    all    losses    and    expenses  fault   or   negligence   of    the   executors, 

necessarily  incurred   in  managing  the  they    would    fall    upon    the   executors 

estate-anci  conducting  the  business,  in-  personally.       Where     it     was     shown, 

eluding  ordinary  expenses  for  repairs  therefore,   that  a   substantial   diminu- 

or  improvements,  and  it  was  held  not  tion  of  the  indebtedness  of  the  estate 

necessary  that  the  specific  items  so  to  had    occurred,    during    the    time    the 

be   deducted   should   be   stated    in   the  business  was  carried  on,  and  there  was 

•yy-ill^  nothing  to  indicate  that,  the  same  de- 

78  In    ]^Iatter    of    Rumsev     (45    St.  gree   of    prosperity   would   not   attend 

Eep.   453;    18    X.   Y.    Supp."  402),  the  it   in   the   future,    and   it   was   the   al- 

will   provided   that   the  business   of   a  most   unanimous  wish  of   those   inter- 

<?orporation.    most    of    the     stock     in  c^ted  in  the  estate  that  the  executors 

which    was    owned    by    the    testator,  should  continue  to  carry  it  on,—  Held, 

should  be  carried  on  by  the  executors  that   the   court   would   allow   them   so 

for    a    term    of   vears.    unless,    in    the  to    do,    notwithstanding    one    of    the 

judgment  of  a  maioritv  of  the  execu-  three  had  no  personal  interest  in  the 

tors,    it   would    prove   unprofitable    or  estate,  and  one  creditor   who  was  se- 
disastrous  to   the  estate.— Held,  that    cured,   objected.   _  Compare    McCue   v. 

while  it  was  competent  for  the  execu-  Finck,  20  Misc.  506. 


497  Administbation  of  Estate,  Etc.  §  613. 

the  relation  of  partnership  should  continue  between  the  survivor 
and  the  representatives  of  any  deceased  partner  for  a  time  speci- 
fied, under  the  same  firm  name,  on  the  same  terms  and  for  the 
same  purposes,  as  the  original  copartnership,  and  it  may  be  the 
duty  of  the  survivor,  under  such  an  agreement,  to  continue  the 
business  for  the  benefit  of  himself  and  the  estate  during  the 
time  fixed  by  the  articles.™  Such  an  agreement  does  not,  of 
itself,  have  the  effect  of  creating  a  new  partnership  from  the  time 
of  the  death,  between  the  survivor  and  the  executor  of  the  de- 
<'eased  partner,  and  where  the  executor  did  not  act  as  a  partner, 
or  in  any  way  interfere  with  the  business  or  its  management, 
and  there  was  nothing  to  show  that  any  relation  of  partnership 
existed  between  the  executor  and  the  surs'iving  partner,  the 
estate  is  not  liable  for  debts  contracted  by  the  survivor  in  the 
Ijusiness.**^  A  surviving  partner,  though  he  has  a  legal  right  to 
the  partnership  effects,  yet,  in  equity,  is  considered  a  trustee  to 
pay  the  debts  and  dispose  of  the  effects  for  the  benefit  of  himself, 
and  the  estate  of  his  deceased  partner.  The  capital  of  the  de- 
ceased partner  is  to  be  treated  as  trust  property;  and  when  it 
has  been  employed  in  carrying  on  the  business  of  the  concern, 
so  much  of  the  subsequent  profits  as  can  be  attributed  to  the 
emplo^Tiient  of  such  capital  must  be  accounted  for  by  those  who 
have  used  it.^^ 

§  613.  Forming  a  new  firm. —  A  continuance  of  the  decedent's 
capital  in  the  business  of  his  late  firm,  pursuant  to  the  directions 
of  his  will,  u  not  the  same  thing  as  lea\'ing  it  with  a  new  firm 
composed  of  the  surviving  partner,  who  is  also  the  executor,  and 
a  third  person.  As  to  the  executor,  who  was  a  partner,  the  same 
rule  would  apply  as  if  he  had  employed  the  funds  in  his  own  in- 
dividual business,  and  he  could  be  required  to  account  for  their 
use  at  the  highest  legal  rate  of  interest,  or  for  actual  profits,  if 
the  beneficiaries  elected  to  compel  him  to  do  so.*" 

79  So  held  in  a  case  where  the  sole  retention    of    the    capital   of  his    de- 
survivor  was  the  administrator  of  his  ceased  partner  in  the  business, 
deceased  copartner.    ( Matter  of  Laney,  80  Stewart   v.    Robinson,    11.5    X.   Y. 
.50    Hun.    15:    affd.,    119   N.   Y.   607.)  328,   344.     An  executor  of  a  deceased 
But    in   flatter    of    Leavitt    (28    Abb.  partner  does  not  become  liable  as  part- 
N.   C.   4:57),   it   was   held,   that   where  ner   with    the   survivor,   by   a    request 
the    sole   executor   was    the    surviving  that   goods   be   delivered   to   meet    the 
partner,     he     was     disqualified     from  necessity    of    the    business,    and    by    a 
agreeing    with    himself    as    surviving  promise  to  pay  therefor,  or  for  goods 
partner ,   under     a     provision     of     the  previously  so  furnished,   in  due  course 
articles     of     copartnership     that     the  of   administration.      ( Richter   v.    Pop- 
business   should   be   settled   up   by  the  penhausen,  42  X.  Y.  373.) 
consent  of  the  survivor  and  the  legal  81  Skidniore  v.  Collier.  S  Hun.  50. 
representatives   of  the   party  dying. —  ^2  Matter  of  Myers,   131   X.  Y.  409 ; 
and   could   not,   therefore,   justify   the  43     St.     Rep.     205.     908;     Matter    of 

32 


§  614.  Administration  of  Estate,  Etc.  498 

^  614.  Keeping  property  in  repair,  paying  taxes  and  mortgage 
interest. —  Tlie  real  estate  of  a  decedent,  in  the  absence  of  a  con- 
trary disposition  by  will,  and  when  not  needed  for  the  payment 
of  debts,  passes  directly  to  the  heirs  or  devisees,  and  hence  is  as 
much  beyond  the  authority  and  duty  of  the  personal  representa- 
tives as  if  it  had  not  been  the  property  of  the  testator  or  intestate. 
But  whenever  real  estate  of  the  decedent  is  lawfully  in  charge 
of  the  personal  representative  he  is  bound  to  exercise  the  same 
care  and  diligence  in  its  preservation  and  protection  as  if  it  were 
personal  property.^^  He  is  bound  to  exercise  that  degree  of  dili- 
gence and  prudence  in  the  care  and  management  of  the  estate 
which  men  of  discretion  and  intelligence  in  such  matters  ordi- 
narily employ  in  their  OAvn  like  aifairs.^^  It  is,  therefore,  his  duty 
to  keep  the  property,  intrusted  to  his  care,  in  a  reasonable  state  of 
repair,  to  insure  it  against  loss  by  fire,  to  discharge  taxes  and  as- 
sessments and,  where  necessary,  to  discharge  liens  or  incumbrances 
on  the  same,  or  interest  thereon,  or  to  redeem  lands  sold  for  non- 
payment of  taxes,  or  on  foreclosure  of  mortgages,*^  On  the  other 
hand,  if  the  representative  is  not  la\\^ully  in  possession  of  the  real 
estate,  he  will  not  be  allowed  for  such  expenditures,  on  his  ac- 
counting, except  under  special  circumstances.*^     As  to  third  per- 


Munzor.  4  Misc.  374.     A  reduction,  by  act   impartially,    and   not  give   either 

an  executor,  of  the  rate  of  interest  on  advantage    at   the   expense    or   to   the 

testator's    capital,    contributed    to    a  prejudice    of    the    other.       (Matter    of 

firm   of  which   both   were    members. —  Odell.    1    Connoly.   97.)      As   to  neces- 

amounts   to   a   liquidation,  and   makes  sity  of  repairs  and  the  reasonableness 

the  executor  chargeable  for  the  whole  of   the   sum    expended,    see   Hancox    v. 

amount   of    such    capital,    without   de-  Meeker,    95     N.    Y.    528;     Matter    of 

duction    for    bad    debts.       (Matter    of  Smith,    1    Misc.    269;    22   N.   Y.    Supp. 

Foote,  43  St.  Rep.  350:  17  N.  Y.  Supp.  1067. 

44.)      The  profits  are  to  be  treated  as  »«  Cornwell  v.  Deck,  2  Redf.  87.    An 

income.       (Matter    of    Slocum,    169   N.  administrator    collected    rents    of    real 

Y.    153;    Matter    of    Rogers,    37    Misc.  estate,     charged     himself    with    them, 

54;   74  N.  Y.   Supp.  829.)  and   paid   them    to   the   widow   of   the 

83  See  Woerner  on  Adm'n,  §  518.  intestate,   with    knowledge   of   all   the 

84  Matter  of  Butler,  1  Connoly,  58;  facts  of  the  case, —  Held,  that  the  pay- 
Matter  of  Van  De  Veer,  63  App.  Div.  ments  must  be  regarded  as  voluntary, 
495:    71   N.  Y.  Supp.  849.  and    that    he    could    not   recover   them 

85  Woerner  on  Adm"n,  §  518:  Mat-  back.  (Lanev  v.  Lanev.  47  St.  Rep. 
ter  of  Archer,  23  N.  Y.  Supp.  1041;  99;  19  N.  Y.  Supp.  518.)  But  in 
Smith  V.  Keteltas,  32  Misc.  Ill;  66  Matter  of  Rolph  (29  St.  Rep.  64;  9 
N.  Y.  Supp.  260,  and  eases  infra.  The  N.  Y.  Supp.  293),  a  widow,  with 
actual  necessity  of  repairs  must  be  young  children  of  whom  she  was  gen- 
shown  by  the  executor  to  entitle  him  eral  guardian,  paid  off,  as  adminis- 
to  charge  the  estate  for  the  amount  tratrix,  the  mortgage  on  her  hus- 
e.xpended  therefor.  Trustees  may  make  band's  farm,  and  completed  the  neces- 
necessary  repairs,  but  not  large  im-  sary  repairs  thereon  and  paid  the 
provements.  Trustees  holding  for  the  taxes  and  insurance.  Held,  that  she 
life  of  one  person  and  remainder  over  should  be  credited  with  such  pay- 
for  some  other  person,  must  consult  ments.  Where  the  real  estate  was 
the  interest  of  both  the  tenant  for  devised  to  others,  but  the  executor 
life  and  the  remainderman.     He  must  was  authorized  to  sell  any  part  of  it 


409  Administijaiio^  ov  Estate,  Etc.  §  G15. 

sons,  executors  who  are  in  the  possession  and  control  of  tho 
premises,  owe  the  same  duty  as  an  owner,  to  keep  them  in  a 
reasonable  state  of  repair,  and  are  personally  liable  to  strangers 
lawfully  on  the  premises,  as  well  as  to  the  tenants,  for  damageri 
caused  by  neglect  of  this  o])ligation.*^ 

§  615.  Taxes  and  municipal  assessments —  Taxes  and  assessments 
laid  or  accruing  subseqAicnt  to  the  decedent's  death,  where  the 
land  vests  in  tlie  heir  or  devisee,  belong  to  him  to  pay,  and  not 
to  the  executor  or  achiiiiiistrator.^  But  where,  under  a  devise  to 
the  executors  in  trust,  a  duty  is  imposed  upon  them  to  pay  taxes, 
they  are  bound  to  do  so,  and,  neglecting  this  duty,  they  are  per- 
sonally chargeable  with  tlie  amount  of  interest  paid  for  default 
on  taxes,  where  it  appears  that  sufficient  funds  of  the  estate  were; 
in  hand  to  discharge  the  same  without  penalty.^''*  Questions 
frequently  arise  between  the  personal  and  real  representative  as 
to  their  respective  obligations  to  discharge  taxes  and  other  liens 
on  the  decedent's  real  property.  A  devise  to  one  for  life,  or  for 
a  term  of  years,  imposes  on  the  devisee  the  duty  to  keep  down 
all  incidental  charges  upon  the  land,  which  accrue  during  the 
continuance  of  his  estate,  such  as  repairs,  taxes,  and  the  like;^*' 
but  municipal  assessments  for  permanent  improvements  should  be 
apportioned  between  the  life  tenant  and  remainderman.^^  Taxes 
which  accrue  subsequent  to  the  termination  of  such  an  estate  are 
chargeable  on  the  general  estate.^^     On  the  same  principle,  per- 

to  pay  debts  and  funeral  expenses. —  not  enough  funds  of  the  estate  to  pay 

Held,    that  he   was  to   be  allowed  for  the  taxes  at  the  time  they  were  due, 

taxes  paid  by  him  as  beiufi  a   lien  on  otherwise  the  payment  of  interest  will 

the   estate,   but   not    for   repairs    made  be  disallowed.        (Matter    of    Quin.     1 

after     the     death     of     the     testatrix.  Connolv.    382.)       See   Disbrow    v.    Dis- 

( Matter  of  Perrv.  5  Misc.    149.)  l)row,    4(5    App.    Div.    Ill;    (il    N.    Y. 

S7  Donohue    v.'   Kendall.    .50    N.    Y.  Supp.  ()14;   aflfd.,  107  N.  Y.  (iOO. 

Super.    :i8(i:    Xorling  v.    Allee,   .31    St.  !«>  Matter     of     Braunsdorf.     2     App. 

Rep.  412.  Div.  73;   :\ratter  of  Shipman.  82  Huh, 

88Cornwell    v.    Deck.    2    Redf.    87;  108;    31   N.   Y.   Supp.   ,571:    Wilcox  v. 

Matter  of  Selleck,  111  N.  Y.  284;  Mat-  Quinbv,  73  Hun,  524;   26  N.  Y.  Supp. 

ter    of    Bennedict,    15    St.    Rep.    746;  114. 

Matter  of  Turfler,  24  N.  Y.  Supp.  91 ;  91  Chamberlain    v.    Gleason.    163    N. 

Matter  of  Spears.  80  Hun.  49;    35  N".  Y.    214:    Stevens    v.    Melelier.    152    id. 

Y.  Supp.  35;   Matter  of  Sworthout.  38  551.      Compare    Peltz    v.    Learned,    70 

Misc.   56;    Matter  of  Mansfield.    10   id.  App.  Div.  312:   75  X.  Y.  Supp.   104. 

296;    31    N.    Y.    Supp.    684.      Though  02  ]?idwell   v.  Greenshicld.  2  Abb.  N. 

after  the   lapse  of  a   long  time,  c.   g.,  C.  427;    Matter  of  Noyes.  3  1)em.  369; 

twenty  years,  it  will  be  presumed  that  Matter  of  Gillespie,  18  Abb.  N.  C.  41; 

an  administrator,  in  paying  the  taxes,  Smith  v.   Cornell,   111    N.  Y.   554.     A 

did    so    at    the    reqiU'st    of    the    heirs,  declaration   in  the   will   that   the  land 

(Broome  v.   Yan  Hook.   1    Redf.   444.)  was'devised  to  the  widow  for  life,  as 

^•>  Tickel  v.  Quinn,  1  Dem.  425.  To  a  home  for  herself  and  children,  does 
justify  the  payment  of  interest  on  not  change  the  ciuiracter  of  the  hold- 
taxes,  the  burden  of  ])roof  lies  upon  ing  so  as  to  relieve  her  from  the  bur- 
Iho  executors  to  show  tliat  there  were  den  of  paying  the  taxes.      (Deraismes 


§§  616,  617.      Administration  of  Estate,  Etc.  500 

sonal  property  specifically  bequeathed, —  as  where  a  specified 
simi  was  directed  to  be  invested  by  the  executor,  the  income  or 
interest  to  be  paid  to  a  legatee  for  life, —  that  particular  property 
or  fund,  and  not  the  general  estate,  must  bear  the  burden  of 
taxes  imposed  upon  it,  unless  a  contrary  intention  is  manifested 
in  the  will.''^  This  is  the  rule  not  only  as  between  the  real  and 
the  personal  representatives,  but  as  between  the  latter  and  the 
creditors  of  the  decedent;  so  that  where  the  executor  and  trustee, 
instead  of  applying  the  money  in  his  hands  to  the  payment  of 
decedent's  debts,  used  it  in  making  repairs,  and  paying  interest 
on  mortgages,  equity  will  charge  the  lands  with  the  amount  so 
paid,  in  favor  of  the  creditors.^* 

§  616.  Insurance. —  It  is  competent,  even  for  an  administrator, 
to  insure  the  real,  as  well  as  the  personal,  property,  where  he  has 
trust  authority  over  it,  or  has  reason  to  believe  that  the  estate 
is  insolvent  ;^^  and  he  may  become  chargeable  for  neglect  to  in- 
sure, wdiere  the  house  is  destroyed  by  fire.^*"' 

§617.  Foreclosing  mortgages  and  buying  in  property. —  As  to 
keeping  down  interest  on  mortgages  or  other  incumbrances  upon 
the  property,  it  is  culpable  negligence  for  the  executor  or  trustee 
to  fail  to  do  so,  when  he  has  funds  on  hand  sufiicient  for  that 
purpose.  The  representative  has  a  right,  and  it  may  be  his  duty, 
in  the  foreclosure  of  a  mortgage  belonging  to  the  estate,  to  bid 
in  the  premises,  on  the  sale  thereof,  and  he  may  take  a  deed  there- 
for in  his  own  name,  individually.     The  premises  thus  purchased 

V.  Deraismes,  72  N.  Y.  154.)  Com-  treated  as  a  payment  to  such  person 
pare  Clarke  v.  Clarke,  145  id.  476;  as  one  of  the  next  of  kin.  (Banks  v. 
65  St.  Rep.  401.  The  testator  devised  Taylor,  10  Abb.  Pr.  199.) 
a  farm,  upon  which  there  was  a  mort-  9^  Wells  v.  Knight.  5  Hun,  50. 
gage,  to  his  executors  and  trustees,  Where  such  fund  has  never  been  sepa- 
and  directed  them  to  pay  the  rents  to  rated  from  the  general  estate  and 
one  whom  they  allowed  to  occupy  it  separately  invested,  the  legatee  is  en- 
instead.  Held,  that  the  taxes,  charges,  titled  to  the  entire  interest  upon  the 
and  interest  on  the  mortgage  should  same,  and  cannot  be  compelled  to  con- 
have  been  paid  by  the  occupant  and  tribute  toward  the  payment  of  the 
should  not  be  allowed,  in  the  exec-  taxes  assessed  upon  the  general  es- 
utor's  accounts,  as  a  charge  against  tate.  (lb.)  See  Matter  of  William- 
the  estate.  (Bates  v.  Underbill,  3  son.  1  Connoly,  139. 
Redf.  365.)  But  where  unimproved  9^  Ferris  v.  Van  Vechten,  9  Hun, 
real  estate,  which  has  a  prospective  12;  revd.  on  another  point,  73  N.  Y. 
value,   is   carried   by  trustees   for  the  113. 

benefit  of  the  remaindermen,  the  an-  95  Herkimer  v.  Rice,  27  ^N.  Y.  103. 
nual  taxes  thereon  are  chargeable  to  See  Lee  v.  Adsit,  37  id.  78;  Clinton 
principal  and  not  to  income.  (Mat-  v.  Hope  Ins.  Co.,  51  Barb.  053:  Corn- 
ter  of  Martens,  16  Misc.  245;  39  N.  well  v.  Deck,  2  Redf.  87;  Matter  of 
Y.  Supp.  189.)  A  payment  of  ex-  Smith,  1  Misc.  269:  Disbrow  v.  Dis- 
penses  of   real    property,    if   made   on  brow,  supra. 

the  order  of  one  of  the  heirs,  who  is  96  See  Tickel  v.  Quinn,   1  Dem.  425. 

also   one   of  the  next  of  kin,   may  be  431. 


501  Administration  of  Estate,  Etc.  §  618. 

are  to  be  regarded  as  personal  property  of  the  estate,  and  it  is 
the  (hity  of  the  representative  to  convert  them  into  money,  to 
be  accounted  for  by  him  as  part  of  snch  estate.''^  He-  is,  there- 
fore, authorizccl  to  enter  into  a  contract  for  the  sale  thereof,  and 
the  vendee  can  be  compelled  to  perform.'**^  There  is,  however,  no 
absolute  obligation  resting  on  an  executor  to  buy  in  the  equity 
of  redemption  at  such  a  foreclosure  sale.'^'*  It  rests  ^vith  him  to 
exercise  a  sound  judgment  whether  or  not  that  course  is  neces- 
sary to  prevent  loss  to  the  estate.  If  it  is  shown  that  it  was  not 
for  the  benefit  of  the  estate  to  bid  in  the  property,  as  where  the 
price  bid  by  a  third  party  was  a  full  and  fair  price,  the  e!xecutor 
^\^ll  not  be  allowed  to  charge  the  estate  with  the  auctioneer's  fees, 
on  his  bidding  in  the  property.^  But  a  purchase  by  the  repre- 
sentative, either  directly  or  indirectly,  for  his  own  benefit  is  con- 
structively fraudulent,  and  he  assumes  the  burden  of  showing 
not  only  his  good  faith  l)ut  the  payment  of  full  consideration." 
In  regard  to  purchases  of  property  by  the  representative  at  an 
auction  in  a  proceeding  to  sell  real  estate  to  pay  debts,  etc.,  the 
statute  declares  such  purchase  to  be  absolutely  void.^ 

§  618.  Depositing  funds  in  bank. —  In  respect  to  moneys  tem- 
porarily in  hand,  it  is  the  duty  of  the  executor  or  administrator  to 
deposit  them  with  some  solvent  bank  or  banking  institution  for 
safe-keeping,  in  order  that  they  may  be  paid  over  promptly  to 
the  person  entitled  by  law  to  receive  them.  If,  in  the  exercise 
of  ordinary  care,  an  executor,  administrator,  or  other  trustee,  de- 
posits funds  with  a  banker  of  good  credit,  who  becomes  bankrupt, 
he  is  not  responsible.^  He  is  only  responsible  for  good  faith  and 
reasonable  diligence  in  that  regard.^     But  where   there  are  no 

t'"  Matter  of  Butler,  1  Connoly,  58 ;  testator's    deposit   in   a    savings   bank 

Yonkers    Sav.    Bank    v.    Kinsley,    78  after  the  bank   had   suffered  from  "  a 

Hun.   18G;    28  N.   Y.   Supp.   925.     See  run,"  until  it  finally  became  insolvent, 

§  530.  ante.  testimony  of  witnesses,  as  to  distrust 

t''^  Valentine  v.  Belden,  20  Hiin.  537.  expressed  by  depositors  and  others,  is 

See  Cook  v.   Ryan,  29  id.   249 ;    Clark  not  sufHcient  to  estalilish  such  general 

v.  Clark,  S  Paige,  152.  reputation  for  unsoundness,  as  to  raise 

!'■' Matter  of  Kick,   11   St.   Rep.  088.  a  presumption  of  knowledge  of  its  un- 

1  flatter  of  Quin,  1  Connoly,  382.  sound  condition  on  the  part  of  the  ad- 
See  note  on  executors,  guardians,  etc.,  ministrator,  where  all  the  witnesses 
buying  in,  17  Abb.  N.  C.  429.  who  knew  of  its  reputation  and  course 

2  Terwilliger  v.  Brown.  44  N.  Y.  of  business  testify  that  they  had  con- 
237;  Carpenter  v.  Carpenter,  35  St.  fidence  in  it  up  to  the  time  of  its 
Rep.   512:    12   X.   Y.   Supp.    189.     See  failure,      (lb.) 

Mann  v.   Benedict.  47  App.  Div.   173;  R  People  v.  Faulkner,  107  X.  Y.  477. 

02  X.  Y.  Supj).  259.  This  was  the  case  of  a   surrogate  do- 

;''  Co.  Civ.   Proc.  §  2774.  positing    with    a    private    banker,    in 

4  Sheerin   v.   Public   Adm'r,   2   Redf.  good     standing     and     credit,     surplus 

421.     On  the  question  whether  the  ad-  moneys    received    by    him    on    a    fore- 

ministrator   was    negligent    in   leaving  closure    of    a    mortgage    on    an    intes- 


§618. 


Administration  of  Estate,  Etc. 


502 


such  recurring  demands  upon  the  trustee  as  require  the  money  to 
be  continued  on  deposit  for  the  purpose  of  meeting  them,  but  are 
left  with  the  bank  as  an  investment  of  the  fund,  which  he  sup- 
posed himself  authorized  to  make,  he  is  liable  for  the  loss  of  the 
money  by  the  failure  of  the  bank.''  We  think  the  rule  may  be 
stated  to  be  that  an  executor,  administrator,  or  other  trustee  is 
bound  to  deposit  the  trust  fund  safely,  apart  from  his  own  funds, 
and  if  he  mixes  it  with  his  private  account  in  bank,  he  is  re- 
sponsible absolutely  for  it.^  But  if  he  keeps  it  separate,  in  a  bank 
of  good  repute,  he  is  not  liable  in  case  of  the  bank's  failure;  pro- 
vided always,  that  the  deposit  is  placed  to  the  credit  of  the  estate 
or  trust,  or  is  so  distinguished  on  the  books  of  the  bank  as  to 
indicate,  in  some  wav,  that  it  is  not  his  own,  but  trust  money.^ 


tale's  land.  Held,  that  no  negligence 
being  shown,  the  sureties  on  his 
official  bond  were  not  liable  for  a  loss 
by  the  failure  of  the  banker.  In  Mat- 
ter of  Scudder  (21  Misc.  179:  47  N. 
Y.  Supp.  101),  the  funds  of  the  estate 
were  ^vithdra^\^l  from  a  bank  where 
they  had  drawn  2  per  cent,  interest, 
and  deposited  by  the  executor  in  a 
bank  of  which  he  was  cashier.  It  ap- 
pearing that  he  did  not  realize  any 
profit  thereby,  he  was  charged  with 
the  loss  resulting  from  the  failure  of 
the  bank  and  with  only  2  per  cent, 
interest  from  the  time  of  the  deposit. 
In  Harlow  v.  Mills  (58  Hun,  391;  34 
St.  Rep.  776;  aflfd.,  128  N.  Y.  650), 
an  administrator,  who  had  been  dis- 
charged of  his  trust,  received  the  pro- 
ceeds of  property  of  the  estate  sold 
thereafter.  Held,  he  was  personally 
responsible  for  the  money  when  de- 
posited in  a  bank  which  subsequently 
failed. 

6  Matter  of  Knight,  21  Abb.  X.  C. 
388.  In  that  case,  the  fund  had  re- 
mained on  deposit  for  two  years,  less 
two  months,  prior  to  the  bank's  fail- 
ure. It  is  no  defense,  in  such  a  case, 
that  the  will  declared  that  the  exec- 
utors should  not  be  responsible  for  the 
unavoidable  loss  of  any  property  or 
money  by  reason  of  the  insolvency  of 
any  bank,  inasmuch  as  this  was  not 
an  unavoidable  loss ;  nor  is  it  material 
that  the  deposit  was  originally  made 
by  the  executor  to  whom  he  succeeded 
as  trustee.  In  Matter  of  Maxwell  ( 1 
Connoly,  230),  the  trustee  permitted, 
-with  the  assent  of  the  parties  in  in- 
terest, so  far  as  the  same  could  be 
given,  a  large  part  of  the  assets  to 


remain  on  deposit  at  interest  in  a 
bank,  after  trying  unsuccessfully  to 
invest  the  same  on  bond  and  mort- 
gage. The  trustee  was  also  one  of  the 
directors  of  the  bank,  but  it  did  not 
appear  that  he  had  any  reason  to  be- 
lieve the  bank  otherwise  than  solvent. 
He  kept  his  firm  account  also  in  that 
bank,  and  business  men  of  good  re- 
pute, directors  of  the  bank,  had  large 
sums  of  money  on  deposit  therein  and 
believed  it  to  be  solvent.  The  bank 
failed,  the  cause  of  the  failure,  or  the 
condition  of  the  bank  prior  thereto, 
not  appearing,  except  that  the  cashier 
absconded  at  the  end  of  the  day  before 
the  failure.  Held,  that  the  trustee 
was  not  liable  for  the  loss  arising 
from  the  failure  of  the  bank. 

7  Case  V.  Abeel,  1  Paige,  393;  Kil- 
lett  V.  Rathbun,  4  id.  102:  Matter  of 
Crosby,  40  St.  Rep.  442. 

8  This  is  the  rule  with  respect  to 
the  liability  of  an  attorney  for  negli- 
gence   in   keeping   his   client's   money. 

(2  Shearman  &  Redfield  on  Ncg., 
§  575.)  On  a  collation  of  cases.  Judge 
AVoerner  (Law  of  Adm'n.  §  336) 
states  the  rule  to  be  that  "  if  the 
trustee  deposit  money  in  bank,  to- 
gether with  money  of  his  own,  so  that 
he  may  draw  against  the  common 
fund  in  his  own  name,  or  in  any 
manner  mingle  it  with  his  own,  this 
amounts  to  a  conversion  of  the  estate's 
money  to  his  own  use.  The  loss  of 
the  fund  by  the  failure  of  the  bank  or 
otherwise  must  be  borne  by  him,  even 
if  he  had  no  other  funds  in  such  bank, 
and  informed  the  officers  at  the  time, 
that  the  funds  were  held  in  trust,  and 
although  deposited  with  the  intention 


503  Administration  of  Estate,  Etc.  §  619. 

If  the  deposit  Le  made  under  an  agreement  that  it  shall  remain 
for  a  time,  thus  rendering  the  transaction  a  loan  and  not  a  de- 
posit, or  if  a  deposit,  originally  made  with  prudence,  is  continued 
for  such  an  unreasonable  length  of  time  as  to  involve  a  breach  of 
duty,  the  re])rosentative  is  responsible  for  loss  arising  from  tin- 
insolvency  of  the  bank." 

§  619.  Duty  to  place  temporary  funds  at  interest. —  Pending  the 
period  preliminary  to  final  distribution  among  the  next  of  kin,  <>r 
among  the  legatees,  as  the  case  may  be,  it  is  commonly  necessary 
for  the  representative  to  keep  considerable  sums  on  hand  —  how 
much  and  for  how  long  a  time  must  depend  upon  tlie  circum- 
stances of  the  particular  estate.  The  statute  does  not  enjoin 
upon  executors  and  administrators,  as  it  does  upon  temporary 
administrators,^"  the  duty  of  depositing  the  funds  of  the  estate 
with  a  trust  company  or  other  depositary  —  ^\'ith  a  view,  in 
part,  that  interest  may  be  earned;  and  on  the  other  hand, 
it  cannot  be  said  that,  in  respect  to  the  temporary  placing  of 
funds,  the  representative  can  take  the  time  allowed  to  an  execu- 
tor or  trustee  to  make  a  permanent  investment,  under  the  direc- 
tions of  the  will.  The  rule  is,  that  during  the  period  of  getting 
in  the  estate,  paying  the  debts,  etc.,  preliminary  to  final  distribu- 
tion or  a  permanent  investment,  under  the  will,  whether  the  period 
be  long  or  short,  the  representative  is  held  to  the  same  degree  of 
care  which  a  man  of  ordinary  prudence  Avould  exercise,  under 
the  same  circumstances,  with  respect  to  placing  his  own  money  so 
that  it  might  earn  interest.  If  the  court  can  determine  that, 
under  the  circumstances  of  the  particular  case,  it  was  a  breach 
of  duty  for  the  representative  to  let  the  money  lie  idle,  he  may 
be  charged,  on  his  accounting,  for  the  amount  of  interest  "which, 
with  reasonable  dilioence,  he  mis'ht  have  received."     If  distribu- 


to  keep  thorn  there  to  repay  the  rinston  v.  Libby,  0  Daly,  250 :  Haskin 
amount  nf  the  trust  funds  usVd  by  v.  Tell(M-.  .3  Redf.  .310.)' 
him."  See  Matter  of  .Barnes,  140  N.  H  Shuttleworth  v.  Winter,  o.)  X.  Y. 
Y.  468;  55  St.  Rep.  700.  025;  Schieffelin  v.  Stewart.  1  Johns. 
!>  Raskin  v.  Raskin,  4  Lans.  00.  Ch.  020;  Do  Peyster  v.  darkson.  2 
lo  The  duty  of  a  tcmpoidrj/  n(]))}i)i-  Wend.  78;  Roosevelt  v.  Roosevelt.  5 
istrator  to  deposit  the  fund  with  a  Redf.  204;  ^Matter  of  C'hilds,  5  Misc. 
trust  company  is  declared  by  staiute  500;  20  X.  Y.  Supp.  721.  Where  lie 
(see  §  410,  ante)  ;  and  where  he  fails  dr;\ws  the  chief  i)art  of  an  estate  from 
to  do  so,  he  is  chargeable  with,  only  so  a  trust  company  throuj^h  fear  of  an 
:nuch  interest  as  would  have  been  re-  attachment,  and  it  lies  idle  frr  about 
ceived  from  the  deposit  if  it  had  been  a  year,  tlie  administrator  is  charire- 
made  with  a  trust  company,  it  not  able  with  interest  thereon.  (Matter 
appearinpr  that  he  had  used  the  money  of  Bradley,  1  Connoly,  lOG.)  In  Mat- 
or  had  derived  any  profit  from  the  ter  of  ^lapes  (5  Dem.  440).  an  ad- 
deposit  of  it  in  his  own  bank.  (Liver-  luiiii^tratnv  who  permitted  $20,000  to 
more  v.  Wortman,  25  Hun.  341:   Har-  remain    uninvested    for    more    than    a 


§  620.  Administration  of  Estate,  Etc.  504- 

tion  is  unreasonably  delayed,  he  is  cliargeal»le  with  interest  on 
the  fund,  the  same  as  an  executor  or  trustee  would  be  for  an 
unreasonable  delay  in  making  a  permanent  investment  under  the 
will.  The  reasonableness  of  the  delay  depends,  of  course,  upon 
the  circumstances  of  the  particular  case.  He  may  keep  in  hand 
such  sums  as  the  distributees  may  call  for  at  any  time;  if  kept 
ready  to  be  paid  over,  on  demand,  a  delay  of  demand  is  no  ground 
for  charging  interest.^^  It  has  been  very  generally  held  that, 
during  the  first  year  (though  this  will  depend  upon  circum- 
stances), the  representative  will  not  be  charged  with  interest, 
provided  he  has  kept  the  trust  funds  separate,  not  mixed  wdth  his 
private  fimds,  and  not  employed  by  him  for  his  own  advantage, 
or  to  enhance  his  credit.^"  If  a  delay  occurs  by  reason  of  the 
pendency  of  a  suit  against  him  for  an  account  and  distribution, 
the  representative  should  ask  leave  to  pay  the  balance  into  court, 
or  to  invest  it  under  direction  of  the  court. ^^ 

§  620.  Liability  for  personal  use  of  funds. —  Outside  of  the  ques- 
tion of  the  representative's  liability  to  pay  the  interest,  which  he 
might  have  earned,  with  reasonable  diligence,  is  his  absolute  lia- 
bility to  pay  full  legal  interest,  where  he  mingles  the  trust  funds 
with  his  own,  or  where  he  employs  them  in  his  business  or  other- 
wise for  his  own  purposes.  In  such  a  case  he  may  be  charged 
with  the  full  legal  rate  of  interest,  or  with  the  actual  profits  re- 
sulting from  such  use."^^     On  this  principle,  a  representative  can- 


year     after     the     administration     was  ler  v.   Hasler,    1   Bradf.   248;    Price  v. 

substantially  wound   up,  was  charged  Holman,   13.5   X.   Y.    124;   48   St.   Rep. 

with   li  per  cent,  interest.     See  Mat-  381. 

ter  of  Woodworth,  5  Dem.  15G.  An  13  Ogilvie  v.  Ogilvie,  1  Bradf.  356; 
executor  who  kept  the  assets  for  a  Minuse  v.  Cox,  5  Johns.  Ch.  441;  Coil- 
year  in  a  bank  of  which  he  was  presi-  yer  v.  Collyer,  6  St.  Rep.  693 ;  Matter 
dent,  was  charged  with  interest  of  Black,  6  Dem.  331. 
thereon  at  the  rate  the  bank  allowed  ^-i  Hosack  v.  Rogers,  9  Paige,  461; 
on  time  deposits.  (Matter  of  Bab-  Lockhart  v.  Public  Adm'r,  4  Bradf. 
cock,  29  St.  Rep.  947;  9  K  Y.  Supp.  21.  If  it  appears  that  the  executor 
554.)  See  Matter  of  Scudder.  21  las  been  unable  to  find  real  estate 
Misc.  179;  47  N.  Y.  Supp.  101:  Mat-  seeurities,  he  is  justified  in  keeping 
ter  of  Sudds,  32  Misc.  182:  66  N.  Y.  the  funds  in  a  savings  bank.  (Lansing 
Supp.  231.  But  where  the  bank  in  v.  Lansing.  45  Barb.  182.)  See  ^lat- 
which  the  funds  were  deposited  re-  ter  of  Howard,  3  Misc.  170;  23  X.  Y. 
fused,    three    months    before    the    ac-  Supp.  836. 

counting,  to  continue  to  pay  interest,  is  Matter  of  Myers.  131  X.  Y.  409; 

the    mere   failure    of   the    executor    to  Reynolds  v.   Sisson,  78   Hun,  595;   29^ 

invest  the  fund  in  the  meantime  does  X.    Y.    Supp.    492;     Matter    of     Goet- 

not    make    him    chargeable    with     in-  schius,   2   Misc.   278;    23   X.   Y.   Supp. 

terest.       (Matter    of    Clark,    16    Misc.  975.     The  employment  of  trust  funds 

405;   39  X.  Y.  Supp.  722.)  ''in  trade,  or  as  loans  to  persons  en- 

12  Jacot  V.   Emmett.    11   Paige,   142;  gaged    in    such    business,    or    in    the 

Burtis  V.  Dodge,  1  Barb.  Ch.  77;  Has-  prosecution  of  mercantile,  commercial. 


505  Ai>>rixisTiiATi().\  OF  Estate,  Etc.  §  620. 

not  anticipate  the  adjnstnient  of  his  commissions,  on  the  final 
settlement  of  his  accounts;  by  appropriating  any  part  of  the  assets 
to  their  payment  before  that  time,  he  becomes  chargeable  with 
interest  on  the  amount,  from  the  date  of  the  withdrawal  to  the 
date  of  the  decree. ^"^  So,  an  administrator  who  uses  the  intestate's- 
personal  i)roperty  from  the  time  of  his  death  to  the  date  of  the 
sale  of  such  2)ropcrty,  is  chargeable  with  the  reasonable  value  of 
its  use.^^ 

or  manufacturing  enterprises  or  spec-  with   interest  was  granted.      (Matter 

ulrttive  adventures,  has  been  uniformly  of  Muller,  31  App.  Div.  80;   52  N.  Y. 

(•(iiulcmncd    as    illegal    and    as    consti-  Supp.  5G5.) 

tutiiig  a  devastavit  of  the  estate"  i'>  Freeman  v.  Freeman,  4  Redf.  211; 
(per  Ruger,  C.  J.,  Deobold  v.  Opper-  Whitney  v.  Phcenix,  id.  195;  Wheel- 
mann.  Ill  N.  Y.  538).  (Manning  v.  wright  V.  Rhoades,  28  Hun,  57;  U.S. 
Manning,  1  Johns.  Ch.  527 ;  Matter  of  Trust  Co.  v.  Bixby,  2  Dem.  497 ;  67 
Prcscott,  1  Tuck.  430:  Matter  of  How.  Pr.  390;  Matter  of  Herrick,  32 
Hood,  id.  390;  Matter  of  Richardson.  St.  Rep.  1032;  Matter  of  Gerow,  23 
2  Misc.  288;  Matter  of  Thorp.  31  id.  N.  Y.  Supp.  847.  An  executor  can- 
581;  ()5  N.  Y.  Supp.  575.)  In  the  last  not  be  allowed,  on  his  accounting,  for 
case,  the  funds  were  deposited  in  a  commissions  paid  to  a  co-executor  be- 
private  bank  owned  by  the  represen-  fore  tlieir  judicial  allowance.  (^lat- 
tative.  Where  an  executor  and  his  ter  of  Butler.  1  Connoly,  58;  9  N.  Y. 
testator  were,  prior  to  the  death  of  Supp.  041.)  See  §  1005,  post.  But  an 
tlie  latter,  copartners,  and  the  former,  executor  or  administrator  who,  being 
without  separating  the  interest  of  the  also  the  residuary  legatee,  in  good 
latter  in  the  firm  property  and  assets,  faith  applies  to  his  own  use  the  as- 
continued  to  employ  and  use  the  same  sets  remaining  after  paying  legacies, 
in  the  business,  he  is  properly  charge-  and  all  claims  presented  in  the  usual 
able,  upon  final  settlement,  with  com-  course,  cannot  be  held  accountable  ex- 
])ound  interest  upon  the  value  of  the  cept  for  the  actual  value  of  the  as- 
ti'stator"s  share.  (Hannahs  v.  Han-  sets  or  be  charged  with  the  profits  of 
ualis.  (18  N.  Y.  GIO. )  See  ^Matter  of  a  business  into  which  he  puts  them. 
:\litchell,  3(5  App.  Div.  542;  55  X.  Y.  CNIatter  of  MuUon.  145  X.  Y.  98;  64 
Supp.  725;  affd.,  161  X.  Y.  654:  Mat-  St.  Rep.  551.)  Where  an  executrix 
t(>r  of  Xesmith,  71  Hun,  139;  24  X.  who  is  also  a  legatee  has  collected 
V.  Supp.  527:  affd..  140  X.  Y.  609.  In  various  sums  of  money  which  belong 
(Jarniss  v.  Gardiner  (1  Edw.  128).  it  to  the  estate  which  she  has  applied  to 
was  held,  that  where  an  administrator  her  own  use,  it  is  proper  on  an  ac- 
caused  stock  of  the  testator  to  be  counting  to  compute  interest  upon  the 
transferred  to  his  own  name,  and  re-  legacy  until  the  amount  collected  by 
ccived  and  mingled  the  dividends  with  her  equals  the  interest,  and  then  to 
his  own  money,  he  should  be  charged  credit  it  as  a  payment  upon  the 
with  the  dividends  as  they  were  re-  legacy  and  to  compute  interest  upon 
ceivcd.  and  with  interest  on  each  the  balance  until  another  payment  is. 
from  tlie  time  of  its  reception,  and  in  in  a  like  manner  credited.  (Stevens, 
case  of  any  sale  and  reinvestment,  the  v.  Melcher,  152  X.  Y.  551.) 
dividends  "or  income  of  the  reinvest-  l"  Matter  of  Saunders.  4  Misc.  28; 
ment  sliould  be  in  like  manner  charged  23  X.  Y.  Supp.  829.  In  that  case^ 
with  interest.  A  trustee  charged  with  the  personal  estate  consisted,  in  part^ 
6  per  cent,  interest  for  using  the  fund  of  thirty-six  dairy  cows,  one  ox  team^ 
and  not  depositing  it  in  a  trust  com-  and  one  horse  team,  besides  various. 
])any  as  required  by  the  terms  of  the  farming  tools  and  implements  which 
trust,  may  nevertheless  be  credited  the  administrator  used  to  a  greater 
with  payments  to  the  cestui  (juc  trust  or  less  extent,  from  the  death  of  the 
tliougli  made  as  income,  which  was  intestate  to  the  sale  thereof,  and  had 
not,  in  fact,  earned  till  the  decrt'c  of  tlie  avails  thereof  for  his  own  indi- 
the     surrogate    charging     tlic     trustee  vidua!    benefit. 


:§  621.  Admixistratiox  or  Estate^  Etc.  506 

§  621.  Making  and  realizing  on  permanent  investments. —  The 
•case  of  a  trustee,  avIio  is  required  to  invest  a  fund,  at  the  time  or 
in  the  mode  in  wliich  the  will  or  the  law  itself  has  pointed  out,  is 
somewhat  different  from  that  of  a  representative,  pending  the 
ordinary'  administration  of  the  estate.  The  liability  of  such  a 
trustee  to  pay  interest,  even  simple  interest,  does  not  arise  from 
the  mere  fact  that  he  deposited  the  trust  moneys  indiscriminately 
with  his  own;  nor  because  he  made  use  of  them  in  his  own  busi- 
ness; there  must  be  superadded  a  breach  of  trust,  a  neglect  or 
refusal  to  invest  the  fund  according  to  the  directions  of  the  trust- 
instrument  or  settled  rules  of  law.^^  '"  If  he  is  guilty  of  fraud, 
or  of  mismanagement  of  the  trust  fund,  or  is  guilty  of  a  breach 
of  trust,  or  has  used  the  trust  funds  for  his  own  purposes,  and 
made  a  profit  therefrom,  he  may  be  compelled  to  pay  interest, 
and  in  extraordinary  cases  compound  interest,  so  as  to  place  the 
cestui  que  trust  in  the  same  situation  as  if  the  trustee  had  faith- 
fully performed  his  proper  duty."  ^^  In  all  cases  where  the  ex- 
ecutor has  been  held  liable  for  interest  on  funds  in  his  hands,  one 
or  more  of  the  elements  or  facts  of  personal  use  of  the  funds, 
mingling  the  same  with  private  moneys,  unauthorized  invest- 
ments, failure  to  follow  clear  and  specific  directions  as  to  the 
disposition  of  funds,  retention  of  the  funds  where  there  was  no 
reasonable  excuse  for  so  doing,  or  other  circumstances  sho\\ang 
a  clear  case  of  breach  of  trust,  are  present ;  and  where  these  ele- 
ments are  all  absent  the  executor  will  not  be  charged  interest  on 
m.oney  in  his  hands.  Compound  interest  is  allowable  only  in  cases 
of  gross  delinquency  or  intentional  violation  of  duty.^*^  For  mere 
neglect  to  invest,  simple  interest  is  generally  imposed,"^  especially 

18  Eapalje    v.     Hall,    1     Sandf.    Cli.  will,  he  devised  to  his  daughter,  and 

399;  Jacot  v.  Emniett.  11  Paifre.  142:  directed  that   it  be  valued   at  $8,000. 

Matter  of  Barnes.   140  X.  Y.  468;    .55  The    will    was    not    recorded    in    Xew 

St.  Rep.   790:   Matter  of  Xesmith,  140  Jersey,   and   the   interest   remained   in 

X.  Y.  609 :    56  St.  Rep.  484.  arrears  for  several  years.     Held,  that 

10  Per  Earl,  C.  J.,  Price  v.  Holman,  as    the   executors   had   acted    in   good 

135  X.  Y.   124.  faith,   they  Avere   not  chargeable   with 

20  Ackerman  v.  Emott,  4  Barb.  626 ;  compound  interest  on  the  amount  so 
Lansing  V.  Lansing,  45  id.  182;  1  Abb.  invested;  that  the  defect  of  title, 
Pr.  (X.  S.)  280;  Tucker  v.  McDer-  tlirougli  failure  to  record  the  Avill, 
mott,  2  Redf.  321.  See  Reynolds'  v.  could  be  remedied  by  a  subsequent 
Sisson,  78  Hun,  595 ;  29  X.  'Y.  Supp.  record  of  the  same. 
492.  In  Freeman  v.  Freeman  ( 4  21  Thorn  v.  Garner,  42  Hun,  507 ; 
Redf.  211),  the  testator  gave  to  his  citing  Clarkson  v.  De  Peyster,  Hopk. 
executors  $4,000,  in  trust,  to  invest  424,  427;  Hannahs  v.  Hannahs,  68  X. 
in  bond  and  mortgage  on  real  estate  Y.  610;  Utica  Ins.  Co.  v.  Lj-nch,  11 
in  the  city  of  Xew  York,  or  its  vicin-  Paige,  520;  Barney  v.  Saunders,  16 
ity,  and  to  apply  the  income  thereof  How.  (U.  S.)  535,  542;  Remington  v. 
to  the  use  of  J.,  during  life.  The  \Valker,  99  X.  Y.  626.  And  see  Mat- 
executors,  with  J.'s  consent,  took  a  ter  of  Butler,  1  Connoly,  58;  9  X.  Y. 
mortgage  on  the  testator's  dwelling-  Supp.  641. 
Louse   in   Xew   Jersev,   which,   by   his 


5o: 


Admixistijatiox  of  Estate,  Etc. 


§  622. 


where  no  wrongful  intention  to  niisaiiitrojiriate  the  funds  is 
shown.""  In  ordinary  eases,  six  months  after  the  fund,  to  be  per- 
manently invested,  is  ascertained,  has  been  regarded  as  ample  time 
Avithin  which  to  find  a  satisfactory  investment.""  A  delay  of  more 
than  one  year  by  the  executor  in  disposing  of  property  to  raise 
a  tnist  fund,  and  depositing  the  same  in  the  trust  company  desig- 
nated in  the  will,  was  held,  in  one  case,  not  to  make  him  charge- 
able with  more  interest  than  he  had  received  during  the  time  a 
suit  for  the  construction  of  the  ^nll  was  pending.^'* 

It  is  not  inconsistent  with  the  duties  of  an  executor,  whose  duty 
it  is  to  invest  funds,  to  supplement  the  funds  of  the  estate  with 
tis  own  or  Anth  other  moneys  legitimately  obtained,  in  order  to 
secure  a  profitable  investment."^  In  such  a  case,  if  the  trust 
moneys  so  invested  are  indistingiiishable  from  the  other  moneys 
invested  with  them,  the  cestui  que  trust  cannot  claim  a  specific 
lien  upon  the  property  or  funds  constituting  the  investment."*"' 

§  622.  Character  of  investment. —  If  the  will  directs  the  manner 
of  investment,  the  executor  is  bound  to  make  good  any  loss  re- 
sulting from  an  unauthorized  or  unnecessary  disobedience  of  such 
directions."^     A  direction  of  the  will  to  invest  trust  funds  in  a 


22  Wilmerding  v.  McKesson.  10.3  X. 
Y.  329 :  Estate  of  Kennedy.  X.  Y.  Law 
J.,  March  20.  ISflO.  In  Matter  of 
Rutherford  (.)  Deni.  499),  in  charg- 
ing a  trustee  for  loss  upon  a  loan  to  a 
co-trustee  at  a  rate  of  interest  higher 
than  the  legal  rate  prevailing  at  the 
time  of  the  accounting,  it  was  held, 
that  althmigh  for  his  misconduct  in 
assenting  to  such  loan  he  could  not 
be  held  for  more  than  legal  interest 
in  the  absence  of  evidence  that  he 
personally  profited  by  the  transaction, 
yet  as  he  was  souglit  to  be  charged 
for  neglect  in  failing  to  collect  in- 
terest at  the  contract  rate  as  it  be- 
came due.  a  charge  against  him  of  the 
full  amount  of  such  interest  was 
proper. 

2;nialsted  V.  llyman,  3  Bradf.  426; 
Dunsccnib  v.  Dunscomb,  1  Johns.  Ch. 
508;  (Jilman  v.  Gilman.  2  Lans.  1; 
Jlatt^-r  of  McKay,  5  :\Iisc.  123:  Mat- 
ter of  Saunders,  4  id.  28.  It  was 
said  in  Matter  of  Butler  ( 1  Connoly, 
58;  9  X.  Y.  Supp.  (J41),  there  is  no 
indexible  rule  that  where  at  the  end 
of  any  year  there  remains  a  surplus 
of  income,  the  executor  is  bound  to 
invest  the  same  at  once,  as  such  rule 
would  preclude  the  application  of  the 
income    of   one   vear    to    the   needs   of 


testator's  family  for  another  year,  no 
matter  what  the  exigencies  that  might 
call  for  so  doing. 

24  Foster  v.  Wetmore,  37  St.  Rep. 
CG7;    14  X.  Y.   Supp.   194. 

25  Barry  v.  Lambert,  98  X.  Y.  300, 
and  cases  cited. 

20  Ferris  v.  Van  Vechten,  73  X.  Y. 
113. 

2TBohde  v.  Bruner,  2  Rcdf.  333; 
Freeman  v.  Freeman,  4  id.  211:  Crabb 
V.  Young,  92  X.  Y.  oG ;  Clark  v.  Clark, 
23  Misc.  272;  50  X.  Y.  Supp.  1041. 
Even  though  it  takes  the  fund  beyond 
the  jurisdiction  of  the  court.  (lb.: 
Meldun  v.  Devlin,  20  :Misc.  5(5:  4.')  X. 
Y.  Supp.  333.)  In  Shepard  v.  Patter- 
son (3  Dem.  183),  the  will  directed 
the  income  of  certain  trust  funds  to 
be  deposited  '"  in  .some  good  savings 
bank."  or  devoted  to  some  other  safe 
investment,  during  the  respective 
minorities  of  the  beneficiaries;  in- 
stead of  which  the  executor  advanced 
the  income  to  the  minors.  He  was 
charged,  on  his  accounting,  with  in- 
terest, compounded  semi-annually,  at 
the  rate  of  5  ])er  cent,  upon  all  sums 
received,  from  the  expiration  of  three 
months  after  the  receipt  to  the  date 
of  filing  the  account,  and  at  the  rate 
of    3    per   cent,    thereafter   until    the 


§  622. 


Administration  of  Estate^  Etc. 


508 


particular  security,  e.  g.,  in  United  States  bonds,  implies  an  au- 
thority to  pay  a  premium  therefor,  if  necessary  ;^^  and  where  an 
investment  in  real  estate  is  authorized,  the  fund  may  be  used  for 
the  erection  of  a  building  upon  land  forming  part  of  the  trust 
estate.^**  In  the  absence  of  specific  directions,  a  trustee  who  acts 
in  good  faith  and  in  the  exercise  of  a  reasonable  discretion,  and 
in  the  same  manner  as  a  prudent  man  would  ordinarily  do  in 
regard  to  his  own  property,  wdll  not  be  held  responsible  for  losses 
accruing  in  the  management  of  the  trust  property. ^*^  This  rule 
necessarily  excludes  all  speculation,  all  investments  for  an  un- 
certain and  doubtful  rise  in  the  market,  and,  of  course,  evers^- 
thing  that  does  not  take  into  view  the  nature  and  object  of  the 
trust,  and  the  consequences  of  a  mistake  in  the  selection  of  the 
investment  to  be  made.  Although  the  English  rule,  that  trust 
funds  must  be  invested  in  the  public  debt,  is  not  a  part  of  the 
common  law,  and  has  no  application  to  this  country,  it  is  a  settled 
principle  of  law  in  this  State,  that  trust  funds  should  be  invested 
in  government  or  real  estate  securities,  or  in  such  others  as  the 
Legislature  may  desig-nate,^^  and  that  any  other  investment  would 
be  a  breach  of  duty,   and  the   trustee   would   be   responsible,'"'" 


entry  of  the  decree  on  settlement. 
Compare  Matter  of  Stewart.  30  App. 
Div.  368;  affd..  163  X.  Y.  593.  Under 
a  power  to  vary  investments,  the  trus- 
tee may  assign  a  bond  and  mortgage 
before  maturity.  (Spencer  v.  Weber, 
163  X.  Y.  493.') 

28  Brown  v.  Chesterman,  30  St.  Rep. 
537;  9  X.  Y.  Supp.  187.  As  to  the 
duty  of  the  trustee  to  deduct,  in  such 
case,  from  the  income  a  sufficient  sum 
each  year,  to  keep  the  principal  intact. 
See  Xew  York  Life  Ins.  Co.  v.  Baker, 
165  X.  Y.  484. 

29  Stevens  v.  Melcher.  152  X.  Y. 
551.  Authority  is  given  by  statute  to 
purchase  land  for  the  purpose  of 
straightening  boundaries.  (L.  1898, 
c.  311.) 

30  King  V.  Talbot,  40  X.  Y.  76 :  Mc- 
Cabe  V.  Fowler,  84  id.  314:  Ormiston 
V.  Olcott.  id.  339:  Atlantic  Trust 
Co.  V.  Powell,  23  Misc.  289:  50  X.  Y. 
Supp.  866;  Crabb  v.  Young.  92  X.  Y. 
56.  In  the  last  case  the  will  provided 
that  the  executors  should  not  be  liable 
for  any  loss  or  damages  except  such 
as  occurred  "  from  their  willful  de- 
fault, misconduct,  or  neglect."'  Held, 
that,  although  the  trustees  were  found, 
by  the  trial  court,  to  have  acted  im- 
prudently and  carelessly  in  making  an 


investment  in  inadequate  securities.. 
yet  such  imprudence  not  being  found 
to  have  been  "  willful,"  a  judgment 
requiring  the  trustees  to  restore  to  the 
trust  fund  the  amount  so  invested  was 
erroneous.  The  court  will  regard 
them  with  leniency  when  they  have 
acted  in  good  faith.  See  Hart  v.  Ten 
Eyck,  2  Johns.  Ch.  76 :  Thompson  v. 
Brown,  4  id.  619;  Lansing  v.  Lans- 
ing. 45  Barb.  182;  Barker  v.  Smith, 
1  Dem.  290. 

31  Matter  of  Wotton,  59  App.  Div. 
584;  69  X,  Y.  Supp.  753;  affd..  167 
X.  Y.  629.  The  fact  that  the  Legis- 
lature has  designated  particular  secu- 
rities, indic/ites  that  the  power  of 
trustees  is  restricted  in  this  respect, 
(lb.) 

32  King  V.  Talbot,  supra.  See  a  col- 
lection of  cases  on  the  general  subject 
of  investments  of  trust  funds  in  40 
Am.  Dec.  506,  note.  The  rule  is  less^ 
strict  in  other  States.  The  cases  are 
collated  in  Lamar  v.  Micou,  112  U.  S. 
468.  In  that  case,  the  guardian  of  an 
infant,  domiciled  in  Ge:  rgia  but  tem- 
])()rarily  residing  in  this  State,  where 
al>o  the  letters  of  guardianship  were 
issued,  invested,  during  the  war  of  the 
rebellion,  the  ward's  money  in  the 
municipal  bonds  of  southern  cities  is- 


500  ,Admi.\istkatio.\  of  Estate,  Etc.  §  023. 

notwithstanding  the  will  authorized  the  trustees  to  invest  the 
fund  '"  in  such  manner  and  upon  such  securities  as  to  them 
shall  seem  advisable.""*^  Accordingly,  an  executor  is  not  au- 
thorized to  loan  funds  of  the  estate  on  personal  security^'*  or 
upon  a  leasehold  estate.'"'^  13y  a  statute  passed  in  1890  (chapter 
65),  it  Avas  declared  ''  lawful  for  executors,  administrators,  guard- 
ians, and  trustees,  and  others  holding  trust  funds  for  invest- 
ment, to  invest  the  funds  so  held  by  them  in  trust,  in  bonds  or 
stocks  of  any  of  the  cities  of  this  State,  issued  pursuant  to  the 
authority  of  any  law  of  this  State."  ^*^  Another  statute^^  pro- 
Tides  that  trust  moneys  may  be  invested  "  in  the  same  kind  of 
securities  as  those  in  which  savings  banks  of  this  State  are  by  law 
authorized  to  invest  the  money  deposited  therein,  and  the  income 
derived  therefrom,  and  in  bonds  and  mortgages  on  unincumbered 
real  property  in  this  State  worth  fifty  per  centum  more  than  the 
amount  loaned  thereon." 

g  623.  Decedent's  investments. —  The  executor  or  trustee  is  not 
nuthorized  to  keep,  beyond  a  reasonable  time,  securities  found 
among  the  assets,  which  are  not  of  such  a  character  as  to  justify 
an  investment  of  trust  funds  in  them  under  the  general  rule  above 
stated,^®  unless  the  will  directs  or  empowers  the  trustee  to  hold 
the  personal  estate  in  the  manner  and  form  in  which  it  may  be 
invested  at  the  time  of  the  testator's  death. ^"^ 

So,  also,  the  possession  by  the  testator,  at  the  time  of  his  death, 
of  shares  of  the  capital  stock  of  a  corporation,  does  not  authorize 
the  executors,  upon  an  increase  of  the  capital  of  the  corporation, 
to  subscrilte  for  additional  shares  of  such  stock  under  a  special 
privilege  given  to  the  stockholders  of  the  corporation.'**' 

sued  before  the  war.  and  in  southern  of  Blauvelt,  CO  Tlun.  393 ;   39  St.  Rep. 

raih'oarl   bonds,   indorsed  by  the  State  774;     Alatter    of    Vandevort.    8    App. 

of  Tennessee,  and  deposited  the  bonds  Div.  341:   40  X.  Y.  Siipp.  791. 

in   a   bank   in   Canada.     Held,   that   if  35  Matter  of  Stark,  30  St.  Rep.  393; 

in    so   doinjr   he    used     due    care    and  1.5  X.  Y.  Supp.  729. 

prudence,   having;   regard    to   the   best  36  The  substance  of  this  statute  was 

pecuniary  interest  of  his  ward,  he  was  carried    into    the    Personal    Property 

not  accountable   for   loss  by  deprecia-  Law    ( L.   1S97.  c.  417.  §  9). 

tion  of  the  securities.           '  3T  L.   1902.  c.  29.5. 

33:Matter    of    Keteltas,    1     Connolv,  38  McRae    v.    McRae.    3   Bradf.    199; 

468;    Matter    of   Reed,    45    App.    Div.  ^Matter  cf  Campbell.  21   Misc.  133;   47 

19G;    01    X.    Y.    Supp.    50:    Matter   of  X.   Y.   Supp.  29. 

Hall,    104   X.   Y.    196;    Enprlish   v.   Mc-  30  Matter  of  Cant.  5  Dem.  269:  Mat- 

Intvre,    29    App.    Div.    439:    51    X.    Y.  ter  of  Wolfe.  1  Connolv,   102:   Lawton 

Supp.   697.  V.  Lawton,  35  App.  Div.  389 :  45  X.  Y. 

34  Lefever     v.     Hasbrouck,    2     Dem.  Supp.    760;     Duneklee    v.    Butler,    30 

.567:     Matter    of    Cant,     5     id.     269;  Misc.  58;  62  X.  Y.  Supp.  921. 

Bopart    V.    Yan    Yelsor,    4    Edw.    Ch.  -lo  Lacev  v.  Davis.  4  Redf.  402,  and 

722:    Matter  of   Foster.   15  Hun.   387:  again.  5  id.  SOL 
Jones  v.   Ho|)per,   2  Dem.   14 ;    Matter 


<^  02^3.  Admi^'istratiox  of  Estate^  Etc.   .  510 

They  are  bound,  within  a  reasonable' time  after  the  death  of  the- 
testator,  to  realize  assets  in  the  nature  of  personal  securities  and 
stocks ;  and  if  without  justification  they  retain  such  assets,  and, 
in  good  faith,  make  a  further  investment,  which  is  intended  to 
and  does  protect  such  assets,  they  cannot,  upon  their  accountings 
be  allowed  the  amount  of  this  latter  investment,  since  they  are 
not  justified  in  using  the  money  of  the  estate  in  protecting  stock 
which  should  not  have  been  in  their  possession/^ 

The  duty  of  a  trustee  is  not  confined  to  looking  after  the  securi- 
ties, in  which  he  himself  has  invested  the  trust  fund.  Even  though 
a  loan  on  bond  and  mortgage  was  amply  secured  at  the  time  the 
testator  made  it,  the  executors  are  not  relieved  from  exercising 
supervisory  care  in  regard  thereto.  They  must  keep  themselves 
informed,  and  take  notice  of  all  things  affecting  the  investment 
which  a  man  of  fair  judgment,  care,  and  prudence,  would  take 
into  consideration  in  the  matter  of  a  loan  of  his  own  moneys,  and 
likewise  take  all  lawful  means  with  a  fair  degree  of  promptness 
to  recover  the  debt,  and  thereby  and  by  all  prudent  means  prevent 
a  loss  to  the  estate.  The  falling  behind  in  the  payment  of  interest 
upon  a  loan  made  by  testator  is  sufiicient  to  put  the  executor  to- 
an  inquiry  as  to  the  safety  of  the  investment.  A  demand  alone 
is  not  sufficient,  and,  while  the  executor  is  not  called  upon  to 
initiate  legal  proceedings  immediately  upon  a  default  of  payment 
of  interest,  on  the  other  hand,  the  limit  of  delay  is  not  indefinite. 
Between    these   two   extremes   lies   the   medial   line,    which   must 


41  lb.  In  Matter  of  Herrick  ( 32  disposed  to  sanction  the  purchase.. 
St.  Rep.  1032),  the  executors,  having  Held,  that  in  the  absence  of  bad  faith, 
transferred  certain  stocks  of  the  estate  the  executor  was  only  chargeable  on 
to  a  legatee  on  account  of  a  legacy,  his  accounting  for  the  market  price 
subsequently,  after  they  had  deprecia-  on  the  day  of  sale,  and  not  with  the 
ted  in  value,  took  them  back,  paying  highest  price  the  stock  had  attained 
therefor  the  funds  of  the  estate  to  the  down  to  the  time  of  his  purchase.  See 
amount  at  which  they  had  been  origin-  ante,  §  598.  In  Adams  v.  Van  Vleck  (4 
ally  valued.  Held,  that  the  invest-  Dem.  343).  it  was  held,  the  question, 
ment  was  unauthorized,  and  the  exec-  whether  a  testamentary  trustee  has 
utors  were  chargeable  with  the  re-  retained  stocks  and  securities  owned 
suiting  loss.  In  Barker  v.  Smith  ( 1  by  the  decedent  at  the  time  of  his 
Dem.  200),  the  testator  owned,  at  the  death,  and  which  were  not  invest- 
time  of  his  death,  railroad  stock  which  ments  which  would  be  sanctioned  by 
was  regarded  as  worthless  and  was  so  a  court,  for  more  than  a  reasonable 
inventoried.  By  a  reorganization  these  time  to  effect  their  conversion,  could 
shares  became  convertible  into  those  not  be  raised  upon  the  accounting  of 
of  the  stock  of  another  railroad  com-  the  trustee,  had  before  a  sale  of  such 
pany  and  became  valuable.  The  exec  securities.  It  seems,  that  the  remedj^ 
utor  effected  the  conversion,  and  after  of  the  beneficiaries,  in  such  case,  is  to- 
an  interval  during  which  the  stock  institute  proceedings  for  the  removal 
fluctuated  in  price,  bought  the  shares  of  the  trustee  or  to  compel  the  fur- 
so  converted  by  him.  at  private  sale  nishing  of  a  bond, 
for  his  own  account,  the  parties  being 


511  Admixistkatiox  ok   Estate,   Etc.       §§  G24,  <J25. 

depend  upon  all  the  circnmslfences  of  the  ease  under  investigation^ 
where  the  law  says  the  executor  would,  in  the  exercise  of  ordinary 
prudence,  go  forward  to  protect  the  trust  estate,  or,  in  default  of 

sii  ilointi'.  become  personally  reppdn^ible."*" 

^  624.  Foreign  investments. — It  is  a  general,  though  not  inflexi- 
ble. I'lilc  ili:it  an  executor  or  trustee,  residing  in  this  State  and 
(Jci-iviiig  his  authority  from  a  will  executed  and  proved  here,  can- 
]i' T  iii\Tst  trust  funds  in  mortgages  of  real  estate  situated  in 
another  State."*^ 

This  rule  is  not  so  rigid  as  to  admit  of  no  possible  exceptions, 
i(U-  it  is  merely  an  outgrowth  or  consequence  of  the  broader  and 
admitted  proposition  that  the  duty  of  a  trustee  in  making  in- 
vestments is  to  employ  such  diligence  and  such  prudence  as,  in 
general,  prudent  men  of  discretion  and  intelligence  in  such  mat- 
ters employ  in  their  own  like  affairs.  Such  an  exception  to  the 
rule  is  a  case  where  the  executors  Ijought  in,  at  a  sale  under  a 
mortgage-foreclosure  commenced  by  the  testator  in  his  lifetime,, 
real  estate  situated  in  another  State,  and  afterward  sold  the  same,, 
and  took  back  a  mortgage  for  a  part  of  the  ])ureliase  price.'*'* 

§  625.  Trustee  purchasing  trust  property. —  While  there  is  na 
rule  of  law  which  absolutely  prevents  a  trustee  from  purchasing 
from  a  cestui  que  trust  his  interest  in  the  trust  estate,  the  courts 
will  examine  all  such  transactions  with  care,  in  order  to  see  that 
no  undue  advantage  has  been  taken  of  the  cestui  que  trust  *^ 

It  is  a  fundamental  principle  that  a  trustee  assumes  the  burden 
of  showing  not  only  that  his  dealings,  with  re-pect  to  the  trust 
property  or  with  the  cestui  que  trust,  were  fair,  but  that  they  were 
had  after  the  fullest  disclosure  of  all  he  knew  in  regard  to  the 
subject-matter,  thus  putting  the  latter  upon  an  equal  footing  with 
himself.     If  he  becomes  the  purchaser  of  the  trust  ])ro])erty,  either 


42  Mattor   of   Butler.    1   Connoly,  58.  land.       The    attorney    collected    small 

See    Isiiaiii    v.    Post.    141    N.    Y.    100.  amounts    on    the    same    l\v    virtue    of 

As    to    when    executor    is    not    charge-  executions,     hut    did     not     enforce     it 

ahle     with     the     amount     of     a     sec-  afrainst    the    land.    thoup:h    the    prior 

ond    mortgage    that    he    had    not    at-  judgments  ceased  to  be  liens  thereon, 

tempted    to    foreclose,    see    Matter    of  t'pcm     an     accounting,     the    e\c<-utrix 

Thomscjn,    14    St.    Rep.    Ol.').      For    the  was    held     personally     liable     for    the 

general   rule   as   to   the   liability   of   a  amount    due     on     the     judgment,     by 

trustee    for    neglect    of    duty    under    a  reason  of  her  failure  so  to  enforce  the 

trust  mortgage,   see  Merrill   v.   Farm-  same.     See  §  (i2.S,  post. 

ers'  Loan  &   Trust  Co.,  24  Hun,  297 ;  43  Ormiston  v.  Olcott.  S4  X.  Y.  339. 

rule  reiterated  in  4  St.  Rep.   122.     In  44  Denton  v.   Sanford.   103  X.  Y.  GOT. 

Hollister   v.    Burritt    (14    Hun,    291),  See  Freeman  v.  Freeman,  4  Redf.  211. 

the  executrix  left,  in  the  hands  of  the  45  Graves  v.  Waterman,  4  Hun.  687  ; 

testator's  attorney,  a  judgment  which  Lytle  v.  Beveridge,  58  X.  Y.  593.    See 

was   a    fourth   lien   u[»on   the   debtor's  §  017,  uiitc. 


^  625.  Administration  of  Estate,  Etc.  512 

■directly  or  tbrough  a  third  person  (unless  he  is  also  individually 
interested),'*'^  the  purchase  is,  by  construction  of  law,  fraudulent, 
and  no  showing  of  good  faith  or  of  the  payment  of  a  full  considera- 
tion, can  sustain  it  against  the  objection  of  the  cestui  que  trust, 
so  long  as  the  property  remains  in  his  hands  or  in  the  hands  of 
any  one  who  takes  it  with  knowledge  or  notice  of  the  facts.^^ 

The  cestui  que  trust  may  affirm  the  sale,^^  and  long  acquies- 
•cence  may  amount  to  an  affirmance  ;^^  or  he  may  repudiate  it,  and 
call  upon  the  trustee  to  restore  the  property,^*^  or,  if  that  has  be- 
come impossible,  to  account  for  whatever  benefit  he  has  received 
from  the  purchase. 

The  rule  applies  to  a  case  where  one  of  several  trustees,  who  is 
also  one  of  the  beneficiaries  of  the  trust,  with  his  co-trustees,  sells 
and  conveys  the  trust  estate  to  himself,  or  to  another  for  his  bene- 
fit ;  and  such  sale  can  be  repudiated  by  the  other  cestuis  que  trust."^ 
It  also  applies  where  the  property  bought  by  the  trustee,  though 
not  itself  trust  property,  is  yet  such  that  by  means  of  it  the  trust 
was  to  be  worked  out.^^ 

The  rule  also  extends  to  the  case  of  a  purchase  by  a  trustee,  for 
liis  own  benefit,  of  property  which,  although  not  the  subject  of 
the  trust,  is  connected  with  it  in  such  a  way  that  a  sale  of  the 
property  for  less  than  its  value  will  diminish  the  trust  fund ;  and 
a  purchase  by  him  for  less  than  the  value  of  the  property  inures 
to  the  benefit  of  the  cestui  que  trust.^^ 

4GCorbin  v.  Baker.  167  IST.  Y.  128.  C.  29.     In  that  case.  B..  a  creditor  of 

47  Terwillicer  v.  Brown,  44  X.  Y.  R.  executed  to  W..  another  creditor,  a 
2.37.  See  AI?.nn  v.  Benedict.  47  App.  declaration  of  trust,  whereby  B. 
Div.  173;   62  N.  Y.  Supp.  2.59.  ao^reed  to  hold  a  certain  judgment  in 

48  Read  V.  Knell,  143  X.  Y.  484:  63  his  own  favor  against  R..  for  the  joint 
St.  Rep.  847 ;  Greagan  v.  Buchanan,  benefit  of  himself  and  W.,  in  the  pro- 
15  Misc.  580;   37  N.  Y.  Supp.  83.  portion  of  their  respective  clai  ns.    On 

49  Marsh  v.  Whitmore,  21  Wall,  a  sale  of  the  judgment  debtor's  prop- 
178;  Broome  v.  Van  Hook,  1  Redf.  erty  under  execution,  issued  by  B.  on 
444 :  Rose  v.  Rose,  6  Dem.  26 ;  Kahn  his  judgment,  and  purchase  by  B.  of 
V.  Chapin,  152  X.  Y.  305.  The  pre-  such  property,  it  was  held,  that  he 
sumption  of  fraud  in  sale  by  executors  could  not  be  allowed  to  claim  he  had 
of  their  testator's  estate  to  themselves  bought  it  for  his  own  benefit :  but 
is  overcome  where  a  legatee  volun-  must  be  deemed  to  have  bought  it  for 
tarily  receives  her  portion  of  the  pro-  the  joint  benefit  of  himself  and  W. 
ceeds  of  the  sale,  executes  a  full  re-  under  the  terms  of  the  trust  agree- 
lease  to  them,  and  remains  acquiescent  ment,  and  must  account  to  W.  for  its 
for  thirteen  years  before  commencing  real  value.  See  Matter  of  Yetter,  44 
an  action  to  set  the  sale  aside.  App.  Div.  404;  61  X.  Y.  Supp.  175; 
fGever  v.   Snvder.    69   Hun.   115;    140  afTd..   162  X.  Y.  615. 

X.  Y.  394.)     See  Matter  of  Dedrich,  68  53  Fulton  v.  Whitney,  66  X.  Y.  548. 

Hun.  396;  22  X.  Y.  Supp.  978.  Xo  actual  fraud  on  the  part  of  a  trus- 

50  Merrick  v.  Waters.  51  App.  Div.  tee  so  purchasing  need  be  shown,  to 
83:   6i  X.  Y.   Supp.   542.  give  to  the  cestui  que  tnist  the  bene- 

51  Tiffany  v.  Clark,  58  X.  Y.   632.  fit    of    the    purchase.       (lb.)       An    ad- 

52  Woodruff   V.    Boydeu,    3   Abb.   X.  ministrator   who    induces   one   of   the 


513  Admixistratiox  of  Estate,  Etc.  §  626. 

A  person,  though  named  in  a  will  as  one  of  the  executors,  to 
Avhoni  letters  testamentary  have  not  been  issued,  is  not  incapaci- 
tated from  purchasing  property  from  the  executors  who  have  quali- 
fied/'^ An  administrator  may  foreclose  a  mortgage  held  by  him 
individually  on  the  real  estate  of  his  testator  and  purchase  the 
property  on  the  foroelosnro,  as  in  such  case  there  is  no  relation 
of  trust  between  the  administrator  and  those  entitled  to  the  realty.^'' 

§  626.  Liability  for  profits  realized  or  losses  incurred  on  securities. 
—  In  the  management  of  a  trust,  the  principle  is  that  the  trustee 
may  lose  but  cannot  gain.  If  by  any  improper  use  of  the  fund 
profits  are  made,  he  is  to  be  charged  with  the  principal  and  in- 
terest. Any  profits  which  may  have  accrued  at  any  particular 
time  are  a  mere  accretion  to  the  fund,  and  the  trustee  can  be 
charged  with  them  only  on  the  ground  that  he  has  appropriated 
them  to  his  own  use.  If  no  profits  have  been  made  he  is  charge- 
able with  interest  only.  But  the  cestui  que  trust  has  an  option  to 
claim  the  investment  as  made,  or  the  replacement  of  the  original 
fund,  with  interest,  according  as  the  one  or  the  other  may  be  most 
for  his  benefit.^^ 

npxt  of  kin  to  sell  his  share,  which  eurity,  and  pay  tlic  income  to  certain 
sncli  administrator  subsequently  ac-  minor  children,  but  bought  with  such 
quires,  by  threats  of  unfounded  liti-  proceeds  real  estate,  which  they  sub- 
gation  which  will  use  up  the  estate,  sequently  resold  at  a  ])rofit,  and  con- 
is  liable  to  sucli.  next  of  kin  for  dam-  tinned  buyinsr  and  selling  real  estate, 
ages  .-ustained  by  making  such  sale  at  the  income  from  which  the  cestui  que 
an  inadequate  price.  (Button  v.  Mon-  trust  received,  until  finally  the  trus- 
roe.  22  Week.  Dig.  407.)  So  the  sale  tees  lost  a  large  part  of  the  fund, 
by  an  administrator  of  a  deceased  Held,  that  the  purchase  of  real  estate 
partner's  interest  in  a  partnership  to  was  unauthorized,  but  that  the  cestui 
the  survivor,  and  the  subsequent  pur-  que  trust,  on  becoming  of  age.  could 
chase  by  the  administrator  individu-  not  ratify  the  first  transactions  which 
ally,  is  unlawful.  (Matter  of  Barlow,  resulted  in  a  profit,  and  call  upon  the 
15  St.  Rep.  721.)  See  ^Matter  of  trustees  to  account  for  the  fund  as  so 
Kandall,  80  Hun,  229;  29  N.  Y.  Supp.  increased,  from  the  date  of  the  in- 
1019:  revd..  on  other  grounds,  in  152  crease,  disavowing  the  subsequent 
X.  Y.  508.  transactions,    and     that    the    trustees 

54  Valentine  v.  Duryea,  37  Hun,  427.  were    only   liable    to    account    for    the 

The    wife    of   a   trustee,   who  as  such  fund   they  had    in   their    hands   before 

holds    a    second    mortgage    upon    real  the  purchase  of  any  real  estate,  with 

estate,  may  purchase  the  property  on  interest  from  the  time  when  the  rr.s^Ki 

a    foreclosure    of    the    first    mortgage,  que   trust    ceased    to    reap    the   benefit 

and  her  deed  gives  a  good  title  to  the  from    the   real    estate   bo'ight.      S.    P., 

propertv.      (Potter   v.   Sachs.   45   App.  English    v.    Mclntyre,    29    App.    Div. 

Div.  454:  61  X.  Y.  Supp.  420.)  4.39:    51    X.    Y.   Supp.   097:    :\ratter  of 

55:\Iatter  of  Monroe.  142  X.  Y.  484;  Porter.  5  Misc.  274.     In  Bose  v.  Rose 

CO  St.  Rep.   102.  ■  (6    Dem.    26).    the    will    directed    the 

56  See  §  620.  aute.     In  Baker  v.  Dis-  executor  to  sell  the  real   property,  at 

"brow    ( 18    Hun,    29 ;    aflfd..    79    N.   Y.  such  times  and  in  such  lots  as  would 

631),  the  executors  under  a  will  were  be   to   the  best   advantage,    invest   the 

authorized  to  sell  real  estate,  and  di-  ])rocepds  and  apply  the  interest  to  the 

rected    to    invest    the    proceeds    upon  support    of    his    widow    and    children 

bond  and  mortgage,  or  other  good  se-  during  the  minority  of  the  latter,  and 

33 


§  627.  Admixistkation  of  Estate,  Etc.  514r 

Losses  incurred  bv  the  depreciation  of  the  market  valne  of  secu- 
rities are  not  chargeable  against  the  trustee,  where  there  is  noth- 
ing to  show  that  the  trustee  has  been  wanting  in  due  diligence- 
and  prudence.  Thus  a  trustee  who  purchased  at  a  premium  for 
investment,  from  time  to  time,  United  States  bonds,  which,  being 
called  in  by  the  government,  declined  in  market  value  so  that  th& 
premiums  paid  were  lost,  is  not  liable  for  the  loss,^^  nor  is  he 
liable  for  the  depreciation  of  real  estate  security,  occurring  in 
consequence  of  a  general  financial  panic.^* 

A  profit,  arising  from  the  sale  of  the  trust  securities,  inures  to 
the  benefit  of  the  principal  of  the  trust,  and  is  not  distributable- 
to  those  entitled  to  the  income;  per  contra,  a  loss,  if  any,  must 
be  that  of  the  principal. ^^  Extraordinary  dividends  of  cash,^"  or 
of  stock,^^  are  distributable  as  income. 

§  627.  Unavoidable  losses. —  The  statute  declares  that  no  profit 
shall  be  made  by  executors  or  administrators  by  the  increase  of 
the  estate  in  their  hands ;  nor,  on  the  other  hand,  shall  they 
sustain  any  loss  by  the  decrease,  without  their  fault,  of  any  part 
of  the  estate ;  but  they  shall  account  for  such  increase,  and  shall 
be  allowed  for  such  decrease,  on  the  settlement  of  their  accounts.^^ 
The  statute  also  provides  for  an  allowance  to  an  accounting  party 
for  property  of  the  decedent  perished  or  lost  without  his  fault.*^^ 
If  an  executor,  acting  in  good  faith,  makes  a  mistake  —  as  if  he 
agrees  to  surrender  a  term  for  less  than  its  worth,  supposing  it 
forfeited  —  he  is  not  liable  for  the  loss  incurred ;  but  if,  after 


ultimately    to    divide    the     principal.  04;     People    v.    Davenport.    30    Hun. 

The  executor  erected,   with   the   funds  177:    117    N.    Y.    549;    Whittemore   v. 

of  the    estate,    a    dwelling-house   upon  Beekman.     2     Dem.     275 ;     Bergen     v. 

a  parcel  of  land,  which  was  afterward  Valentine.   63    How.    Pr.    221;    Matter 

sold,  with  the  improvements,  at  a  loss  of  Hutchinson,  X.  Y.  Law  J.,  Feb.  29, 

of  $650.     The  evidence  did  not  clearly  1892;    Matter  of  Philbin,   id.,  July   9. 

disclose   by   whom    the   sale   and   con-  1892.     Compare   Matter  of  Hoyt,   160 

veyance  were  made.     Held,  that  if  the  N.  Y.  607. 

sale  was  made  by  the  executor,  he  was  w  Matter  of  Kernochan.    104   X.  Y. 

liable  for  the  deficit,  having  exceeded  618. 

the   authority   conferred   by   the  will ;  d  Goldsmith  v.  Swift,  25  Hun.  201 ; 

but  that   if  the   beneficiaries   sold   the  Rigirs  v.   Cragg,   26   id.    102;    Simpson 

property,   they  conveyed   a  good  title,  v.   :Moore,    30    Barb.   637:    Clarkson   v. 

and  must  be  deemed  to  have  taken  the  Clarkson.  18  id.  646;  Matter  of  ^Yood- 

land  and  dwelling  in  lieu  of  the  pro-  ruff,    1    Tuck.    58;    Matter    of    Prime, 

ceeds    of    sale,    thereby    ratifyinsr    the  X.    Y.    Law    J..    March    6.    1891.      In 

executor's   act   in  erecting   the   latter.  England    and    [NL^ssachusetts.    such    a 

57  Brown  v.  Chesterman,  30  St.  Rep.  dividend  is  regarded  as  forming  a 
537:  9  X".  Y.  Supp.  187;  Valentine  v.  part  of  the  capital  of  the  estate.  See 
Valentine,  3  Dem.  597.  2  Perry  on  Trusts   (4th  ed.),  §  545. 

58  Matter  of  Blauvelt,  60  Hun,  394;  02  Co.  Civ.  Proc.  §  2729,  as  amended 
39  St.  Rep.  774;  revd.,  on  other  points,  1893:   adopting  2  R.  S.  93.  §  57. 

131  X.  Y.  249.  a-^  Co.  Civ.  Proc,  §  2729,  as  amended 

soFarwell  v.  Tweddle,  10  Abb.  N.  C.  1893   (former  §  2741). 


515  Administration  of  Estate,  Etc.  §  628. 

discovering  tho  mistake,  he  goes  on  to  complete  the  transaction 
and  releases  the  right,  he  becomes  liable."^  If  an  executor  is 
robbed  of  assets,  he  will  in  general  be  exonerated,  but  this  de- 
1  lends  largely  upon  the  (juestion  of  negligence.^^ 

§  628.  loss  of  debts  due  the  estate. —  The  loss  of  a  debt  due  to 
the  estate  by  a  solvent  person,  through  the  neglect  of  the  represen- 
tative to  prosecute  it,®^  or  by  reason  of  the  incompetency  of  his 
attorney,  will  not  be  allowed  him  on  his  accounting.^"  The  bur- 
den of  proof  is  on  him  to  show  a  fair  reason  why  he  did  not  prose- 
cute. If  his  omission  was  directed  by  a  reasonable  judgment,  and 
in  accordance  with  the  bona  fide  advice  of  counsel,  he  will  not  be 
held  liable  for  the  consequent  loss.^*  He  will  be  charged  (if  a 
sole  representative)  with  the  amount  of  his  own  indebtedness  to 
the  decedent.  If  the  validity  or  amount  of  the  alleged  debt  is 
disputed,  the  Surrogate's  Court  is  given  jurisdiction  to  try  and 
determine  the  contest,  upon  the  judicial  settlement  of  the  represen- 

64  People    V.    Pleas,    2    Johns.    Cas.  of  Millard.  27   St.  Rep.   780;    0  X.  Y. 

37(1.  Supp.   126.) 

•■''  Fnniian  v.  Coe.  1  Cai.  Cas.  96.  An  ^7  An  executor  who  employs  a  per- 
adiiiinistratrix  kept  a  larpe  amount  son  to  bring  a  suit  who  is  not  author- 
of  money  ( the  collections  from  the  ized  to  practice,  may  be  held  person- 
sale  of  goods  in  a  store,  and  of  notes  ally  liable  for  any  losses  that  may 
and  accounts  of  the  intestate)  in  a  ensue  from  his  irregular  proceedings, 
trunk  in  a  bedroom  occupied  by  her  (Wakeman  v.  Hazleton.  3  Barb.  Cb. 
crippled  son.  being  one  of  the  rooms  148.)  Where  an  executor  gave  secu- 
occupied  by  her  family  adjoining  the  rities,  due  to  his  testator,  to  an  at- 
store.  Part  of  such  collections  had  torney  to  collect,  and  six  years  after 
been  kept  there  over  a  year.  The  the  death  of  the  executor  the  attorney 
nearest  bank  was  twelve  miles  from  collected  the  money,  and  applied  it  to 
where  she  lived.  The  money  having  his  own  use,  and  became  insolvent,  it 
been  stolen,  it  was  held  that,  had  it  was  held,  that  the  estate  of  the  exec- 
been  only  a  portion  of  the  estate  lately  utor  was  not  chargeable  with  the  loss, 
collected,  and  had  the  rest  been  de-  (Rayner  v.  Pearsall,  3  Johns.  Ch. 
jxisited    in    a    bank,    she    might    have  ,578.) 

been    justified     in    keeping    the    same        cs  OTonner    v.    Oifford.     117    X.    Y. 

where  she   did.   until    a   proper   oppor-  275;  Matter  of  Ball.  55  App.  Div.  284 ; 

tunity    to   deposit    it    in    the   bank   oc-  (Hi   X.   Y.   Supp.    874;    Matter  of   Hos- 

cuned;    but   as   the   whole,    or   nearly  ford,    02    App.    Div.    G20 ;     71     X.    Y. 

ail,  of   the   fund   had   been   allowed   to  Supp.    103.     See   Matter    of   Olmstead, 

remain  in  such  an  insecure  place  for  52     App.     Div.     515;     aflfd.,     104     X. 

nearly  a  year,  when  it  was  stolen,  it  Y.    571.      An    executor    is    not    liable 

was  such  a  violation  of  the  ordinary  for    failure   to   take    steps   to    recover 

laws  of   prudence   as  constituted   neg-  alleged      assets      where      there      were 

iigenco     for     which     she     was     liable.  rea>onable  grounds  for  believing  that 

(('(irnwell  v.  Deck,  8  Hun.  122.)       See  thev  would  be  iiu-ll'eetual  and  be  acted 

McCabe   V.   Fowler.  84  X.  Y.  314.  in   good    faith.       (Matter    of    Hall.    10 

<'iHollister  v.  Burritt.  14  Him.  291  :  Misc.  174:  38  X.  Y.  Supj).  1135.)     Xor 

Matter  of  Hosford.  27  App.  Div.  427;  is   he  chargeable   with    tiie   amount   of 

.")0  X.  Y.  Supp.  550;  Matter  of  Childs,  a   note   in    favor   of   his   testator,    the 

2(i  id.  721.     The  fact  that  the  solvent  existence   of    which    was    unknown   to 

debtor  lives  in  another  State  does  not  him.        (Matter    of     Guldenkirch,     35 

absolve    the    representative    from    the  Misc.  123;  71  X.  Y.  Supp.  310.) 
duty  of  trving  to  cullcct  it.      (Matter 


§  G29.  Administration  of  Estate,  Etc.  516 

tative's  account.^^  Indeed,  the  Snrroc^ate's  Court  is  the  only 
forum  where  the  question  of  the  individual  liability  of  a  sole  rep- 
resentative, upon  an  alleged  indebtedness  to  the  intestate,  can  be 
determined."" 

§  629.  Authority  to  sell  or  compound  debts  due  to  decedent. —  The 

common-law  power  of  executors  and  administrators  to  compound 
with  debtors  of  their  decedent,'^^  has  been  confirmed  by  statute, 
which  empowers  the  surrogate  to  "  authorize  the  executor  or  ad- 
ministrator (1)  to  compromise  or  compound  a  debt  or  claim,  on 
application,  and  for  good  and  sufficient  cause  shown,  and  (2)  to 
sell  at  i)ul)lic  auction,  on  such  notice  as  the  surrogate  prescribes, 
any  uncollectible,  stale,  or  doubtful  debt  or  claim  belonging  to  the 
estate."  It  is  also  provided  that  "  any  party  interested  in  the 
final  settlement  of  the  estate  may  show,  on  such  settlement,  that 
such  debt  was  fraudulently  compromised  or  compounded."  '"  It 
will  be  observed  that  the  statute  does  not  extend  to  claims  against 
the  estate,  though  it  would  seem  that  a  power  to  permit  the  com- 
pounding of  such  claims  might  prove  equally  beneficial. ^'^  There 
has  never  been  any  doubt  that  the  representative  of  a  decedent 
had  ample  power,  at  common  law",  to  compound  a  debt  due  the 
latter,  in  his  lifetime;  and,  irrespective  of  the  statute,  it  is  his 
duty  to  compound  and  release  a  debt,  when  the  interest  of  the 
estate  requires  such  action. ^^    Hence,  he  may  settle  and  discontinue 


69  Co.  Civ.  Proc.  §  2731,  as  amended  Ch.  388;  Gillespie  v.  Brooks,  2  Redf. 
1893.      He    is    chargeable,    on    his    ac-  349. 

eounting,  for  the  unpaid  principal,  to-        72  Co.  Civ.  Proc,  §  2719,  as  amended 

gether   with   accrued   interest.      (Mat-  1893:  adopting  L.  1847,  c.  80,  §§   1,2. 

ter  of  Clark,  34  St.  Rep.  523;   11   N.  The   law    of    1847    had   been    amended 

Y.    Supp.    911.)      Where   an   executor  by   L.    1888.   c.   571,   and   by   L.    1893, 

satisfied  of  record  his  own  mortgage,  c.  100,  but  it.  and  the  amendatory  act 

given  to  his  testator,   in  his   lifetime,  of    1888,    were    repealed    by    L.    1893, 

to  secure  his  own  bond,   but   did   not  c.   586.     The  amendatory  act  of  1893, 

pay  the  bond,  his  estate,  on  his  death,  c.    100,   was   not  expressly,   though    it 

is  liable,  at  the  instance  of  testator's  was     impliedly,     repealed     with     the 

heir,  for  the  amount  due  on  the  bond,  original  statute. 

(Matter  of  Brownell,  39  St.  Rep.  918;        73  See  Matter  of   Bronson,   69   App. 

15  X.  Y.  Supp.  475.)  Div.  487;   74  X.  Y.  Supp.   1052.     But 

70  Burkhalter  v.  Norton,  3  Dem.  610.  executors  and  administrators  have  the 
An  application  for  adjudication  as  to  power  to  submit  to  arbitration,  dis- 
the  amount  due  from  an  executor  to  puted  claims  or  demands,  in  favor  of, 
the  estate  and  directing  the  deposit  or  against,  the  estate.  (Wood  v. 
thereof  in  a   trust  company,  will   not  Tunnicliff.  74  N.  Y.  38.) 

be  granted   pending   a   reference   upon        74  Leland    v.    Manning,    4    Hun.  7 ; 

the   executor's   accounting,   which   can  Matter  of  Scott,  1  Redf.  234;   Matter 

determine    the    facts    upon    which    the  of    Albrecht.    1    Connoly,    12;    Murray 

application     was     necessarily     based,  v.    Blatchford,    1   Wend.   583.     A   pro- 

( Matter  of  Oilman,  3  St.  Rep.  340.)  vision    in    the    will    authorizing    the 

71  See  Chouteau  v.  Suydam.  21  N.  executors  to  compound  with  debtors 
Y.  179;  Van  Home  v.  Foiida,  5  Johns,  of  the  estate  who  were  unable  to  pay, 


517  Administkatiox  of  Estate,  Etc.  §  G30. 

an  action  commenced  by  his  decedent  in  his  lifetime,  without  leave 
of  the  surroo-ate  and  without  being  substituted  as  plaintiff  in  the 
action.'''  The  power  of  the  surrogate  is  not  confined,  as  has  been 
'ii])p(ise(l,  to  the  compromise  of  claims  against  insolvent  debtors, '** 
hut  extends,  as  well,  to  claimls  against  solvent  debtors,  where  there 
is  anv  reason  to  doubt  either  the  legality  of  the  claim, '^  or  the 
existence  of  a  valid  set-off.'*^  The  applicatiou  to  the  surrogate  for 
leave  to  compromise  may  be  ex  parte,  and  should  disclose  all  the 
facts  and  circumstances  warranting  the  compromise  proposed,  such 
as  the  condition  of  the  estate,  the  amount  of  the  claims  against  it, 
whether  presented  under  a  iiublished  notice  or  otherwise;  in  short, 
the  same  facts  should  be  shown  as  would  be  required  if  the  ques- 
tion of  the  propriety  of  the  compromise  was  before  the  court  on  a 
judicial  settlement  of  the  petitioner's  account,  on  the  objection  of 
parties  interested."^  The  court  will  not  sanction  the  executing, 
by  tlie  representative,  of  a  composition-deed,  by  which  a  long  ex- 
tension of  credit  is  given  the  debtor,  without  present  payment  of 
any  part  of  the  debt.  This  is  not  a  "  compromise  "  of  the  debt, 
which  means  the  acceptance  of  a  part  in  satisfaction  of  the 
whole. ^^  Where  the  debt  is  a  part  of  a  trust  estate,  the  amount 
received,  on  the  compromise,  though,  in  part,  it  represents  the  in- 
terest accumulated  on  the  debt,  belongs  to  the  principal  of  the 
trust. ^^ 

g  630.  Misapplication  of  assets. —  The  representative  is  held  to 
a  faithful  and  intelligent  application  of  the  assets  to  actual  and 
existing  liabilities,  such  as  the  assets  are  legally  applicable  to ;  and 
if  he  assumes  to  pay  a  demand  which  has  no  legal  foundation, 

or  wholly  to  forbear  siiin^  them,  does  si  Tn  ]\Iatter  of  Philbin   (X.  Y.  Law 

not  authorize  the  executors  to  abstain  J..   July    9.    1893),    the   executor    had 

from  deducting,  from  a  legacy  for  the  compromised  a  debt  of  $1,500  due  the 

benefit   of   a    poor   person,   a   debt   due  estate  for  $1.3o0.     The  accounting  ex- 

from   him  to  the  testator.      (Stagg  v.  ecutor    claimed    that    the    compromise 

Beekman.  2   Edw.  89.)  represented  the  principal  of  the  debt, 

75  Auken  v.   Kiener.  9  St.  Rep.  069.  with   interest   accrued   up  to   the  time 

70  Howell   V.  Rlodgett,   1   Rcdf.   323;  of  the  compromise,  and  to  the  extent 

Patten's  Estate,   1   Tuck.  fiCi.  that   the   sum   received    in   compromise 

"i'  Shepard  v.  Saltus,  4  Redf.  232.  represented   interest,   it   should  be   ap- 

78  Berrien's  Estate,  Ki  Abb.  Pr.    (X.  propriated  to  the  fimd  to  be  paid  over 

S.)    23.  to   the   life    tenants.      Held,    that    the 

73  Matter  of  Richardson,  31  St.  Rep.  amount     received     from     the     debtor 

9.'i7  ;  9  N.  Y.  Supp.  G3S.     If  the  repre-  formed  i)art  of  the  corpus  of  the  trust, 

sentative    compromises,     without    the  and    could    not   be    considered    in    the 

authority    of    the    surrogate,    a    judg-  same  light   as  bonds  or  interest-bear- 

ment  held   by  him,  he   nuist  establisli  ing  securities  passing  to  the  executor 

affirmatively    the    propriety    of    such  on  testator's  death;   consequently  the 

settlement.'    (Matter  of  Quinn,  30  St.  rule  of  Riggs  v.  Cragg    (20  Hun,  90) 

Rep.  210:  9  X.  Y.  Supp.  5.50. )  did  not  apply, 

80  Matter  of  Loper,  2  Redf.  545. 


§  630. 


Administration  of  Estate,  Etc. 


518 


and  could  not  have  been  recovered,  the  chaim  may  properly  be  dis- 
allowed on  his  accounting.*^  And  if  he  negligently  allows  an  in- 
valid claim  to  go  to  judgment,  without  employing  counsel,  to 
attend  the  trial,  or  taking  an  appeal,  he  may  be  charged  with  the 
amount  paid  on  the  judgiuent.*^  He  cannot  allow  claims  which, 
though  otherwise  valid,  are  barred  by  the  Statute  of  Limitations, 
whether  the  claim  is  his  o^vn*^  or  another's  f^  nor  can  he  revive  a 
debt  so  barred  by  a  new  promise.®^  It  is  no  part  of  the  duty  of  a 
representative  to  subject  the  estate  of  his  decedent  to  a  demand 
from  which  it  is  by  law  exempt.  If  he  can  do  it  in  any  manner, 
it  must  at  all  events  be  by  a  positive  contract.  A  provision  in 
the  will  for  the  payment  of  all  just  debts  does  not  revive  a  debt 
barred  by  the  statute.*^  Where  the  representative  has  allowed  a 
claim  against  the  estate,  it  is  not  res  adjudicata  against  the  credit- 
ors or  next  of  kin.  On  the  final  accounting,  the  wisdom  of  his 
action  in  allowing  the  demand  against  the  estate  may  be  litigated 
by  them  against  the  representative,  and  passed  upon,  even  though 
such  a  course  may  involve  the  trial  of  a  disputed  claim.®*     An 


82  Dye  V.  Kerr,  15  Barb.  444. 

83  Matter    of    Saunders,    23    N.    Y. 
Supp.  829;  4  Misc.  28. 

84  Rogers   v.    Rogers,    3   Wend.    503. 
See  ante,   §  565. 

85  Bloodgood  V.  Bruen,  8  N.  Y.  362 ; 
Matter  of  Hill,  26  St.  Rep.  290;  7  N. 
Y.  Supp.  328;  Hamlin  v.  Smith.  72 
App.  Div.  601 ;  Matter  of  O'Rourke, 
12  Misc.  248;  34  N.  Y.  Supp.  45; 
Matter  of  Oosterhoudt,  15  Misc.  566; 
38  N.  Y.  Supp.  179.  After  a  lapse  of 
upward  of  twenty  years  since  the  pay- 
ment, by  an  executor,  of  a  debt  barred 
by  the  Statute  of  Limitations,  the 
court  may  presume  that  the  executor, 
in  paying  it,  had  evidence  of  a  new 
promise  by  the  testator ;  and  credit 
may  be  allowed  accordingly  for  such 
payment.  (Broome  v.  Van  Hook,  1 
Redf.  444.)  So  the  payment  of  a  judg- 
ment, obtained  against  the  executor 
on  a  demand  barred  by  the  statute, 
on  proof  of  a  new  promise  made  by 
him,  was  held  a  proper  charge  against 
the  estate.  Every  presumption  must 
be  given  in  favor  of  the  executor, 
after  a  long  lapse  of  time  —  e.  g., 
twenty-one  years  —  that  he  had  good 
and  sufficient  reason  for  making  the 
new  promise.  (lb.)  An  administra- 
tor will  not  be  charged  with  com- 
pound interest  in  a  case  where  he  has 
acted  in  good  faith,  and  apparently 
refused  to  interpose  the  defense  of  the 


Statute  of  Limitations,  where  there 
has  been  long  acquiescence  by  the 
next  of  kin.  ( Matter  of  Kennedy,  30 
St.  Rep.  215;  9  N.  Y.  Supp.  552.) 

86  Matter  of  Kendrick,  107  N.  Y. 
104;  Bucklin  v.  Chapin,  1  Lans.  443; 
Flynn  v.  Diefendorf,  51  Hun,  194;  4 
N.  Y.  Supp.  934 ;  Visscher  v.  Wesley, 
3  Dem.  301 ;  Cotter  v.  Quinlan,  2  id. 
29;  Shute  v.  Shute,  5  id.  1;  Matter 
of  Bradley,  25  Misc.  261 ;  54  N.  Y. 
Supp.  555 ;  Hamlin  v.  Smith,  72  App. 
Div.  601;  Spicer  v.  Raplee,  4  id.  471; 
38  N.  Y.  Supp.  806;  Balz  v.  Under- 
bill, 19  Misc.  215;  44  N.  Y.  Supp. 
419.  See  Schutz  v.  Morette,  146  N. 
Y.  137:  66  St.  Rep.  271. 

87  Bloodgood  v.  Bruen,  supra. 

88  Matter  of  Strickland,  1  Connoly, 
435;  22  St.  Rep.  902.  It  was  said, 
in  that  case,  that  section  2730  (now 
section  2728)  of  the  Code,  permitting 
any  party  "  to  contest  the  account 
with  respect  to  a  matter  affecting  his 
interest  in  the  settlement  and  distri- 
bution of  the  estate. V  did  not  conflict 
with  section  2743,  for  the  dispute  of 
the  validity  of  a  debt  or  claim  there 
mentioned,  but  it  has  reference  to  a 
dispute  by  the  administrator  or  exec- 
utor. See  Butler  v.  .Johnson,  41  H'ln, 
206;  Visscher  v.  Wesley,  3  Dem.  ."01. 
The  surrogate  may  on  a  judicial 
settlement  of  the  account  dctcvmine 
the  validity  of  anv  claim  ai^ainst  the 


519  Admixistkatiox  of  Estate,  Etc.  §  630. 

application  of  assets  pursuant  to  an  invalid  direction  contained 
in  the  will,  e.  g.,  paying  for  masses  to  be  said  for  the  repose  of  tes- 
tator's soul  —  although  the  invalidity  of  such  a  direction  had  not 
l)een  judicially  declared  at  the  time,  will  not,  it  seems,  entitle  the 
executor  to  be  credited  therewith,  on  his  accounting.^^  And 
where,  with  full  knowledge,  he  distributes  the  assets  to  legatees, 
without  reserving  suffiV^ient  to  pay  debts  due  himself,  or  his  com- 
missions, he  is  not  entitled,  on  his  accounting,  to  an  order  that 
the  legatee  refund.''^  A  representative  who  pays,  from  the  per- 
sonal assets,  a  dc'])t  which  is  prn])crly  chargeable  only  u])on  the  real 
pro]:)crty,  may  be  held  to  account,  as  if  no  such  payment  had  been 
made,  and  must  look  to  the  real  property  for  reiml)ursement.^^ 
Personal  property,  although  specifically  bequeathed  by  the  will, 
must  be  applied  to  the  payment  of  the  debts  of  the  estate,  before 
land  devised  can  l>e  made  chargeable  therefor.  Consequently, 
where  the  executor  first  applies  the  rents  of  the  real  estate  to  the 
])ayment  of  the  debts,  it  is  a  misa])])ropriation  of  the  fund,  for 
Avhich  he  will  be  held  personally  linl)le.^"  Before  the  personal 
estate  of  a  testator  Avill  be  discharged  from  the  l)urdon  of  pay- 
ing the  debts,  it  must  clearly  appear  that  it  was  intended  that 
it  should  be,  which  will  not  be  inferred  from  the  fact  that  au- 
thority is  given  to  sell  all  or  some  part  of  the  real  estate  for 
the  payment  of  debts,  especially  in  a  case  where  no  disposition  is 
made  of  the  personalty.^^  Where  a  testator  had  given  a  mortgage 
upon  lands,  to  secure  an  accommodation  indorser  of  his  note,  the 
amount  of  the  note  is  payable  out  of  the  personal  property  before 
recourse  can  be  had  to  the  land.^^ 


estate,  and  the  fact  that  a  claim  is  in  92  Nagle  \.  McGinniss.  49  How.  Pr. 

favor   of   the   administrator   is   imma-  193.      See   Matter   of   Oosterhoudt.    15 

terial.      (Matter  of  Williams,   1   Misc.  Misc.  566;   38  X.  Y.  Supp.   170. 

35:   22  X.  V.  Snpp.  90(5.)  9.H  Sweeney    v.    Warren.    127    X.    Y. 

snO'Conner    v.    CJifTord,    117    X.    Y.  420.      The    testator    leased    certain    of 

275;  27  St.  Rep.  453.     But  a  creditor,  his  lands,   in  his  lifetime,  and   it  was 

who  failed  to  present  his  claim  within  ap;reed   that   the  lessee  should   erect  a 

the  time   prescribed  by  the   published  barn    thereon,    and    that    in    ease    the 

notice,  cannot  object  to  the  allowance,  lessor     died     pending     the     lease,     the 

where    it    was    consented    to    by    the  lessee     should     have     a     legal     claim 

residuary  legatee.      (lb.)  against  lessor's  estate  for  tlie  value  of 

iWLang   V.    Howell,   29    Abb.    N.    C.  the   barn.      Held,   that   the   claim   was 

117;  21   X.  Y.  Supp.  102.  valid,  but  that   the  fact   that   the   de- 

91  Johnson    v.     Corbett,     1 1     Paige,  cedent    lessor   had    no    personal    prop- 

265.     Compare  Matter  of  Hosford,  27  crty  did  not  make  the  claim  a  charge 

App.    Div.   427 :    50   X.    Y.    Supp.   5.50.  upon  the  real  estate  in  the  nature  of 

Executors    may    lawfully    pay    out    of  an    equitable    mortgage.       (Matter    of 

the  estate  the  amount   due  on  a  con-  Williams.   1   Misc.  35.) 

tract    for    J^e    purchase    of    land    exe-  "-i  Cochrane    v.     Ha\\"vcr,     54     Ilun, 

cuted  by  the  testator,  wliich  land  has  556;  28  St.  Rep.  1. 
been    devised     bv     him.        (Matter    of 
Davis,  43  App.  Div.  331.) 


§  631.  Administratiox  of  Estate,  Etc.  520 

TITLE  SIXTH. 
liquidation  and  payment  of  debts  and  tax. 

.ARTICLE  FIRST. 
liquidation  of  claims. 

SUBDIVISION^  1. 

ascertaining  creditors. 

§  63L  Liquidation  of  debts  before  the  Revised  Statutes. —  Execu- 
tors and  administrators  are  required  to  proceed  "  with  diligence  '^ 
to  pay  the  debts  of  the  decedent. '^^  The  present  system  of  as- 
certaining the  creditors,  and  liquidating  the  debts  of  the  decedent, 
differs  materially  from  that  prevailing  before  the  adoption  of  the 
Revised  Statutes.  The  changes  introduced  tend  to  discourage 
multiplicity  of  suits,  and  to  secure  a  perfect  equality  among  cred- 
itors of  the  same  class,  which  before  was  frequently  not  the  case. 
A  brief  statement  of  the  former  system  Avill  shed  light  upon  the 
one  at  present  prevailing.  Lender  the  old  system,  a  personal 
representative,  immediately  upon  his  appointment,  or,  if  none  was 
appointed,  then  any  person  who  intermeddled  with  the  estate  as 
an  administrator  de  son  tort,  was  liable  to  an  action  for  the  re- 
covery of  a  debt  due  by  decedent.  The  estate  was  always  pre- 
sumed to  be  solvent,  and  sufficient  to  pay  all  claims  in  full,  and, 
Therefore,  it  was  not  necessary  to  allege,  in  the  declaration,  that 
the  representative-defendant  had  assets.  If  this  presumption  was 
not  rebutted  by  plea  and  proof,  and  judgment  was  had  against  the 
I^ersonal  representative,  wdiether  by  default  or  on  demurrer,  upon 
verdict  on  any  plea,  except  plene  administravit,  or  admitting  assets 
to  such  a  sum  in  rlens  ultra,  he  was  concluded  from  denying  that 
he  had  assets  to  satisfy  the  judgment. '"^'^  L'nless,  therefore,  the 
representative  was  prepared  to  admit  that  he  had  assets  applicable 
and  sufficient  for  the  payment  of  the  claim,  he  was  obliged  to 
contest  the  action,  though  prepared  to  admit  the  claim  to  be  a 
just  one.  Thus,  to  an  action  on  a  simple  contract  debt  of  the  de- 
cedent, the  representative  could  plead  that  he  had  fully  adminis- 
tered all  the  goods,  etc.,  of  the  decedent,  which  had  come  into  his 
hands  to  be  administered  —  technically,  a  plea  of  plene  admin- 
istravit.    If  he  admitted  the  possession  of  a  certain  amount  of 

^5  Co.  Civ.  Proc.  §  2719.  as  amended        96.3  Wms.  on  Exrs.    (6th  Am.   ed.) 
1893;  adopting  2  R.  S.  87,  §  27.  2070;  People  v.  Judges  of  Erie,  4  Cow, 

445. 


521  Administkatiox  of  Estate^  Etc.  §  631. 

as>ots,  lint  not  enough  to  pay  the  debt  in  suit,  this  was  a  plea  of 
pU-nc  admin istrav it  prceter;  or  he  might  admit  assets  and  plead 
that  there  were  other  debts  to  which  they  were  applicable,  in 
j)reference  to  the  debt  in  snit.  Tims,  to  an  action  on  a  simple 
contract  debt,  he  conld  plead  that  he  had  fnlly  administered,  ex- 
(•ej)t  as  to  one  hnndred  dollars,  and  that  there  was  an  unpaid  judg- 
ment debt  for  more  than  that  amount,  or  a  bond  debt,  or  a  simple 
( ontract  debt  upon  which  a  suit  had  been  commenced,  or  a  debt 
due  to  himself  for  which  he  had  retained.''"  With  few  excep- 
tions, where  a  plea  was  foimd  against  an  executor  or  adminis- 
trator, he  became  personally  liable  for  the  costs,  and  when  he 
])leaded  that  he  was  never  executor  or  administrator  (nc  unques 
executor  or  administrator),  or  that  a  release  had  been  given,  he 
was  personally  liable  for  the  damages  as  well  as  the  costs,  the 
reason  given  being  that  he  had  pleaded  a  plea  which  he  knew  to 
be  false,  and  had  thus  unnecessarily  delayed  the  plaintiif.^^  In- 
(lce<l,  the  whole  reason  for  subjecting  representatives  to  personal 
liability  for  costs  was  their  having  pleaded  falsely;  but  a  plea 
wliicli  the  decedent  might  have  made,  such  as  non  assumpsit  or 
lion  assumpsit  sex  annos,  was  not  considered  technically  a  false 
])lea,  though  the  jury  fotmd  for  the  plaintiff.'*'* 

The  form  of  the  judgment  against  a  representative  depended 
u])0]i  the  pleadings.  If  the  defendant  pleaded  that  he  had  never 
been  executor,  etc.,  or  a  release  to  himself,  and  the  issue  was  found 
against  liiiii,  the  judgment  was  that  the  plaintiff  do  recover  the 
debt  and  costs,  to  be  levied  out  of  the  assets  of  the  testator,  etc., 
if  the  defendant  have  so  much,  but  if  not,  then  that  both  the  debt 
;ni(l  costs  be  le\-ie<l  out  of  the  defendant's  own  goods.  If  the  de- 
fendant pleaded  any  other  i)lea,  except  the  two  above  mentioned, 
tlu^  judgment  directed  the  execution  to  be  levied  out  of  the  goods 
of  the  testator,  etc.,  if  the  defendant  had  so  much,  and  if  not,  then 
the  costs  to  be  levied  out  of  the  goods  of  the  defendant.  If  the 
executor  pleaded  pJene  admin istravit,  either  general  or  special,  and 
nulla  hona  or  uidla  Ixnia  \iUra.  and  the  plaintiff  was  satisfied  of  the 
truth  of  the  plea,  or,  on  issue  joined,  it  was  found  for  the  defend- 
ant, then  the  judgment  was  for  execution  to  be  levied  of  future 
assets  qunndo  accidcrint.  The  difference  between  these  two  sorts 
of  judgment  is  not  so  great  as  would  at  first  appear,  for  although 
the  judgment  was  only  de  bonis  tcstatoris,  yet  the  executor,  upon 

97  See     2     Cliitty     PI.      (17th     Am.  ••>9  Osterhout     v.     Hardenberfrh.      19 

ed.)     382    et    seq.:'^    Wms.    on    Exrs.,  Johns.  266;  Evans  v.  Pierson.  1  Wend. 

1041  ct  seq.  30. 

i'S  People  V.  Judges  of  Erie,  supra. 


§  G32,  Admixistkatio:n'  or  EaxAXE,  Etc.  522 

a  deficiency  of  assets,  was  ultimately  obliged  to  pay  the  debt  and 
the  costs  out  of  his  own  property,  because  the  judgment,  as  above 
stated,  was  conclusive  proof  of  assets  in  his  hands  sufficient  to 
satisfy  it ;  and  where  the  executor,  to  a  writ  of  execution  in  S'Uch 
a  case,  de  bonis  testator  Is,  did  not  produce  assets  sufficient  to 
satisfy  the  judgment,  the  sheriff  might  return  a  devastavit  by  the 
executor,  and,  upon  this  return,  an  execution  de  bonis  propriis 
nught  issue. ^  By  taking  a  judgment  to  be  levied  on  future  assets, 
the  plaintiff  admitted  full  administration  of  the  estate  up  to  that 
time,  and  could  not  have  execution  until  some  assets  came  into 
the  hands  of  the  defendant,  when  he  might  bring  an  action  of 
debt  on  the  judgment,  or  take  a  proceeding  scire  facias  to  have 
execution  issued  on  the  judgment,  and,  in  such  action  or  such 
proceeding,  the  liability  of  the  executor  for  assets  that  had  come 
to  his  hands,  or  that  he  might  have  collected  after  the  judgment, 
was  determined."  It  will  be  seen,  therefore,  that  actions  at  law 
against  executors  and  administrators  were  used  as  means,  not  only 
of  establishing  the  legality  of  claims  against  the  estate,  but  also 
of  determining  the  question  of  the  ])roper  conduct  and  manage- 
ment of  the  estate  by  the  representative,  and  the  amount  of  assets 
for  which  he  was  accountable. 

§  632.  Liquidation  of  debts  under  the  Revised  Statutes. —  The 
l^evised  Statutes  altered  the  whole  system  of  the  common  law  in 
this  regard.  A  judgment  against  an  executor  or  administrator 
now  proves  nothing  more  than  the  amount  of  the  indebtedness  of 
the  estate  to  the  plaintiff.  The  jurisdiction  as  to  the  accounts  is 
given  to  the  Surrogate's  Court  or  a  court  of  equity;  and  the  judg- 
ment creditor  cannot  have  a  distribution  of  the  estate,  except 
through  the  medium  of  those  tribunals,  nor  can  he  lawfully  issue 
execution  on  his  judgment,  except  on  the  order  of  the  surrogate. 
The  judgment  is  in  fact  only  a  liquidation  of  the  debt,  and  does 
not  conclude  the  executor  or  administrator,  on  the  question  of 
assets  at  all."  "  The  old  system  of  preferential  administration 
having  been  almost  entirely  subverted,  all  the  pleadings  and  other 
parts  of  the  ancient  superstructure,  in  so  far  as  it  was  raised  for 
the  protection  of  that  system,  have  gone  with  it."  *  Since  ques- 
tions relating  to  the  due  administration  of  the  estate  cannot  now, 
as  formerly,  be  determined  in  an  action  for  the  decedent's  debt, 


1  People  V.  -Judges  of  Erie,   4   Cow.        3  Ginochio  v.  Porcella,  .3  Bradf.  277. 

445.  4  Per   Cowen,    J..   Parker   v.  Gainer, 

2-2    Archbold's    Pr.  86;     1    Paine    &     17    Wend.   559.     See  Allen   v.    Bishop, 

Duer's  Pr.  51.  25  id.  414. 


523  Ai).Mi.\isri;.\'ii(..\   OF  KsTATK,   Etc.      §§033,034:. 

ugainst  the  personal  representatives  of  the  dchtor,  a  jiKignient  iii 
>^iich  an  action  is  no  longer  evidence  of  assets  or  oi  want  of  tliein."' 
It  seems  clear,  therefore,  that  the  ])rovision  of  the  statute,  retain- 
ing' the  oM  fdi-iii  of  jndgiiK'iits  against  executors  and  adminis- 
trators, was  incongruous  an<l  out  of  harmony  with  the  modern 
system." 

§  633.  Equality  among  creditors.^ —  'Jhc  general  principle  per- 
vading the  present  system  of  settling  decedents'  estates  is,  that 
the  executor  or  administrator  is  to  l)e  deemed  a  trustee  for  all  the 
persons  interested  in  the  estate,  and  that  all  such  persons,  whose 
claims  arc  equally  meritorious,  are  equally  entitled,  to  payment; 
the  whole  of  the  assets  are  brought  under  the  control  of  the 
Surrogate's  Court,  and  not  a  dollar  can  be  reached,  by  execution 
or  otherwise,  Axithout  his  assent.  Nothing  is  gained,  therefore, 
by  a  creditor  in  obtaining  a  judgment  against  the  re])resentatives, 
Tieyond  the  liquidation  of  the  debt.'  It  is  clearly  a  principal  o.b- 
ject  of  the  ])resent  system  to  produce  equality  among  the  creditors 
of  a  decedent,  giving  a  preference  to  certain  classes  of  debts  only. 

§  634.  Representative's  duty  to  ascertain  creditors. —  It  is,  there- 
fore, imjHU'tant  for  the  representative  to  ascertain,  before  pro- 
■ceeding  to  discharge  a  debt,  the  prol)al)le  amount  of  the  assets 
jqoplicable  to  the  payment  of  debts,  and  also  the  nature  and  extent 
of  the  decedent's  indel)tedness;  otherAvise,  if  after  paying  some 
of  the  debts  there  is  not  enough  left  to  pay  the  others  in  full,  he 
is  (diai'geable  with  the  excess  of  the  pro  rata  ])aid.'*  The  personal 
representative  is  a  trustee  for  all  the  creditors.'*  To  enable  him, 
therefore,  to  ascertain  all  the  creditors,  and  to  determine  detinitely 
the  amount  of  all  the  chiims  against  the  decedent,  he  is  authorized, 
l)y  ])ul)lic  notice,  to  require  all  such  (daims  to  be  presented  to  him 
witliin  a  certain  time.  The  principle  on  whi(di  the  statute  pro- 
ceeds is,  that  the  re]>resentative,  being  a  trustee,  is,  like  all  trustees 
where  the  names  of  the  ccstuis  que  ti'usf  are  not  given  in  the  deed, 


5(Jinochio  v.  Porcolla,  3  Bradf.  277.  (if  a  deficit  of  assets,  is  a  fundamental 

See  now,  Co.  Civ.  Proc.,  §    1824.  principle,      for      the      enforcement     of 

6  2  R.  S.  88.  §S  31,  39.     In  Allen  v.  wiiidi    abundant     provision    has    been 

Bishop    (2;)    Wend.    414),   Nelson,   Ch.  made."       See     Parker    v.     Gainer.     17 

J.,    said:      "There   are    some    sections  Wend.  5.59. 

in  the  Revised  Statutes  which  it  is  ini-  "  See    Mills  v.   Thursby.   2    Abb.    Pr. 

possible  to  rwoncile  with  the  •jeneral  4.'?2. 

.system    prescribed    in    respect    to    the  "^Nichols  v.  Chapman,  9  Wend.  4.")2 ; 

afttlement   of  estates   <if  deceased   per-  Clayton     v.     Wardell.     2      Bradf.      1; 

sons.     The  system  itself  d'oes  not  seem  Veeder     v.     Mudpett.    9;")    N.    Y.    29."); 

to    have   been    fully   comprehcndi'd    by  .Mutter   of  Keef,  43   Hun,   !)S. 

its  authors.     A   pro   rata   distribution  '•*  Buckhout    v.    Hunt,    IG    How.    Pr. 

among  the  creditors  of  a  class,  in  case  407. 


§§  635,  C3G.     Administkation  of  Estate,  Etc.  524: 

bound  to  exercise,  the  utmost  care  before  he  accepts  a  claim  as 
entitled  to  payment,  and  the  law  will  afford  him  a  reasonable 
time  to  examine  it. 

§  635.  Ad-interim  restraint  on  creditors. —  In  furtherance  of  the 
same  object,  judgment  creditors  are  restrained  by  statutory  pro- 
vision from  issuing  execution  upon  a  judginent  against  an  ex- 
ecutor or  administrator,  unless  on  an  order  of  the  surrogate  w^ho 
appointed  him.  And  if  there  is  a  deficiency  of  assets,  execution 
can  issue  only  for  the  sum  that  appears  to  be  a  just  proportion  of 
the  assets  applicable  to  the  judgment. ^*^  As  a  further  restraint 
upon  creditors,  it  is  pro\'ided  that  costs  cannot  be  recovered 
against  executors  or  administrators,  except  in  certain  cases  where 
the  claims  sued  on  have  been  rejected  l\v  the  executors.  The 
creditor's  right  of  action,  however,  is  not  absolutely  suspended; 
he  may  prosecute  his  action,  but  he  must  do  so  at  his  own  cost 
and  expense,  and  not  at  the  cost  and  expense  of  the  estate,  unless 
he  can  show  that  the  executor  has  been  guilty  of  some  laches  or 
illegal  act  in  regard  to  the  adjustment  of  his  claim. -^^ 

§  636.  Notice  to  creditors  to  present  claims. —  At  any  time  after 
the  granting  of  letters,  the  executor  or  administrator  may  insert 
a  notice,  once  in  each  week  for  six  months,  in  one  or  more  news- 
papers printed  in  the  county,  as  the  surrogate  directs,  "  requiring 
all  persons  having  claims  against  the  deceased,  to  exhibit  the 
same,  wath  the  vouchers  therefor,  to  him  at  the  place  to  be  speci- 
fied in  the  notice,  at  or  before  the  day  therein  named,  which  shall 
be  at  least  six  months  from  the  day  of  the  first  publication  of  the 
notice."  ^^    The  surrogate  will  grant  an  order  for  the  publication 

10  Co.  Civ.  Proc.  §§  1825.  1820.  ment  of  1890.  the  notice  was  to  be' 
The  rule  at  common  law  was.  that  first  published  '"  after  the  expiration 
every  one  was  conclusively  presumed  of  at  least  six  months  since  the  grant- 
to  have  knowledge  of  what  was  trans-  ing  of  letters  "" —  for  no  reason  that 
acted  in  the  king's  courts,  and  that  the  any  one  was  ever  able  to  discover, 
record  was  constructive  notice  to  The  requirement  that  the  claim  should 
every  one  affected  thereby  of  all  be  presented  at  the  representative's 
therein  contained:  and  an  executor  or  "place  of  residence  or  transaction  of 
administrator  could  not  excuse  him-  business,"  is  also  happily  done  away 
self  for  having  consumed  the  estate  with.  It  was  held,  under  the  former 
in  paying  debts  of  an  inferior  degree,  statute,  that  the  notice  need  n-^t 
by  showing  want  of  knowledge  of  the  specify,  as  the  place  of  presentment, 
judgment.  And  this  is  still  the  rule,  the  place  where  the  representative 
unless  the  representative  avails  him-  transacted  his  own  personal  business, 
self  of  the  right  to  publish  notice,  etc.  or    his    private    residence.      He    might 

11  Buckhout  V.  Hunt.  10  How.  Pr.  select  a  place  as  his  place  of  business 
407.     See  subd.  .3  of  this  article,  post,  or  residence,  so  far  as  his  relation  to 

12  Co.  Civ.  Proc.  §  2718,  as  amended  the  estate  is  concerned,  f.  p..  the  office 
189.3:  adopting  2  R.  S.  34,  as  amended  of  his  attorney:  and  the  designation 
L.    1890,   c.   45G.      Before  the   amend-  of  such  place  in  the  notice  made  that 


525  Administkation  of  Estate,  Etc.  §  637. 

of  the  notice  upon  tlio  application  of  the  roprcpcntativo  or  his 
attorney.  The  application  is  usually  in  writin«j^,  but  verification 
is  not  required.  If  the  surrogate  is  desired  to  designate  more  than 
one  newspajier  for  the  pul)lication  of  the  notice,  either  in  the 
county  or  elsewhere,  he  should  be  informed  of  any  facts  and  cir- 
cumstances calculated  to  influence  his  selection.^"  Publication  in 
one  ncAvspaper  printed  in  the  county,  pursuant  to  the  order  of  the 
surrogate,  is  sufHcient,  unless  he  directs  a  publication  in  some 
other  newspaper  also.^* 

The  notice  is  for  the  protection  of  the  executor  or  adminis- 
trator, and  of  the  estate;  there  is  no  absolute  obligation  to  give  it 
at  all.^^  Hence,  his  omission  to  publish  a  notice  will  not  have  the 
effect  of  subjecting  him  to  costs,  in  an  action  by  a  creditor  for  a 
debt  due  by  decedent. ^*^  Innnaterial  errors  or  omissions  in  the 
notice  \vi\\  not  affect  its  validity,  e.  g.,  the  omission  of  the  middle 
letter  of  the  name  of  the  testator  in  the  notice  is  immaterial,  as 
the  law  recognizes  but  one  christian  name;^^  or  using  the  word 
"*'  requested  "  instead  of  "  required  "  in  the  notice  to  creditors.^* 

SUBDIVISIOX  2. 

PKESEXTATIOX  AND  PROOF  OF  CLAIMS. 

§  637.  What  claims  may  be  presented. —  Claims  which  have 
teen  established  by  judgment, ^^  or  which  have  been  decided  upon 


the  residence  or  place  of  business  of  such  newspaper  alone  is  deemed  most 

the  executor,  for  that  purpose,  within  likely   to  give  notice   to  creditors,  as 

the  meaning  and  object  of  the  statute,  required   by   the   statute  and   whether 

( Hoyt  V.  Bonnett.  .iS  Barb.  .520;  revd.,  a   publication    in   one   paper   was   suf- 

on  other  grounds,  50  X.  Y.  ,5.38:   dis-  ficient.     See  ^hirray  v.  Smith.  9  Bosw. 

approving  Murray  v.   Smith,  9  Bosw.  689.     In  Xew  York  county,  the  notice 

f)89.)      But    the    notice    was   held   de-  must  be  published   in   llic   Xeic   York 

fective   if   it   required   presentment   to  Laic  Journal,  and  the  surrocrate  desig- 

be  made  to  the  attorney  of  the  exec-  nates  another  paper  in  addition, 

ntors  as  such,  instead  of  to  the  exec-  15  Field    v.    Field.     77    N.    Y.    294: 

utors    themselves.       (Ilardv    v.    Ames,  Bullock  v.  Bogardus.  1  Den.  27(i :  Rus- 

47   Barb.   413;    Whitmore  V.   Foose,   1  sell    v.    Lane,    1    Barb,    519;    Fort    v. 

Den.   1.59.)  Gooding,  9  id.  388;  Comstock  v.  01m- 

l^'^The  statute  provides  for  a  notice  stead.  0  Hmv.  Pr.  77. 
"in  a  newspaper  or  newspapers  l^  Bullock  v.  Bogardus.  supra;  over- 
printcil  in  the  coiniti/:"  but  there  is  ruling,  on  this  point,  Harvey  v.  Skill- 
no  reason  why,  as  licn^toforc'.  the  court  man.  22  Wend.  .571.  In  the  earlier 
should  not  designate,  besides  a  paper  case  of  Knapp  v.  ("urtiss  (()  Hill,  380) , 
])riiited  in  the  county,  another  paper  the  court  declined  to  be  governed  by 
printed  in  another  county.  the  rule  in  Harvey  v,  Skillinan.  .<t»/)ra, 

14  D(dbeer   v.    Casey,    19    Barb.    149.  which  case,   however,   it   attempted   to 

Tt  was  said  to  be  doubtful   under  the  distinguish. 

former     statute      (but     without     good  l"  Cornes  v.  Wilkin.  79  X.  Y.  129. 

reason),  whether  a  mere  order  of  pub-  is  Prentice  v.  Whitney,  8  Hun,  300. 

lication  is  suflifient,  without  a  formal  l'-'  ^fatter    of    Phyfc    5    X.    Y.    Leg. 

adjudication    that    a     publication     in  Obs.  331:  Matter  of  Browne.  3.5  ^Misc. 


§  637. 


Ad:mixisteation'  of  Estate,  Etc. 


526: 


by  the  representative,^*^  before  or  during  the  publication,  need 
not  be  presented  after  the  publication  of  the  notice ;  but  the  neces- 
sity of  presentation  is  not  avoided  by  the  knowledge  of  their  ex- 
istence by  the  representative.^^  Any  claim  of  whatever  character 
mav  be  presented,  provided  it  existed  against  the  deceased  in  his 
lifetime,  and  pro^^ded  further  that  it  is  one  Avhich  survives  him. 
A  claim  for  services,  rendered  after  the  testator's  death,  is 
against  the  executor  personally  and  not  against  the  estate.^^  So 
a  claim  by  the  personal  representative  of  a  deceased  executor,  for 
debts  paid  by  such  executor  in  administering  the  estate  of  his 
testator,  is  nyt  a  claim  against  the  decedent.""  Xor  does  the 
statute  extend  to  the  liability  of  the  estate  of  a  deceased  executor^ 
for  assets  held  by  him  as  such  at  his  death,^^  nor  to  claims  made 
by  the  executor  against  other  parties,  and  in  favor  of  the  estate, 
except  strictly  in  the  way  of  set-oif."''  To  the  extent  of  the  assets 
which  have  come  into  their  hands  to  be  administered,  executors  or 
administrators  are  liable  on  all  contracts  made  by  the  testator  or 
intestate,  whether  broken  before  or  after  his  death,^**  except 
contracts  liiuited  to,  and  not  broken  during,  the  lifetime  of  the 
deceased,  and  except  covenants  in  law,  not  broken  during  the  life- 
time of  the  deceased.     Their  liabilitv  is  not  affected  bv  the  fact 


362:  71  X.  Y.  Supp.  1034.  Where  the 
representative  has  been  substituted 
for  a  deceased  defendant  in  a  pending 
action,  he  is  not  entitled  to  presenta- 
tion of  the  demand.  (Tindal  v.  Jones, 
11  Abb.  Pr.  258:  19  How.  Pr.  409.) 
See  Matter  of  Clarke,  57  App.  Div. 
430;  68  X.  Y.  Supp.  243. 

20  Field  V.  Field.  77  X.  Y.  294. 

21  Matter  of  Morton,  7  Misc.  343 ; 
28  X.  Y.  Supp.  82. 

22  Clark  V.  Todd.  41  St.  Rep.  758; 
16  X.  Y.  Supp.  491:  Matter  of  Arken- 
burgh,  13  Misc.  744;  35  X.  Y.  Supp. 
251.  Where  a  testator,  in  his  will, 
gave  to  his  widow  as  much  as  she 
would  need  for  support,  an  account  for 
support  furnished  by  a  third  person, 
is  not  a  claim  against  the  decedent. 
(Godding  v.  Porter.  17  Abb.  Pr.  374.) 

2:5  Stewart  v.  0"Donnell,  2  Deni.   17. 

24  Sands  v.  Craft.  10  Abb.  Pr.  216; 
18  How.  Pr.  438.  But  see  Fowler  v. 
Hebbard  (40  App.  Div.  108;  57  X.  Y. 
Supp.  531),  which  was  the  case  of  a 
c'aim  asainst  decedent  founded  upon 
his  liability  as  guardian. 

25Akelv'A-.  Akelv,   17   How.   Pr.  21. 

26  See  2  Pv.  S.  lf3,  §§  1-5.  Thus,  a 
balance   due   from   a  deceased   partner 


to  a  surviving  co-partner,  on  account 
of  the  partnership  transactions  ( Bab- 
cock  V.  Lillis,  4  Bradf.  218:  s.  c,  sub 
nom.  Sellis'  Case,  3  Abb.  Pr.  272; 
Payne  v.  Matthews,  6  Paige,  19 :  but 
compare  Kirbv  v.  Carpenter.  7  Barb. 
373:  Arnold  v.  Arnold.  90  X.  Y.  580)  : 
the  purchase  money  of  land  contracted 
but  not  paid  for  by  the  decedent,  un- 
less the  vendors  elect  to  look  to  the 
land  (Johnson  v.  Corbett,  11  Paige, 
265 ) ,  and  an  order  for  judgment  as 
in  case  of  nonsuit,  against  the  de- 
cedent in  his  lifetime,  entered  in  the 
minutes  of  the  court,  though  the 
record  be  not  signed  or  filed  till  after 
his  death  (Salter  v.  Xeaville,  1  Bradf. 
488),  are  examples  of  this  class  of 
liabilities.  For  other  cases,  see  Rib- 
let  v.  Wallis,  1  Daly,  360:  Hall  v. 
Bennett,  49  X.  Y.  Super.  301 ;  Oilman 
V.  Wilber,  1  Dem.  547;  distinguishing 
Bank  of  Poughkeepsie  v.  Hasbrouck, 
6  X.  Y.  216:  Terry  v.  Bale,  1  Dem. 
452.  Services  of  a  son  on  his  father's 
farm. —  Held  not  to  be  a  les^al  claim 
against  the  father's  estate.  (Wamsley^ 
V.  Wamslev.  48  App.  Div.  330 :  62  X. 
Y.  Supp.  954.)  See  Otis  v.  Hall,  117 
X.  Y.   131. 


527  Ad.mi-nisti:atiu>'   of  Estate,  Etc.  §  G38. 

that  a  eoncnrrcnt  romody  oxi^^ts  against  the  hoir  or  devisee,  c.  g.y 
on  a  covenant  which  nms  Avith  the  hind,  and,  therefore,  descends 
to  the  heir,^^  though,  as  Ave  have  seen,  the  executor  ciiiinot  liiniself 
sue  on  snch  a  covenant,  nnless  substantial  ■daiiia<;es  were  caused, 
bv  the  breach,  to  the  personal  estate."**  The  rule  extends  to  im- 
plied contracts.  Thus,  the  liability  of  a  stockholder,  imposed  by 
law,^^  for  a  debt  of  the  company  incurred  l)efore  its  capital  stock 
was  paid  in,  survives  his  death  and  may  be  enforced  against  his 
estate.""'  But  a  cause  of  action  given  by  the  statute,^^  against  the 
trustees  of  a  coqioration,  for  a  failure  to  file  a  report  as  recpiired, 
is  penal  in  its  character  and  does  not  survive  a  tnistee's  death.^^ 

§  638.  Decedent's  joint  obligation. —  The  former  rule,  that  the 
estate  of  a  person  jointly  liable  on  contract,  with  others,  is  dis- 
charged by  his  death,^^  is  now  abrogated,  and  where  an  action  is 
jX'uding,  the  court  may  cause  the  decedent's  representative  to  be 
])r(iiiglit  in,  or,  where  the  liability  is  also  several,  it  may  direct  a 
severance.^'*  Contingent  liabilities,  for  which  the  estate  is  not 
primarily  liable,  and  upon  which  its  liability  has  not  been  fixed  — 
e.  g.,  claims  against  the  estate  of  a  deceased  partner,  for  partner- 
ship debts,  Avliile  the  survivor  is  living  and  the  remedy  against 
him  has  not  been  exhausted  —  may  properly  be  presented  under 
the  notice.'*'^  Hence,  the  provision  of  the  statute  limiting  the  time 
for  commencing  suits  upon  claims  (lis])utcd  or  rejected,  includes 
claims  Avhicli  are  contingent,  as  well  as  those  where  the  lialulity 
is  certain  and  fixed. '^*'  A  claim  for  a  possible  deficiency  on  a 
mortgage  foreclosure  and  sale,  for  which  the  decedent  would  have 
been  liable,  if  living,  should  be  provided  for  by  the  representative, 
and  hence  may  be  presented  under  the  notice. 

The  claims  which  an  executor  or  administrator  is  competent  to 
adjust  and  settle  are  not  confined  to  claims  arising  on  contract, 
nor  to  those  cognizable  in  the  common-law  courts.  The  object 
of  the  statute  is  to  allow  a  presentment  of  all  claims  against  the 

27Wms.    on    Exrs.     (6th    Am.    ed.)  --t  Co.  Civ.  Proc,  §  758.    Sec  Ramlall 

i:)91;  Uiccy  on  Parties,  315.  v.  Saokctt.  77  N.  Y.  480. 

28  See  S  542.  ante.  35  Hoy t   v.    Bunnett,   50   X.   Y.   5.38; 

2;'L.  1849.  c.  308.  Seloverv.  Coe.  ti3  id.  438:   ^Vhit'.ock  s 

30  Chase  v.  Lord.  16  Hun.  369.     See  Estate,     1     Tuck.     491;     Francisco    v. 

]\Iahonev  v.   Pernhardt,  27   Misc.   339;  Fitcli,  25   Barb.    130:    White   v.   Story. 

58  N.  Y.  Supp.  748.  43  id.  124;  Harbeck  v.  Pui)iii.  23  Al.h. 

:n  L.   1848.  c.  40.   §   12.  X.  C.  190. 

"2  Bank   uf   California   v.    Collins.    5  litl  (ornes  v.   Wilkin.    79   X.   Y.    129. 

Hun.    209:     Reynolds    v.    Mason.     54  See   Williams   v.    Eaton.   3   Redf.   503; 

How.   Pr.   213.   '  Matter  of  Saunders.  4  Misc.  28. 

33Risley   V.    Brown.   67    X.    Y.    160; 
llauck  V.  Craighead,  id.  432. 


§  639.  Administration  of  Estate,  Etc.  528 

estate,  U'lietlicr  of  a  legal  or  an  equitable  nature,'"'^  such  as  a  claim 
against  the  estate  for  a  tort  of  tlie  deceased  —  e.  g.,  the  conver- 
sion of  personal  property^^  and  unliquidated  claims  by  a  surviv- 
ing partner,  against  the  estate  of  deceased  partner,  growing  out 
of  the  partnership,  including  payments  made  after  his  death.^^ 
Where  a  member  of  a  co-partnership  procured  credit  for  his  firm 
h)y  means  of  false  and  fraudulent  representations,  and  subse- 
quently died,  a  judgment,  recovered  against  the  surviving  partner 
for  the  debt  contracted  by  means  of  such  representations,  does 
not  merge  the  right  of  action,  against  the  decedent's  executor  or 
administrator,  for  the  deceit.'*'^  Suing  the  surviving  partner  on 
the  debt  does  not  waive  the  right  of  action  against  the  decedent's 
representative  for  the  tort,  as  the  plaintiffs  are  not  bound  to  elect, 
but  are  entitled  to  recover  of  the  former  whatever  they  can 
secure  under  the  contract,  and  also  to  obtain,  against  the  latter, 
redress  for  whatever  damage  they  may  have  sustained  from  the 
fraud. ^^  The  statute  provides  that  causes  of  action  for  wrongs 
to  the  property,  rights,  or  interest  of  any  person,  survive  as  against 
the  representatives  of  the  wrongdoer,'*^  except  as  stated.'*'^  But 
though  an  action  will  not  lie  against  executors  for  a  fraud  of  the 
testator  which  does  not  benefit  the  assets,  it  \\\\\  lie  on  a  contract 
fraudulently  performed.^'*  Actions  to  recover  damages  for  neg- 
ligence of  an  innkeeper,  common  carrier,  bailee,  surgeon,  attor- 
Tiey,  etc.,  are  in  reality  founded  upon  a  contract,  express  or 
implied,  and  are  usually  brought  in  the  form  ex  contractu.  Such 
causes  undoubtedly  survive ;  so,  a  cause  of  action  for  trespass  de 
honis  asportatis^^ 

§  639.  Effect  of  not  presenting  claim. —  The  neglect  of  a  cred- 
itor to  present  his  claim  within  the  time  specified  in  the  published 
notice  does  not  bar  his  right  of  action  on  the  claim,  nor  prevent 


37  Skidmore  v.  Post,  32  Hun,  54 ;  aside.  But  the  mere  fact  that  the 
Brockett  v.  Bush,  18  Abb.  Pr.  3.37:  executor  has  an  equitable  defense,  has 
White  V.  Story,  43  Barb.  124;  2S  How.  never  been  held  to  be  a  ground  for 
Pr.  173.  Compare  Cornes  v.  Wilkin,  his  refusing  to  refer.  ( Robertson  ■  v. 
79  N".  Y.   129;   Hovt  v.  Bonnett.  50  id.  Sheill.  3  Dem.   IGl.) 

538.                           "  40  ]\Iorgan  v.  Skidmore,  3  Abb.  N.  C. 

38  Brockett  v.  Bush,  supra.  92.      See  Matter   of   Pierson,   19   App. 

39  Francisco  v.  Fitch.  25  Barb.   130.  Div.  478;   46  X.  Y.  Supp.  557. 

In  Y^ork   v.   Peck    (9   How.   Pr.   201).  4i  lb.      See    Harbeck    v.    Pupin,    23 

an    opinion    was    intimated    that    the  Abb.  N.  C.  190. 

statute   applied   to   claims   of   a   legal  -12  2   R.   S.   447,    §    1.      See  Bond   v. 

nature    only.      The    same    view    was  Smith,  4  Hun,  48. 

taken  in  Sands  v.  Craft   (10  Abb.  Pr.  4.3  See  §  543.  ante. 

210),  where   an  order  awarding  costs  44  Troup  v.  Smith,  20  Johns.  33. 

against    an    executor,   granted    on   the  45  Heinmuller  v.   Gray,   13  Abb.   Pr. 

ground  that   he   had  refused   to   refer  (X.  S.)    299. 

■3.    strictly    equitable    cause,    was    set 


529  Administration  of  Estate,  Etc.  §  640. 

liis  prosontiriG;  it  on  the  accounting  of  the  representative,  or  mov- 
ing on  it  to  compel  the  representative  to  account  and  pay  his 
claim."*"  But  if  it  is  not  presented  he  cannot  complain  of  a  dis- 
tribution of  the  personal  estate  to  the  parties  entitled.'*"  Its  only 
effect  is  to  limit  his  recovery,  in  any  action  he  may  bring  on  the 
claim,  to  the  amount  of  the  assets  remaining  in  the  representa- 
tive's hands  unadministered  at  the  commencement  of  the  action,""* 
and  to  deprive  him  of  the  right  to  costs.  It  is  only  in  case  a 
consent  to  the  determination  of  the  claim  by  the  surrogate  is  not 
filed  or  the  claim  is  not  referred  or  prosecuted  within  six  months 
after  its  dispute  or  rejection,  that  he  is  forever  barred  from  main- 
taining an  action  upon  it,  against  the  representative.*'' 

^  640.  Verification  of  claim. —  In  speaking  of  the  requisite  proof 
of  claims,  a  distinction  should  be  made  between  disputed  claims, 
that  is,  claims  which  the  representative  rejects  and  which  are  after- 
Avard  disposed  of  on  trial,  and  those  claims  which  the  representa- 
tive allows,  on  their  being  verified  to  his  satisfaction.  Tlie  statute 
declares  that  ''  he  may  require  satisfactory  vouchers  in  support 
of  any  claim  presented,  and  the  affidavit  of  the  claimant  that  the 
«laim  is  justly  due,  that  no  payments  have  been  made  thereon,  and 
that  there  are  no  set-offs  against  the  same "  to  his  knowledge.^" 
The  verification  of  a  claim  srives  it  the  character  of  an  "  undis- 


4<>  Cotter    V.    Quinlan.    2    Dem.    29 ;  ministrator  to  exact  proof  of  a  speci- 

Matter   of  ]\Iullon,    14.5   N.  Y.   98;    fi4  fied  character  is  not  compulsory  upon 

St.  Rep.  ool  ;    Lesser  v.  Keller,  29  X.  the   personal  representative,   but    is   a 

Y.  Supp.   829.  privilege    accorded    to    him    which    he 

47  Matter  of  Morton,  7  Misc.  343 ;  may  take  advantage  of  or  not.  There 
28  X.  Y.  Supp.  82.  is  nothing  in  the  statute  v.hich  neces- 

48  Co.  Civ.  Proc,  §  2718,  as  amended  sarily  requires  that  the  evidences  of 
1893.  See  Mayor,  etc.  v.  Gorman,  26  the  debt  should  be  laid  before  the 
App.  Div.   191;    49  X.  Y.   Supp.   1026.  executor     or     administrator,    or     that 

4!' Co.  Civ.  Proc,  §  1822,  as  amended  claimant  should  make  oath  of  the  jus- 
1895;  Baggott  v.  Boulger.  2  Duer,  tice  of  the  claim,  unless  required  to 
160;  Erwin  v.  Loper,  43  X.  Y.  521.  do  so  by  the  executor  or  administra- 
Tlie  subject  of  the  limitation  of  ac-  tor."  (Ransom,  S.,  in  Matter  of 
tions  against  executors  and  adminis-  Sears,  X''.  Y.  Law  J.,  June  6,  1S90.) 
trators  wi!l  be  considered  hereafter.  It  is  enough  if  the  statement  shows 
The  presentment  of  a  claim,  and  a  the  transaction  out  of  which  the  claim 
consent  to  refer,  furnish  no  ground  arose,  its  general  character  and 
for  denying  a  motion  to  revive  a  pend-  amount.  (Titus  v.  Poole,  145  X.  Y. 
ing  action  on  the  same  claim  against  414;  Go  St.  Rep.  344.)  The  claimant 
the  decedent.  Such  presentment  and  is  not  required  to  specify  in  his 
consent  do  not  amount  to  the  com-  affidavit  an  independent  demand  con- 
mencement  of  another  action,  avail-  ceded  to  be  due  from  him  to  the  es- 
able  as  a  defense.  (Dalton  v.  Sand-  tate,  but  which  the  administrator 
land.  4  Civ.  Proc.  Rep.  73.)  may  or  may  not  plead  as  a  counter- 
so  Co.  Civ.  Proc,  §  2718,  as  amended  claim,  at  his  option.  i  O^^borne  v. 
1893;  adopting  2  R.  S.  88,  §  35.  "The  Parker,  My  App.  Div.  277;  72  X.  Y. 
statute  authorizing  an  executor  or  ad-  Supp.   894.) 

34 


§  641.  Administration  of  Estate,  Etc.  530 

puted  debt."  ^^  The  claimant  is  not  bound  to  furnish  other  evi- 
dence of  the  debt,  unless  required  to  do  so  by  the  representative.""" 
He  may  be  required  to  furnish  a  bill  of  particulars,  or  make  his 
claim  more  definite  and  certain.^^  The  claim  need  not  be  pre- 
sented to  each  of  two  representatives.^"*  But  it  is  a  general  prin- 
ciple that  claims  ^^dthheld  during  the  life  of  an  alleged  debtor, 
and  sought  to  be  enforced  after  his  death,  are  always  to  be  carefully 
scrutinized,  and  only  admitted  upon  satisfactory  proof;  and  Avhere 
it  appears  that  there  was  a  subsequent  dealing  in  which  the  pre- 
tended creditor  was  a  debtor,  and  did  not  present  his  claim  in 
diminution  of  the  debt,  distinct  and  definite  proof  will  be  re- 
quired, and  the  clearest  indications  of  honesty  and  fairness. ^"^ 

§  641.  Debt  due  representative  from  decedent. —  The  representa- 
tive is  not  permitted  to  liquidate  his  personal  claim  against  the  de- 
cedent, by  admitting  it  in  his  representative  capacity,  as  he  may 
do  in  the  case  of  claims  presented  by  other  creditors.  He  is  ex- 
pressly forbidden  to  "  satisfy  his  o^vn  debt  or  claim  out  of  the 
property  of  the  deceased  until  proved  to,  and  allowed  by,  the  sur- 
rogate ;"  and  this,  to  the  end  that  "  it  shall  not  have  preference 
over  others  of  the  same  class."  ^^  From  the  common-law  right 
which  an  executor  or  administrator  had,  to  retain,  as  a  creditor, 
so  much  of  the  assets  as  might  be  necessary  to  discharge  his  claim, 
a  conclusive  presumption  arises  in.  favor  of  the  payment  of  his 
debt,  where,  during  his  lifetime,  the  representative  made  no  claim 
that  his  debt  had  not  been  paid.^'^ 

51  Lambert  v.  Craft.  98  X.  Y.  342.  same.  (Clark  v.  Coe.  .52  Him.  379.) 
An  allowance  by  an  executor  of  a  note  In  Matter  of  Hill  (26  St.  Rep.  290:  7 
made  by  his  testator  as  a  claim  X.  Y.  Supp.  328),  the  administrator 
against  the  estate  implies  that  it  has  presented  his  personal  claim,  a  jireater 
not  been  paid.  (Matter  of  Kellogg,  part  of  which  was  barred  by  the  Rtat- 
104  X.  Y.  648.)  ute  of  Limitations,  to  himself  and  his 

52  Russell  V.  Lane,  1  Barb.  519;  co-administrator.  He  subsequently, 
Gansevoort  v.  Xelson.  6  Hill,  389.  without    consideration,    assigned    the 

53  Townsend  v.  Xew  York  Life  Ins.  claim  to  his  daughter,  who.  upon  a 
Co.,  4  Civ.  Proc.  Rep.  398;  \Yeller  v.  reference  of  it  as  a  disputed  claim, 
Weller.   4  Hun.   196.  obtained    a   judgment    upon   the   testi- 

54  Lambert  v.  Craft,  98  X.  Y.  342 ;  monv  of  a  person  incompetent  under 
Genet  v.  Binsse,  3  Daly,  239.  Co.  Civ.  Proc,   §  829.     On  the  admin- 

55  Kearney  v.  McKeon,  8.5  X.  Y.  137  ;  istrator's  accounting,  held,  that  judg- 
Matter  of  Smith,  1  Misc.  253.  See  ment  having  been  collusively  obtained, 
§  653,  post.  would   not  be  allowed. 

56  Co.  Civ.  Proc,  §  2719,  as  amended  57  Ellwood  v.  Xorthrup.  106  X.  Y. 
1893;  adopting  2  R.  S.  88,  §  33.  The  172,  182.  The  settled  rule  is  that  the 
fact  that  the  executor  secured  his  representative  cannot  pa}f  the  claim  to 
private  debt  by  a  mortgage  on  chat-  himself  before  it  is  judiciallv  e.stab- 
tels  held  by  him  as  executor  carries  lished  on  his  accounting,  (flatter  of 
with  it  its  own  condemnation,  and  the  Babcock.  29  St.  Rep.  947 :  9  X.  Y. 
mortgagee  cannot  hold  them  as  against  Supp.  554.)  Although  a  representa- 
those    having   a    prior     right    to    the  tive  cannot  retain  from  moneys  in  his 


631 


Admixistkatiox  of  Estate,  Etc. 


§  642. 


§  642.  Surrogate's  jurisdiction  to  determine  representative's  claim. 

—  "  WluTc  ti  conlcsl  (iri.scs  between  the  accountiug"  party  and  any 
of  the  other  parties,  respecting  property  alleged  to  belong  to  the 
estate,  but  to  which  the  accounting  party  lays  claim,  either  indi- 
vidually or  as  the  reju-escntative  of  the  estate,  or  respecting  a 
debt  alleged  to  be  due  l)y  the  accounting  party  to  the  decedent,  or 
by  the  decedent  to  the  iiccounting  party,"  the  Surrogate's  Court 
has  jurisdiction  to  try  and  determine  either  the  representative's 
alleged  title,  or  the  validity  of  the  alleged  debt,  on  the  judicial 
settlement  of  his  account  ;^*  thus  nuiking  an  exception  to  the  gen- 
eral rule  that  Surrogates'  Courts  have  no  jurisdiction  to  try  and 
determine  the  disputed  claims  of  creditors/''^  It  was  not  the  in- 
tention of  the  Legislature  to  deprive  the  court  of  power  to  examine 
the  proof  presented  by  the  representative,  and  to  determine  its 
sufficiency,  even  where  no  contest  arises  over  it  by  the  parties,  and 
it  has  been  held  that  the  surrogate  may  entertain  a  proceeding 
by  the  representative  for  the  proof  of  his  claim,  in  advance  of  the 
accounting.*"^  It  is  the  duty  of  the  court  theoretically,  at  least, 
to  examine  every  voucher,  including  that  of  the  representative 
himself,  whether  contested  or  not,  to  see  if  it  justifies  the  allow- 
ance and  pa_\Tnent  of  the  claim. ^'^     The  surrogate  is  expressly  au- 


liaiids  tlio  amount  of  a  debt  due  him 
from  the  intestate,  until  it  has  been 
lejially  establislied  and  allowed,  yet 
the  parties  in  interest  may  assent 
thereto,  ond  such  assent  will  take  the 
place.  anJ  answer  the  purpose,  of 
formal  proof  and  adjudication  thereon, 
and  bind  the  parties  assenting  in  the 
absence  of  proof  of  fraud  or  mistake 
as  to  the  claim.  (Ledvard  v.  Bull, 
119  N.  Y.  62.) 

58  Co.  Civ.  Proc.  §  2731,  as  amended 
180.5  (former  §  2739).  The  repre- 
sentative is  not  confined  to  this 
statutory  remedy;  he  has  forfeited 
no  right  as  a  creditor  by  assuming 
anotlier  character:  his  assignee  may, 
tlierefore,  maintain  an  action  on  it, 
the  same  as  any  other  creditor. 
(Snyder  v.  Snyder.'OG  N.  Y.  88.)  But 
tlie  representative  himself  cannot 
maintain  an  action  against  himself 
and  his  co-i('])icsentuti\"e  for  its  re* 
covery.  (Starbuck  v.  Farmers'  L.  & 
T.  Co..  28  App.  Div.  .308:  51  N.  Y. 
Supp.  8.)  The  fact  that  the  repre- 
sentative has  died  is  no  bar  to  the 
proof  of  the  claim.  (Matter  of 
Cooper.  0  Misc.  501.) 

5!>  Lambert  v.  Craft.  98  N.  Y.  342; 
Matter  uf  Ilaxton.  33  Ilun,  304:   Stil- 


well  V.  Carpenter,  2  Abb.  N.  C.  242; 
Matter  of  Rvder.  38  St.  'Rep.  29:  13 
N".  Y.  Supp.  542.  See  Neillev  v. 
Xeillev.  89  N.  Y.  352. 

eo:\iatter  of  Marcellus.  165  X.  Y. 
70.  ^Matter  of  Rider  (129  N.  Y.  640), 
holding  the  contrary,  was  decided  with 
reference  to  a  time  when  L.  1837, 
c.  460,  giving  the  surrogate  power  to 
determine  a  representative's  claim, 
had  been  repealed.  Subsequently  sec- 
tion 2719  was  amended  (L.  "lS93.- 
c.  686)  by  inserting  the  provisions  of 
the  Act  cif  1837.  Therefore  tlie  pre- 
vious decisions  under  tlie  latter  act 
are  pertinent  and  controlling.  ( Kvle 
V.  Kyle.  67  X.  Y.  400:  Shakespeare  v. 
:\rarkham.  72  id.  400:  Boughton  v. 
Flint,  74  id.  476.) 

<■'!  Kyle  V.  Kyle,  supra  :  Shakespeare 
v.  Markham,  suitra :  Smith  v.  Chris- 
tojjher,  3  Hun,  585.  The  representa- 
tive is  entitled  to  interest  on  his 
claim,  luitil  a  final  settlement  of  his 
accounts,  though,  some  time  before 
such  settlenuuit,  he  received  fund.s 
sufiieient  to  reimburse  himself  from  a 
sale  of  the  personal  estate.  ( Matter 
of  Saunders,  23  X.  Y.  Supp.  829;  4 
Misc.   ZS.) 


§  643.  Administration  of  Estate,  Etc.  .532 

tliorized  to  examine  the  accounting  party,  under  oath,  touching 
his  receipts  and  disbursements,  or  touching  any  other  matter  re- 
lating to  his  administration  of  the  estate,  or  any  act  done  by  him 
under  color  of  his  letters,  etc.^^  The  only  claims  'which  the  sur- 
rogate has  jurisdiction  to  try  and  determine,  under  the  statute  re- 
ferred to,  are  held  to  be  those  of  ^vhich  the  representatiye  is  the 
sole  owner,  and,  consequently,  the  representatiye  cannot  proye  a 
claim  due  a  firm  of  which  he  is  a  member  f'^  though  it  has  been 
held,  that  the  fact  that  others  were  jointly  interested  with  the 
representatiye,  or  that  he  acquired  an  additional  interest  by  as- 
signment, after  he  became  such,  did  not  affect  the  authority  of  the 
surrogate  to  adjudicate  in  regard  to  it.^** 

§  643.  Character  of  proof  required. —  It  is  said  that  a  representa- 
tiye's  claim  requires  stricter  proof  than  the  claims  of  other  credit- 
ors. The  rule  is  general  that  the  claimant's  own  affidayit  verify- 
ing his  claim  is  not,  of  itself,  the  proof  required  The  existence 
of  the  debt  must  be  established  by  legal  eyidence,^^  in  addition 
to  the  yerification  of  the  claim  by  the  representatiye  himself;*'^ 
and  such  yerification  must  be,  in  each  particular,  the  same  as  the 
yerification  w^hich  he  may  require  of  another  creditor.  Thus, 
where  the  administrator  (sworn  on  his  own  behalf,  without  ob- 
jection) failed  to  testify  that  no  payments  had  been  made  on  ac- 
.  count  of  his  claim,  or  that  there  were  no  offsets  against  it,  th^ 
claim  was  rejected,  as  these  were  held  to  be  affirmatiye  facts  to 
be  established  by  the  claimant. ^^  It  was  said,  indeed,  that  a  repre- 
sentatiye's  claim  against  the  estate  is  to  be  regarded  with  suspicion, 
when  not  based  upon  some  written  obligation  of  the  decedent.^ 

But  this  is  a  hard,  if  not  altogether  erroneous,  yiew  of  the 
law.     In  an  ordinary  action  for  debt,  the  plaintiff  is  not  required 

62  Co    Civ.  Proc.  §  2729.  App.   Div.   583;    69   N.  Y.   Supp.    125; 

6£  Matter  of  Jones,  2  Misc.  221;   23  Matter    of    Humfreville.    G    App.    Div. 

N.  Y.  Supp.  767.  535;   39  N.  Y.   Supp.  550;   Matter  of 

64  Shakespeare   v.    Markham.   72   N.  Marcellus,  165  X.  Y.  70. 
Y.    400.      But,    it    seems,    a    diflFerent  6^  Terry   v.   Dayton,    31    Barb.   519; 
question  would  arise  where  the  repre-  Clark  v.  Clark,  8  Paige,   152 ;   Matter 
sentative,  after  he  became  such,  pur-  of  Babzer,  23  Week.  Dig.  305 ;  Matter 
chased    a     claim     in    which     he     had  of   Saunders,    4   Misc.    28 ;    Matter   of 
no    prior    interest.        (lb.)        And   see  Childs,   5   id.    560;    Matter   of   Weeks, 
Schreyer  v.   Holborrow,    63   How.    Pr.  23    App.    Div.     151.      See    Brooks    v. 
228,   explaining  Scrantom  v.  Bank  of  Brooks,  4  Redf.  313. 
Rochester.  24  N.  Y.  424.  67  Wood  v.  Rusco.  4  Redf.  380 ;  Mat- 
es Underbill   v.   Newburger.   4  Redf.  ter  of  Clapsaddle.  4  Misc.  355 ;  24  X. 
499:    Keller   v.    Stuck,    id.    294;    Wil-  Y.    Supp.     313.      But    see    Matter    of 
liams  v.  Purdy.  6  Paige.   168;   Matter  Xeil,  35   Misc.   254. 
of  Stevenson,  86  Hun,   325 ;   33  X.  Y.  68  lb.      And   see   Wright  v.   Wright, 
Supp.  493 ;   Matter  of  Arkenburgh,  58  4  Redf.  345. 


533  Administration  of  Estate,  Etc.  §  644. 

to  show  affirinatively,  as  a  condition  of  recovery,  nonpayment,  the 
nonexistence  of  any  set-off  or  other  such  affirmative  defenses. 
These  defenses  could,  ordinarily,  be  proved  only  by  the  claimant 
himself,  and  as  he  would  be  incompetent  to  testify,  under  section 
829  of  the  Code,  the  anomaly  of  requirin*;"  a  specific  kind  of  proof 
to  establish  the  claim,  while  the  statute  disqualifies  the  only  per- 
son competent  to  prove  the  fact  from  testifying  thereto,  will  not 
1)0  tolerated. ^^ 

§  644.  Statute  of  Limitations  against  the  debt,  suspended. —  In 
view  of  such  possible  contest,  <in  the  judicial  settlement  of  the  rep- 
resentative's account,  the  statute  provides,  that  "  from  the  death, 
of  the  decedent,  until  the  first  judicial  settlement  of  the  accounts 
of  the  executor  or  administrator,  the  running  of  the  Statute  of 
Limitations  against  a  debt  due  from  the  decedent  to  the  account- 
ing party,  or  any  other  cause  of  action,  in  favor  of  the  latter 
against  the  decedent,  is  suspended,  unless  the  accounting  party 
was  appointed  upon  the  revocation  of  former  letters  issued  to  an- 
other person ;  in  which  case,  the  running  of  the  statute  is  so  sus- 
pended, from  the  grant  of  letters  to  him,  until  the  first  judicial 
settlement  of  his  account.  After  the  first  judicial  settlement  of 
the  account  of  an  executor  or  administrator,  the  Statute  of  Limi- 
tations begins  again  to  run  against  a  debt  due  to  him  from  the 
decedent,  or  any  other  cause  of  action  in  his  favor  against  the 
decedent."  ~^  The  statute  does  not  run  between  the  decedent's 
death  and  the  first  judicial  settlement  of  the  executor's  account, 
although  the  period  of  such  suspension  continues  more  than  six 
years  succeeding  one  year  after  the  granting  of  letters.'^ 

<■>•'  Matter  of  Freeman.  N.  Y.  Law  decedent,  it  was  held,  that  the  plain- 
J.,  ,)iily  11,  1891.  "As  a  condition  of  tiff  was  not  required  to  prove  non- 
receiving  the  benefits  which  the  stat-  payment  of  the  sum  due;  that  pay- 
utes  accord  to  a  creditor  thus  present-  ment  was  an  aliirmative  defense,  the 
ing  his  claim,  he  must  make  the  proof  burden  of  establishing  which  was 
therein  set  forth,  if  required  by  the  upon  the  defendant.  See  Matter  of 
personal  representative :  but  if  the  Rowell,  45  App.  Div.  323 ;  Hicks  v. 
c"aini  is  rejected,  the  Revised  Stat-  Walton,  14  id.  199. 
utos  require  no  other  or  different  evi-  'tJ  Co.  Civ.  Proc.  §  2731,  as  amended 
deuce  than  would  be  necessary  in  an  1895  (former  §  2739).  See  Treat 
(  rdinary  suit  to  recover  upon  a  v.  Fortune,  2  Rradf.  116;  Mover 
siniiar  contract  or  claim,  in  which  v.  Weil.  1  Dem.  71;  Matter  of  Gard- 
no  personal  representative  was  inter-  ner,  5  Reuf.  14.  The  statute  does  not 
e-tcd.'  (lb.,  per  Ransom,  S.)  See  apply  to  a  debt  due  a  third  person. 
Matter  of  Macomber,  31  St.  Rep.  903 ;  and  assigned  to  the  executor.  (Mat- 
affd.,  33  id.  912.  In  Lcrche  v.  Brasher  ter  of  Robbins.  17  Misc.  204.) 
(104  N.  Y.  101) ,  which  was  an  action  'i  Matter  of  Powers.  124  N.  Y.  301  ; 
by  an  administrator  to  recover  com-  30  St.  Hep.  347 ;  O'Flyn  v.  Powers, 
pensation  for  services  rendered  to  the  136  N.  Y,  412;  21  N.  Y.  Supp.  905. 


§§  645,  QiQ.     Admixistsatiox  of  Estate,  Etc.  534 

SUBDIVISION  3. 

DETERMINING   DISPUTED    CLAIMS. 

§  645.  Accepting  or  rejecting  claims.—  The  executor  or  admin- 
istrator ought  to  decide  upon  the  chiinis  presented  to  him  with 
reasonable  dispatch.  He  may  reject  the  claim  outright,  or  he  may 
settle  it  by  compromise.'-  If  he  has  reason  to  doubt  the  justice  of 
the  claim,  he  may  agree  to  a  determination  thereof  by  the  surro- 
gate upon  his  accounting  or  he  may  consent  to  refer  it  to  a  ref- 
eree, to  hear  and  determine,  or  he  may  admit  some  items  of  the 
claim  and  reject  others  so  as  to  set  the  Short  Statute  of  Limita- 
tions running.'^^  On  the  other  hand,  it  is  of  the  first  importance, 
to  the  creditor,  to  know  explicitly  whether,  and  if  so  when,  his 
claim  is  rejected,  and  whether  the  representative  consents  to  a 
judicial  determination  thereof.  For  in  case  the  claim  is  disputed 
or  rejected,  and  a  consent  to  the  determinatiou  of  the  same  by 
the  surrogate  is  not  filed,  the  creditor's  rigiit  of  action  on  the 
claim,  if  it,  or  any  part  of  it,  is  then  due,  is  barred  after  six 
months  from  such  dispute  or  rejection."'*  The  creditor  is  barred, 
not  only  of  his  action  against  the  representative,  but  also  of  every 
other  remedy  to  enforce  payment,  out  of  the  decedent's  property.'^ 

§  646.  Short  limitation  of  action  on  rejected  claim. —  The  statute 
provides,  that  "  where  an  executor  or  administrator  disputes  or 
rejects  a  claim  against  the  estate  of  the  decedent,  exhibited  to  him 
either  before  or  after  the  commencement  of  the  publication  of  a 
notice  requiring  the  presentation  of  claims,  as  prescribed  by  law, 
unless  a  written  consent  shall  be  filed  by  the  respective  parties 
w4th  the  surrogate,  that  said  claim  may  be  heard  and  determined 
by  him  upon  the  judicial  settlement  of  the  accounts  of  said  execu- 
tor or  administrator,  as  provided  by  section  2743,  the  claimant 
must  commence  an  action,  for  the  recovery  thereof,  against  the  ex- 
ecutor or  administrator,  within  six  months  after  the  dispute  or  re- 


72  As  already  pointed  out  {ante,  73  Wintermeyer  v.  Sherwood,  77 
§  629),  the  representative  may.  un-  Hun,  193:  28  "N.  Y.  Supp.  449. 
der  the  authority  of  the  surrogate,  74  Co.  Civ.  Proc,  §  1822,  as  amended 
compromise  or  compound  a  debt  due  1895.  The  court  has  power,  upon  the 
to  the  estate,  but  no  provision  is  made  accounting,  to  determine  whether  a 
for  the  submission  to  the  surrogate  claim  against  the  estate  has  been  re- 
fer his  direction  in  regard  to  the  jected  or  admitted  by  the  accounting 
compromise  of  debts  due  by  the  estate,  executor.  (Browne  v.  Lange,  .3  How. 
The  representative  must,  therefore,  Pr.  (N.  S.)  162;  Matter  of  Von  der 
rely  upon  his  own  judgment  in  Lieth.  25  Misc.  255;  55  N.  Y.  Supp. 
settling  such  an  indebtedness.  428.) 

75  Selover  v.  Coe,  63  N.  Y.  438. 


535  Administkatiox  of  Estate,  Etc.     §§  647,  048. 

jection,  or,  if  no  part  of  the  debt  is  then  due,  within  six  months 
after  a  part  thereof  l)econR'S  due;  in  default  whereof,  he,  and  all 
persons  claiuiiiiii,'  under  him,  are  forever  harred  from  maintaining 
sueh  an  action  thereu])on,  and  from  every  other  remedy  to  enforce 
payment  theref»f,  out  of  the  decedent's  ]n-oj)erty."  ^"  The  statute 
is  said  to  be  highly  penal,  and  must,  therefore,  be  strictly  con- 
strued.^^ In  general,  the  statute  may  be  said  to  apply  to  any  claim, 
provable  under  the  notice  to  creditors,  e.  g.,  a  contingent  claim,'® 
or  a  claim  for  funeral  expenses.''"* 

§  647.  When  statute  begins  to  run. —  Under  the  statute^  as  it 
has  stood  since  the  amendment  of  1882,  publication  of  notice  to 
■creditors  is  not  necessary  to  set  running  the  period  of  limitation  '^^ 
the  limitation  applies  to  demands  exhibited  to  the  representative 
either  before  or  after  the  commeneenuMit  of  the  ])u1)lication  of  the 
Tiotice.  Claims  may  be  presented  at  any  time  after  the  representa- 
tive qualifies  and  enters  upon  the  discharge  of  his  duties ;  and 
the  effect  of  his  decision  on  the  claim  is  the  same,  whether  pre- 
sented before  or  after  publication  of  such  notice.^^ 

§  648.  What  amounts  to  a  rejection  of  claim. —  There  must  be 
■decisive  evidence  of  the  rejection  of  the  claim,  before  the  statute 
will  be  held  to  applt.*^  The  disputing  or  rejecting  must  be  un- 
equivocal;  refusing  to  pay  as  at  present  advised,  and  asking  par- 
ticulars, is  not  disputing,  within  the  statute.^^    Mere  silence  on  the 

TSCo.  Civ.  Proc.  §  1822.  as  amended  ffiven  to  the  orisinal  statute.       (Tucker 

180;-).      See    2    R.    S.    80.    §    .38.      This  v.  Tucker,  4  Abb.  Ct.  App.  Dec.  428; 

statute  does  not  apply  where  the  exec-  4    Keyes.     136:     Fla^g    v.    Euden.     1 

utor  wail,  at  testator's  death,  and  has  Bradf.    192.)       But    now   the    rule    is 

•continued  to  be.  a  nonresident.    (Hay-  chanjjed    as    above.      See    Cramer    v. 

den  V.  Pierce.   144  N.  Y.  512.)  Bedell,  27  Week.  Dig.  340.     Tlie  entry 

""Elliot  V.  Cronk.  13  Wend.  3.5.  of  an  order  of   reference   is  the   com- 

78  Cornes  v.  Wilkin.  70  N.  Y.   120;  mencement   of  an   action  for  the  pur- 

Hoyt  V.  Bonnett,  .50  id.  538.  pose    of    determining    the     period     of 

T'J  Koons    v.    Wilkin.    2    App.    Div.  limitation.       (Leahy    v.    Campbell.    70 

13;    37    K   Y.    Supp.    G40.      As   to   the  App.   Div.   127:   75  X.  Y.  Supp.  72.) 

meaning  of  "  debts  "'   and   "  creditor."'  »i  Field    v.    Field.    77    N.    Y.    204. 

see  Co.  Civ.  Proc,  §  2514,  subd.  3,  as  When     the     claim     is    absolutely     re- 

amendcd   1900.  jected.   suit   may  be  brought  at   once. 

soSnell   V.   Dale.   43    St.    Rep.    408;  J  Matson  v.  Abbey.  70  Hun.  475:    141 

17   K  Y.  Supp.  575;   Wintermever  v.  N.  \.   179.) 

Sherwood.  77  Hun.  103:  28  N.  Y.  82  Re\Tiolds  v.  Collins.  3  Hill.  30. 
Supp.  440.  But  see  Ulster  County  83  H„"yt  v.  Bonnett.  50  X.  Y.  538; 
Sav.  Inst.  V.  Young,  IGl  X.  Y.  23;  55  overruling  in  effect.  Cooper  v.  Felter, 
X^.  E.  483.  containing  obiter  remarks  0  Lans.  4S5.  In  Cooper  v.  Felter  it 
to  the  contrary.  Prior  to  the  amend-  was  held,  that  if.  upon  the  presenta- 
nient  of  1882,  the  limitation  applied  tion  of  a  claim,  an  executor  does  not 
•only  to  demands  exhibited  (tftcr  the  admit  or  reject  it.  he  must  be  re- 
commencement and  before  tlie  com-  garded  as  disputing  it.  There  is  also 
])letion  of  tlie  publication  of  notice  to  a  dictinii  to  tlie  s.ime  ctTect  in  Tucker 
creditors;  that  being  the  construction  v.  Tucker,  4  Abb.  Ct.  App.  Dec.  428; 


§648. 


Administration  of  EssTate,  Etc. 


53(> 


part  of  the  representative  does  not  authorize  the  inference  that  the 
claim  has  been  admitted.^'*  Even  an  unreasonable  delay  in  object- 
ing to  a  claim  does  not  preclude  the  defense  of  the  Statute  of  Limi- 
tations, in  an  action  on  the  claim. ^^  A  mere  neglect  to  pay  an  hon- 
est debt  upon  demand,  or  even  a  refusal  to  pay  it,  if  put  upon 
any  other  ground  than  that  the  debt,  or  some  part  of  it,  is  not 
legally  or  equitably  due,  is  not  a  disputing  or  rejection  within  the- 
statute.®^  The  rejection  may  be  oral,  or  in  writing,^^  but,  however 
expressed,  it  must  be  made  to  the  claimant  personally,  or  to  his  au- 
thorized-agent ;^^  merely  filing  it  is  not  sufficient.^^  Service  of  a 
written  notice  may  be  made,  instead  of  personally,  by  leaving  it  at 
the  claimant's  place  of  residence  or  otherwise,  as  prescribed  by 
section  979  of  the  Code.'^ 


4  Keyes,  13G.  In  Hoyt  v.  Bonnett, 
the  plaintiffs  presented  to  the  execu- 
tors certain  claims  against  the  estate. 
The  latter  caused  to  be  served  upon 
the  former  a  written  notice,  stating 
in  substance  that,  as  at  present  ad- 
vised, they  declined  to  pay  the  claims, 
and  stated  that  as  they  had  no  otliw 
means  of  information,  they  would  be 
greatly  obliged  if  the  plaintiffs  would 
furnish  them  with  a  bill  of  particu- 
lars. No  action  was  commenced  by 
plaintiffs  within  six  months  after  the 
service  of  notice,  nor  did  they  luake 
any  offer  to  refer.  In  the  account 
presented  by  defendants,  upon  their 
final  accounting,  plaintiffs'  claims 
■were  omitted.  They  appeared  and 
objected  to  the  account  upon  that 
ground.  The  surrogate  overruled  the 
objection,  passed  the  accounts,  and  de- 
creed distribution  without  reference 
to  plaintiffs'  claims.  Held,  error;  that 
defendants  had  not  disputed  or  re- 
jected the  claims  so  as  to  put  the 
statute  in  operation,  and  the  action 
was  not  barred.  In  Matter  of  Miller 
(27  St.  Rep.  784;  9  N.  Y.  Supp.  60), 
upon  the  presentation  of  a  verified 
claim  to  the  executor  by  the  claimant, 
a  conversation  was  had  in  reference 
thereto,  but  it  was  not  clear  that  the 
claimant  would  have  understood  from 
it  that  his  claim  was  rejected.  Held, 
that  the  executor  could  not  rely  on 
such  conversation  as  a  legal  rejection 
of  the  claim,  within  the  meaning  of 
the  statute,  especially  as  it  also  ap- 
peared that  the  executor  himself,  by 
subsequently  serving  a  formal  rejec- 
tion, did  not  regard  the  conversion  as 
final.      See  Spencer  v.  Hall,  30  Misc. 


75;  62  N.  Y.  Supp.  826.  In  Matter 
of  Eichman  (33  Misc.  322;  68  N.  Y. 
Supp.  636),  a  written  notice  that  the 
executors  "  doubt  the  justice  of  the 
claim  "  and  offering  to  refer,  was  held  ' 
not  to  amount  to  a  dispute  and  rejec- 
tion. 

^4  Matter  of  Callahan,  152  N.  Y. 
320;  Schutz  v.  Morette,  146  id.  137; 
66  St.  Rep.  271;  Matter  of  Pierson^ 
19  App.  Div.  4-78 ;  46  N.  Y.  Supp.  557 ; 
Matter  of  Doran,  38  id.  544;  73  St. 
Rep.  593.  In  Matter  of  Whitney  (3^ 
St.  Rep.  899;  15  N.  Y.  Supp.  4G8) .  a 
claim  rejected  by  executors,  two  years 
after  it  was  presented,  was  held  to 
have  been  properly  considered  as  a 
''  disputed  claim.'"  To  the  same  effect. 
Matter  of  Edmonds,  47  App.  Div.  229 ; 

62  N.  Y.  Supp.  652.  See  contra,  ^Nlat- 
ter  of  Miller,  27  St.  Rep.  784 ;  9  N.  Y. 
Supp.   60. 

85  Bucklin  v.  Chapin,  1  Lans.  443. 

?6Kidd  V.  Chapman,  2  Barb.  Ch. 
414. 

•IT  Peters  v.  Stewart,  2  Misc.  357 ; 
21  N.  Y.  Supp.  993.  The  rejection  may 
l)e  by  written  notice,  signed  by  the 
.■'ttorney  of  the  representative,  done  at 
the  latter's  request.       (Selover  v.  Coe. 

63  N.  Y.  438;  Wintermeyer  v.  Sher- 
wood, 77  Hun,  193;  28  N.  Y.  Supp. 
449.) 

88  An  agent  of  the  creditor  who.  un- 
der authority,  presented  the  claim  to 
the  representative,  has  like  authority, 
on  behalf  of  the  creditor,  to  receive 
notice  of  tne  rejection  of  the  claim. 
See   Peters  v.   Stewart,  supra. 

?9  Potts  V.  Baldwin.  67  App.  Div. 
434;   74  N.  Y.  Supp.  655. 

90  Peters  v.  Stewart,  supra. 


537  Administkatiox  uf  Estate,  Etc.     gg  G4'J,  050. 

§649.  Waiver  of  statute. —  Prior  to  the  arriGndment  of  1S05, 
the  reference  uf  the  chiiin  was  nece&i=ary  in  order  to  avoid  the  .short 
statute,  and  it  was  hekl  that  the  representative's  offer  to  refer, 
thoiigli  accepted  hy  the  chiiniant,  if  not  followed  by  an  actual  sub- 
mission, was  not  a  waiver  of  the  statute.  To  constitute  such  a 
waiver,  the  offer  should  be  accepted  within  tho  six  months,  and 
tliis  fi)lli)wed  by  an  actual  submission. ^^  This  jiriiifiple,  it  would 
seem,  is  still  applicable.  Where  an  executor,  to  whom  a  claim 
was  presented,  rejected  it,  but  afterward  entertained  negotiations 
in  reference  to  settlement,  and  procured  delay,  it  was  held,  that  the 
first  rejection  could  not  be  deemed  to  make  effectual  the  statute 
bar,  but  must  be  deemed  w^aived  by  the  subsequent  acts  of  the 
executor,  and  that  the  statute  only  began  to  run  from  the  time 
when  he  finally  rejected  the  demand.^^  But  where  the  claim  is 
once  rejected,  the  statute  cannot  be  evaded  by  successive  presenta- 
tions, though  varying  in  form  and  detail. ^^  AVhere  the  executor 
or  administrator  admits  the  validity  of  a  debt,  by  paying  the  in- 
terest from  time  to  time,  or  a  part  of  the  principal,  it  is  tantamount 
to  a  formal  admission  of  its  justice,  upon  presentment  under  the 
notice.^"*  After  account  filed  and  a  hearing  and  report  thereon, 
the  representative  cannot  serve  a  notice  rejecting  a  petitioner's 
claim,  as  the  account  is  equivalent  to  an  admission  thereof.^^ 

>j  650.  Reference  of  disputed  claims. —  If  a  consent  to  the  deter- 
mination of  the  claim  by  the  surrogate  is  not  filed,  the  latter,  of 
course,  has  no  further  power  respecting  it,  and  the  creditor  must 
resort  to  another  remedy.  "  If  the  executor  or  administrator 
doubts  the  justice  of  any  claim  presented,  he  may  enter  into  an 
agreement  in  writing  with  the  claimant,  to  refer  the  matter  in  con- 
troversy to  one  or  more  disinterested  persons,  to  be  approved  by 
till'  surrogate.  On  filing  such  agreement,  and  appr<ivnl  of  tlie 
surrogate,  in  the  office  of  the  clerk  of  the  Supreme  Court  in  the 
county  in  Avhich  the  parties,  or  either  of  them,  reside,  an  order 
>hall  be  entered  by  the  clerk,  referring  the  matter  in  controversy 
to  the  person  or  persons  so  s(dected."  ^'''  The  agreement  to  refer 
should  present  substantially  the  issue  between  the  parties.     It  is 


oiCornos  v.  Wilkin.  70  X.  Y.  120;  wood,   77   Hun,   103;    28  X.  Y.   Rupp. 

Snell    V.    Dale.    43    St.    Rep.    408;    17  440. 

N.  Y.  Siipp.  .57").      See  Bank  of  Fish-  !H  .Johnson  v.  Corbett.  11  Paijre.  26.5. 

kill  V.  Speight.  47  N.  Y.  (i()8.  '■  WiJirht  v.  Beirne.  2  Deni.  S.'JO. 

"•'-Calanan    v.     McClure.    47     Bail).  !*<•  Co.  Civ.  Proe..  §  2718.  as  amended 

20(i:   Adler  v.  Davis.  31   :Misc.  47;   ()3  1803;  adoptina  and  modifying  2  R.  S. 

N.  Y.  Supp.  241.  88,   §  30,  as  amended  L.   iS59,  c.  2(31, 

03  Titus  V.  Poole,  14.")  N.  Y.  414;  65  §  2. 
St.   Rep.    344;    Wintcrmeyer   v.   Sher- 


,§§  G51,  G52,     Administration  or  Estate,  Etc.  538 

a  substitute  for  the  pleadings  in  an  ordinary  action.^"  Only  those 
•claims  can  be  referred  which  the  representative  is  legally  compe- 
tent to  adjust  and  settle  ;'"'^  consequently,  a  personal  claim  of  the 
representative  against  the  decedent  is  not  referable,  though  all 
the  parties  consent  thereto.^^  Several  claims  of  different  indi- 
viduals cannot  be  united  in  one  claim  and  referred.^ 

§  651.  Steps  necessary  to  confer  jurisdiction. —  To  confer  juris- 
diction, the  necessary  steps  are  (1)  the  agreement  to  refer,  (2)  ap- 
proval by  the  surrogate,  and  (3)  the  filing  thereof,  and  entry  of 
the  order  of  reference  in  the  proper  office.^  A  substantial  com- 
pliance with  the  terms  of  the  statute  is  enough  to  confer  juris- 
diction on  the  referee,  to  decide  the  controversy,  and  on  the  court 
to  confirm  his  report.  Thus,  an  order  sigTied  by  the  surrogate, 
reciting  the  presentation  of  the  claim,  and  that  the  parties  had 
agreed  to  a  reference,  and  a  consent  to  the  order  sigiied  by  the 
attorneys  on  behalf  of  the  parties,  amount  to  an  agreement  in 
writing  to  refer,  which  is  sufficient  under  the  statute.  The  naming 
of  the  referee  in  the  order  is  sufficient  evidence  that  he  was  ap- 
proved by  the  surrogate.^  The  order  should  be  entitled  in  the 
Supreme  Court,  though  it  is  no  objection  that  it  was  entitled  in 
the  Surrogate's  Court.  The  order  and  agreement  should  be  filed 
with  the  county  clerk,  but  it  may  be  filed  nujic  pro  tunc,  to  sustain 
the  judgiuent  on  the  referee's  report.^ 

§  652.  Naming  the  referee. —  Although  a  reference  can  be  di- 
rected only  on  consent,  the  court  can  appoint  another  person  as 
referee,  in  the  place  of  the  one  agreed  on,  but  declining  to  act ; 
unless   the  stipulation   provides   otherwise.^      Where   the   contro- 

97Woodin  V.  Baojley,  13  Wend.  453.  2  Wait  v.  Van  Demark,   18  St.  Rep. 

An    agreement    between    the    executor  1 ;  2  N.  Y.  Supp.  26.5. 

and  a  creditor  to  "submit"  the  mat-  3  Bucklin  v.  Chapin,  53  Barb.  488; 

ter  in  controvevf^y  to  certain  persons  35   How.   Pr.   155.      An  executor  who 

to  "  determine  and  award  "  upon  the  consents    to   a    reference    and    partici- 

same,  and  that  judgment  shall  be  en-  pates    in    the    proceedings    until    the 

tered  "  upon  such  award  and  determi-  tinal  submission,  thereby  waives  an  ob- 

nation."   is   not   an   agreement,   under  jection   that   the   stipulation   was    ap- 

the  statute,  to  refer.     (Akely  v.  Akely,  proved  by  the  surrogate  of  the  wTong 

17  How.  Pr.  21.)  county,    and   a   motion   to   vacate   the 

08  See   §   G37.  ante;  Van   Slooten  v.  reference  on   that  ground   is  too   late. 

Dodge.  145  X.  Y.  327:  04  St.  Rep.  082.  (Montgomery     v.     Burgess.     92     Hun, 

See  Shorter  v.  Mackey.   13  App.  Div.  289;   30  X.  Y.  Supp.   711.) 

20;  43  X.  Y.  Supp.  112.  4  Bucklin    v.    Chapin,    supra.      See 

91  Shakespeare  v.  Markham,  10  Hun,  f'omstock  v.  Olmstead,  o  How.  Pr.  77; 

311;  aflfd.,  72  N.  Y.  400.  Robert  v.  Ditmas,  7  Wend.  522. 

iMvers    v.     Cronk,     45     Hun,    401:  5  Hustis  v.  Aldridge,  144  X.  Y.  508 ; 

affd.,  113  N.  Y.  608,  where  it  was  also  64    St.    Rep.    40.    thus    overruling    Le- 

held,    that,    in    this    proceeding,    the  cocq  v.   Pettier,   65   Hun,   598.   so   far 

referee   could    not   decree   the    specific  as  that  case  holds  the  contrary, 
performance  of  a  contract. 


539 


Al>.MI\ISTKA'l'I().\     OF    F.STATK.     EtC 


§  653. 


vcrsy  before  the  in-iuiii:il  referee,  named  in  the  ai:reeinent,  has 
proceeded  to  a  decision  and  rejxirt  l)y  him,  it  may  thereafter  be 
treated  as  one  in  an  action  in  which  the  court,  on  setting  aside  the 
referee's  report,  may  direct  a  reference,  without  consent,  to  an- 
other referee ;  the  original  consent  and  reference  havinu'  l)een  a 
Avaiver  of  a  trial  by  jurv.^ 

§  653.  Proceedings  before  referee. —  It  is  not  necessary  to  give 
notice  of  the  proceeding  to  beneficiaries  under  the  will  or  to  next 
of  kin.'  Tlie  reference  is  to  proceed  as  in  an  ordinary  action.^ 
The  statute  declares,  that  "  the  same  proceedings  shall  be  had 
in  all  respects,  the  referees  sball  have  the  same  powers,  be  entitled 
to  the  same  compensation,  and  subject  to  the  same  control,  as  if 
the  reference  had  been  made  in  an  action  in  which  such  [Supreme] 
court  might  by  law  direct  a  reference."  ^  It  is  stated,  generally, 
that  claims  again-<t  a  deceased  person  not  ])resente(l  to  him  during 
his  lifetime,  l)ut  sought  to  be  enforced  against  his  estate,  after 
death,  are  to  be  carefully  scrutinized,  and  only  admitted  upon 
satisfactory  ]n-oof.'"'  The  referee  should  determine  the  claim, 
upon  the  whole  case  presented ;  and  if  enough  does  not  appear  to 
authorize  the  submission  of  the  case  to  a  jury,  it  should  be  di'^- 
missed.^^  The  representative  standing  upon  his  denial,  in  the 
agreement  to  refer,  of  the  justice  of  the  claim,  may  make  any  de- 
fense that  the  decedent  might  have  made  if  alive,  and  as  if  the 
same  were  properly  pleaded  in  an  action  brought  upon  the  claim. ^" 


0  Adams  v.  Brady.  07  Hun,  521 :  22 
N.  Y.  Supp.  46(i ;  Masten  v.  Buding- 
ton,  18  Hun,  105.  See  Rayror  v. 
Laux-.  28  id.   .35. 

7  Mayer  v.  Gilligan.  2  St.  Eep.  702. 

s  Testimony  of  a  witness  out  of  the 
State  may  ho  taken  hv  commission. 
( Paddock" V.  Kirkham.  l'02  X.  Y.  507.) 

9  Co.  Civ.  Proc.  §  2718.  as  anunded 
1893. 

10  Kearney  y.  ^loKeon,  85  X.  Y. 
137:  Ulrich'y.  I'lrich.  42  St.  Rep.  216; 
Y^'ates  y.  Root,  4  App.  Diy.  430;  38 
N.  Y.  Siipp.  003;  Winne  y.  Hills,  91 
Hun.  80:  30  X.  Y.  Supp.  083:  Hughes 
V.  Dayeiiport.  1  App.  Div.  182:  37 
N.  Y.  Supp.  243:  Rowland  y.  Howard. 
75  Hun.  1:  20  X.  Y.  Supp.  1018:  Van 
Slooten  V.  Wheeler.  140  X.  Y.  G24 :  55 
St.  Rep.  554;  Wheeler  y.  Eastwood. 
S8  Hun.  160:  34  X.  Y.  Supp.  513; 
O'Xeill  y.  Barry.  20  App.  Diy.  121  ; 
46  X.  Y.  Supp.  752;  Matter  of  Pearl, 
f)2  App.  Diy.  510.  But  the  rule  does 
not  apply  where  no  right  of  action  ex- 


isted until  decedent's  death.  (Matter 
of  Mallory,  13  Misc.  505:  35  X.  Y. 
Su])p.  155.)  See  Van  Wagner  y. 
Royce.  46  St.  Rep.  380:  10  X.  Y. 
Supp.  143.  Conyersations  and  admis- 
sions by  decedent  are  unsatisfactory 
evidence.  (lb.):  S.  P..  Hewlett  y. 
.Tewesson.  46  St.  Rep.  144;  10  X.  Y. 
Supp.  193.  See  Gallagher  y.  B;ews- 
ter,  153  X.  Y.  304:  Kellogg  y.  Ogdeii. 
27  App.  Diy.  214;  Matter  of  Smith. 
1  Misc.  253;  22  X.  Y.  Supp.  1025. 
The  rule  that  uncontradicted  testi- 
mony of  a  disinterested  witiie-s  is  to 
be  taken  as  true  and  cannot  be  disre- 
garded, does  not  ajijily  to  a  claim 
against  a  decedent's  estate.  (Hughes 
y.  Davenport,  sii/^-a.) 

n  Forbes  y.  Chichester.  30  St.  Rep. 
370:  8  X.  Y.  Sui)p.  747. 

i2MoLauL^hlin  v.  Webster.  141  X.  Y. 
70:  50  St.  Rep.  541.  By  making  the 
stipulation  to  refer,  the  executor  is 
estopped  from  denying  that  his  testa- 
tor left  a  will,  and  that  letters  testa- 


§  654.  Administration  of  Estate,   Etc.  540 

As  the  agreement  to  refer  need  not  notice  matters  of  defense  to- 
the  claim,  every  species  of  legal  proof  adapted  to  show  the  injus- 
tice of  the  claim,  or  its  invalidity  as  a  whole,  or  in  degree  or 
amount,  is  admissible  on  Ihe  hearing,  including  set-off,^^  estoppel," 
payment  in  whole,  or  in  part,^^  and  the  Statute  of  Limitations.^® 
And,  as  no  pleadings  are  used  in  these  proceedings/^  the  court 
will  examine  the  proofs  made  by  the  parties,  in  order  to  ascertain 
the  grounds  of  recovery  or  defense.^* 

§  654.  Effect  of  the  amendment  of  1893. —  Before  the  readop- 
tion  of  the  original  statute  into  the  Code  in  1893,  with  the  added 
provision  that  on  the  entry  of  the  order  of  reference,  "  the  pro- 
ceeding shall  become  an  action  in  the  Supreme  Court,"  ^^  the 
reference,  under  the  statute,  was  declared  to  be  a  special  proceeding 
and  not  an  action ;  that  it  was  founded  solely  upon  the  statute, 
and,  therefore,  the  referee  possessed  only  those  powers  which  were- 
expressly  conferred  thereby  or  were  fairly  inferable  from  its  pro- 
visions.^*' Hence  he  had  no  power  over  the  subject  of  costs  ;^^ 
could  not  render  an  affirmative  judgment  on  a  counterclaim  in 
favor  of  the  estate  (defendant)  ;^^  could  not  require  a  bill  of  rar- 
tieulars,  or  allow  the  plaintiff  for  items  of  an  account,  nor  covered 
by  the  claim  presented  to  the  repi'esentati^'e  ;^"  and  conld  not  allow 
an  amendment  of  the  claim  or  varv  the  matter  referred."'*     The 


mentary  were  issued   to   him.      (Ban-  199  ;  43  N.  Y.  Supp.  541.     The  declara- 

field  V.  Rumsey,  4  Sup.  Ct.   [T.  &  C]  tion    of   the   claimant,    while   decedent 

322.)  was    alive,    that    payment    had    been 

13  It  seems,  the  proper  course  is  for  made,  is  enough  to  warrant  its  disal- 
the  personal  representative  to  bring  lowance.  (Stark  v.  Robbins,  2  App. 
an  action  or  put  the  claimant  to  an  Div.  015 :  38  N.  Y.  Supp.  48.)  To  the 
action,  as  it  is  uncertain  whether,  hav-  same  effect,  Crawford  v.  Ormsbee, 
ing  set  off  part  of  sucli  a  demand,  the  supra. 

representative    can    bring    any    action  16  Tracy  v.   Suydam,  30   Barb.    110: 

for  the  residue.      (Mowry  v.  Peet,  88  Converse  v.  Miner.  21  Hun,  3G7.     But 

N.  Y.  453.)    A  joint  obligation  against  the    objection    must    be    taken    before 

claimant    and    another    cannot    be    set  iudgment,  not  on  appeal.      (Faburn  v. 

off.      (Matter  of  Miller,  23  Misc.  319.)  Dimon,    20   App.    Div.    529;    47    N.    Y. 

See    §    509,    ante.      As    to    set-offs    to  Supp.  227.) 

claims  of  creditors,  when  presented  on  i"  Rutherford  v.  Soop,  85  Hun,  119: 

the  judicial  sett'ement,  of  a  trustee's  32  N.  Y.  Supp.  636. 

account,  under  Co.  Civ.  Proc,  §  2812,  18  Ravnor  v.  Laux,  28  Hun,  35. 

see  Matter  of  Mitchell,  61   Hun,  372;  W  Co."  Civ.  Proc,  §  2718.  as  amended 

16  N.  Y.  Supp.  180.  1893. 

14  Crawford  v.  Ormsbee,  G  App.  Div.  20  Roe  v.  Bovle.  81  N.  Y.  305.  See- 
50;   39  K  Y.  Supp.  740.  Paddock  v.  Ki-kham,  102  id.  599. 

15  Althoiigh  slight  proof  of  payment  21  Smith  v.   Velie,  60  X.  Y.    106. 
may  defeat  the  claim,  some  proof  must  22  ]Mowry  v.  Peet,  88  X.  Y.  453. 

be    given.       (Steinan    v.    Scheuer,     15  2.3  Townsend    v.    X.    Y.    L.    Ins.    Co.. 

App.   Div.    5;    43   X.   Y.    Supp.    1112;  (Ct.  of  App.),  4  Civ.  Proc.  Rep.  398.. 

Matter  of  Rowell.  45  App.   Div.   323:  24  Eldred  v.  Eames,   115  X.  Y.  401; 

61    X.    Y.    Supu.    382.)       See    Hicks-  26  St.  Rep.  277.      Tn  that  case,  it  was. 

Alixanian    v.    Walton,    14    App.    Div.  held    error    for   the    referee    to    al  ow. 


541  Admixistratiox  of  Estate,  Etc.  §  654. 

Jistinc'tion  between  statutory  references  and  (jthor.«,  wliif-li  is  in- 
herent in  the  nature  of  tlio  procceJinff,  wa»  declared  not  oblit- 
erated by  the  general  language  of  tlif  statute  giving  referees 
therein  the  same  powers  possessed  by  referees  in  actions.  "'  Wliih; 
the  statements  and  proceedings  stand  in  lieu  of  jdeadings,  they 
still  are  not  pleadings,  and  are  not  governed  in  all  resi)ects  by  the 
same  rules  which  apply  to  the  construction  and  office  of  pleadings 
in  an  action.""'  It  was  further  ludd,  that,  as  a  statutory  proceed- 
ing, the  only  authority  for  a  judgment  therein  was  the  report  of 
the  referee,  to  be  first  confirmed  by  the  court,^*'  and  that  the  suc- 
■cessful  plaintiflF  was  not  entitled,  as  of  right,  to  taxable  costs  as 
in  an  action,  or  even  as  in  a  special  proceeding,  under  the  Code, 
the  provisions  of  which  relating  to  costs  did  not  apply  to  a  refer- 
■ence  of  this  kind,  the  plaintiff  being  only  entitled,  as  a  matter  of 
right,  to  recover  his  disbursements  as  allowed  by  the  Revised 
"Statutes. ^^  On  the  other  hand,  it  had  been  loosely  stated  that  as 
the  filing  of  the  agreement,  with  the  approval  of  the  surrogate, 
was,  "  in  effect,  a  mode  of  commencing  an  action  "  by  the  cred- 
itor, he  was  liable  for  costs  in  case  of  failure  to  recover,  the  same 
as  unsuccessful  plaintiffs  in  other  actions  ;"^  and  again,  that  the 
reference  "  stood  in  the  place  of  an  action,"  and  that  the  entry  of 
the  order  of  reference  was  to  be  deemed  the  commencement  of  an 
action,  for  the  purpose  of  determining  whether,  under  the  Statute 
of  Limitations,  an  action  had  been  brought  within  the  time  limited 
thereby.^® 

Upon  the  amendment  taking  effect,  the  question  necessarily 
tirose  whether  the  ""  inherent  distinction  "  between  this  kind  of 
statutory  reference  and  references  in  ordinary  actions,  was  de- 
stroyed by  the  provision  which  declares  the  proceeding  to  be  an 


undor  objection  and  exception,  the  Denise  v.  Denise,  110  id.  .562;  Krill  v. 
plaintiff  to  withdraw  several  lar<je  Brownell.  40  Hun.  72 :  Hatch  v.  Stew- 
items  of  the  chiini  on  the  credit  as  art.  42  id.  104 ;  Haliook  v.  Bacon.  (54 
well  as  the  debit  side  of  his  account,  id.  90;  4;)  St.  Rep.  48"):  Matter  of 
It  was  held,  however,  in  another  case.  ^IcQueen,  .'iS  Hun.  172:  33  St.  Rep. 
that  the  omission  to  specify  interest  S07  :  Vaujjhn  v.  Stronp,  tifi  Hun,  278; 
in  the  presentation  of  the  claim  did  21  N.  Y.  Supp.  1.54;  Roberts  v.  Pike, 
not  prevent  its  recovery  on  the  refer-  13  id.  .5.59;  19  Civ.  Proc.  Rep.  422. 
«nce.  (Fredenburor  v.  Biddleconie.  17  28  Munson  v.  Howell.  20  How.  Pr. 
Week.  Dip.  2.5.)  See  Morrell  v.  Van  59;  12  Abb.  Pr.  77:  Linn  v.  Clow.  14 
Buren.  77  Hun,  509;  Von  Hermanni  v.  How.  Pr.  ;508 ;  Bovd  v.  Bipelow.  id. 
Warner,  81   id.  431.  511. 

25  Per  Rujrer.  C.  .1..  in  Eldred  v.  2i)Bucklin  v.  Chapin.  1  Lans.  443; 
Eames.  supra.  Tracy  v.  Suvdam.  30  Barb.   110;   San- 

26  Smith  V.  Velie.  00  X.  Y.  100;  Coe  ford'v.  Sanford.  4  Sup.  Ct.  (T.  &  C.) 
A-.  Coe,  37  Barb.  235;  14  Abb.  Pr.  86;  686;  Leahy  v.  Campbell,  70  App.  Div. 
Hadley  v.  Fisher,  24  How.  Pr.  404.  127;  75  N."  Y.  Supp.  72. 

27Larkins  v.  Maxon,  103  N.  Y.  681; 


§  655.  Apmixistratiox  of  Estate,  Etc.  542 

action.  An  opinion  may  be  ventnred  that  it  was  the  intention, 
of  the  Legislature,  bv  the  clause  in  question,  to  supersede  the  set- 
tled rule,  above  stated,  that  referees,  in  these  proceedings,  had  onlj 
limited  powers,  and  could  not  vary  the  matter  referred.  Thus,, 
it  is  now  within  the  power  of  the  referee  to  allow  an  amendment 
of  the  claim,^"  to  consider  those  of  an  equitable  nature,^^  and  to 
adjudicate  upon  the  question  of  costs.^^  One  object  of  the  pro- 
vision seems  to  have  been  to  settle  the  much-vexed  question  as  to 
costs  in  these  proceedings,  and  the  applicability  thereto  of  that 
provision  of  the  Code  which  specifies  the  cases  in  which  costs  may 
be  awarded  against  an  executor  or  administrator  i-n  a  civil  action 
in  which  he  is  an  imsuccessful  defendant.^^  Another  object  clearly 
was,  to  do  away  with  the  practice  under  the  Eevis^d  Statutes, 
which  continued  to  govern  this  proceeding,  in  accordance  with 
which,  before  judgment,  a  rule  iiisi  was  entered,  and  either  party 
dissatisfied  could  move  to  set  aside  the  report;  if  the  court 
refused  to  set  aside  the  report,  judgment  was  rendered.^*  The 
practice,  in  this  respect,  is  now  assimilated  to  that  in  ordinary 
actions.  It  is  no  longer  necessary  to  move  to  confirm  the  re- 
.port,  as  heretofore  f^  but  "  judgment  may  be  entered  on  the 
report  of  the  referee,  and  such  shall  be  valid  and  effectual  in  all 
respects  as  if  the  same  had  been  rendered  in  a  suit  commenced  hy 
the  ordinary  process,  and  the  practice  on  appeal  therefrom  shall 
be  the  same  as  in  other  civil  actions."  ^^ 

§  655.  Referee's  report,  and  judgment  thereon. —  The  referee  ia 
to  report  to  the  Supreme  Court,  making  findings  of  fact  and  con- 
clusions of  law,  as  in  ordinary  actions.^^  As  noted  above,  the  old 
practice,  under  the  Revised  Statutes,  according  to  which  judg- 
ment could  be  entered  only  by  order  of  court,  on  motion,  has  been 
superseded  by  the  amendment  of  1893.^^    The  only  Avay  to  obtain 

30  Lee  V.  Lee.  8.5  Hun,  588:  33  N.  Y.  35  Jenkinson  v.  Harris,  supra.  See- 
Supp.  11.5:  Loimsburv  v.  Sherwood,  Radley  v.  Fisher.  24  How.  Pr.  404,. 
53  App.  Div.  318:  65  X.  Y.  Supp.  676.  and  §  656.  post. 

31  Matter  of  Zinke.  00  Hun.  127:  3fi  Co.  Civ.  Proc.,  §  2718,  as  amended 
sub    nom.    Zinke    v.    Zinke.    35    X.    Y.  1893. 

Supp.  645.  37  Shea   v.    Cornish.   29   Abb.   N.    C. 

32  .Jenkinson  v.  Harris.  27  Misc.  289;  22  X.  Y.  Supp.  168:  Matter  of 
714-;    59   X.    Y.    Supp.    548:    Fisher   v.    Sunderlin.  23  id.  648. 

Bennett,  21  Misc.  178:  47  X.  Y.  Supp.  3S  The  court  had  no  power  to  order 

114.  judgment    against    the    report    of    the 

33  Co.  Civ.  Proc,  §§  1835.  1836.  i-eferee.  It  had  to  be  confirmed,  and 
"  In  determining  questions  of  costs,  judgment  ordered  thereon,  or  be  set 
the  referee  shall  be  governed  by"'  aside;  in  which  case  a  new  trial  fol- 
these  sections.  (Co.  Civ.  Proc.  §  2718,  lowed  before  the  same  referee,  or  an- 
as amended   1893.)      See  §  656.  post.  other  appointed  in  his  place.      (Coe  v. 

34  Graham's  Practice.  576;  Boyd  v.  Coe.  14  Abb.  Pr.  86:  37  Barb.  2.32.) 
Bigelow,  14  How.  Pr.  511.  In  Sharpe  v.  Freeman  (45  X.  Y.  802)^ 


543  Admimstuatkjx  (jk  Estati;,  Etc.  §  G5G. 

a  review  uf  the  rulings  uf  the  referee  was  by  motion  made,  at 
Special  Term,  on  a  case  and  exceptions,  to  set  aside  the  report,  or 
for  a  new  trial;  or  bv  an  appearance  and  exceptions  taken  on  the 
confirmation  of  the  report.""*  But  now  judfj;inent  may  be  entered 
on  the  report  by  the  clerk,  as  in  other  actions.  The  rule  that  the 
referee  had  no  power  to  pass  upon  the  question  of  costs,  that 
matter  being  for  the  court  to  determine,  u[)on  a  special  applica- 
tion, showing  the  facts  on  which  a  right  to  costs  was  based,^  na 
longer  exists.  Formerly,  an  appeal,  if  taken,  was  from  the  order 
of  the  Sjx'cial  Term  confirming  the  referee's  rejxjrt  and  not 
merely  from  the  judgment  entered  on  it;"*^  but  now  the  practice 
is  the  same  as  in  otlier  civil  lu-Tions. 

g  656.  Awarding  costs  and  disbursements  to  successful  party. — 

The  Code  amendment  uf  IMKj  put  to  rest  a  question  frequently 
raised,  and  differently  determined,  whether  the  successful  claim- 
ant was  entitled  to  costs  and  disbursements  in  these  proceedings 
as  a-  matter  of  right,  as  in  ordinary  actions,  or  whether  both  costs 
and  disbursements,  or,  if  not  both,  which,  were  discretionary^ 
Tt  was  early  held,'*^  nnder  the  Revised  Statutes,''*^  that  costs  in. 
these  proceedings  could  be  awarded  to  the  creditor  only  where 
he  would  be  entitled  to  costs  in  an  action  on  his  claim  against  the 
representative;  that  the  statute  was  the  only  authority  for  giving- 
costs  at  all,  and  that  there  was  no  reason  in  the  nature  of  the 
proceeding,  nor  growing  out  of  the  policy  of  the  statute,  why  costs 
should  be  given  in  an  action,  and  withheld  in  this  sort  of  proceed- 
ing, and,  finally,  that  the  conditions  precedent  to  the  right  of  the 
court  to  award  costs  in  an  action  against  executors,  as  prescribed 
by  the  statute,  were  equally  controlling  on  the  question  of  award- 
ing costs  in  this  proceeding.  It  was  consequently  held,  that  the 
statntory  condition  —  e.  g.,  that  the  representative  had  unreason- 
alily  resisted  or  neglected  to  pay  the  claim  - —  must  be  sho\\m  to 

it  was  held,  that  the  judjjment  entered  ply    to    this    proceeding.       (Denise    v. 

did  not   render  the  claim   a  jud<rnient  Denise.  110  X.  Y.  .'502.) 

debt  as  to  the  grantee  of  heirs-at-law,  *>  Smith  v.   Randall.  07   Barb.   .377; 

and   did   not    preclude   the   heirs    from  ;Nrersereau  v.  Ryerss.  12  How.  Pr.  300  r 

setting  up  the  Statute  of  Limitations  Howe  v.  Lloyd*.  2  Lans.   .330:    ^[organ 

to   the   claims   upon   which    it   was   re-  v.  Skidniore,  3  Abb.  X.  C.  02:   Hall  v. 

covered.  Brennan.  04  Hun.  304;   10  N.  Y.  Supp. 

s:>  Baumann  V.  Mosely,  03  Hun.  402 :  023.      See    S    0.')4.    (iiitc.      For    provi- 

18  X.  Y.  Supp.  503:  Schreyer  v.  Hoi-  sions    as    to   the   award   of   costs,    see 

borrow,  03   How.   Pr.   220;    Raynor   v.  S  O.IO.  post. 

Laux.   28    Hun,   3.5.       See   Ooddinir  v.  41  Hatch  v.  Stewart.  42  Hun.  104. 

Porter,   17  Abb.  Pr.  374.      The  provi-  42  Robert  v.  Ditmas,  7  Wend.  rv22. 

sion  of  Code   (§  1002).  that  a  trial  by  4:?  2  R.  S.  00.  §  41  :  substantially  re- 

n  referee  cannot  be  reviewed  by  a  mo-  enacted  by  §§   lS3.'i,  1830.  of  the  Code 

tion  for  a  new  trial,  etc.,  did  not  ap-  of  Civil  Procedure. 


^  656. 


Ad^iixistration  of  Estate,  Etc. 


544 


have  been  violated  bj  the  representative^  to  entitle  the  claimant 
to  costs.  That  is  to  saj,  neither  in  an  action  nor  in  this  proceed- 
ing was  the  representative  liable  to  costs  unless  he  was  guilty  of 
a  violation  of  some  duty.^'*  This  is  no%v  made  the  rule  under  the 
present  practice,  bv  the  provision  that  the  question  of  costs,  in 
this  proceeding,  shall  be  governed  by  sections  1835  and  1836  of 
the  Code;'^  a  provision  which  supersedes  a  number  of  decisions 
on  this  point;'**' — rulings  that  the  court  had  no  power,  in  these 
proceedings,  to  grant  an  extra  allowance,  or  anything  more  than 


•44  Robert  V.  Ditmas,  7  Wend.  522; 
also  Caihart  v.  Blaisdell,  18  id.  531. 
By  the  Code  of  Procedure  (old  Code) 
r.o  provision  was  made  as  to  costs  in 
these  proceedings,  and  the  Legislature 
seems  to  have  intended  that  no  costs 
at  all  could  be  awarded  therein,  if  we 
may  draw  an  inference  from  an  inter- 
polation in  section  317,  which  pro- 
vided that  "  whenever  any  claims 
against  a  deceased  person  shall  be  re- 
ferred, pursuant  to  the  provisions  of 
the  Revised  Statutes,  the  prevailing 
party  shall  be  entitled  to  recover  the 
fees  of  referees  and  witnesses  and 
other  necessary  disbursements,  to  be 
taxetl  according  to  law."  (So  he'd  in 
Van  Sickler  v.  Graham,  7  How.  Pr. 
208:  Avery  v.  Smith.  9  id.  349.  Con- 
tra. Linn  v.  Clow,  14  id.  508:  Radle^ 
V.  Fisher,  24  id.  404.  See  Pursell  v. 
Fry,  19  Hun,  595;  58  How.  Pr.  317.) 
This  clause  of  section  317  of  the  old 
Code  is  not  found  in  the  present  Code 
of  Civil  Procedure:  but  it  was  not  re- 
pealed by  the  General  Repealing  Act 
of  1880  (c.  245),  and  was  in  ful  force 
and  effect  (Larkins  v.  Maxon,  103 
N.  Y.  080;  Krill  v.  Brownell,  40  Hun, 
72;  Hatch  v.  Stewart,  42  id.  164; 
Overheiser  v.  Morehouse,  16  Abb.  N. 
C.  208 ;  Sutton  v.  Newton,  15  id.  452 ; 
Hale  V.  Edwards,  67  How.  Pr.  202. 
Contra,  Miller  v.  Miller,  32  Hun.  481; 
Daggett  V.  Mead,  11  Abb.  N.  C.  116), 
until  the  amendment  of  1893.  And 
see  Osborne  v.  Parker,  66  App.  Div. 
277  ;  72  N.  Y.  Supp.  894. 

45  "  Where  a  judgment  for  a  sum  of 
money  on.y  is  rendered  against  an  ex- 
ecutor or  administrator,  in  an  action 
brought  against  him  in  his  repre- 
sentative capacity,  costs  shall  not  be 
awarded  against  him,  except  as  pre- 
scribed in  the  next  section"  (§  1835). 
"  Where  it  appears,  in  a  case  specified 
in  the  last  section,  that  the  plaintiff's 
demand  was  presented  within  the  time 
limited  by  a  notice,  published  as  pre- 


scribed by  law,  requiring  creditors  to 
present  their  claims,  and  that  the  pay- 
ment thereof  was  unreasonably  re- 
sisted or  neglected,  or  that  the  defend- 
ant did  not  file  the  consent  provided 
in  section  1822  at  least  ten  days  be- 
fore the  expiration  of  six  months  from 
the  rejection  thereof,  the  court  may 
award  costs  against  the  executor  or 
administrator,  to  be  collected  either 
out  of  his  individual  property,  or  out 
of  the  property  of  the  decedent,  as 
the  court  directs,  having  reference  to 
the  facts  which  appear  upon  the  trial. 
\\  here  the  actii  n  is  brought  in  the 
Supreme  Court,  the  facts  must  be  cer- 
tified by  the  judge  or  referee,  before 
whom  the  trial  took  place."  (  §  1836, 
as  amended   1897.) 

46  In  Denise  v.  Denise  (110  X.  Y. 
562),  it  was  held,  that  the  conditions 
of  section  1836.  on  which  alone  a  rep- 
resentative, or  the  estate,  can  be 
charged  with  costs  in  ayi  action,  do 
not  control  the  court  in  the  matter  of 
costs  in  a  special  proceeding  of  this 
kind ;  and  that  the  court  has  power 
to  award  costs  to  a  successful  creditor 
on  a  reference  of  his  claim,  notwith- 
standing he  had  violated  one  of  the 
conditions  of  section  1836,  to  wit, 
in  not  having  presented  his  claim 
"  within  the  time  limited  by  a  notice 
published  as  prescribed  by  law,  re- 
quiring creditors  to  present  their 
claims."  As  this  decision  was  inter- 
jneted.  the  court  had  no  power  in 
these  proceedings  to  award  any  costs 
at  all,  as  such,  but  only  the  fees  of 
tlie  referee  and  necessary  disburse- 
ments, to  which  the  party  is  entitled 
OS  a  right  under  section  317  of  the  old 
Code.  ( Hendricks  v.  Isaacs,  52  Hun, 
100,  and  cases  supra.)  It  was  so 
held,  also,  in  some  cases,  under  the 
Code  of  Procedure.  (Van  Sickler  v. 
Graham,  7  How.  Pr.  208.  But  see 
contra,  Linn  v.  Clow,  14  id.  508;  Rad- 
ley  v.  Fisher,  24  id.  404.) 


545 


Admixisthatio.n    ()|    Estate,   Etc. 


$  G57, 


Ids  disbiirsemonts,  to  a  succer^sful  defendant,  tlie  representative. ■*' 
As  the  j)r<»eeedino-  is  no  longer  "  a  special  proeeedino,"  the  Code 
]ir(ivi>i()ii  —  that  costs  therein  '*  may  he  a\varde(l  to  any  ])aity, 
in  (he  (lisrrcfion  of  (lie  court,  at  the  rates  allowed  for  similar  ser- 
vices in  an  action  hrouaht  in  the  same  conrt  "  *'^  —  does  not  apply. 

^  657.  When  costs  allowed  and  by  whom. —  As  the  right  to  re- 
cover costs  in  these  pi'oceeding's  is  now  the  same  as  in  actions 
against  an  executor  or  administrator  on  a  claim  which  he  refused 
to  pay,  the  Code  provisions"*'*  regulating  costs  in  such  actions  are 
j>roperly  mentioncil  here.  Where  a  judgment  for  a  sum  of  money 
is  awarded  against  the  representative,  in  an  action  against  him, 
the  statute  prescribes  certain  conditions  precedent  to  the  right 
of  tlie  plaintiff  to  recover  costs,  to  wit:  it  must  a])])ear  (1)  that 
the  jdaintitf's  denumd  was  presented  within  the  time  limited  by 
the  i)uhlic  notice,  and  (2)  that  ])ayment  wUs  unreasonably  resisted 
or  neglected,  or  (3)  that  the  defendant  failed  to  file  a  consent  to 
the  determination  thereof  bv  the  surrogate  within  a  certain  time."' 


47  Hopkins  v.  Lott,  111  N.  Y.  577; 
Van  Sickler  v.  Graham.  7  How.  Pr. 
208 :  Walker  v.  Gardener.  8  Misc.  468. 
Contra,  ]\Innson  v.  Howell.  20  id.  59; 
Newton  V.  Sweet,  4  How.  Pr.  134.  It 
is  settled  that  since  the  amendment  a 
successful  defendant  is  entitled  to 
costs  as  of  ri<rht.  (Adams  v.  Olin.  78 
Hun.  309;  29  X.  Y.  Supp.  131;  Winne 
V.  Hills,  91  Hun,  89;  36  N.  Y.  Supp. 
083.)  In  Hendricks  V.  Isaacs  (52  Hun, 
100;  22  St.  Rep.  563;  revd..  on  other 
points,  117  X.  Y.  411),  the  claim- 
ant havinjr  succeeded  on  a  new  trial, 
granted  on  defendant's  appeal,  with 
costs  to  him  in  the  event  of  his  suc- 
cess on  such  new  trial,  the  claiinant 
Avas  held  entitled  to  recover  such  costs. 
It  may  be  noted  that  (in  .luly,  1889). 
after  the  decision  of  Hendricks  v. 
Isaacs  (sviini),  the  same  General 
Term  (Bertholf  v.  Carr,  24  St.  Rep. 
805)  concluded  to  follow  Miller  v. 
Miller  32  Hun,  481)  —which  has  been 
frequently  discredited  —  and  held,  that 
section  3246  of  the  present  Code  was 
a  substitute  for  section  317  of  the 
Code  of  Procedure,  and  that  section 
3246  did  not  pive  to  the  successful 
claimant  the  rijjht  piveii  him  by  the 
old  Code  to  his  disbursements.  See 
Krill  V.  Brownwell,  40  Hun,  72,  and 
cases  supra. 

•»8Co.  Civ.  Proc.  §  3240.  It  was 
held  in  Fredenburg  v.  Biddlecome  (17 
Week.  Dig.   25)    that  this  section  did 

35 


not  apply  to  these  proceedings,  though 
sections*  1835.  1836,  3246  did.  In 
Hearn  v.  Sullivan  (13  Abb.  X:  C. 
371),  costs  in  addition  to  disburse- 
ments were  awarded,  as  allowable  un- 
der section  3240.  In  Vaughan  v. 
Strong  (66  Hun.  278;  21  X'.  Y.  Supp. 
154),  it  was  held  not  proper  to  direct 
that  costs,  if  allowed,  be  the  same  as 
in  an  action ;  that  the  same  rule 
should  apply  as  in  an  action  against 
executors  and  administrators,  and 
where  such  claim  is  not  unreason- 
ably resisted,  the  successful  claimant 
should  only  recover  his  disburse- 
ments ;  that  section  3240  of  the  Code 
applied  to  such  a  proceeding,  and  that 
where  the  claim  was  unreasonaljly 
contested  the  court  might  award  costs, 
in  addition  to  the  disbursements  which 
the  prevailing  party  is  entitled  to  un- 
der section  317  of  the  old  Code  of 
Procedure. 

49  Co.  Civ.  Proc,  §§  1835,  1836. 
See  Hennintr  v.  Miller.  83  Hun.  403; 
31  X.  Y.  Supp.  878;  Ellis  v.  Filon, 
S5  Hun,  485;  33  X.  Y.  Supp.  138; 
^iulligan  V.  Cannon,  25  Civ.  Proc.  Rep. 
349. 

50  This  condition  takes  the  place  of 
the  executors  "  refusal  to  refer."  con- 
tained in  .section  1836.  prior  to  the 
amendment  of  1895.  Under  the  for- 
mer statute  it  was  held  that  it  was 
the  duty  of  the  claimant  to  offer  to 
refer   his   claim,   and   that   such   offer 


§  65" 


Admixistuatiox  of  Estate,  Etc. 


54& 


On  such  conditions  the  court,  having  reference  to  the  facts  ap- 
pearing on  the  trial,  may  award  costs  against  the  execntor  or 
administrator,  to  be  collected  out  of  his  indivi(hial  ])ropertY  or 
(/nt  of  the  property  of  the  decedent;  and  snch  costs  are  a  matter 
of  right. ''^  An  extra  allowance  may  also  be  granted. ^^  These  con- 
ditions apply  only  to  actions  against  executors,  etc.  f^  provision 
is  made  for  costs  in  actions  hy  executors  in  section  3246  of  the 
Code.^^  And  they  do  not  apply  to  actions  commenced  against  the 
decedent  in  liis  lifetime,  and  continued,  after  his  death,  against 
the  executor,  etc.  ;^^  nor  to  actions  upon  claims  created  since  his 


might  be  oral  (Lanning  v.  Swarts,  9 
How.  Pr.  434;  Roberts  v.  Pike,  13 
N.  Y.  Supp.  559 ) .  and  that  until  such 
offer,  the  representative  could  not  be 
said  to  have  refused  it.  (Proude  v. 
Whiton,  15  How.  Pr.  304;  affd.,  id. 
304,  note.)  See  Burnett  v.  Gould,  27 
Hun.  3G6.  It  was  also  held,  that  re- 
fusal to  refer  could  not  be  implied 
from  a  rejection  of  the  claim.  (Proude 
V.  Whiton,  supra;  Buckhout  v.  Hunt, 
10  How.  Pr.  407  ;  Ehrenreich  v.  Licht- 
enberg.  29  Misc.  305.)  In  Fort  v. 
Gooding  (9  Barb.  388),  it  had  been 
lield,  that  if  the  executor  unquali- 
fiedly rejected  the  claim,  the  person 
who  set  it  up  was  not  bound  to  de- 
mand a  reference,  in  order  to  charge 
the  executor  witli  the  consequences  of 
refusing  such  reference,  but  could  con- 
strue such  rejection  as  a  refusal  to 
refer.  This  point  was  expressly  over- 
ruled in  Proiule  v.  ^Yhiton.  supra, 
however.  In  Gorham  v.  Eipley  (16 
How.  Pr.  313),  the  creditor's  demand 
having  been  rejected,  he  offered  to 
refer  to  referees  to  be  approved  by  the 
surrogate.  The  executors,  instead  of 
accepting  this  offer,  offered  to  refer 
to  three  referees  named  by  themselves, 
to  be  approved  by  the  surrogate. 
Held,  a  refusal  to  refer,  which  ren- 
dered them  liable  for  costs  in  an  ac- 
tion on  the  demand. 

51  Snyder  v.  Snyder.  20  Hun,  324 : 
Roonev  v.  Lenmon.  3  L.  Bui.  101 ; 
Brainerd  v.  De  Graef,  29  Misc.  560; 
61  N.  Y.  Supp.  953. 

f>2  Xiblo  V.  Binsse,  47  Barb.  435 ; 
32  How.  Pr.  92:  Roberts  v.  Pike,  13 
N.  Y.  Supp.  559;  19  Civ.  Proc.  Rep. 
422. 

53  Fox  V.  Fox.  22  How.  Pr.  453; 
Woodruff  v.  Cook,  14  id.  481 :  Curtis 
V.  Button.  4  Sandf.  719;  Howe  v. 
Lloyd,  2  Lans.  336:  9  Abb.  Pr.  (N.  S.) 
257 ;   Morgan  v.   Skidmore,  3  Abb.  N. 


C.    92 ;    overruling    Fish    v.    Crane,    9 
Abb.   Pr.    (N.  S.)    252. 

54  See  §  571,  ante.  An  executor  is 
required  to  begin  an  action  upon  a 
claim,  alleged  to  be  due  the  estate 
which  he  represents,  by  virtue  of  trans- 
actions taking  place  between  his  tes- 
tator and  the  defendant  while  the  for- 
mer was  alive,  in  his  name  as  execu- 
tor, and  is  not  chargeable  individually 
with  the  costs  of  an  unsuccessful  pros- 
ecution thereof,  in  the  absence  of  bad 
faith:  nor  does  the  fact  that  he  would 
be  entitled  as  a  beneficiary  to  a  share 
of  the  recovery,  render  him  chargeable 
with  a  proportion  of  the  costs  as  a 
person  beneficially  interested  in  the 
recoverv.  (Hone  v.  De  Pevster,  106 
K  Y.   645.) 

55  Benedict  v.  Caffe.  3  Duer,  669; 
Lemen  V.Wood.  16  How.  Pr.  285:  Tin- 
dall  V.  Jones,  19  id.  469;  11  Abb.  Pr. 
258:  Merritt  v.  Thompson.  27  K  Y. 
225;  Mitchell  v.  Mount,  17  Abb.  Pr. 
213;  Yorks  v.  Peck,  9  How.  Pr. 
201.  Merritt  V.  Thompson  (si//)ra)  ex- 
pressly overrules  McCann  v.  Bradley 
(15  How.  Pr.  79).  which  had  given  a 
contrary  construction  of  the  statute, 
but  in  which  another  ground  for  de- 
nying plaintiff's  motion  to  be  allowed 
costs  existed,  and  was  noticed  by  the 
court.  Mitchell  v.  Mount  (supra), 
decided  at  about  the  same  time  as- 
^lerritt  v.  Thompson,  was  followed  by 
Lemen  v.  Wood  (supra),  and  a  view 
in  harmony  therewith  was  adhered  to 
in  Tindall  v.  Jones  (supra).  The 
same  conclusion  as  that  in  Merritt 
V.  Thompson  is  said  to  have  been 
reached,  in  the  General  Term,  in 
Haight  V.  Hayt,  which,  however,  is 
not  reported  upon  this  point,  but  was 
affirmed  on  the  merits  bv  the  Court 
of  Appeals  (19  X.  Y.  464).  and  the 
costs  of  the  several  appeals  allowed, 
on  the  gi'ound  that  an  appeal  is  in  the 


r)47  Ai».\nxisrKATi<»x   ok  Estate,  Etc.  §  658. 

<lecease,  by  or  under  the  direetion  of  the  executors;'''"  nor  does  tlie 
f^tatute  apply  to  costs  on  aj)peal,  nr  interlocutory  costs."  In  order 
to  avail  himself  of  the  statutory  exemption  from  costs,  the  ex- 
ecutor or  adniiuistnitoi*  must  bring-  himself  clearly  within  the 
conditions  coiiteinphttcd  by  tlie  statute.  The  rule  jn-evails  now  as 
from  the  beiiinning:,  that  the  representative  must  have  been  guilty 
of  some  violation  of  duty,  such  as  an  unreasonable  neglect  or 
refusal  to  pay  the  claim  when  presented,  before  he  can  be  prop- 
erly charged  with  costs,  in  addition  to  referee's  fees  and  disburse- 
ments; and  no  such  violation  of  (hity  being  shown,  it  is  error  to 
allow  costs.  In  any  event,  the  award  of  costs  is  governed  by  sec- 
tion 3228  of  the  Code,  and  unless  the  claimant  recovers  more 
than   fifty  dollars,  the  defendant  is  entitled  to  costs.*^^ 

sj  658.  Necessity  of  presentation  of  claim. —  As  to  the  first  con- 
•  lition,  it  is  fatal  to  a  claim  for  costs  that  the  creditor  (plaintiff) 
liad  not  presented  his  clainr''*  in  the  time  prescribed  by  the  notice, 
if  a  notice  was  published.  It  is  not  necessary  that  the  claim  should 
be  presented  after  the  publication  of  the  notice  has  begun;  it  may 
be  presented  at  any  time  after  the  i-e])resentative  qualifies  and 
enters  upon  the  discharge  of  his  duties;  and  his  decision  on  the 
justice  of  the  claim  has  the  same  effect  as  though  the  claim  was 
})resented  after  the  publication  of  the  notice.*'"  It  is  wholly  imma- 
terial, therefore,  whether  the  executor  ever  advertised  at  all  for 
the  presentation  of  claims.^^  It  does  not  matter  that  the  i-ejire- 
sentative  unreasonably  resisted  and  neglected  to  pay  or  refer; 
plaintiff  is  not  entitled  to  costs,  if  his  claim  was  not  ])resented 
within  the  statutorv  limitation.*'^ 


iiaturo  of  a    new  action,  and  that,   as  •'>!*  A    vi>rlial    notice    is   not    siiffioipnt 

to  tho  appeal,  the  executors  ceased  to  (Kijiji  v.  Todd.  27  Abb.  N.  C.  149;  21 

1)1'  defendants.  (*iv.  J'roc.  Ke]).  114.     See  S  O.'U,  a7tte)  ; 

5<"  Smith  V.  Patten.  0  Abb.  Pr.    (X.  nor  is  a  mere  demand  enoutrh.      (Miles 

S.)   205.  V.    Crocker.    88    Hun.    312:    34   N.    Y. 

r.7  Benjamin  v.  Ver  Noov.  108  N.  Y.  Supp.  701.) 

:.7S:  Hunt  V.  Connor.  17  Abb.  Pr.  400:  eo  Field    v.     Field.    77    X.    Y.    294; 

Judah  V.   StafTfi.  22  Wend.   041.      The  Clark    v.    Post.    4.-)    Hun.    205;     revd., 

statute    does    not    apply    to    equitable  on  other   ])oints.    113   N.   Y.    17. 

actions.      (Richards     v.     Stillman,    57  <"'!  Brinkcr  v.   Loomis.   43   Hun.   247. 

App.   Div.   182;    08  N.   Y.   Supp.   188;  Certainly   it  is   no  pround   for   fri\-inf» 

McBride    v.    Chamberlain.    20    id.    94;  costs   to   plaintill   that    no   notice   was 

50    St.    Rep.    431;    Marryatt  v.    Rilev,  ever  jniblished.      ( Snvder  v.  Youni;,  4 

2   Abb.  N.   C.    119.)      To  warrant  tlie  How.    Pr.    217:     Vaii    Yleck    v.    Bur- 

char<!;ing    of   the    costs   on    the    repre-  rouo^hs.   G   Barb.   345;    Bullock   v.    Bo- 

sentative     personally,     he     must     be  gardus,  1  Den.  270.) 

found  to  be  guilty  of  mismanagement  ^2  Supplee    v.    Sayre.    51    Hun.    30; 

or  bad  faith  in  the  defense.      (Co.  Civ.  King  v.  Todd,  supnt.      The  rule  is  not 

Proc,   S   3240.)      See  ante.   S   571.  altered   liy   the   fact    that    the   creditor 

f'S  Lamphere   v.    Lam])here.    54   App.  was  unaware  of  the  publication  of  no- 

Div.  17;  GO  N.  Y.  Supp.  270.  tice  to  present  claims,  until  the  statu- 


§659. 


Administration  or  Estate,  Etc. 


548 


i;  659.  Unreasonable  resistance. —  As  to  the  second  condition  — 
that,  to  charge  defendant  with  costs,  he  must  be  shown  to  have 
"  unreasonably  resisted  or  neglected  "  to  pay  the  claim, —  in  de- 
ciding whether  such  resistance  or  neglect  was  reasonable  or  not, 
the  court  must  have  "  reference  to  the  facts  which  appear  on  the 
trial."  If  the  court  finds  that  the  defense  was  reasonable  and 
proper,  it  is  sufficient  to  exempt  the  defendant  from  costs,  al- 
though in  the  end  he  was  unsuccessful.*"'^  Where  there  is  reason, 
in  the  complicated  nature  of  the  accounts  involved,  in  the  great 
amount  of  business  transacted  and  in  the  supposed  and  actual 
existence  of  grave  counterclaims,  to  justify  the  defense  actually 
made,  especially  if  it  appears  that  the  judgment  was  rendered  for 
a  much  smaller  sum  than  the  original  claim,  costs  should  not  be 
awarded  to  plaintiff.^''*  It  must  appear,  however,  that  the  defend- 
ant had  good  reason  to  believe  that  there  was  a  valid  defense  to 
the  claim,  in  whole  or  a  material  part  of  it,  or  that  the  defense 
would  probably  have  been  successful,  if,  for  example,  he  could 
have  procured  the  attendance,  at  the  trial,  of  a  certain  witness.*""* 
Where  the  claim  is  materially  reduced  on  the  trial,  it  cannot  be 
said  to  have  been  imreasonablv  resisted.''*^     The  claim  on  which 


torv  period  allowed  therefor  had  ex- 
pired. (Clarkson  v.  Root,  18  Abb.  N. 
C.  402.)  Horton  v.  Browii  (29  Hun, 
654),  so  far  as  it  holds  that  the  first 
condition  must  have  been  complied 
with  and  one  of  the  subsequent  condi- 
tions must  have  also  happened,  in  or- 
der to  entitle  plaintifT  to  costs,  has 
been  overruled. 

63  But  though  no  costs  are  awarded, 
the  claimant  may  be  allowed  his  dis- 
bursements. (Outhouse  V.  Odell,  84 
Hun,  494 ;  32  N.  Y.  Supp.  388 ;  Mulli- 
gan V.  Cannon,  25  Civ.  Proc.  Rep. 
349 ;  Lounsbury  v.  Sherwood,  53  App. 
Div.  318.) 

64  Johnson  v.  Myers,  103  N.  Y.  666. 

65  Stephenson  v.  Clark,  12  How.  Pr. 
282.  He  will  not  be  charged  with 
costs  for  resisting  a  claim  referred 
under  the  statute,  where  he  has  acted 
with  reason  and  good  faith,  although 
the  claim  be  finally  allowed.  (Vaughn 
V.  Strong,  66  Hun,  278;  21  N.  Y. 
Supp.  154.)  In  that  case,  which  was 
a  reference  in  a  special  proceeding,  it 
appeared  that  defendant  found,  among 
papers  of  deceased,  documents  in  his 
handwriting  from  which  she  had  a 
right  to  assume  that  the  claims  were 
unjust;  and  that,  on  two  successive 
trials,   referees  had   found  in  defend- 


ant's favor.  Held,  erroneous,  on  judg- 
ment being  rendered  against  her,  on 
the  third  trial,  to  grant  a  motion  for 
costs  on  the  ground  that  payment  had 
been  unreasonably  resisted.  Where 
an  administrator  did  not  expressly  re- 
fuse to  pay  the  claim  until  suit  was 
brought,  and  the  year  allowed  for  the 
payment  of  claims  had  not  expired, — 
Held,  that  he  should  not  have  been 
taxed  with  costs.  (Patterson  v.  Bu- 
chanan. 40  App.  Div.  493;  58  N.  Y. 
Supp.   179.) 

6!>  Cruikshank  v.  Cruikshank,  9  How. 
Pr.  350;  Comstock  v.  Olmstead,  6  id. 
77;  Buckhout  v.  Hunt.  16  id.  407; 
Harrison  v.  Avres,  18  Hun,  336;  Pur- 
sell  V.  Fry,  19  id.  595;  58  How.  Pr. 
317:  Pinkernelli  v.  Bischoff,  2  Abb. 
N.  C.  107;  Daggett  v.  Mead,  11  id. 
116;  Webster  v.^  Nichols.  21  Week. 
Dig.  566 ;  where  the  claim  was  reduced 
one-third.  But  a  reduction  of  one- 
fifth,  in  a  claim  for  services,  in  conse- 
quence of  a  difference  of  opinion  as  to 
value,  where  there  had  not  been  a  de- 
nial of  the  whole  claim,  does  v^t 
relieve  from  costs.  (Fort  v.  Goodin?, 
9  Barb.  388.)  For  other  illustrations, 
see  Darling  v.  Hal?ey.  2  Abb.  X  C. 
105;  Healy  v.  Murphy,  21  Civ.  Proc. 
Rep.   13;   Rauth  v.   Davenport,  45   St. 


549  Admi.nisthation  ok  Estate,  Etc.  §  GOO. 

the  recovery  is  liml  nnist  1)e  substantially  the  same  as  the  one 
which  was  ])reseiit('(l  to,  and  rejected  by,  the  executor/'^  But 
the  fact  that  the  plaintiff  was  allowed  to  amend  his  eomplaint  so 
as  to  claim  a  larger  recovery,  and  to  prove  and  to  recover  a  larj^er 
comjx'nsation  for  services,  than  that  stated  in  the  claim  presented 
to  the  executors,  does  not  chauue  the  claim  from  that  originally 
presented;'""'*  nor  does  the  fact  that  the  action  was  for  a  smaller 
sum  than  the  amount  claimed  in  the  account  as  presented  and 
rejected,  do]irive  ])laiuti,'f  of  his  costs.*"'" 

§  660.  Failure  to  file  consent. —  As  to  the  third  condition  — 
that  to  charge  the  defendant  with  costs,  he  must  have  failed  to 
'*  tile  the  consent  as  provided  in  section  1822," —  the  foregoing 
considerations  are  entirely  a])plicable.  A  failure  to  consent  is  a 
fact,  and  not  a  conclusion  of  law,  and  before  costs  can  be  included 
in  the  judgment,  the  fact  of  a  failure  must  be  found  or  certified 
to  by  the  referee,  or  if  the  certificate  does  not  state  all  the  facts, 
fully  and  fairly,  they  may  be  shown  by  afiidavits  on  a  motion  for 
costs.'"  Under  the  statute  as  it  stood  prior  to  the  amendment  of 
iSi)")  the  reply  of  the  representative,  on  rejecting  the  claim,  to 
the  claimant's  suggestion  of  a  com]n'omise  and  reference,  that  the 
claim  iiad  l)etter  take  its  course  at  law,  was  held  a  refusal  to  refer, 
entitling  the  latter  to  costs,  on  a  recovery.''^^  The  condition  that 
the  consent  must  be  filed,  in  order  to  exempt  the  representative 
from  lial)ility  for  costs,  ap]ilics  to  a  claim  rejected  prior  to  the 
amendment,""  but  where  the  claimant  brings  an  action  on  the 
claim  within  the  time  allowed  the  representative  to  file  the  statu- 
tory consent,  the  former's  right  to  costs  is  deemed  to  have  been 
waived."^ 

Rep.    020;    22    Civ.    Proc.    Rep.    121;  manded,  was  entitled  to  costs.     To  the 

Dnkolow   V.    Searles,   48   St.   Rop.   01;  same    efTect,    Davis    v.    Gallagher,    .S7 

Wells  V.  Disbiow.  48  St.  Rep.  74(5;  20  App.    Div.    627;    Adler    v.    Davis.    .31 

X.  V.  Siipp.  518;  Rvan  v.  MoElroy,  15  Misc.  47. 

App.   Div.   210;   Anderson  v.  MoCann,  70  Ely  v.  Taylor,  42  Hun,  205.     Un- 

14  id.    .3(>5;    Davis  v.   Myers.   80   Hun,  der  the  former  statute,  the  certificate 

2;50 ;  Matter  of  Raab,  47  App.  Div.  3:?.  of  the  referee,  based  upon  a  eoneession 

CT  Genet  v.  Binsse.  3  Daly.  230.  of  the  defendant,  on  the  trial,  that  he 

G8  Field  V.  Field,  77   N.  Y.  204.  had  refused  to  refer  the  claim,  should 

C9  Carter  v.  Beckwith.  104  N.  Y.  230.  he  conclusive  upon  the  court  in  award- 

Tt    is    not    necessary    for    plaintilT    to  inp;  costs.      (Tb.)      See  Russell  v.  Lane, 

show   that,    after  the   rejection   of   the  1   Barb.  525;  Wilkinson  v.  Littlewood. 

claim,   he   offered   to   refer   the  matter  07   How.  Pr.  474;   Meltzer  v.  Doll.  01 

before    the    cnmmeneement    of   the    ae-  N.  Y.  305. 

tion.      (lb.)      But  in  Ncllis  V.  Duesler  71  Clark  v.  Corwin.  30  St.  Rep.  784; 

144  St.  Rep.  228;  18  N.  Y.  Supp.  315),  21   Civ.  Proc.  Rep.   K.8. 

it   was   held,   that   where   an    executor  72  Carter  v.   Barnum.  24   Mi>e.   220; 

rejected  a    claim  and  refused  to  ref<'r  53  N.  Y.  Supp.  530. 

it.    the    claimant,    though     recoverinfi  "3  Hart  v.  Hart.  45   .\pp.   Div.   280; 

only  a  sniall   part  of  the  umuunt  de-  01   X.  Y.  JSupp.    131;   lloyc  v.   Fhiin, 


§§  661,  G62.     ADMiJfisTRATiox  OK  Estate,  Etc.  550 

The  nilc  has  always  been  that  costs  against  executors,  can  only 
he  allowed  on  special  order  of  the  conrt."^  In  actions  in  the 
Supreme  Court,  the  Code  requires  the  facts  to  be  certified  by  the 
judge  or  referee,  before  whom  the  trial  took  place. ^"^  Where  the 
costs  were  not  imposed  upon  the  defendant  personally,  but  were 
ordered  to  be  paid  out  of  the  estate,  he  is  not  injured,  and  will 
not  be  heard  to  complain  of  the  absence  of  the  certificate  of  the 
judge  or  referee  who  tried  the  cause. '^ 

ARTICLE  SECOXD. 
payment  of  debts. 

SUBDIVISION  1. 

CLASSES  OF  DEBTS  AXD  ORDER  OF   PRIORITY. 

§  661.  Whole  estate  liable  for  debts. —  Having  considered  the 
methods  by  which  the  creditors  of  the  decedent  are  ascertained, 
and  their  claims  determined,  we  proceed  to  the  subject  of  the 
payment  of  the  liquidated^'  debts  out  of  the  surplus  remaining 
after  the  discharge  of  the  expenses  of  the  administration.'^^  It 
is  well  to  remark  here  that  the  whole  estate,  both  real  and  per- 
sonal, is  lialjle,  under  all  circumstances,  for  debts  contracted  by 
the  decedent  in  his  lifetime,  without  regard  to  any  disposition 
he  may  have  made  of  his  property  by  will,  as  the  will  operates 
only  on  what  remains  after  payment  of  his  just  debts.^^ 

§  662.  What  law  governs  priorities  as  between  creditors The 

established  American  rule  is,  that,  so  far  as  creditors  are  con- 
cerned, the  assets  are  to  be  disposed  of  according  to  the  laws  of 
the  place  of  their  location,  and  the  place  where  the  representative 


30  Misc.  636;  64  N.  Y.  Supp.  252.  See  Graef,  29  Misc.  560;   61   X.  Y.   Supp. 

contra.  De  Kalb  Ave.,  etc..  Church  v.  9.53.) 

Kelk,   30  Misc.   367:    62   K   Y.    Supp.  7.5  Meltzer    v.    Doll,   91    N.    Y.    365; 

393.  Effray  v.  Masson,  t5  St.  Rep.  296. 

74  Hall    V.    Brennan,    64    Hun.    394:  77  A  claim  allowed  bv  the  represen- 

19  N.  Y.  Supp.  023:   affd..   140  X.  Y.  tative  is  a  liquidated   debt.      (Matter 

409;  Effray  V.  Masson,  45  St.  Rep.  296,  of   Lydecker,    17    St.   Rep.   702.)      See 

and  cases  in  §  655,  note  40.  ante.  §  64S.  ante. 

"■^Watson  V.  Abbey.  141  X.  Y.  179;  78  The  right  of  the  representative  to 
56  St.  Rep.  690:  Whitcomb  v.  Wliit-  be  reimbursed  for  tlie  just  and  reason- 
comb.  92  Hun,  443 :  30  X.  Y.  Supp.  able  expenses  of  the  administration  is 
607;  Lounsbury  V.  Sherwood.  53  App.  paramount  to  the  deinands  of  any 
Div.  318:  65  X.  Y.  Supp.  676;  Mat-  creditors.  (Hardenberfr  v.  Manning, 
ter  of  Raab.  47  App.  Div.  33:  62  X.  4  Dem.  437.)  See  §  5.52,  ante. 
Y.  Supp.  332.  Such  certificate  may  be  79  Matter  of  McComb,  17  St.  Rep. 
made  by  a  referee,  independent  of,  and  723. 
after,    his    report,     (Brainerd    v.    De 


551  Admixistratiox  or"  Estate,  Etc.  §  GG3. 

obtains  his  authority  to  act ;  and  not  by  the  laws  of  the  decedent's 
domicilo  at  the  time  of  his  death.  But  the  distribution  of  the 
residuum,  after  the  payment  of  debts,  etc.,  is  g'ovcrnod  by  the 
law  of  the  decedent's  domicile.^"  Another  principle,  however, 
governs  tlie  case  of  the  unauthorized  removal  of  assets  from  the 
State  of  the  decedent's  domicile,  after  his  death,  into  a  foreign 
jurisdiction,  where  principal  letters  of  administration  are  granted 
u])on  them.  In  such  a  case,  the  assets  thus  removed  from  the 
decedent's  domicile  without  authority  and  brought  irregularly 
into  another  jurisdiction,  ought  not  to  be  sequestrated  for  the 
use  of  creditors  of  the  latter  jurisdiction  to  the  prejudice  of  those 
of  the  former.  Where  called  uj)on,  in  such  case,  to  deteniiine 
the  rights  of  the  creditors  of  decedent's  domicile  in  a  foreign 
State,  and  his  creditors  in  this  State,  with  respect  to  the  priority 
of  the  former,  the  surrogate  will  act  as  if  he  were  sitting  in  the 
foreign  State  and  administering  its  laws,  and  not  our  own.  If 
the  law  of  the  testator's  domicile, —  from  which,  after  his  death, 
his  assets  were,  without  right  or  authority,  brought  into  this 
State, —  gives  a  preference  of  payment  to  the  debt  due  to  the 
physician  who  attended  decedent  in  his  last  illness  (as  the  statute 
of  Xew  Jersey  does),  over  general  creditors,  the  surrogate  here 
"will  give  him  such  preference  over  a  domestic  judgment  creditor, 
to  the  extent  of  the  assets. thus  brought  into  this  Stato.^^ 

^^  663.  The  order  of  preference  among  creditors. —  The  common- 
law  rule,  which  prevailed  in  this  State  before  the  adoption  of  the 
Revised  Statutes,  prescribed  the  following  order  for  the  payment 
of  a  decedent's  debts:  (1)  funeral  charges  and  the  expenses  at 
the  probate  office;  (2)  debts  due  to  the  State;  (3)  debts  of  record, 
as  judgments,  recognizances,  and  final  decrees;  (4)  debts  due  for 
rent,   and  debts  by   specialty,    as   bonds   and   sealed  notes,   and, 

so  2  Kent's  Comm.  419,  note  e ;  our  own  citizens  to  secure  their  claims 
Story  on  Conflict  of  Law«.  §§  524,  525;  out  of  the  assets  situated  witliin  our 
Lawrence  v.  Elniendorf,  5  Rarh.  73.  own  jurisdiction:  after  wiiich,  and  tlie 
In  Lynes  v.  C'oley  (1  Redf.  405).  the  payment  of  ex])enses.  the  furtiier  ad- 
testator,  at  the  time  of  his  death,  was  ministration  was  to  be  left  to  the 
domiciled  in  Connecticut,  in  which  jurisdiction  wliere  the  estate  was  to 
State  his  will  was  admitted  to  i)ro-  he  finally  closed.  Hence,  a  Icgatcr, 
bate,  and  letters  were  issued.  Ancil-  resident  here,  could  not  compel  the  ex- 
lary  letters  were  subsequently  issued  ecutor  to  account  here  for  assets  not 
to  the  executor  here.  Held,  he  could  left  by  the  testator  in  this  State, 
be  called  upon  to  account  here  for  81  Hardenbertr  v.  Mannintr.  4  Dem. 
only  such  assets  as  the  testator  left  437.  In  that  case,  there  was  no  domi- 
in  this  State,  and  which  were  here  at  ciliary  administrator,  to  whoui  the 
the  time  the  letters  ancillary  were  court  could  order  the  transmission  of 
granted,  and  that  the  accoun'tinjj;  of  the  assets,  as  in  the  case  of  an  ancil- 
the  executor  here  was  to  be  carried  no  lary  administration, 
iurther  than  was  necessary  to  enable 


§  GG4.  ADMrNisTRATioisr  of  Estate,  Etc.  552 

lastly,  debts  by  simple  contract.^"  Besides  these  classes  of  pre- 
ferred debts,  it  was  possible,  in  various  ways,  to  obtain  a  prefer- 
ence of  one  debt  over  others  of  the  same  class, —  e.  g.,  by  obtain- 
ing a  jndg-ment  —  the  jndg-ment  first  obtained  having  a  prefer- 
ence over  others:  and  the  execntor  or  administrator  might  con- 
fess judgment;  so  he  might  retain  for  a  del)t  due  to  himself  in 
preference  to  other  debts  of  the  same  class,  due  to  strangers.^^ 
By  the  statute,^*  the  executor  or  administrator,  after  discharging 
the  funeral  expenses  and  the  cost  of  the  administration,  is  re- 
quired to  pay  the  debts  of  the  decedent  in  the  following  order  of 
classes : 

"  1.  Debts  entitled  to  a  preference,  under  the  laws  of  the 
United  States; 

"  2.  Taxes  assessed  upon  the  estate  of  the  deceased,  previous  to 
his  death; 

"  3.  Judgments  docketed,  and  decrees  entered,  against  the  de- 
ceased, according  to  the  priority  thereof,  respectively; 

''  4.  All  recognizances,  bonds,  sealed  instruments,  notes,  bills, 
and  unli(iuidated  demands  and  accounts." 

g  664.  Preferences  prohibited. —  Xo  preference  can  be  given  in 
the  payment  of  any  debt,  over  other  debts  of  the  same  class,  ex- 
cept those  specified  in  the  third  class,  i.  e.,  judgments  and  decrees, 
which  are  to  be  paid  according  to  the  time  of  their  docketing. ^'^ 
But  rents  due  or  accruing,  upon  leases  held  by  the  deceased  at 
the  time  of  his  death,  may,  by  order  of  the  surrogate,  be  paid 
before  debts  of  the  fourth  class,  if  it  appears  to  the  satisfaction 
of  the  surrogate  that  such  a  preference  will  benefit  the  estate.'''^ 
Debts  not  due  are  on  an  equality  with  debts  due  and  payable,^^ 
and  may  be  paid  by  an  executor  or  administrator,  according  to 
the  class  to  which  they  belong,  after  deducting  a  rebate  of  legal 

82  2  Kent's  Comm.  416;  2  Wms.  on  85  Co.  Civ.  Proc,  §  2719.  as  amended 
Exrs.    (7th  ed.)    991;   Toller,  2.59.  1893  (formerly  2  R.  S.  87,  §  28).    The 

83  Decker  v.  Miller,  2  Paige,  149 ;  entry,  by  a  justice  of  the  peace,  of  a 
Eogevs  V.  Hosack,  18  Wend.  319;  6  judgment  in  his  docket,  does  not  make 
Paige,  41.5.  See  §  641,  ante.  A  tes-  it  a  debt  of  record.  (Sherwood  v. 
tator  could  not  (and  cannot  now)  de-  Johnson,  1  Wend.  443.)  And  unless 
feat  the  rules  of  law  as  to  precedence  a  transcript  is  filed,  and  the  judgment 
of  debts,  by  directing  his  executors  to  is  docketed,  in  the  county  clerk"s  office, 
make  an  equal  distribution  of  his  as-  it  is  not  a  "  judgment  docketed  "  en- 
sets  among  all  his  creditors.  (2  W^ms.  titled  to  a  preference.  (Stevenson  v^ 
on  Exrs.  990.)  Weisser.  1  Bradf.  343.) 

84  The  provisions  of  the  Revised  86  Co.  Civ.  Proc.  §  2719.  as  amended 
Statutes    (2  R.   S.  87,   §§  27-30.  33),  1893   (formerly  2  R.  S.  87.  §  30). 

on  this  .subject,  were  carried  into  Co.        87  Id.   (formerly  2  R.  S.  87,  §  28). 
Civ.  Proc.  (§  2719)   by  L.  1893.  c.  686, 
■with  only  unimportant  verbal  changes. 


553  AoMixisTKATiox  OF  EsTATK,  Etc.      §§  665,  666. 

interest  upon  the  sum  paid,  for  the  unexpired  term  <»f  credit^ 
without  interest. ^^"^  The  commencement  of  a  suit  for  the  recov- 
ery of  a  debt,  or  the  obtaining  a  judgnnent  thereon  against  tlie 
executor  or  achninistrator,  does  not  entitle  such  debt  to  any 
]>reference  over  other  debts  of  the  same  class.**^  A  debt  due  to 
an  executor  or  administrator  has  no  preference  over  others  of 
the  same  class,  and  he  'cannot  retain  funds  in  his  hands  for  the 
])ayment  of  such  debt  or  claim,  until  it  has  Ijeen  proved  to,  and 
allowed  by,  the  surrogate.'"^'^ 

g  665.  Preference  under  United  States  laws.—  J]v  the  Federal 
statute,  whenever  the  estate  of  any  deceased  debtor  in  the  hands  of 
the  executors  or  administrators  is  insufficient  to  pay  all  the  debts 
due  from  the  deceased,  the  debts  due  to  the  United  States  shall  be 
first  satisfied;  and  every  executor  or  administrator  who  pays  any 
debt  due  by  the  estate  for  which  he  acts,  before  he  satisfies  and 
j>ays  the  debts  due  to  the  United  States,  is  answerable  in  his  own. 
jierson  and  estate  for  so  much  as  remains  unpaid. ^^  It  is  also 
provided  that  whenever  the  principal  in  any  bond  given  to  the 
United  States  is  deceased,  and  his  estate  and  effects  are  insufficient) 
for  the  payment  of  his  debts,  and  in  case  any  surety  in  the  bond^ 
or  his  executor,  administrator,  or  assignee,  pay  to  the  United 
States  the  money  due  on  the  bond,  such  surety,  his  executor,  ad- 
ministrator, or  assignee,  shall  have  the  like  priority  for  the  re- 
covery and  receipt  of  the  moneys  out  of  the  estate  and  effects  of 
the  deceased  principal  as  is  secured  to  the  United  States,  and  may 
maintain  a  suit  upon  the  bond,  in  law  or  equity,  in  his  own  name^ 
for  the  recovery  of  all  moneys  paid  thereon. 

^  666.  Taxes. —  On  the  theory  that  the  people  of  the  State  suc- 
ceeded, at  the  revolution,  to  the  prerogatives  of  the  crown  of 
Great  Britain,  within  the  limits  of  the  State,  it  has  been  said  that, 
independently  of  the  statute,  all  debts  due  to  the  State,  e.  g.,  taxes. 


88  Id.  (formerly  2  R.  S.  87,  §  20).  Cranch,   390:    concurred   in   Iw   Platte 

89  Id.  (formerl.v  2  R.  S.  87.  §  28).  .T..  in  Aiken  v.  Dunlap.  K)  .Inline.  85.) 
00  Id.  (formerly  2  R.  S.  87.  §  3.3).  This  prt'ference  would  exist  in  favor 
91  r.    S.    R.    S.'  691.    §§    340G.    34G8.  of  the  United  States,  independently  of 

The    last    clause    was.    no    doubt,    put  the    statutes    of    this    State,    if    it   be 

into  the  statute  to  meet  a  doUbt  ex-  true,  as  has  been  held   ( U.  S.  v.  Dun- 

inesscd    whether   the   original    statute  can,  4  McLean.  207).  that  the  laws  of 

treated    a    lien    on    the    assets    in    the  the    United    States    control    all    State 

liands  of  representative:  and  wliether,  laws    for    the    distribution    of    estates, 

if.  without  notice  of  the  debt   bein<r  a  and  supersede  all  State  laws  upon  the 

jueferred  one.  he  distributes  the  estate  subject    that    come    within    their    pro- 

without  providing  for  it.  he  would  be  visions.       (U.    S.    v.    Duncan,    12    111. 

liable   personally.      (Per    Marshall.   C.  523.) 
J.,    in    United    States    v.    Fisher,    2 


§  666.  Administration  of  Estate,  Etc.  554 

should  have  a  preference  in  payment  over  debts  of  the  same  rank 
due  to  individuals.*'-  But  since  the  adoption  of  the  Revised  Stat- 
utes, the  State  has  no  right  of  priority  in  payment,  except  as  con- 
ferred by  that  statute,  on  the  principle  of  expressio  unius  est  ex- 
■clusio  alteriws.  The  taxes  upon  the  real  property  of  the  deceased, 
which  are  to  be  paid  out  of  the  personal  estate,  are  only  those  which 
were  assessed  previous  to  the  death  of  the  deceased.®^  It  does  not 
change  the  rule  that  proceedings  had  not  been  had  upon  the  assess- 
ment necessary  to  create  a  lien  on  the  land  f^  all  that  is  required  is 
that  the  assessment  of  the  tax  shall  have  been  so  far  completed,  in  the 
name  of  the  person  designated  as  owner,  as  that  it  could  not,  there- 
after and  before  the  owner's  death,  be  changed  or  altered  by  the  as- 
sessment officers. ^^  Taxes  are  chargeable  to  the  corpus  of  the 
estate,  and  are  not  payable  by  the  heir  or  devisee.^*'  A  direction 
in  a  will  for  the  payment  over  to  trust  beneficiaries,  of  the  net  in- 
-come,  "  after  payment  of  all  taxes  and  assessments,"  does  not  show 
-an  intention  to  relieve  the  corpus  of  the  estate,  and  make  the  taxes 
assessed  at  testator's  death  a  charge  on  the  income;  it  could  only 
have  been  intended  to  provide  for  the  annual  current  expenses, 
after  his  death.^^  But  where  the  direction  is  that  the  executor 
shall  remain  in  charge  of  land  until  the  youngest  child  comes  of 
age,  and  that  all  rents  and  interest  be  paid  by  the  executor  to  the 
wife,  out  of  which  she  shall  pay  all  taxes,  the  executor  is  entitled 
to  credit,  against  the  income  fund,  for  taxes  paid  by  him.^^  The 
representative  is  not  warranted  in  paying  taxes   assessed  subse- 

92  See  2  Kent's  Conim.   416.  officers  before  the  death  of   such  per- 

93  Matter  of  Mansfield,  10  Misc.  son,  shall  be  payable  from  his  estate 
296;  31  N.  Y.  Supp.  684.  See  ante,  in  due  course  of  administration. 
§  615.  So  taxes  assessed  during  de-  (Per  Ruger,  C.  J.,  in  Matter  of  Bab- 
-cedent's   lifetime,    upon    real    property  cock,  supra.) 

in  which  he  had  a  life  interest,  are  90  Matter  of  Babcock,  supra ;  Mat- 
entitled  to  preference  under  the  stat-  ter  of  Arkenburgh,  1.3  Misc.  744:  3.5 
ute.  (Coleman  v.  Coleman,  5  Redf.  X.  Y.  Supp.  2.51;  Matter  of  Doheny, 
524.)  See  Krueger  v.  Schlinger  (10  70  App.  Div.  370:  75  N.  Y.  Supp.  24. 
Misc.  221;  43  N.  Y.  Supp.  305),  where  97  Matter  of  Philbin,  N.  Y.  Law  J., 
it  was  said  that  the  word  "  taxes  "  in  July  9,  1892. 

the  statute,  referred  only  to  personal  98  Matter  of  Smith,  1  Misc.  269 ;  22 

taxes.  N.  Y.  Supp.   1067.      In  that  case,  the 

94  Matter  of  Babcock.  115  N.  Y.  450,  will  also  provided  that  if  the  widow 
s.  c.  as  Matter  of  Detmold.  4  X.  Y.  accepted  thereunder,  she  should  pay 
Supp.  903;  Matter  of  Franklin,  26  all  taxes  on  the  estate  out  of  the  in- 
Misc.  107 :  56  N.  Y.  Supp.  858.  come.       Held,    the    executor    was    not 

95  The  meaning  of  the  act  requiring  entitled  to  credit  for  taxes  paid,  in 
executors  to  pay  taxes  assessed  upon  the  absence  of  any  proof  that  the  in- 
the  estate  of  the  deceased  "  previous  come  was  insufficient  for  that  purpose, 
to  his  death."  etc..  is  that  assessments,  and  ttie  payment  by  him  was  neces- 
so  far  completed  that  the  name  of  the  sary  for  the  preservation  of  the  estate, 
person,  named  as  owner,  cannot  be  See  Clarke  v.  Clarke,  145' N.  Y.  476; 
changed  or  altered  by  the  assessment  Matter  of  ^Mansfield,   10  Misc.  296. 


555  Admixistkatiox  of  Estatk,  Etc.  §  667. 

([uciiilv  to  his  (Icec'dfiit's  dcatli ;'"'  tlicv  ai'c  cliargeable  upon  the 
land.  There  is,  therefore,  no  ratable  a]>i)ortionment,  varying  ac- 
cording- to  the  ]ieriod  of  the  year  in  which  the  decedent  died,  of 
the  amount  to  he  paid  out  <d"  the  pei'sonalty,  and  that  chargeable 
on  the  land.^  The  term  ""  taxes  "  does  not  include  assessments 
made  by  a  municipal  corporation  under  authority  derived  from  the 
Legislature;"  and,  although  such  an  assessment,  which  was  con- 
:firmed  at  the  time  of  the  decease  of  the  testator,  is  a  personal 
debt,  and  should  be  paid  out  of  the  personal  estate,  it  is  not  en- 
titled to  any  priority  before  other  debts. ^ 

g  667.  Judgments  and  decrees. —  Before  the  adoption  of  the  Re- 
vised Statutes,  judgments  had  a  right  of  priority  of  payment  as 
among  themselves,  according  to  the  date,  not  of  their  entry,  but 
of  the  issue  of  execution  upon  them.  Now,  however,  they  are  pay- 
able "  according  to  the  priority  thereof,  respectively,"  * —  that  is. 
of  their  docketing.  The  fact  that  the  judgment  is  more  than  ten 
years  old,  and  hence  has  ceased  to  be  a  lien  on  real  estate,  does  not 
affect  its  right  to  priority.^  The  judgments  contemplated  are 
those  entered  "  against  the  decedent :"  a  judgment  against  his 
representative,  though  founded  on  his  (lel)t,  is  not,  therefore,  in- 

99Willcox  V.  Smith,  26  Barb.  316;  of  five  judo^ment  creditors  of  tlip  lat- 
Matter  of  Benedict.  1.5  St.  Rep.  74{);  tor  claimod  a  priority  of  payment  on 
Matter  of  Younjj.  17  IMisc.  680;  sub  the  ground  of  the  prior  date  of  the 
nom.  ^Matter  of  Cornell.  41  N.  Y.  docketinf;  of  his  judgment,  altliongh 
Supp.  539;  15  App.  Div.  285.  As  to  this  would  exhaust  tlie  entire  fund  in 
the  authority  of  administrators,  etc..  court  for  distribution.  Held,  that  all 
to  deal  with  real  estate,  see  ante,  judgments  docketed  prior  to  the  vest- 
Si  530,  595.  injr    of    the    estate    in    tlie    judgment 

1  Griswold  v.  Griswold,  4  Bradf.  debtor,  on  the  death  of  his  wife,  at- 
■216.  tached  simultaneously;   that  the  liens 

2  ^Matter  of  Hun,  144  X.  Y.  472;  63  were  all  of  the  same  rank,  no  one  be- 
St.  Rep.  729.  ing   superior    to    the   otlier ;    and    that 

3  Seabury  v.  Bowen,  3  Bradf.  207.  the   monev   should   be   distributed    /*/o 

4  Co.  Civ.  Proc,  §  2719.  as  amended  rata.  In  flatter  of  Cates  (44  St.  Rep. 
1893;  Matter  of  Foster,  8  Misc.  344;  104;  18  X.  Y.  Supp.  873;  aflfd..  21  id. 
■29  X.  Y.  Supp.  316;  Trust  v.  Harned,  576),  a  judgment  had  been  docketed 
4  Bradf.  213;  4  Abb.  Pr.  270.  Tliis  against  decedent  six  years  before  lie 
rule  of  priority  is  different  in  the  case  died,  but  no  administrator  was  ap- 
of  a  judgment  debtor  who  acquires  jiointed  until  ten  years  had  expired 
title  to  real  estate  after  tlie  docketing  from  the  docket  of  the  judgment,  and 
of  several  judgments  against  him.  In  the  administrator  was  discharged  two 
such  case,  tlie  liens  of  the  several  years  thereafter.  Meld,  that  under 
judgments  attach  together  at  the  same  Co.  Civ.  Proc.  §  1380.  tlie  lien  of  the 
instant,  all  stand  upon  the  same  foot-  judgment  could  be  enforced  within 
ing,  and  the  oUlest  judgment  has  no  three  years  and  six  months  of  the 
priority.  ((»oetz  v.  Slott,  21  Abl).  X.  issue  of  letters  of  administration,  and 
C.  246";  15  Civ.  Proc.  Rep.  11.1  In  tliat  that  time  did  not  run  from  the 
Matter  of  Hazard,  in  X.  Y.  Surr.  Ct.  death  of  tlie  intestate. 

(N.  Y.  Law  J.,  Feb.  23.  1893),  on  pro-        •'">  Ainslie   v.   RadclilT.  7   Paige.   439; 

ceedings    for    the    distribution    of    a  Matter  of  Townsend,  83  Hun,  200;  31 

wife's  estate,  the  whole  of  which  she  X.  Y.  Supp.  409. 
had   bequeathed   to  her   husband,  one 


§  G67, 


Administration  of  Estate,  Etc. 


55S 


c'liuled  ill  the  class.  The  statute  expressly  declares  that  "  the  com- 
mencement of  a  suit  for  the  recovery  of  a  debt,  or  the  obtaining  a 
jiidgment  thereon  against  the  executor  or  administrator,  shall  not 
entitle  such  debt  to  preference  over  others  of  the  same  class."  ^ 
A  question  has  arisen,  where  the  estate  is  insolvent  and  cannot  pay 
the  class  of  jndgTiients  in  full,  whether  the  part  of  the  judgment 
which  represents  a  recovery  for  costs  against  the  representative, 
in  an  action  by  a  creditor  to  establish  the  claim,  is  entitled  to  be 
]iaid  in  full,  though  the  rest  of  the  judgment  is  payable  only  pro 
rata.  It  has  been  held,  that  such  costs  are  entitled  to  priority,  in 
])roceedings  for  payment  out  of,  or  against,  particular  funds  or 
properties,  when  equitable  principles  require  that  payment  of  costs, 
should  be  made  separate  from  the  debt.^ 


6  Co.  Civ.  Proc.  §  2719,  as  amended 
1893  (formerly  2  R.  S.  87.  §  28).  See 
Schmitz  V.  Langhaar.  88  N.  Y.  503 ; 
Sippel  V.  Macklin,  2  Dem.  219:  Mat- 
ter of  Casey.  0  N.  Y.  Supp.  608 :  Par- 
ker V.  Gainer,  17  Wend.  559;  James 
V.  Beesly,  4  Redf.  23G.  An  award 
"gainst  the  estate,  under  a  submis- 
sion made  by  the  representatives,  is 
not  entitled  to  priority  of  payment 
as  a  judgment:  thoTigh  the  award  may 
bind  the  representative  personally,  it 
cannot  prejudice  the  rights  of  other 
creditors,  having  debts  of  equal  de- 
gree, to  share  equally  in  the  distribu- 
tion of  the  estate.  (Wood  v.  Tunni- 
cliff,  74  N.  Y.  38.)  A  judgment  cred- 
itor of  the  decedent  cannot  obtain  a 
preference  by  the  commencement  of 
an  action  against  the  representative, 
and  his  fraudulent  vendee  of  the  as- 
sets, to  set  aside  the  fraudulent  trans- 
fer and  have  the  assets  applied  to  the 
payment  of  his  judgment.  ( Evering- 
ham  V.  Vanderbilt,  51  How.  Pr.  177.) 
'Where  a  judgment  has  been  recovered 
against  an  executor  in  an  equitable 
action  by  a  creditor  whose  claim  was 
incurred  in  the  continuance  of  the 
business  by  the  executor  under  the 
direction  of  the  will,  a  provision 
which  requires  the  defendant  to  pay 
it  out  of  the  funds  and  property  be- 
l;jnging  to  the  estate,  and  directs  him 
to  pay  the  plaintiffs  judgment  and  to 
hold  the  remainder  of  the  estate  sub- 
ject to  the  order  of  the  court  is  im- 
proper. In  such  case  plaintiff  must 
proceed  to  collect  his  debt  in  the 
mode  prescribed  by  law,  by  pro- 
ceedings in  the  Surroirate's  Court. 
(Willis  v.   Sharp,   115  N.  Y.   396;    26 


St.  Rep.  125.)  It  seems,  that  if  the 
creditors  of  the  decedent,  at  the  time 
of  his  death,  did  not  consent  to  the 
carrying  on  of  the  business  by  the  ex- 
ecutor, they  have  the  right  to  insist 
that  the  estate,  as  it  existed  at  his 
death,  shall  be  used  for  the  payment 
of  their  debts,  and  the  expenses  of  ad- 
ministration, to  the  exclusion  of  debts 
subsequently  created  by  the  executor, 
but  if  they  do  consent,  different  prin- 
ciples must  apply,  and  creditors  of  the 
business  must  share  pro  rata  with  the 
ether  creditors  in  the  whole  estate. 
If  the  business  was  carried  on  without 
the  consent  of  the  creditors,  and  the 
estate  has  been  thereby  increased, 
then  the  original  creditors  should 
probably  alone  share  in  the  estate,  as 
it  came  to  the  executor,  and  the  cred- 
itors of  the  business  should  alone 
have  the  increase  made  by  their  con- 
tributions to  the  capital  of  the  busi- 
ness.     ( lb. ) 

7  So  held  in  Shields  v.  Sullivan,  3 
Dem.  296.  on  the  principle  of  the  case 
of  Columbia  Ins.  Co.  v.  Stevens,  37 
N.  Y.  536;  and  in  Matter  of  Randell, 
8  N.  Y'.  Supp.  652.  In  the  last  case, 
the  court  ( Weiant  S.)  said:  "Where 
expense  is  imposed  upon  a  creditor  to 
enforce  his  claim  by  resistance  thereto 
made  in  the  interest  of  the  fund  or 
propertj^  of  those  entitled  to  the  same,. 
I  do  not  see  why  such  creditor  should 
not  be  first  reimbursed  to  the  extent 
of  the  costs  awarded  him  for  such  re- 
imbursement. It  is  but  the  marshall- 
ing and  disposing  of  funds  or  proper- 
ties in  court  upon  principles  of  equity, 
where  no  fixed  rules  of  law  intervene 
to  the  contrary.""     But  compare  Shuttj 


557  Admixistka'iio.x  ok  Estatk,  Etc.      §§  668-GTO. 

§  868.  Judgment  entered  after  a  party's  death. —  But  a  final 
judgment,  entered  in  the  names  of  the  original  parties,  as  per- 
mitted, in  case  either  party  has  died,  "  after  an  accepted  offer 
to  allow  judgnicnt  to  he  taken,  or  after  a  verclict,  report  or  decision, 
or  an  interloeutorv  judgment,  hut  before  final  judgment  is  en- 
tered," ^  is  not  such  a  judgment.  Such  a  judgment  "  does  not 
become  a  lien  upon  tlje  real  jirojierty  or  ehattels  real  of  the  de- 
•cedent,  hut  it  establishes  a  <l(l)r  tn  Ik-  paid  in  the  course  of  the  ad- 
ministration ;"  ^  and  if  such  a  judgment  has  been  duh'  docketed, 
it  has  the  same  force  and  effect,  as  regards  priority  in  payment,  as 
if  the  decedent  had  died  on  the  day  after  its  entry.^'' 

§  669.  Foreign  judgments. —  Judgments  rendered  in  sister  States, 
or  foreign  countries,  as  they  cannot  be  docketed  here,  take  rank 
only  as  simple  contract  debts.^^  But  judgments  of  the  Federal 
•courts,  sitting  in  this  State,  are  doubtless  entitled  to  be  included 
iimong  "  judgments  docketed."  ^^ 

§  670.  Rent  due  on  leases. —  Among  the  fourth  class,  in  the  or- 
der of  paynunit,  are  to  be  included  rents  due  or  accruing  upon 
leases  held  by  the  decedent  at  the  time  of  his  death.  But  such 
rents  the  Surrogate's  Court  has  authority  to  order  paid,  before  the 
other  debts  of  this  class,  when  it  satisfactorily  appears  that  such 
preferred  payment  will  benefit  the  estate.^^  Such  a  direction 
should  be  made  after  a  hearing  had,  upon  a  petition,  and  on  proof 
of  all  the  facts  and  circumstances,  by  affidavits  or  oral  testimony, 
disclosing  in  what  way  the  alleged  benefit  may  accrue.     In  the 


V.   Shiite    (5   Dem.    1).   where   it   was  the  jndjrment.  MJntr  pro  h/»c,  as  of  the 

held,   that,   in  case  of  a   deficiency  of  term  prior  to  decedenfs  death.      (Mat- 

sissets,  costs  included  in  the  judgment  ter  of  Dunn,  .5  Redf.  27.) 

recovered    against    the    representative,  n  Brown  v.  Public  Adm'r,  2  Bradf. 

upon  a  demand  against  the  decedent,  103;  Hubbell  v.  Coudrey,  .5  Johns.  132: 

had  no  preference.     See  Matter  of  Ma-  Taylor  v.  Bryden.  8  id.   17.'?:   Pawling 

honey,   37  Mi.sc.  472;   75   N.   Y.   Supp.  v.  'Bird.    13    id.    102. 

105G.      In  Matter  of  Casey    (G  N.   Y.  12  See   Bernes   v.   Weisser,   2    Bradf. 

Supp.    608),    it    was    held    on    appeal  212;    Manhattan    Co.    v.    Evertson.    6 

from    a    decree,    on   an    accounting   of  Paige,    457:    Willard    on    Exrs.    280; 

<'xecutors,   that    costs    contained    in   a  Dayton  on  Surr.  288. 

judgment  against   executors   for  costs  13  Co.  Civ.  Proc.  §  2719.  as  amended 

should   be   paid   in   preference   to   leg-  1893   (formerly  2  R.  S.  87,  §30).     Be- 

acies.  fore  the  Revised  Statutes,  rents  were 

8  Co.  Civ.  Proc.,  §  7G3.  preferred   next   after   debts   of   record, 

9  Co.  Civ.  Proc,  8   1210.  and    a    practical    preference    was    also 

10  Matter  of  Clark.  5  Dem.  377 ;  cit-  given  by  the  landlord's  right  to  dis- 
ing  Nichols  v.  Chapman,  9  Wend,  train  foV  rent.  (2  R.  S.  500.)  The 
452;  Salter  v.  Neaville,  1  Bradf.  488;  jnesent  rule  gives,  in  effect,  the  same 
Bernes  v.  Weisser.  2  Bradf.  212;  Mat-  preference,  in  the  cases  mentioned  in 
-ter  of  Clark.  15  Abb.  Pr.  227;  Ainslie  the  text.  Distress  for  rent  was  abol- 
V.  Radcliff,  7  Paige,  439.  It  is  not  ished  in  1846.  (L.  1846,  c.  274.) 
necessary  to  obtain  an  order  to  enter 


§§  6T1-GT3.     Administration  of  Estate,  Etc.  55S 

absence  of  proof  of  actual  benefit,  the  surrogate  cannot  assume  to 
direct  the  payment  of  rent  as  a  preferred  claim.^'*  "Where  the 
surrogate's  decree  stated  that  it  appeared,  to  his  satisfaction,  that 
a  preference  allowed  by  him  would  benefit  the  estate,  it  was  held 
conchisive,  upon  appeal.^^  The  surrogate  may  not  only  direct  the 
preference  upon  an  application  to  him  for  that  purpose,  but  he 
may,  upon  the  final  accounting  of  the  representative,  ratify  his 
preferential  payment  of  rent,  upon  proof  of  benefit  to  the  estate.^*^ 

§  671.  Debts  by  specialty. —  There  is  also  a  class  of  debts  not 
mentioned  in  the  statute,  which  are,  nevertheless,  good  as  against 
the  executors  or  administrators,  and  form  a  sort  of  fifth  class,  e.  g.^ 
a  voluntary  bond  of  the  testator,  given  in  his  lifetime,  payable  at^ 
or  immediately  after,  his  death.  In  the  absence  of  fraud,  such  a 
bond  has  been  held  a  valid  debt  against  the  estate,  and  to  have  a 
preference  over  legacies,  though  it  must  be  postponed  to  debts  con- 
tracted for  valuable  consideration,-^' 

SUBDIVISIOX  2. 

MARSHALLING    ASSETS. 

§  672.  Order  of  priority. —  Questions  frequently  arise  between 
heirs  or  devisees  and  executors,  as  to  how  far  the  personal  prop- 
erty must  be  exhausted  in  the  payment  of  debts,  before  the  real 
estate  can  be  resorted  to,  and  how  far  executors  can  be  compelled 
to  pay  off  incumbrances  on  the  land  out  of  the  personal  property. 
The  rule  governing  the  order  of  marshalling  assets  toward  pay- 
ment of  debts  is,  to  apply:  (1)  the  personal  estate;  (2)  lands  de- 
scended; (3)  lands  devised. ^^ 

§  673.  Personal  assets  primarily  liable  for  debts. —  The  personal 
estate  of  the  testator  is  deemed  the  natural  and  primary  fund  for 
the  payment  of  debts  and  legacies,  and  the  testator  is  presumed 
to  act  upon  this  legal  doctrine,  until  he  shows  some  other  distinct 
and  unequivocal  intention.-'^     Thus  where  the  testator  specifically 

I'l  Cooper    V.    Felter.    6    Lans.    48.5.  years,  which  is  assets  in  the  hands  of 

Facts  must  appear,  showing  explicitly  the    personal    representative.       (John- 

that  a  benefit  will   accrue   to  the  es-  son  v.  Corbett,  11   Paige.  26-5.) 

tate;  a  general  allegation  to  this  effect  i*'-  Hovey  v.  Smith.  1  Barb.  .372. 

will  not  suffice.      (Harris  v.  Meyer,  3  i"  Isenhart  v.  Brown,  2  Edw.  .341. 

Redf.  4.50.)                                           '  18  Livingston   v.    Xewkirk.   3   .Johns. 

15  Hovey    v.    Smith,    1    Barb.    372.  Ch.  312,  and  cases  (/(f;-«. 

Rent   of   a    pew    in   church    cannot   be  19  Hoes  v.  Van  Hoesen,  1  X.  Y.  120: 

made  a  preferred  debt,  under  the  stat-  affg.  1  Barb.  Ch.  379.    And  see  McKay 

ute,  unless  it  be  due  on  a  lease  for  v.  Green,  3  Johns.  Ch.  56;  Hawley  \~ 


559  Administkatiun  of  Estate,  Etc.  §  G74. 

bequeathed  his  chattels  to  one  person  and  devised  his  real  prop- 
erty to  another,  without  any  direction  as  to  which  should  be  ap- 
propriated to  satisfy  an  existing  judgment  against  him,  it  was 
held  that  the  personal  property  must  be  applied  first. ^"  Where  the 
testator  charges  the  ])ayni('nt  of  hi«  debts  upon  certain  specified 
real  estate,  and  if  that  sluiulil  ju-ore  insufficient,  then  upon  his 
other  real  estate,  as  between  the  legatees  and  devisees,  the  per- 
sonal estate  is  exonerated  from  the  debts. '^  But  where  the  heirs 
and  next  <tf  kin  are  the  same  persons,  the  payment  of  debts  from 
the  proceeds  of  realty  is  not  objectiomible.^"  The  common-law 
rule,  that  the  jiersonal  estate  of  a  deceased  person  will  be  applied 
to  the  payment  of  his  contract  dclits,  to  the  relief  of  his  real  estate, 
is  not  of  universal  application,  and  will  not  be  enforced  where  it 
is  in  apparent  hostility  to  the  j)lain  intent  of  the  deceased,  as  ex- 
pressed in  his  will,  and  would  defeat  bequests  made  therein.^^  In 
general,  personal  property,  specifically  bequeathed,  cannot  be  ap- 
plied, unless  the  remainder  of  the  personalty  is  insufficient;^'*  but 
where  a  plain  intention  can  be  gathered  from  the  will,  that  certain 
personal  property  shall  be  treateel  as  real,  it  must  be  regarded  as 
effecting  a.  conversion  thereof,  and  specific  legacies  must  be  re- 
sorted to,  before  chattels  so  converted  are  applied. ^^  Real  prop- 
erty equitably  converted  retains  its  initial  cliai-aeter  and  cannot 
be  resorted  to  so  long  as  the  personalty  is  sufficient."'" 

§674.  Where  assets  are  insufficient. —  AVhere  the  personal  prop- 
erty is  not  sufficient  to  pay  all  the  debts,  and  the  real  estate  must 
be  resorted  to,  the  land  which  is  not  devised  must,  as  between 


Jamps.  .5  Paicre.  318,  448.  Where  Where  it  was  the  intention  of  tlie 
land  held  under  an  unpaid  contract  of  testator  to  appropriate  the  proceeds 
purcliase  is  devised  for  life,  with  re-  of  a  house  and  lot  to  the  payment  of 
mainder  in  fee.  the  unpaid  purchase  lefracies  and  at  the  time  of  his  deatli 
money  is  to  he  paid  out  of  {personal  the  jjcisonalty  was  insutlicieiit  for 
assets.  But  the  tenant  for  life  can-  that  purpose. —  Held,  that  other  real 
not  require  the  application  of  the  estate  not  appropriated  to  the  pay- 
residuary  personal  estate  to  improve-  meut  of  le<;acies  should  be  first  re- 
ments  of  the  land,  so  as  to  render  it  sorted  to  for  the  payment  of  his  dehts. 
productive  for  his  benefit.  (Cogswell  (JoufTret  v.  .Jouflfret.  20  App.  Div. 
V.  Cogswell.  2  Edw.  2.31.)  See  §  738,  450;  4(>  X.  Y.  Supp.  810  ^ 
post.  Land  held  under  lease  from  the  22  Matter  of  Rraunsdort.  13  Misc. 
Seneca  Nation  of  Indians,  for  the  ])ur-  ()(i() ;  35  X.  Y.  Sujij).  208:  2  App.  Div. 
poses  of  transfer,  descent,  and  distri-  73. 

bution.    is    real    estate,    and    rents    re-  -S  Ricp   v.    llarbeson.   t).'?   X.   Y.   403. 

ceived    therefor   by    the   executors    are  24  Toch    v.    Tocli.    81    Hun.    410:    30 

not  available  for  the  payment  of  gen-  X.  Y.   Supp.    1003. 

eral   legacies.      (Matter  "of  McKay,  33  2,')  Downing  v.   .Mar>liall.    1    Abb.   Ct. 

Misc.  520:    68  N.  Y.  Supp.   025.)'  App.  Dec.  525. 

20  Rogers   v.    Rogers.    3    Wend.    503.  2i;  Matter    of    Mansfield,     10    Misc. 

21  Youngs  V.  Youngs,  45  X.  Y.  254.  29G;  31  N.  Y.  Supp.  (iS4. 


§  GT5.  Administratio:n  of  Estate^  Etc.  560 

heirs  and  devisees,  be  first  taken  ;^'  altliong'h,  in  a  peculiar  case, 
^vllore  the  jiersonal  property  in  hand  was  insufficient,  the  snrro- 
o;ate  directed  debts  to  be  paid  hy  the  executors  out  of  rents  of  the 
real  estate  then  in  hand,  leaving  the  rights  of  the  parties  to  be 
subsequently  settled  f^  and,  in  another  ease,  the  proceeds  of  land 
sold  under  a  power  in  the  will,  were  applied  to  the  payment  of 
■debts,  although  the  power  contained  directions  to  invest  the  pro- 
ceeds for  the  benefit  of  a  specific  legatee.^^ 

§  675.  Mortgage  debts. —  At  common  law,  a  mortgage  debt, 
whether  there  wv.s  a  bond  or  covenant  or  not,  was  primarily  pay- 
able, like  other  debts,  out  of  the  personalty,  and  the  devisee  or  heir 
might  compel  such  payment,  by  the  representative,  and  thus  relieve 
the  realty  from  the  burden  of  the  debt,  unless,  in  the  event  of  a  will, 
the  testator  expressly  or  impliedly  directed  the  debt  to  be  paid  out 
of  the  realty.  By  the  provisions  of  the  Revised  Statutes  (now 
incorporated  into  the  Real  Property  Law),  a  mortgage  cannot 
be  construed  as  implying  a  covenant  to  pay  the  debt;  and  in  the 
absence  of  an  express  covenant  in  the  mortgage,  and  of  any  sepa- 
rate bond  or  other  instrument  to  secure  the  pa\Tnent,  the  remedy 
of  the  mortgagee  is  confined  to  the  mortgaged  lands.^*^  It  is  also 
provided  that,  w^henever  any  real  estate,  subject  to  a  mortgage 
executed  by  any  ancestor  or  testator,  shall  descend  to  an  heir  or 
pass  to  a  devisee,  such  heir  or  devisee  shall  satisfy  and  discharge 
such  mortgage  out  of  his  own  property,  without  resorting  to  the 
executor  or  administrator  of  his  ancestor,  unless  there  be  an 
express  direction  in  the  will  of  the  testator  that  the  mortgage 
be  otherwise  paid.^^     Where  the  real  and  personal  property  are 


2"  Graham  v.  Dickinson,  3  Barb  Ch.  was   re-enacted  in  the  Real   Property 

169.      And   see   Livingston   v.    LiWng-  Law    ( L.    1896,   c.    .547,    §    214).      See 

ston,  3  -Johns.  Ch.  148.  Home  v.  Fisher,  2  Barb.  Ch.  559;  Sev- 

2s  Skidmore    v.    Romaine,    2    Bradf.  erance  v.   Griffith,   2   Lans.   38 ;    Cole- 

122.  man  v.   Van  Rensselaer,   44  How.   Pr. 

29  Matter  of  Shannon,  1  N.  Y.  Supp.  368,  and  cases  cited.  Where  a  person 
747.  Compare  Matter  of  McKay,  24  took  a  conveyance  of  land  subject  to 
Misc.  255  ;  53  N.  Y.  Supp.  563.  Where  a  mortgage,  covenanting  to  indeninify 
a  will  empowers  the  executors  to  sell  the  grantor  against  it,  and,  having 
the  real  estate  when  in  their  judg-  paid  part  of  it,  died  intestate, —  Held, 
ment  they  deem  it  for  the  best  inter-  the  land  was  the  primary  fund  for  thfe 
ests  of  the  estate,  they  are  entitled  payment  of  the  residue,  and  the  per- 
to  reimburse  themselves  from  the  pro-  sonal  estate  was  to  be  resorted  to  only 
ceeds  of  such  sale  for  debts  paid  by  as  auxiliary.  (Cumberland  v.  Cod- 
them  in  excess  of  the  personal  estate,  rington,  3  .Johns.  Ch.  220.) 
Irrespective  of  whether  the  power  was  31  L.  1896.  c.  547,  §  215  (1  R.  S. 
given  for  the  purpose  of  paving  debts.  749,    §   4)  ;     Matter   of   Kene,   8   Misc. 

(Matter  of  Bolton,  146  N.  Y.  257;  66  102;  29  N.  Y.  Supp.  1078.      For  what 

St.  Rep.  630.)  has  been  held  to  be  an  express  direc- 

30  1  R.  S.  738,  §  139.     This  statute  tion  by  a  testator,  see  Mosely  v.  Mar- 


561 


Al).MIMSri{A'J'I(>.\     OF     EsTATK,     ExC. 


§C' 


thrown  into  one  fund,  in  which  the  same  parties  are  interested 
equally,  the  executor  may,  for  tlie  ])enefit  of  the  estate,  apply 
persona]  pi-nix-i-ty  to  ])ay  a  iinTtuaac  on  tiie  realty.''" 

While,  however,  the  land  upon  whieh  the  mort^ape  is  a  lien 
is  the  ])rimarv  fund  for  the  ])ayment  of  the  mortgage  debt,  it  is 
not  th(^  exclusive  fund;  for  if  the  ])i'iiiiarv  fund  is  exhausted,  then 
the  general  assets  niay.lje  resorted  to.'"'  It  is  a  general  rule  that 
a  creditor,  who  has  a  security  upon  a  fund  which  is  primarily 
liable,  is  hound  to  exhaust  his  remedy  against  it,  and  can  only 
come  in  against  the  personal  estate  for  the   deficiency."^*     It  is 


shall,  27  Barb.  45;  House  v.  House, 
10  Paifro,  158;  MoUan  v.  Grifiith,  3 
id.  402;  Halsey  v.  Kced,  !)  id.  446, 
454;  Smith  v.  Lawrence,  11  id.  206; 
Wrifjlit  V.  Holbrook,  32  N.  Y.  587.  A 
mere  direetiou  in  tlie  will  to  pay  debts 
is  not  enoujih  to  relieve  the  land  from 
the  burden  of  the  mortgajje.  (Kapalye 
V.  Rapalye.  27  15arb.  610;  Taylor  v. 
Wendel,  4  Bradf.  324 ;  Meyer  v.  Cahen, 
111  N.  Y.  270.)  A  direction  in  a 
will  to  pay  all  of  testatrix's  debts, 
*'  whether  on  bonds  and  mortgapos  or 
otherwise."  has  beon  held,  in  accord- 
ance with  the  apparent  intent  of  the 
testatrix,  to  include  morttjajies  on 
property  included  in  deeds  of  <;ift  exe- 
cuted by  testatrix  in  her  lifetime,  as 
well  as  a  mortgage  on  property  de- 
vised. (Waldron  v.  Waldron,  4  Bradf. 
114.)  It  was  held,  before  the  Revised 
Statutes,  that  a  testator  niiglit,  by 
dispositions  and  language  tantamount 
to  express  directions,  charge  his  per- 
sonal estate  with  the  payment  of  an 
incumbrance  subject  to  which  lie  had 
pmchased  lands.  The  intent  gathered 
from  the  wliole  will  was  sufficient. 
(Cumberland  v.  Codrington,  3  Johns. 
Ch.  272.)  So  a  mortgage  given  to 
secure  an  accommodation  indorser  for 
future  indorsements  does  not  charge 
the  mortgaged  lands  in  exoneration  of 
the  personal  estate.  (Cochrane  v. 
Hawver,  54  Hun,  556.)  Where  there 
is  an  express  direction  in  the  will  that 
a  mortgage  l)e  otherwise  paid  than 
from  the  mortgaged  lands,  so  as  to 
take  the  case  out  of  the  statute,  sucli 
mortgage-debt  is  as  obligatory  upon 
the  executor  as  is  the  payment  and 
discharge  of  any  other  debt  of  the 
testator.  (Matter  of  Hopkins,  57 
Hun,  !).)  If  the  will  shows  an  intent 
to  treat  mortgage-debts  of  the  testa- 
tor as  ordinary  debts,  and  the  fund 
designated  by  him  for  their  payment 

30 


fails,  they  are  chargeable  upon  his  en- 
tire real  estate  devised,  each  portion 
of  which  must  bear  a  share  propor- 
tionate to  its  value.  (Searlesv.  Brace, 
1!)  Abb.  X.  C.  10;  Wells  v.  Wells,  30 
id.  225;  24  N.  Y.  Supp.  874.)  See 
Mills  V.  Mills,  28  Misc.  633;  59  X.  Y. 
Supp.    1048.) 

'■i-  Hepburn  v.  Hepburn,  2  Bradf.  74. 
See  Pease  v.   Egan,   131   N.  Y.  262. 

33  And  under  2  R.  S.  191,  §  152, 
the  court,  having  jurisdiction  of  a 
foreclosure  suit,  may  decree  the  pay- 
ment of  any  deficiency  by  the  personal 
repiesentatives  of  the  mortgagor ;  and 
the  surrogate,  in  proceedings  before 
him  to  compel  obedience  to  such  a  de- 
cree by  the  executor,  has  no  powei'  to 
pass  upon  the  validity  of  the  judg- 
ment, sufficiency  of  the  complaint,  or 
any  other  question  raised  in  the  ac- 
tion. (Glacius  V.  Fogel,  88  X.  Y. 
434.)  In  Williams  v.  Eaton  (3  Redf. 
503),  it  was  held,  that  where  there 
was  reason  to  anticipate  a  deficiency 
upon  a  foreclosure  of  the  mortgage, 
the  executor  should  be  directed  to  re- 
serve, from  the  personal  estate,  a  suf- 
ficient sum  to  afford  the  mortgagee 
his  proportion  of  his  demand  against 
the  estate,  pro  rata  with  the  other 
creditors,  and  to  that  extent,  should 
satisfv  the  deficiencv.  Compare  James 
V.  Beesly,  4  Redf."  236;  Glacius  v. 
Fogel,  id.  516;  Livingston  v.  Gardner, 
id.  51ti.  note. 

34  Halsey  v.  Reed,  9  Paige.  446. 
And  the  rule  is  as  applicable  to  the 
claims  of  legatees  as  to  the  claims  of 
creditors.  ( Rice  v.  Harbeson.  63  X.  Y. 
403.)  But  a  vendor's  lien  for  the  pay- 
ment of  the  purchase  money  is  not  a 
mortgage  within  the  statute,  and, 
except  as  against  creditors  having  a 
prior  right,  an  heir  or  devisee  can 
compel  the  executors  or  administra- 
tors   to     pay     the    unpaid     purchase 


§§  ()7<i,  077.     Admixistratiox  of  Estate,  Etc.  562" 

obviously  impossible,  witliin  the  ?pace  at  our  coinmaiid,  to  go 
further  into  this  subject.*"''  The  application  of  the  real  estate 
to  the  payment  of  debts,  where  there  is  a  deficiency  of  assets,  bv 
proceedings  in  the  Surrogate's  Court  for  that  purpose,  is  fully 
treated  in  the  next  following  chapter. 

§  676.  Copartnership  debts. —  The  right  of  a  creditor  of  a  firm 
to  share  in  the  estate  of  a  deceased  member  of  the  finn  in  the 
hands  of  his  administrator,  where  there  is  no  joint  estate  and  the 
suiwiving  partner  is  insolvent,  is  governed  by  the  rules  by  which 
courts  of  equity  are  guided  in  distributing  the  separate  estate  of 
an  insolvent,  as  between  his  separate  creditors  and  those  of  a  co- 
partnership of  which  he  was  a  member.  While,  as  a  general 
rule,  in  such  cases,  the  separate  creditors  are  entitled  to  be  first 
paid,  yet  where  a  creditor,  at  the  time  a  debt  is  contracted,  for 
the  benefit  of  the  firm,  requires  therefor,  and  receives,  the  joint 
and  several  obligation  of  the  co-partners  individually,  it  thereby 
becomes  the  several  debt  of  each  of  them;  the  holder  is  entitled 
to  the  benefit  of  the  security  according  to  its  terms,  and  has  the 
right  to  prove  it  against  the  separate  estate  of  the  decedent,  and 
to  share  equally  with  the  other  separate  creditors  in  the  distribu- 
tion.^'^ 

SUBDIVISTOX  3. 

PROCEEDINGS    TO    COMPEL    PAYMENT    OF   DEBTS. 

§  677.  Judgments  against  representative. —  One  of  the  new  rules 

adopted  by  the  Code  of  Civil  Procedure  is  that  actions,  etc., 
commenced  by  an  executor  or  administrator,  upon  a  cause  of 
action,  belonging  to  him  in  his  representative  capacity,  and  ac- 

monev.  unless  it  is  secured  by  an  exe-  assets,    until    they    have    been  so  ap- 

cuted  mortgage  on  such  land.      (Lam-  plied    as   to    produce    equality    among^ 

port  V.  Beeraan.  34  Barb.  239.)  all.     (Wilder  v.  Keeler.  3  Paige.  167.) 

35  As     to     disposition     of     surplus  And    see   Purdy   v.    Doyle.    1    id.    5.58. 

money,   on   a   foreclosure  of  mortgage  As  to  what  are  legal  and  what  equita- 

on    hind    owned    by    decedent,    see    Co.  ble   assets,    see   Rogers   v.    Hosack,    18 

Civ.   Proc,    §   2798,  as  amended   1893,  \Yend.     319;     Benson    v.    Le    Roy,    4 

§  60,  ante;  and  as  to  representative's  .Tohns.  Ch.  651:    Thompson  v.   Brown, 

power   or   duty  to   buy   in   land   on   a  4  id.  619;  Pascalis  v.  Canfield,  1  Edw. 

foreclosure:  or  paying  interest  to  pre-  201. 

vent  a  foreclosure  and  sale,  see  §§  530,  3(3  Matter   of   Gray.    Ill    X.   Y.   404- 

595.  617,  ante.      As  to  discrimination  See  Matter  of  Striker.  24   Misc.   422; 

in  the  distribution  of  legal  and  equita-  53  X.  Y.  Supp.  732 :  Potts  v.  Baldwin^ 

ble  assets  among  all  the  creditors  pro  67  App.  Div.  434 :  74  X.  Y.  Supp.  665. 

7-ata,    without    preference,    see    Moses  As  to  remedies  of  firm  creditor  against 

v.    Murgatroyd,     1    .Johns.    Ch.     119;  the  estate  of  a   deceased  partner,   se& 

Thompson     v.     Brown,     4     id.     619.  Harbeck  v.  Pupin.  23  Abb.  X.  C.   190.. 

Those   who   take   of   the    legal    assets  See  ante,  §§  533,  612. 
will   receive   no   part  of  the  equitable 


563  Administration  ok  Estatk,  Etc.      §§  678,  670. 

tions,  etc.,  commenced  against  him  (except  where  brought  to 
charge  him  ])ersonally),  must  be  brouglit  by  or  again.st  him  in  hi.s 
representative  cajiacity.  And  judgments  recovered  against  an 
executor  or  administrator,  without  describing  him  in  his  repre- 
sentative capacity,  cannot  be  enforced  agiunst  tlie  i)roj)erty  of 
the  (h'cedent,  except  by  the  special  direction  of  the  court,  con- 
tained therein.'^  We' have  already  stated  the  principle,  that  the 
only  effect  of  a  judgment  against  the  personal  representative  u])on 
a  claim  against  the  decedent  is  to  li(|uidate  the  debt.  The  judg- 
ment is  not  evidence  of  assets,^**  but  oidy  of  the  amount  due  the 
creditor.  It  is  further  provided  that  the  rei)resentative  shall 
not  be  chargeable  for  any  assets  or  moneys  that  he  may  have  paid 
in  satisfaction  of  any  lawful  claims,  or  of  any  legacies,  or  in  mak- 
ing distribution  to  the  next  of  kin,  before  suit  brought  against  him 
on  a  claim,  if  such  claim  was  not  presented  to  hiin  '^  within  six 
months  from  the  first  ])ublication  of  hie  notice  to  creditors."  "^ 

§  678.  Effect  of  judgment. —  A  judgment  against  the  representa- 
tive, as  such,  is  not  entitled  to  equality  of  payment  with  judg- 
ments docketed  against  the  decedent,  but  is  included  in  the 
fourth  class  of  ordinary  debts.  The  decedent's  real  property  is 
in  no  way  bound  or  affected  by  a  judgment  against  his  personal 
representatives,  and  is  not  liable  to  be  sold  under  execution  issued 
on  such  judgment,  unless  the  judg-ment  expressly  and  in  terms 
is  made  a  lien  upon  specific  real  property  therein  described,  or 
expressly  directs  its  sale.'*"  Hence,  an  execution  cannot  issue 
against  the  real  iirojierty  of  the  deceased  upon  a  judgment  for 
deficiency  recovered  against  his  representatives.  To  authorize 
such  a  proceeding,  the  judginent  must  have  been  recovered  against 
the  decedent  in  his  lifetime."*^ 

§  679.  Execution  on  judgment. —  An  execution  against  prop- 
erty, in  the  hands  of  an  executor,  administrator,  or  trustee,  must, 
substantially,  require  the  sheriff  to  satisfy  the  judguu'nt  out  of 
that  ])ro])erty'.'*~  "An  execution  may  be  issued,  in  the  name  of 
an  executor  or  administrator,  in  his  representative  cajiacity,  ujion 
a  judgment  recovered  by  any  person  who  ]u-eceded  him  in  the 
administration  of  the  same  estate,  in  anv  case  where  it   mic:ht 


^- Co.  Civ.  Proc.  §  1814.      This  pro-  189.3;    adopting,   in   part.   2   R.   S.   89. 

vision    applies    onlv    to    actions    com-  §  39. 

iiKMiccd  after  Sept.  "l.  1880.      See  ante,  40  Co.  Civ.  Proc.  §   1823. 

§§  5(17.  570.  41  James  v.  Beesly.  4  Redf.  23G. 

38  Co.  Civ.  Proc.  §  1824.     See  §  032,  42  Co.  Civ.  Proc,  §  1371.    See  Saper- 
cintc.  stein     v.     niman.     108     N.     Y.     636 

39  Co.  Civ.  Proc,  §  2718.  as  amended  (mem.)  ;  affg.  49  App.  Div.  446. 


§  680.  Admixistratiqx  of  Estate,  Etc.  564 

liave  been  issued  in  favor  of  the  original  plaintiti",  and  witliout 
a  subbtitution."  *^  But  it  is  provided,  that  *'  an  execution  shall 
not  be  issued,  upon  a  judgment  for  a  sum  of  money,  against  an 
executor  or  administrator,  in  his  representative  capacity,  until 
an  order,  permitting  it  to  be  issued,  has  been  made  by  the  surro- 
gate from  whose  court  the  letters  were  issued.  Such  an  order 
must  specify  the  sum  to  be  collected;  and  the  execution  must  be 
indorsed  with  a  direction  to  collect  that  sum."  ^^ 

§  6.80.  Leave  to  issue  execution. —  I'nder  the  Revised  Statutes, 
an  execution,  on  a  judgment  against  the  jjersonal  representative, 
could  issue  at  once  (provided  his  account  had  been  settled)  for  a 
just  proportion  of  the  assets  applicable  to  the  satisfaction  of  the 
judgment.^^  But,  under  the  present  statute,  no  execution  can 
issue  on  such  a  judgment  for  money,  without  the  order  of  the 
surrogate  from  whose  court  the  letters  of  the  representative  were 
issued  ;'**'  and  the  order,  when  granted,  will  not  direct  to  be  col- 
lected, by  the  execution,  a  greater  sum  than  the  plaintiff's  just 
proportion  of  the  residuum  of  assets,  after  allo^^-ing  for  the  ex- 
penses of  the  administration,  and  for  debts  entitled  to  a  priority; 
and  "  for  claims  entitled  to  priority  as  against  the  plaintiff."  ^"^ 
The  order  must  specify  the  sum  to  be  collected,  and  the  execu- 
tion must  be  indorsed  with  a  direction  to  collect  that  sum."*^  One 
or  more  orders  may  be  afterward  made  in  like  manner,  and  one 
or  more  executions  may  be  afterward  issued,  whenever  it  appears 
that  the  sum,  directed  to  be  collected  by  the  first  execution,  is 
less  than  the  plaintiff's  just  proportion.'*^  The  statute  applies  as 
veil  to   a  judgment   obtained  against  the  representative,   for   a 

43  Co.  Civ.  Proc,  §  1829,  50."^.      The  clause  quoted  in  the  text, 

44  Co.  Civ.  Proc.  §   182.5.  and    the    corresponding   expression    in 

45  2  R.  S.  88,  §  32.  See  Olmsted  section  1827,  are  intended,  according 
V.  Vredenburgh,  10  How.  Pr.  21.5:  to  the  note  of  Mr.  Commissioner 
People  V.  -Judores  of  Albany  Co.,  9  Throop,  "  to  include  not  only  the  com- 
Wend.  488 :  Butler  v.  Hempstead,  18  mon  cases,  where  legacies  are  post- 
id.  6G7 ;  Dox  v.  Backenstose,  12  id.  poned  to  debts,  and  certain  debts  to 
542.  others,  but  also  a  class  of  cases  where 

4'j  Disosway  V.  Hayward,  1  Dem.  175.  the  assets  must,  according  to  well- 
Under  Code  CiA'.  Proc.  §§  255.3,  recognized  rules,  be  applied  to  the 
2554,  an  execution  cannot  regu-  payment  of  debts,  to  the  exclusion  of 
larly  issue  to  the  sheriff  of  the  surro-  some  legacies  rather  than  others, 
gate's  county,  upon  a  surrogate's  de-  Thus  residuary  legacies  are  applied 
eree  directing  the  payment  of  a  sum  to  the  payment  of  debts  before  gen- 
of  money,  until  the  decree  has  been  eral  legacies :  and  general  legacies  be- 
docketed  in  the  office  of  the  county  fore  those  given  upon  a  consideration ; 
clerk:  if  not  so  docketed,  it  is  irregu-  and  all  of  these,  before  applying  spe- 
lar.  and  must  be  set  aside  on  motion,  cific  and  demonstrative  legacies." 
(Co.  Civ.  Proc.  §§  13G5.  1369.)  48  Co.  Civ.  Proc,  §   1825. 

4TCo.    Civ.    Prcc.    §§     1825,    1826.  49  Co.  Civ.  Proc,  §  1826. 
See   Schmitz  v.   Langhaar,   88   N.   Y. 


565  Admim.stkation  of  Estate,  Etc.  §  681. 

liai)ility  incurred  liy  liiiii  in  ilic  ndininistratidn  of  the  estate,  as 
to  a  jiulginent  against  liini  for  a  debt  of  the  decedent.''**^  But 
where  the  judgment  wa.s  not  in  "  an  action  rehiting  to  decedent's 
estate," —  as  where  the  action  was  brought  by  the  representative 
for  damages  for  negligence  which  cansed  the  deatli  of  the  dece- 
dent,—  th.e  surrogate  .has  no  authority  to  ])erniit  an  execution 
to  issue  for  the  costs  of  such  an  action  against  the  representative, 
as  such.^^ 

§681.  Application  for  leave. —  The  application  may  be  made  at 
any  time  after  judgment,  and  it  is  for  the  court  to  say  whether 
the  estate  is  so  far  administered  as  to  enable  it  to  ascertain 
whether  there  will  be  ap|)licable  assets  sufficient  to  pay  all  the 
debts  in  full,  or  if  not  to  i)ay  them  in  full,  then  what  is  the  judg- 
ment creditor's  just  proportion  of  the  residuum.  The  former 
statute  required  that,  in  all  cases,  an  accounting  should  be  first 
had,  before  leave  would  be  granted  to  issue  an  execution ;  but  this 
rule  was  held  not  to  contemplate  a  settled  or  liquidated  account, 
but  only  such  an  accounting  of  the  condition  of  the  assets,  as 
would  enable  the  court  to  determine  whether  there  was  property 
applicable  to  the  satisfaction  of  the  judgment ;^^  and  this  is  the 
present  rule.^^  Where  an  appeal  from  the  judgment  is  pending, 
on  which  a  stay  of  execution  is  granted,  the  surrogate  will  refuse 
leave  to  issue  execution  on  the  judgment,  until  the  result  of  the 
appeal  is  announced.^'*  At  least  six  days'  notice  of  the  application 
for  the  order  must  be  personally  served  upon  the  executor  or 
administrator,  unless  it  appears  that  service  cannot  be  so  made 
with  due  diligence;  in  which  case,  notice  must  be  given  to  such 
persons,  and  in  such  manner,  as  the  surrogate  directs,  by  an  order 
to  show  cause  why  the  application  should  not  be  granted. ''^^'  The 
order  made  upon  the  application  is  appealable,  and  the  adjudica- 
tion in  rcs]iect  to  the  sufficiency  of  assets  is  now  reviewable."'''' 

r>ti  Matter     of    Thompson.    41     Barb.  loT;    Molcher  v.   Fisk.   id.   2-2 :    :Nrattor 

237.  of    Lazelle,    10    :\Iiso.    .51."):    40    X.    V. 

51  Matter  of  Jansen.  1  Connolv,  .362;  Supp.  343;  Matter  of  Hesdra.  23  iil. 
Matter  of  MeCullough,  18  Misc.  721;  842;  Matter  of  Steinan.  23  App.  Div. 
43  N.  Y.  Supp.  908.  See  Co.  Civ.  550;  48  X.  Y.  .Supp.  886.  See  post, 
Proc.  §   1814.  §  088. 

52  Mitchell  V.  Mount.  31    N.  Y.  356.  54  Keyser  v.  Kelly.  4  Redf.   157. 
The  ajiplication   will   be  denied  where  55  Co.  Civ.  Proc,  §   1820. 

the  amount  of  assets  does  not  appear        50  Co.   Civ.   Proc,   §   2552;    Mitchell 

(Matter    of    Doufrhorty.    15    St.    Rep.  v.  Mount.  31   N.  Y.  350.      And  see  St. 

743)  ;    or  where   the  assets   have   been  John    v.   Yoorhies.     10    Abb.    Pr.    53. 

accounted  for  and  distributed.     (]\Iat-  The  former   statute  provided   that  the 

ter  of  Hathaway,  24  N.  Y.  Supp.  408.)  order  frrantinp  leave  to   issue   an   exe- 

53  Co.  Civ.  Proc,  S  2723;  llauselt  v.  cution  was  not  aiipcalablc,  e.\cept  oa 
Gano,   1    Deni.   30;    Matter  of   Kelscv,  giving  a  bond,  etc, 

4  L.  Bui.  50;  Keyser  v.  Kelly,  4  Redf. 


§§  682,  683.     Administration  of  Estate,  Etc.  566 

§  682.  Judgments  for  legacies  and  distributive  shares. —  Where 
the  jiidginent  is  for  a  legacy  or  distributive  share,  the  surrogate, 
before  granting  an  order,  permitting  an  execution  to  be  issued, 
may,  ''  and,  in  a  proper  case,  must,  require  the  applicant  to  file, 
in  his  office,  an  undertaking  to  the  defendant,  in  such  a  sum, 
and  with  such  sureties,  as  the  surrogate  directs,  to  the  effect  that 
if,  after  collection  of  any  sum  of  money  by  virtue  of  the  execu- 
tion, the  remaining  assets  are  not  sufficient  to  pay  all  sums,  for 
which  the  defendant  is  chargeable,  for  expenses,  claims  entitled 
to  priority  as  against  the  applicant,  and  the  other  legacies  or 
distributive  shares,  of  the  class  to  which  the  applicant's  claim 
belongs,  the  plaintiff  will  refund  to  the  defendant  the  sum  so 
collected,  or  such  ratable  part  thereof,  with  the  other  legatees 
or  representatives  of  the  same  class,  as  is  necessary  to  make  up 
the  deficiency."  ^^ 

§  683.  Judgments  against  the  decedent. — A  different  rule  pre- 
vails with  regard  to  the  issuing  of  executions  on  judgments  ob- 
tained against  the  decedent  in  his  lifetime,  or  after  his  death,  if 
entered  on  a  verdict  rendered  before  his  death.^^  It  is  provided, 
generally,^^  chat  no  execution  to  collect  a  sum  of  money  can  be 
issued  against  the  property  of  a  judgment  debtor,  who  has  died 
since  the  entry  of  the  judgment,  except  under  an  order  of  the 
court  from  which  the  execution  is  to  be  issued,  and  upon  the 
decree  of  the  Surrogate's  Court  which  granted  the  letters  upon 
the  judgment  debtor's  estate.*'^  **After  the  expiration  of  one 
year  from  the  death  of  a  party,  against  whom  a  final  judgment 
for  a  sum  of  money,  or  directing  the  payment  of  a  sum  of  money, 
is  rendered,  the  judgment  may  be  enforced  by  execution  against 
any  property  on  which  it  is  a  lien  with  like  effect  as  if  the  judg- 
ment debtor  w'as  still  living."  ^^ 


57  Co.  Civ.  Proc,  §   1827.  statute   (L.   1850,  c.  295)   on  this  sub- 

58  The  former  rule  (L.  1830,  c.  320,  ject,  and  incorporates  the  rulings  of 
§  23)  that,  to  entitle  the  judgment  the  court  in  Marine  Bank  v.  Van 
creditor  to  leave  to  issue  an  execution.  Brunt,  49  N.  Y.  161;  approving  Al- 
the  judgment  must  have  been  had  den  v.  Clark,  11  How.  Pr.  209,  and 
"  after  a  trial  at  law  upon  the  merits,''  Frink  v.  Morrison,  13  Abb.  Pr.  80, 
is  abrogated.  See,  however.  Smith  v.  and  disapproving  Wilgus  v.  Bloodgood, 
Howell  (2  Redf.  328),  and  Schmitz  V.  33  How.  Pr.  289,  and  Flanagan  v. 
Langhaar  (88  N.  Y.  503),  giving  a  Tinen,  5  Barb.  587.  It  was  set- 
history  of  the  legislation  on  the  sub-  tied,  by  the  Court  of  Appeals,  that 
ject  prior  to  the  Revised  Statutes,  and  the  Act  of  1850  (supra)  did  not  super- 
holding  that  the  pro^^sjons  applied  sede  the  provisions  of  the  Code,  regu- 
only  where  the  executor  disputed  the  lating  the  procedure  in  the  court  in 
debt,  and  subjected  the  creditor  to  lit-  which  a  judgment  is  recovered,  for 
igation.  enforcing  the  same  after  the  death  of 

59  Co.  Civ.  Proc,  §   1379.  the  debtor.      (Wallace  v.   Swinton,  64 

60  Co.  Civ.  Proc,  §  1380.      This  sec-  X.  Y.    195.) 

tion     entirely    remodels     the     former       6i  Co.  Civ.  Proc,  §   1380. 


"507  Admixistkation  of  Estate,  Etc.     §§  684-686. 

,:<  684.  Leave  to  issue  execution. —  '-An  execution  shall  not  be 
issued,  unless  an  order,  granting  leave  to  issue  it,  is  procured 
from  the  court  from  which  the  execution  is  to  be  issued,  and  a 
<lecree,  to  the  same  effect,  is  procured  from  a  Surrogate's  Court 
of  this  State,  which  has  duly  granted  letters  testamentary  or 
letters  of  administration  upon  the  estate  of  the  deceased  judg- 
jiient  debtor."  ^'~ 

§  685.  Continuance  of  lien  of  judgment.^ —  Where  the  lien  of  the 
judgment  was  created  as  prescribed  in  section  1251  (by  docketing 
in  county  clerk's  office),  ''neither  the  order  nor  the  decree  can 
1»e  made  until  the  expiration  of  three  years  after  letters  testa- 
mentary or  letters  of  administration  have  been  duly  granted  upon 
the  estate  of  the  decedent ;  and  for  that  purpose  such  a  lien,  exist- 
ing at  the  decedent's  death,  continues  for  three  years  and  six 
months  thereafter,  notwithstanding  the  previous  expiration  of  ten 
years  from  the  filing  of  the  judgment-roll.  But  -where  the  decedent 
died  intestate,  and  letters  of  administration  have  not  been  granted 
within  three  years  after  his  death,  by  the  Surrogate's  Court  of  the 
county  in  which  the  decedent  resided  at  the  time  of  his  death,  or 
if  the  decedent  resided  out  of  the  State  at  the  time  of  his  death,  and 
letters  testamentary  or  of  administration  have  not  been  granted 
within  the  same  time  by  the  Surrogate's  Court  of  the  county  in 
which  the  property,  on  which  the  judgnnent  is  a  lien,  is  situated, 
such  court  may  grant  the  decree,  where  it  appears  that  the  decedent 
did  not  leave  any  personal  property  within  the  State  upon  which  to 
administer.  In  such  case,  the  lie^i  of  the  judgment  existing  at  the 
■decedent's  death  continues  for  three  vears  and  six  months  as  afore- 
said." «^ 

§  686.  Execution  without  leave. —  The  foregoing  provisions  with 
respect  to  the  necessity  of  leave  granted,  before  execution  can  is- 
sue, are,  however,  expressly  declared  not  to  apply  ''  to  real  estate 
which  shall  have  been  conveyed,  or  hereafter  may  be  conveyed,  by 
the  deceased  judgment  debtor  during  his  lifetime,  if  such  con- 
veyance was  made  in  fraud  of  his  creditors,  or  any  of  them ;  and 
any  judgment  creditor  of  said  deceased,  against  whose  judgment 
said  conveyance  shall  have  been,  or  may  hereafter  be,  declared 

•>2  Co.  Civ.  Proc,  §   1.380:  Matter  of  in<;s   may.    novpitbeless.   be   instituted 

Phelps,   C}   Misc.   .S!)7 :    "ifJ  N.   Y.   Supp.  for   the   sale    of   the   real    property    to 

774.      It  is  immaterial  to  which  court  pay  debts  during  the  three  years,  after 

application  is  first  made.     (Atlas,  etc.,  grant  of  letters.      (lb.)      See    Matter 

Co.   V.    Smith.    ,52    App.    Div.    109;    64  of    Gates,    44    St.    Rep.    104;    22    Civ. 

N.  Y.  Supp.   1044.)  Proc.    Rep.    241:    Atlas,    etc.,    Co.    v. 

63  Co.  Civ.  Proc,  §  1380.      Proceed-  Smith. 


§§  G8T,  088.     Administration  of  Estate,  Etc.  568 

frandiilont  by  tlie  judgment  or  decree  of  any  court  of  competent 
jurisdiction,  nuiy  enforce  liis  said  judgment  against  such  real  prop- 
erty, with  like  effect  as  if  the  judgment  debtor  was  living,  and  it 
shall  not  be  necessary  to  obtain  leave  of  any  court  or  officer  to  is- 
sue such  execution ;  and  the  same  may  be  issued  at  any  time  to 
the  sheriff  of  the  county  where  such  property  is  or  may  be 
situated."  ^ 

§  687.  Leave,  how  obtained. —  It  will  be  seen  that  a  double  pro- 
ceeding is  necessary.  First,  the  application  to  the  court  from 
which  the  execution  is  to  be  issued  should  be  by  motion,  on  notice 
"  to  the  person  or  persons  whose  interest  in  the  property  will  be 
affected  by  a  sale  by  virtue  of  the  execution,  and  also  to  the  exec- 
utor or  administrator  of  the  judgment  debtor."  ^^  The  persons 
interested  in  the  property  are  necessarily  the  widow,  the  heirs  and 
next  of  kin,  terre-tenants,  and  devisees,  if  any.  It  may  frequently 
embarrass  the  moving  party  to  obtain  the  names  of  these  persons 
and  their  residences,  and,  if  any  of  them  are  nonresidents,  to  serve 
them  personally  with  notice  of  the  application.  The  statute  leaves 
the  manner  of  service  of  notice  of  the  application  to  be  prescribed 
by  the  General  Rules,  but  as  these  rules  fail  to  prescribe  any  man- 
ner of  service,  it  is  for  the  court  to  direct  how"  service  may  be 
made, —  e.  g.,  by  publication  —  in  an  order  to  show  cause.  It  is 
provided,  generally,  that  leave  to  issue  execution  shall  not  be 
granted  except  on  proof,  by  affidavit  or  otherwise,  satisfactory  to 
the  court,  that  the  judgment  remains  wholly  or  partially  unsatis- 
fied.®^ Second,  the  application  to  the  Surrogate's  Court  is  by 
regular  special  proceeding,  commenced  by  petition  and  citation 
served  in  the  usual  manner.^^ 

§  688.  Petition  for  leave. —  The  petition  should  set  forth  the 
facts  of  the  administration  of  the  estate  of  the  judgment  debtor, 
or  the  recovery  of  the  judgment,  the  granting  of  leave  by  the  court 
from  which  the  execution  is  to  be  issued,  etc.,  and  the  names  and 
residences,  so  far  as  known,  of  the  persons  whose  interests  in  the 
property  will  be  affected  by  a  sale  by  virtue  of  the  execution.     The 

fi4  Co.  Civ.  Proe.,  §  1380.      The  same  scribed,    and    not    against    any    other 

section  declares  that  a  description  of  property,  either  real  or  personal :  and 

the  property  against  which  the  execu-  all    provisions  of   law   relating   to   the 

tion    is    sought    to    be   enforced,    shall  sale  and  conveyance  of  real  estate  on 

have   indorsed   on   it   the  words  — "  is-  execution      and      redemption      thereof 

sued    under    section    thirteen    hundred  shall   apply  thereto."' 
and  eighty  of  the   Code  of  Civil   Pro-        65  Co.  Civ.  Proc,   §   1381.  subd.   1. 
oedure:'" '' whereupon  said  sheriflf  shall        G<J  Co.  Civ.  Proc,   §   1381,  subd.  1. 
enforce   the    execution    as   therein    di-        G7  Co.  Civ.  Proc,  §  1381,  subd-  2. 
rected    against    the    property    so    de- 


569  Admixistratkjx  of  Estate,  Etc.  §  689. 

prayer  should  be  for  a  citation  directed  to  siidi  interested  persons^ 
including  the  executor  or  administrator,  to  show  cause  why  leave 
to  issue  execution  should  not  be  granted.  The  surrogate  may  make 
such  a  decree  in  the  premises  as  justice  requires.  An  accounting 
Avill  not  necessarily  be  had  before  granting  the  leave  prayed  for. 
If  it  appears  by  the  petition  or  affidavits,  that  the  representative 
has  sufficient  assets  in  hand  applicable  to  the  payment  of  the  judg- 
uicnt,  or  a  stated  proportion  of  it,  and  this  is  not  controverted  by 
the  representative,  this  will  warrant  the  granting  of  the  order. 
But  unless  the  ability  of  the  executor  to  pay  the  judgment  from 
the  funds  of  the  estate  does  so  appear,  the  issuing  of  an  execution 
would  be  unjustifiable.  And  if  the  petition  omits  to  allege  the 
possession,  by  the  executor,  of  assets  applicable  to  the  judgment, 
and  lhe  executor  swears  tliat  there  is  nowhere  any  property  of 
decedent,  the  proceeding  should  be  dismissed.*'^  The  amount  of  the 
assets,  as  near  as  it  can  be  given,  should  be  stated.  It  is  only  in 
case  of  a  denial  of  the  allegations  of  the  petition,  that  an  order 
for  an  accounting,  or  a  reference  to  take  proof,  will  be  granted.^* 
The  surrogate  has  no  power  to  determine,  on  an  application  of  this 
kind,  whcTlur  tlie  judgment  creditor  is  indebted  to  the  estate  in 
an  amount  wliich  should  be  offset  against  the  amount  of  the  judg- 
ment,"'^ nor  whether  the  judgment  was  fraudulently  obtained  or 
not.  The  court  in  which  the  jutlgment  was  obtained  is  the  proper 
tril)uiial  to  (leterniine  the  validity  of  its  own  judgment.'^ 

§  689.  Compelling  payment  by  surrogate's  order. —  The  authoritv 
vested  in  the  surrogate  to  decree  the  payment  of  a  debt,  or  a  propor- 
tional part  thereof,  in  advance  of  the  final  accounting,  is  to  be 
exercised  in  conformity  with,  not  in  hostility  to,  the  general  prin- 
ciples of  equity  among  creditors,  and  only  in  cases  where  the  con- 
templated payment  can  be  uuule  consistently  with. the  rights  of 
all  parties  interested  in  the  estate.'"  The  nature  of  the  debt, 
whether  equitable  or  legal,  is  not  nuiterial,  so  long  as  it  is  ''  a  claim 
or  demand  upon  which  a  judgment  for  a  sum  of  money,  or  direct- 

*58  Hauselt  v.  Gano,  1  Dem.  3«).     See        "2  Thompson  v.  Taylor.  72  X.  Y.  32. 

Matter  of  Thurber.   37   ^lifsc.    15.5:    74  An  executor  should  not  V)e  directed  to 

X.   Y.   Supp.  !)4{):    Matter  of  Gall.  40  pay  out  of  the  assets  the  aniount  of  a 

App.  Div.   114:   .57  N.  Y.  Supp.  835.  deficiency  judgment  recovered  against 

(i9Keyser  v.  Kelly.  4  Redf.  157.     See  the  estate,  where  another  mortgage  is 

Matter   of   Congregational,   etc.,    Soc.,  about   to   mature   and    it    is   quest ion- 

34  App.  Div.  387,  54  N.  Y.  Supp.  2U9,  able  whether  the  property  is  sulHcient 

and  S  081,  ante.  to  satisfy  such  mortgage.      (Matter  of 

70  Cleveland    v.    Whiton.    31     Barb.  Wiener. 'o    App.    Div.    G21 :    40    X.    Y. 

544.  Supp.  1027.) 

"1  Freeman  v.   Xelson,  4   Redf.   374. 
See  §  692,  post. 


^^§  G90-692.     Administration  of  Estate,  Etc.  570 

iiiii'  tlic  payinent  of  money,  could  be  rocoverod  in  an  action,"  '^ 
and  has  been  liquidated  or  is  undisputed. '^^  A  judgment  creditor 
niav  take  this  proceeding  instead  of  applying  for  leave  to  issue 
execution. 

§  690.  Application,  when  and  by  whom  made. —  At  any  time 
after  six  months  have  expired  since  the  grant  of  letters,  a  creditor 
may  apply  to  the  surrogate,  by  petition,  for  an  order  directing  the 
representative  to  pay  his  claim,  or  its  just  proportional  part."^^ 
The  word  ^'  creditor  "  as  here  used  means  a  person  to  whom  the 
decedent  was  indebted  in  his  lifetime,  or  such  person's  assignee.'*^ 
Consequently,  a  defendant  who  has  recovered  a  judgment  for 
costs  in  an  action  by  an  administrator  is  not  a  ''  creditor  "  en- 
titling him  to  such  an  order.'^  A  citation  must  issue  requiring 
the  representative  to  show  cause  why  such  an  order  should  not 
Tdc  granted.'^ 

§  691.  Dismissal  of  proceeding  on  the  answer. —  The  court  must, 
upon  the  hearing,  "  make  such  a  decree  in  the  premises  as  justice 
requires."  But  the  petition  must  be  dismissed,  "  where  the  execu- 
tor or  administrator  files  a  written  answer,  duly  verified,'^  setting 
forth  facts  which  show  that  it  is  doubtful  whether  the  petitioner's 
claim  is  valid  and  legal,  and  denying  its  validity  or  legality,  abso- 
lutely, or  upon  information  and  belief."  ^^ 

§  692.  Application  by  a  judgment  creditor. —  The  court  may  in- 
quire into  and  pass  upon  alleged  pa>^uents  made  to  apply  upon 

"3  Co.    Civ.    Proc.    §    2514,   subd.    .3.  word  "  creditor,"  it  was  held,  that  one 

See  Babcock  v.  Lillis,  4  Bradf.  218:  4  holding  a  claim  for  funeral  expenses 

Abb.  Pr.  272;  Thompson  v.  Taylor.  71  could  not  maintain  the  proceeding,  as 

N.  Y.  217.     But  an  agreement  for  the  he  was  neither  a  creditor  or  a  person 

settlement  of  a  disputed  claim,  which  interested   in   the   estate.      (Matter   of 

the  representative  refused  to  perform,  Flint,    15   Misc.   598;    38   N.  Y.   Supp. 

cannot  be  enforced  in  such  a  proceed-  188.) 

ing.       (Matter    of    Bronson.    69    App.  "7  Hall  v.  Dusenbury,  38  Hun,   125. 

Div.  487;   74  N.  Y.   Supp.   1052.)  See  Matter  of  .Jansen.'l  Connoly,  362: 

74  Matter  of  Walker.  70  App.  Div.  Matter  of  McCullough,  18  Misc.  721. 
263:  74  N.  Y.  Supp.  971;  Matter  of  78  Under  the  former  statute  (2  R. 
Stevenson,  77  Hun,  203;  28  N.  Y.  S.  110,  §  18) .  the  court  had  the  ])Ower 
Supp.  362.  to  direct  payment  of  the  claim  with- 

75  Co.  Civ.  Proc,  §  2722,  as  amended  out  citing  the  persons  interested  in 
1893    (former   §   2717).  the    estate.      (Campbell    v.    Bruen,    1 

7'i  Matter  of  Moderno,  63  Hun,  261;  Bradf.   224.)      See   St.   .John   v.   Voor- 

28  Abb.  N.  C.  57.      One  who  acquired  hies,  19  Abb.  Pr.  53. 

the  claim  by  subrogation  merely,  from  7'j  The     want     of    a     verification     is 

having     voluntarily    paid      decedent's  waived   unless      objection   is   made   by 

debts,   although    there   was   no   formal  the  claimant.      (Matter  of  Corbett,  90 

assignment,  is  a  creditor  and  may  in-  Hun,   182;   35  N.  Y.   Supp.  945.) 

.stitute     the     proceeding.       (lb.)       See  so  Co.  Civ.  Proc,  S  2722,  as  amended 

Matter  of  Solomon,  4  Redf.  509.    Prior  1893    (former    §    2718,   subd.    1).      See 

to  the  amendment,  in  1900,  of  Co.  Civ.  Matter  of  Stevenson,  77  Hun,  203;  28 

Proc.,    §    2514,    subd.    3,    defining   the  X.  Y.  Supp.  362. 


Admixistuatiox  ok  Estat?:,  Etc. 


§  692. 


the  judgniient,  and  (Ictenniiic  the  aiii<niiit  due  thereon,  and  may 
iilso  determine  who  is  the  owner  of  the  judgment  and  entitled 
to  the  money ;  hut  he  has  no  jurisdiction  to  determine  whether 
there  has  been  an  accord  and  satisfaction,  or  whether  the  estate  is 
t-ntitled,  in  equity,  to  a  release  or  discharge,  either  in  whole  or  in 
part,  from  the  judgment. ^^  Where,  therefore,  a  judgment  against 
a  decedent  is  disputed  or  rejected  Ijy  the  representative  on  its 
presentation  for  payment,  it  is  not  necessary  for  the  judgment 
<?reditor,  as  it  is  for  creditors  whose  claims  are  not  in  jutlgiuent, 
to  sue  over  again. ^^  The  judgment  is,  prima  facie,  a  valid  subsist- 
ing claim  against  the  estate,  and  the  .surrngatc  cannut  try  the 
■question  of  the  existence  of  the  judgment,  or  the  assertion,  by  the 
representative,  of  a  set-off  against  it,  which  would  amount  to  a 
suit  in  equity  for  the  set-off.*'"*  By  this  is  not  meant  that  the  sur- 
rogate may  not  require  competent  proof  of  the  fact  of  the  judg- 
ment. A  transcript  of  the  judgment  is  no  legal  evidence  of  its  ex- 
istence;  the  only  proper  proof  is  the  judgment-roll  itself,  and  this 
must  show  the  jurisdiction  of  the  court  which  granted  it.  Unless 
it  contains  proof  of  service  of  the  summons,  or  of  appearance  by 
the  defendant,  there  is  no  proof  of  jurisdiction  and  no   proper 


SiMcXultv  v.  Hurd.  72  X.  Y.  518; 
Matter  of  Miller,  70  Hun,  61;  23 
N.  Y.  Supp.  1104.  An  answer  to  a 
petition  to  compel  pajniient  of  a  judg- 
ment must,  in  order  to  oust  the  surro- 
gate of  jurisdiction,  set  forth  facts 
<*onstitutinn;  a  defense  to,  or  avoidance 
of,  the  judgment.  ( Salomon  v.  Hei- 
chel,  4  Dem.  17(1).  It  seems,  that  the 
remedy  of  the  executors  or  adminis- 
trators to  prevent  the  enforcement  of 
the  judgment,  and  to  obtain  relief, 
where  the  surrogate  has  no  jurisdic- 
tion to  grant  it,  is  by  resort  to  the 
proper  judicial  tribunals.  This  may 
be  had  either  before  or  after  a  decree 
for  the  payment  of  the  judgment,  and 
a  restraining  process  obtained  either 
to  prevent  the  decree  or  its  enforce- 
ment. (McXulty  V.  Hurd,  supra.) 
"'  We  are  of  opinion."  said  Church.  C. 
J.,  in  that  case,  "  that  the  surrogate 
may  inquire  into,  and  pass  upon,  pay- 
ments made  to  apjily  upon  such  judg- 
ments, and  determine  the  amount  due 
thereon.  He  may  also  determine  who 
is  the  owner  of  the  judgment  and  en- 
titled to  the  money.  This  ])ower  is 
necessary  to  enable  the  surrogate  to 
make  the  decree,  and  is  fairly  infer- 
able from  the  language  of  section  sev- 


enty-one. Beyond  this,  the  surrogate 
has  no  jurisdiction  to  try  and  deter- 
mine questions  in  respect  to  the  va- 
lidity of  judgment.  There  may  be 
grounds  for  setting  aside  judgments, 
as  if  obtained  by  fraud,  or  where  there 
has  been  an  accord  and  satisfaction; 
and  there  may  be  other  grounds  for 
relief,  such  as  is  a  sct-oti"  and  tlie  like,, 
or  the  estate  of  the  decea-ed  may  be 
entitled  in  equity  to  a  release  or  dis- 
charge, either  in  whole  or  in  part, 
from  the  judgment,  and,  as  to  all 
these,  I  can  tind  no  warrant  in  the 
statute  for  the  exercise  of  jurisdiction 
by  the  surrogate  to  adjudicate  them. 
To  atlirm  such  a  power  would  open  the 
door  to  a  wide  field  of  jurisdiction  in 
law  and  ecjuity  by  Surrogates'  Courts, 
not  contemplated  by  the  statute,  in- 
consistent with  the  limitinl  powers 
conferred,  and,  in  some  cases,  sub- 
versive of  the  right  of  trial  by  jury." 

**-  McXulty  v.  Hurd,  supra.  See 
Forman  v.  Lawrence.  0  Sup.  Ct.  (T.  & 
C.)  (i40;  Matter  of  Broxrae,  35  Misc. 
302. 

»3  Per  Folger,  J.,  Stilwell  v.  Car- 
penter, 62  X.  Y.  639.  See  the  same 
case  on  a  former  appeal,  59  X.  Y.  414. 


§  003.  Admixistkation  of  Estate,  Etc.  572 

evidence  of  the  existence  of  the  jiulginent.'*"*  The  surrogate  will 
not  direct  payment  of  a  judgment  pending  an  appeal  from  it  by 
the  representatives.^^ 

g  693.  Same;  claims  not  in  judgment. — Where,  in  such  case,  the- 
representative  sets  forth  a  defense  not  palpably  unfounded,  or  a 
counterclaim  or  an  equitable  set-off,**"  the  Surrogate's  Court  has 
no  jurisdiction  to  determine  them  f~  if  the  validity,  or  the  amount,, 
.of  the  claim  is  put  in  issue  by  the  sworn  answer  of  the  represen- 
tative, the  court  may  look  into  the  matter  with  a  view  of  ascertain- 
ing whether  there  is  a  reasonable  doubt  of  the  validity  of  the  claim, 
but  no  farther.  Where  the  evidence  is  suspicious,  the  petition 
will  be  dismissed.^*  Although  the  representative  may  have,  at 
one  time,  admitted  the  claim,  his  present  contest  deprives  the 
court  of  jurisdiction  to  determine  it.^^  But  where  he  has  allowed 
as  a  claim  against  the  estate,  the  amount  of  a  note  made  by  tes- 
tator upon  which  certain  payments  have  been  indorsed,  such  allow- 
ance implies  that  the  note  has  not  been  paid,  and  that,  by  the  pay- 
ments as  indorsed  thereon,  it  has  been  kept  in  life  as  a  claim  against 
the  maker.^^  If  the  representative  merely  disputes  the  fact  of  the 
allowance  of  the  claim,  it  is  not  a  dispute  about  its  validity  and 
legality  which  requires  a  petition  for  its  payment  to  be  dismissed, 
but  the  surrogate  may  decide  whether  the  claim  has  been  rejected 
or  allowed,  and  if  he  decides  it  has  been  allowed,  he  may  properly 
direct  its  pa^inent.^^  The  answer  ought  to  be  in  writing,®^  and 
must  set  forth  facts  showing  that  the  validitv  or  learalitv  of  the- 


84  Archer  v.  Fiirniss,  4  Redf.  88.  .518;  Matter  of  Lyman.  3.3  St.  Rep. 
A  jiidpment-roll.  from  which  proof  of  8.51;    11   X.  Y.   Siipp.  530. 

the  jurisdictional  facts  has  been  omit-  88  Flagg    v.    Ruden.    1    Bradf.    192; 

ted.  cannot  be  cured  by  affidavits  read  Campbell  v.   Bruen.  id.  224. 

in  the  Surrogate's  Court.      (lb.)      The  ^ORuthven  v.  Patten.   1   Robt.  416; 

judgment   is   binding   upon   the   surro-  2   Abb.   Pr.    (N.   S.)    121;   Jennings  v. 

gate,   as   to   all    matters   which   might  Phelps.     1     Bradf.    485;     Mahoney    v. 

have  been  pleaded   as  defenses  to  the  Gunter.    10   Abb.   Pr.    431.       Compare 

action.      He  cannot  try  the  validity  of  Matter  of  Miles,   170  N.  Y.   74.      But 

the    judgment.       (Keyser    a-.    Kelly,    4  the    denial    of    the   application    is    not 

Redf.  157.)      See  Matter  of  Clarke.  57  conclusive  against  the  justness  of  the 

App.  Div.  430;   08  N.  Y.  Supp.  243.  claim,  and  hence  does  not  prevent  the 

85  Curtis  V.   Stilwell,   32    Barb.   354.  creditor    from    maintaining   an    action 

86  Hall  V.  Dusenbury.  4  Dem.  181:  upon  it.  ( Fitzpatrick  v.  Bradv,  6 
affd.,  38  Hun.  125.  See  Ashlev  v.  Hill,  581.)  See  Butler  v.  Hempstead, 
Lamb.   17   St.  Rep.  889.                    "  IS    Wend.    666;    Magee   v.    Vedder,    0 

87  Tucker  v.  Tucker,  4  Keyes,   136;  Barb.  352. 

Cooper  v.   Felter,   6   Lans.   485;    Levi-  9"  Matter  of  Kellogg,  104  X.  Y.  648. 

ne.ss  V.  Cassebeer,  3  Redf.  491:  Matter  s»i  Matter   of   Miles.    170   X.   Y.    75^ 

of   Leslie,   id.   280 ;    Bevan   v.    Cooper,  thus  overruling  Matter  of  Cowdrey,  5- 

72  X.  Y.   317:    Shakespeare  v.   Mark-  Dem.  453. 

ham,   id.    400;    Stilwell   v.    Carpenter,  -'S  Matter  of  McKiernan,  4  Civ.  Proc. 

59  id.  414;   McXulty  v.  Hurd,   72  id.  Rep.  218.      But  see  Lambert  v.  Craft, 

98  X.  Y.  342. 


573  Ai).\iiMsri;A  rio.N   oi-   Kstatk,   Ktc.  §  G94. 

chiiiii  i-  (luiilitlul  and  alsi;  a  ilciiial  of  its  validity  (jr  legality;  both 
cuiiditiuns  iuii<t  concur."'  It  i.s  not  cnoujili  for  the  answer  merely 
to  deny  the  validity  (if  the  claim,  witlnnit  stating  affirmatively 
the  facts  const iiuiing  a  defense,  or  justifying  a  doul)t  of  its  legal- 
ity. It  is  enough  to  warrant  a  dismissal  of  the  moti(m  that  the 
answer  avers  that  the  demand  is  excessive  in  amount, —  the  issue 
so  raised  lining  one  which  the  Surrogate's  Court  has  no  authority 
to  determine."* 

§  694.  Dismissal  for  want  of  assets. —  Tlie  court  must  likewise 
dismiss  the  proceeding  "  where  it  is  not  proved,  to  the  satisfaction 
of  the  surrogate,  that  there  is  money  or  other  personal  property 
of  the  estate,  applicable  to  the  pa_^^nent  or  satisfaction  of  the 
petitioner's  claim,  and  which  may  be  so  applied,  without  injuri- 
ously affecting  the  rights  of  others,  entitled  to  priority  or  equality 
of  payment  or  satisfaction."  "'^  The  burden  is  on  the  petitioner, 
not  only  to  show  the  validity  of  the  claim,  Ijut  also  to  prove  ''  to 
the  satisfaction  of  the  surrogate  "  that  there  is  property  of  the 
estate  applicable  to  its  payment.^^  A  petition  which  alleged  the 
existence  of  a  fund,  but  stated  that  the  executor  claimed  the  pend- 
ency of  a  suit  respecting  it,  Was  held  not  to  contain  necessary  facts 
and  was.dismissed.^^  Where  the  estate  is  insolvent,  tli(>  coui-t  will 
not  decree  the  payment  on  even  a  proportional  ])art  of  the  claim, 
without  a  settlement  of  the  representative's  account  first  had.'''' 
The  surrogate  may,  on  his  own  motion,  order  an  accounting,  but 
the  petition  in  iliis  proceeding  cannot  embody  a  prayer  for  an  inter- 


93  Lambert  v.  Craft,  9S  N.  Y.  342;  the   answer   set   forth   that   the   claim 

Matter    of    Miller,    70    Hun,    61;    2.3  had  been  the  subject  of  dispute,  that 

N.  Y.   Supp.   1104.     In  that  case,  the  the  items  thereof  had  been  demanded 

petition  set  forth  that  the  claim  had  so    that    it    could    be    specifically    re- 

"been    presented    to    the   executors    and  jected :    that   the   sale   had   been   made 

had    not    been    rejected    or    paid,    and  live    years    before    the    deinard.    and 

that   the   statutory   time   had   elapsed,  upon    information    and    belief    denied 

The   executors   orally  denied   the   alle-  the   leuality  of   tlie  claim. —  Heid,   tlie 

j,'ations.      Proof     was     given     of     pre-  i)etition.was  properly  dismissed.      See 

sentatioh   of  the  claim   to  one  of  the  also    Matter    of    Whitehead,    .38    App. 

<'xecutors,    that    it   had    not    been    re-  Div.  319:  5G  N.  Y.  Supp.  98!):  Matter 

jected,    and    that    the    personal    estate  of  Stevenson,  77   Hun.  203:   28   X.   Y. 

was  sufficient  to  pay  it.      The  execu-  Supj).    3(i2. 

tors  did  not  ask  for  an  accountinii.  or  ih  Koch  v.   Alker,  3  Dem.   148. 

show    the    existence    of    other    debts.  i*^  Co.  Civ.  Proc.  §  2722.  as  amended 

Held,  that  the  suntiprate  projicrly  de-  1893    (former    §    2718,   subd.   2). 

<-reed  payment.     It  was  also  held."  that  i«">  Lynch     v.     Patchen.    3    Dem.    58. 

the    petition    need    not    set    forth    the  The    inventory    alone    is    insulficient. 

facts    which    make    out    the    del)t.      In  (Matter  of  Corbett.  90   Hun,    182;    .3."> 

Matter   of    Fargo    (44    St.    Rep.    812;  N.  Y.  Supp.  94.').) 

18  N.   Y.   Supp.   070).  the   claim   was  9T  Baylis  v.  Swartwout,  4  Redf.  39;"). 

for  damages  arising  from  the  alleged  See  Matter  of  Bentley.  10  Abb.  Pr.  89. 

fraudulent   sale   of   a   printing   house:  '.'S  Mt-Keowu  v.  Fagan,  4  Redf.  320. 


§§  695,  69G,     Admixistkation  ok  Estate,  Etc.  574 

nic'diate  accounting;  nor  will  the  i'c})rcscntative  be  permitted,  on 
the  return  of  the  citation,  to  Hie  a  petition  for  a  settlement  of  his 
aeconnts.'*^  The  two  i:)roceedings  are  essentially  distinct,  and  can- 
not be  consolidated.^  By  analogy  to  the  Statute  of  Limitations^ 
the  proceeding  should  be  instituted  within  the  same  time  in  which 
suits  of  the  same  character  are  required  to  be  commenced  in  a  court  _ 
of  law  or  of  equity.^ 

§695.  Effect  of  decree. —  AVhere  the  petition  is  dismissed,  on 
either  of  the  grounds  stated,  the  decree  must  dismiss  it  "  without 
prejudice  to  an  action  or  an  accounting,  in  behalf  of  the  peti- 
tioner." ^  A  decree,  directing  payment  to  a  creditor  of,  or  a  per- 
son interested  in,  the  estate  or  fund,  or  an  order  permitting  a 
judgment  creditor  to  issue  an  execution  against  an  executor  or 
administrator,  is  declared  to  be,  except  upon  an  appeal  therefrom,, 
conclusive  evidence  that  there  are  sufficient  assets  in  the  represen- 
tative's hands  to  satisfy  the  sum  which  the  decree  directs  him  to 
pay,  or  for  which  the  order  permits  the  execution  to  issue. '^  It 
has  been  questioned,  how^ever,  whether  an  executor  or  administra- 
tor, acting  in  good  faith,  will  be  protected  in  paying  a  debt  in  full, 
pursuant  to  the  surrogate's  decree,  where  it  turns  out  that,  by 
reason  of  losses  or  other  causes,  the  remaining  assets  are  insuffi- 
cient to  fully  pay  the  other  creditors.  It  seems  that  he  will  be 
protected.^  Such  a  decree,  however,  is  provisional  to  this  extent, 
that  if  it  remains  unexecuted  when  the  general  decree  for  the  dis- 
tribution of  the  estate  among  th6  creditors  is  made,  it  must,  in 
case  of  insufficiency  of  assets  to  pay  the  debts  in  full,  give  way  ta 
a  paramount  authority  providing  for  equality  between  the  credit- 
ors ;  and  the  creditor  obtaining  the  decree  cannot  claim  a  prefer- 
ence under  it.  It  is  not  necessary  in  such  case  to  procure  the- 
decree  to  be  formally  vacated.^ 

§  696.  Docketing  and  enforcing  decree  for  payment. —  "Where  the 
court  directs  the  payment  of  the  petitioner's  claim,  the  party  in 
whose  favor  the  decree  is  made  may  file  a  duly  attested  transcript 
in  the  office  of  the  county  clerk,  who  is  thereupon  required  to 
enter  it  in  his  docket-book  of  judgments.  The  transcript  should 
state  all  the  particulars  with  respect  to  the  decree  which  are  re- 

93  Bavlis  V.  Swartwout,  4  Redf.  39.5.  3  Co.  Civ.  Proc,  §  2722,  as  amended 

1  Bavlis  V.  Swartwout,  4  Redf.  395.  1893. 

2McCartee   v.    Camel.    1    Barb.    Ch.  4  Co.   Civ.  Proc,   -?   2.552.     See  Mat- 

455:    House    v.    Agate.    3    Redf.    307;  ter  of  Clark.  2  Abb.  X.  C.  208. 

:\ratter   of  Denuv.   28   St.   Rep.   42;    8  5  Thompson  v.  Taylor,  72  X.  Y.  32. 

X.  Y.  Supp.  229.  6  Thompson  v.  Taylor.  72  X.  Y.  32. 


575  Administration  of  Estate,   Etc.  §  GOT. 

quired  to  be  entered  in  the  clerk's  docket-book  in  the  case  of  judg- 
ments of  the  Supreme  Court.  The  docketing  of  such  a  decree 
has  the  same  force  and  effect  as  a  judgment  of  the  Supreme  Court ;. 
it  may  be  assigned  or  satisfied,  and  the  lien  thereof  may  be  sus- 
pended or  discharged  in  the  same  manner  as  such  a  judgment.^ 
The  decree  may  be  enforced  by  execution,®  or  by  proceedings  as 
for  a  contem])t ;"  ^vlli(*ll  arc  fully  described  in  a  subsequent  cha}>- 
ter.^°  But  the  execution  creditor  cannot  institute  supplementary 
proceedings  for  the  sequestration  of  the  property  of  the  estate  tO' 
the  payment  of  the  judgment." 

ARTICLE  THIRD. 

tayment  of  transfer  tax. 

§  697.  History  of  the  statute. —  A  new  scheme  of  taxation,, 
known  as  the  collateral  inheritance  tax,  was  inaugurated  in  this 
State  by  the  act  of  June  10,  1885,  entitled  ''An  act  to  tax  gifts,, 
legacies  and  collateral  inheritances  in  certain  cases,"  ^~  which  was^ 
to  some  extent,  superseded  by  an  amendatory  act  passed  in  1887. ■'^ 
Both  these  acts,  with  those  amending  the  latter, ^^  were  repealed 
in  1892,  and  a  new  act  passed,  which,  while  rcadopting  the  gen- 
eral scheme  of  the  original  statute,  and  its  machinery  for  the 
assessment  and  collection  of  the  tax,  did  much  toward  correcting 
"  the  singularly  involved  and  obscure  phraseology  "  of  the  original 
enactments.  As  it  imposed  the  tax,  within  certain  limits,  upon 
direct,  as  well  as  collateral,  inheritances,  and  other  successions, 
the  act  was  entitled  "An  act  in  relation  to  taxable  transfers  of 
property."  ^^    In  1S96,  this  act  was  itself  repealed,  and  its  provi- 


7  Co.  Civ.  Proc,  §  255.3:  revising  L.  14  L.  ISSS.  c.  307,  and  c.  479:  L. 
1S37.   0.   4G0,    §§    G3,   G4 :    L.    1844,   c.  ISOl.  e.  215. 

104.  §  2.  15  L.   1892.  c.  399.     Tlio  Act  of  188.5 

8  Co.  Civ.  Proe.,  §  2554.  It  cannot  went  into  effect  on  June  30.  of  that 
be  enforced  hy  an  order  to  show  year,  and  did  not  apply  to  property 
cause.  ( Berrian's  Estate,  19  Daily  passin<x  under  the  will  of  one  who 
Ken;.  Xo.   2(i. )                                               "  died  after  its  passafre,  but  before  that 

9  Co.  Civ.   Proc,  §  2555.  date.      (Matter   of    Howe.    112    N.    Y. 

10  See  c.   XXI,  post.  100:     overrulinjr    Matter    of    Charda- 

11  Collins  V.  Beebe,  54  Hun.  318.  voyne.  5  Deni.  40(1.)  Its  provisions 
That  was  tlie  case  of  a  judf,nnent  re-  continued  in  force  until  tlie  Act  of 
covered  against  a  representative,  and  1887  went  into  effect  (Warriner  v. 
an  execution  is>u('d  hy  permission  of  People,  (i  Dem.  211).  that  is.  iuinie- 
the    Sun()<iatc"s   Court.  diatelv   on   the    covernor's    signinj,'   it. 

12  L.  18S5.  c.  483.  The  Act  of  1885  (Matter  of  Kenieys,  M\  Hun,  117:  0 
has  been  declared  not  to  be  unconsti-  X.  Y.  Supp.  182.)  The  effect  of  the 
tntional.  (  Matter  of  McPherson,  104  repealinfi  clause  in  the  Act  of  1892, 
N.  Y.  30(i.)  is  declared  by  the  statute   itself.     So 

13  L.   1887,  c.   713.  far  as  its  provisions  are  substantially 


§  698.  Administration  of  Estate,  Etc.  57G 

sions  incorporated  into  the  General  Tax  Law,  which,  with  certain 
amendments  since  made,  is  the  only  existing  statute  embracing  this 
subject  ;^*'  and  while  many  of  the  decisions,  to  be  referred  to,  were 
made  under  the  former  statute,  their  applicability  to  the  present 
-act  will  be  easily  discerned. 

§  698.  Taxable  transfers. —  With  certain  exceptions  and  limita- 
tions hereafter  mentioned,  a  tax  at  the  rate  of  five  per  cent,  upon 
its  clear  market  value  is  imposed  on  any  real  or  personal  property, 
of  the  value  of  five  hundred  dollars  or  over,  or  of  any  interest 
therein  or  income  therefrom,  in  trust  or  otherwise,  to  persons  or 
corporations,  not  exempt  by  law  from  taxation  on  real  or  personal 
property,  in  the  following  cases: 

"  1.  When  the  transfer  is  by  will  or  by  the  intestate  laws  of 
this  State  from  any  person  dying  seized  or  possessed  of  the  prop- 
erty while  a  resident  of  the  State. 

"  2.  When  the  transfer  is  by  will  or  intestate  law,  of  property 
-within  the  State,  and  the  decedent  was  a  nonresident  of  the  State 
at  the  time  of  his  death. 

"  3.  When  the  transfer  is  of  property  made  by  a  resident  or 
l^y  a  nonresident,  Avhen  such  nonresident's  property  is  within  this 
State,  by  deed,  grant,  bargain,  sale,  or  gift  made  in  contempla- 
tion of  the  death  of  the  grantor,  vendor,  or  donor  ;^^  or  intended 

the  same  as  those  of  laws  existing  on  pre-^ent  law  went  into  effect,  are  reg- 

April    30,    1892.   they   "  shall   be   con-  nlated  by  that  law.  though  the  law  in 

strued  as  a  continuation  of  such  laws,  existence  at  the  decedent's  death  nuist 

modified  or  amended  according  to  the  govern,  as  to   rights  accrued  and  lia- 

language    employed    in    this    act,    and  bilities  incurred.      (Matter  of  Sloane, 

Tiot  as  new  enactments,"  and  "refer-  154  N.  Y.   109:   Matter  of  Sterling.  9 

«nces,  in  laws  not  repealed,  to  provi-  Misc.   224.)      The   right   of   the   State 

sions    of   law    incorporated    into    this  to  the  tax  accrues  at  the  date  of  the 

act.    and    not    repealed,    shall    be    eon-  death  of  the  decedent,  and  not  at  that 

strued   as   applying   to  the   provisions  of  its  actual  imposition,  and  hence  is 

so  incorporated."      Such  also  was  the  not    affected    by    intervening    legisla- 

eflFect  of  the  Act  of  18S7  upon  that  of  tion.      (Matter  of  Prime.  04  Hun.  50: 

1885.    as   well    as    of   the   several    acts-  affd..   130   X.   Y.    347.)      See   ^Sloore  v. 

amendatory   of    that    of    1887,    except  Mausert,    49    id.    332:    People   v.    Su- 

that  new  or  changed   provisions  were  pervisors,  07  id.  109 ;  Matter  of  John- 

to  be  understood   as   having  been  en-  son,     47     St.     Rep.     391:     Matter     of 

acted  at   the   time  the  later   act  took  Davis.  149  X.  Y.  539. 

effect.      (Matter  of  Miller.   110  X.  Y.  16  L.    1896.    c.    908.    §    220    et    seq. ; 

223:  Matter  of  Arnett.  49  Hun,  599.)  L.    1897,  c.   284;    L.    1901.   c.    173. 

Compare    Matter    of    Kemeys.    supra.  i"  The   words   "  in   contemplation   of 

It  was  further  provided  by  the  Act  of  death  '"   refer   to   a   gift   causa    mortis. 

1892,  that   all   rights  acquired  or   lia-  (Matter  of  Cornell,  06  App.  Div.  162; 

bilities    incurred    under    any    of    the  73  X.  Y.  Supp.  32:  170  X.  Y.  423.)     A 

acts   thereby   repealed,    should    not   be  gift  cajfsa  mor/i's,  delivered  to  a  person 

impaired  or   afl'ected,   but   that   provi-  other   than  the  beneficiary,   is   subject 

.sion    was    not    incorporated    into    the  to  the  tax.      (Matter  of  Crosby,  4()  St. 

Act   of    1896,   and   hence    is   no   longer  Rep.  442.)      Such  a  gift,  made  while  the 

in    force.      It    may    be    said,    however.  Act  of   1887   was  in  force,  is  taxable, 

that   proceedings   institute.d   after   the  (Matter    of    Edwards,    85    Hun.    436; 


577  AoMiNisTii-VTiox  OF  EsTATK,  Etc.     §§  699,  699a. 

to  take  effect,  in  possession  or  ciijovment,  at  or  after  .-iioh  death  " 
(§  :>2*n. 

§  699.  '*  Estate  "  and  "  property,"  defined. —  The  words  ''  estate  " 
and  '•  })roperty,"  as  used  in  the  statute,  mean  the  same  thing,  to 
wit :  "  the  property  or  interest  therein  of  the  testator,  intestate, 
grantor,  bargainor,  or.  vendor,  passing  or  transferred  to  those  not 
herein  specifically  exempted  from  the  provisions  of  this  article, 
and  not  as  the  property  or  interest  therein  passing  or  transferred 
to  the  individual  legatees,  devisees,  heirs,  next  of  kin,  grantees, 
donees,  or  vendees,  and  shall  include  all  property  or  interest 
therein,  whether  situated  within  or  without  this  State."  ^^  The 
definition  includes  an  estate,  income  or  interest  for  a  term  of  years, 
or  for  life,  or  determinable  upon  any  future  or  contingent  estate, 
or  a  remainder  or  reversion  or  other  expectancy,  real  or  per- 
sonal.'" 

§  699a.  Retroactive  effect  of  act. —  The  statute  declares  that 
^"  such  tax  shall  be  imposed  when  any  such  person  or  corporation 
becomes  beneficially  entitled,  in  possession  or  expectancy,  to  any 
property  or  the  income  thereof  by  any  such  transfer,  whether  made 
before  or  after  the  passage  of  this  act "  (§  220),^*^  and  that  ''  when- 
ever any  person  or  corporation  shall  exercise  a  power  of  appoint- 
ment derived  from  any  disposition  of  property  made  either  before 
or  after  the  passage  of  this  act,  such  appointment  when  made 
shall  be  deemed  a  transfer  taxable  under  the  provisions  of  this  act 
in  the  same  manner  as  though  the  property,  to  which  such  appoint- 

32  X.  Y.  Supp.  901.)  For  oa.ses  of  intercrit  of  tlie  beneficiary.  (Matter 
transfers  of  property  held  to  have  of  Sterling.  9  ^[isc.  224.) 
been  made  in  contemplation  of  death.  l'*  L.  lS9(i.  c.  90S,  §  230.  as  amended 
see  Matter  of  (Jreen.  153  X.  Y.  223;  by  L.  1901.  c.  173. 
Matter  of  Ogsbury,  7  App.  Div.  71;  2o  This  provision  was  doubtless  in- 
Matter  of  Bo.stwiek.  160  X.  Y.  489;  tended  to  meet  the  judicial  interpre- 
Malter  of  Cornell.  170  id.  423;  Mat-  tation  given  to  the  former  statutes, 
ter  of  ]5arlo\v,  30  Misc.  27 ;  Matter  that  estates  passing  prior  to  their 
of  Brandreth,  109  X.  Y.  437;  Mat-  passage,  though  subject  to  a  prior  es- 
ter of  Slierer,  36  Misc.  502;  Matter  tate  which  did  not  fall  in  until  after 
of  .Miller,  37  id.  449.  Contra,  !Mat-  the  statute  became  operative,  were 
ter  (if  Malilstedt,  67  App.  Div.  148:  not  subject  to  the  tax.  (Matter  of 
Matter  of  Bullard,  37  :\Iisc.  663:  Mat-  Cogswell.  4  Dem.  248;  Matter  of 
ter  of  Baker,  38  id.  151;  Matter  of  Brooks.  0  id.  I(i5;  Matter  of  Hen- 
Crarv.  30  id.  72;  Matter  of  Thorne,  dricks.  1  Connolv.  301.)  See  Matter 
44  App.  Div.  8;  162  X.  Y.  238;  Mat-  of  Travis,  19  Misc.  393;  44  X.  Y. 
ter  of  Masurv,  28  App.  Div.  580:  afi"d.,  Supp.  349:  .Matter  ci"  :Moore.  90  Hun. 
159  X'.  Y.  532:  Matter  of  Spaulding,  162:  35  X.  Y.  Supp.  782;  Talhuadixe 
49  App.  Div.  54:  afTd..  103  X.  Y.  007;  v.  Seaman,  147  X.  Y.  09.  In  the  last 
Matter  of  Edgerton,  35  App.  Div.  125;  case  it  was  said  that  the  clause 
add..  158  X.  Y.  671.  quoted  in  the  text  refers  only  to  gifts 
1^  L.  1896,  c.  908.  §  242.  as  amended  causa  mortis,  and  not  to  transfers  by 
by  L.  1898,  c.  88.  Under  the  Act  of  will  or  intestacy. 
1885,   the    word   "  estate "    meant   the 

37 


§§  TOO,  701.     AdmixistijuVtion  of  Estatk,  Etc.  57& 

iiK>nt  relates,  belonged  absolutely  to  the  donee  of  sncli  power  and 
had  been  bequeathed  or  devised  by  such  donee  by  will ;  and  when- 
ever any  person  or  corporation  possessing  such  a  power  of  appoint- 
ment so  derived  shall  omit  or  fail  to  exercise  the  same  within  the 
time  provided  therefor,  in  whole  or  in  part,  a  transfer  taxable 
under  the  provisions  of  this  act  shall  be  deemed  to  take  place  to 
the  extent  of  such  omission  or  failure,  in  the  same  manner  as 
though  the  persons  or  corporations  thereby  becoming  entitled  to 
the  possession  or  enjoyment  of  the  property,  to  which  such  power 
related,  had  succeeded  thereto  by  a  will  of  the  donee  of  the  power 
failing  to  exercise  such  power,  taking  effect  at  the  time  of  such 
omission  or  failure."  ^^ 

§  700.  Rule  of  construction. —  Where  the  question  is,  whether  a 
certain  subject  of  taxation  is  embraced  within  the  statute,  the  rule 
has  been  stated  to  be  that  the  statute  should  be  strictly  construed 
in  favor  of  the  citizen,  since  it  assumes  to  impose  a  special  burden 
upon  particular  property  and  persons,  and  is  not  a  general  tax  f~ 
but  this  rule  does  not  apply  to  a  case  where  a  particular  subject 
is  within  the  scope  of  the  statute,  and  exemption  from  taxation  is 
claimed  on  the  ground  that  the  Legislature  has  not  provided  proper 
machinery  for  accomplishing  the  legislative  purpose  in  the  par- 
ticular instance.  In  such  case,  a  liberal,  rather  than  a  strict,  con- 
struction should  be  applied,  and  if,  by  a  fair  and  reasonable  con- 
struction of  its  provisions,  the  purpose  of  the  statute  can  be  carried 
out,  that  interpretation  ought  to  be  given,  to  effect  the  legislative 
intent.-^ 

§  701.  Subject  of  the  tax. —  The  thing  taxed  is  the  transfer, 
that  is,  the  devolution  or  succession,  of  property,  and  not  the 
property   itself  f'^  it   is   a   tax   on   the  privilege   of  succeeding  to 


21  L.  1896,  c.  90S,  §  220,  as  amended  r.r.d  not  the  property  itself,  which   is 

by    L.    1897,    c.    284.       Prior    to    this  taxable.      (Matter  of  Howard.  5  Deni. 

amendment,    where    a    power    of    ap-  483 ;  Matter  of  Tuigg,  15  X.  Y.  Supp. 

pointment    was    not    exercised,    a    gift  o48 ;  flatter  of  Sherman,  153  N.  Y.  1; 

over   took   effect   under  the   will,   and  Matter  of  Whiting,  150  id.  27.)  Under 

was   not   taxable.      (Matter   of   Lang-  the  original  section    (L.   1892,  c.  399. 

don,  153  X.  Y.  6.)      See  §  723,  post.  §  22),  declaring  that  the  word  "  prop- 

"- ^Matter  of  Enston.  113  X.  Y.  174;  erty '"'    applied    to    that    "over    which 

Matter   of   Vassar,    127    id.    1;    37    St.  this    State    has    any    jurisdiction    for 

Rep.  239 :   Matter  of  Becker,  26  Misc.  the     purposes     of    taxation,"'     United 

633 :   57  X.  Y.  Supp.  940.  States  bonds,  themselves,  were  not  tax- 

23  Matter  of  Stewart,  131  X.  Y.  274.  able.    But  by  L.  1898,  c.  88.  the  clause 

24  Matter  of  McPherson,  104  X.  Y.  quoted  was  stricken  out,  so  that  now 
306.  Hence,  a  legacy  payable  out  of  it  would  seem  that  such  bonds  are 
the  proceeds  of  United  States  govern-  subject  to  the  tax.  (Matter  of  Plum- 
ment  bonds  is  subject  to  the  tax.  be-  mer,  30  Misc.  19 :  62  X.  Y.  Supp. 
cause  it  is  the  passing  of  the  bonds,  1024.)       Under     the     former     statute 


579  Admixistratiox  ok  Estate,  Etc.     §§  702,  703. 

property  on  the  death  of  the  owner.  The  word  "  transfer,''  as 
used  in  the  statute,  is  declared  "  to  include  the  passing-  of  prop- 
erty, or  any  interest  therein  in  possession  or  enjoyment,  present 
or  future,  by  inheritance,  descent,  bequest,  grant,  deed,  bargain, 
sale  or  gift  in  the  manner"  prescribed  in  the  statute  (§  242). 
The  words  possession  and  enjoyment  mean  the  same  thing.  The 
possession  need  not  be  the  actual,  immediate  custody  or  occupancy 
of  the  thing,  but  may  be  a  constructive  possession,  that  is,  a  pos- 
session which  exists  in  contemplation  of  law.  Hence,  if  a  devisee 
or  heir  has  a  constructive  possession,  as  of  an  interest  in  real  prop- 
erty in  course  of  partition,  or  in  the  moneys  in  court  realized  on  a 
partition  sale,  hii^  interest  therein  is  assessable  under  the  statute.^ 

§  702.  Taxability  as  affected  by  location  of  property.—  Under  the 
former  statute,  the  tax  was  upon  the  succession  to  property  ''  within 
this  State,"  hence  real  property  situated  in  another  State  was  not 
subject  to  the  tax  here  f'  nor  were  the  proceeds  of  such  property, 
though  equitably  converted,  and  sold  under  the  direction  of  the 
"will,  and  brought  here  for  distribution."'  But  persfinal  ])roperty 
of  a  resident  is  subject  to  the  tax,  wherever  situated,  ujxm  the 
theory  that  such  property  follows  the  domicile  of  the  o\\mcr."^ 

§  703.  Taxability  as  affected  by  residence  of  testator,  intestate,  etc. 
—  The  statute  of  1885  made  no  discrimination  between  the  prop- 
erty of  intestates  and  the  property  of  testators,  as  regards  the  lia- 
bility of  the  one  or  the  other  to  the  payment  of  the  tax."''  The 
question  early  arose,  whether  by  the  statute  of  1885,  before  its 
amendment,  a  tax  was  intended  to  be  imposed  upon  a  succession  of 

(and   the   same   rule   now   applies)    a  by    L.    1887.    c.    "13.       Held,    that    it 

bequest  to  the  United  States  was  tax-  was   erroneous  to  calculate   the  value 

able.      (Matter  of  Merriam.  141  N.  Y.  of    her   interest    as    measured    by    the 

479;   Matter  of  Cullom,  5  :Misc.  17.3.)  term   of   its   actual   duration,   but  the 

25  Estate  of  Welsh,   N.   Y.   Law   J.,  entire    property    by    whicli    that    in- 

July    28,    1888;    Matter    of    Stiger,    7  terest    was    supported    should    be    ap- 

Misc.  2G8;   28  X.  Y'.   Supp.  1(J3.     The  praised,    and    the    interest    should    be 

transfer    of    stock    to    a    daughter, —  valued    by    the    methods    eniployi'd    at 

Held  taxable,  though  she  survived  her  the  time  by  the  superintendent  of  in- 

fathcr  only  three  days,  and  never   re-  surance.      S.    P..    ^Matter    of    Hail.    :U> 

ceived  any   dividends,   and   a   transfer  Misc.  tilS. 

tax  would  also  be  imposed  upon  sue-  20  Lorillard    v.    People    (Wolfe    Es- 

cession    to   her    legatees.       (Matter    of  tate),  0   Dem.  2G8 ;    10   St.   Rep.   263; 

Borup,  28  Misc.  474;   59  N.  Y.  Supp.  Matter  of  Dewey.  X.  Y.  Law  J.,  Oct. 

1097.)       See    Matter    of    Chabot,    44  21,  1889, 

App.   Div.   340;    GO  X.  Y.   Supp.  927;  27  ^fatter  of  Swift.  137  X.  Y.  77. 

affd..     1G7     X.    Y.     280.       In    Matter  2.s  Matter   of   Swift,    supra :    Matter 

(if   Jones    (28   Misc.    3.5G).   the    widow  of    Dingman,    GG    App.    Div.    228:    72 

of  the  decedent,  having  a   life  estate,  X.  Y.   Supp.   G94. 

died     before     the     appraisal     of     the  20  Matter  of  Howard,  5  Dem.  483. 
transfer     tax,     which     was     governed 


§703. 


Administration  ok  Estate,  Etc. 


5"80 


personal  property  in  this  State  under  the  will  of  a  nonresident 
testator.  After  nuich  consideration,  by  the  highest  authority,  it 
■was  held  that  such  was  not  the  intention  of  the  Legislature ;  that, 
as  to  personal  property,  the  act  applied  only  to  property  within 
this  State  belonging  to  a  resident  of  this  State ;  that  personal 
property  belonging  to  a  nonresident,  though  physically  here,  could 
not  in  law  be  said  to  be  "  within  this  State,"  because,  by  the 
general  rule,  such  property  attends  its  owner  and  has  its  situs  at 
his  domicile."'^ 

By  the  amendatory  act  of  18ST,  however,  the  tax  was  laid  upon 
the  passing  of  property  from  a  resident  of  this  State,  or  from  a 
nonresident,  if  the  property  or  any  part  thereof  should  be  within 
the  State ;  and  the  intention  of  this  amendment  was  interpreted 
to  be  to  impose  the  tax  upon  the  property  of  a  nonresident  testator 
or  grantor,  actually  and  physically  within  this  State.^^  As  to  the 
personal  property  of  nonresident  intestates,  it  was  held  that  so 
much  of  it,  at  least,  as  was  habitually  kept  or  invested  by  him 
here,  at  the  time  of  his  death,  was  liable  to  the  tax,  under  the  fore- 
going amendment. ^^    By  the  scheme  of  the  Act  of  1892,  the  trans- 


3f>  Matter  of  Enston,  113  N.  Y.  174. 
"  It  is  true  that  this  is  a  fiction  of 
law,  but  it  is  a  fiction  which  must 
prevail  unless  there  is  something  in 
the  policy  of  the  statute  or  its  lan- 
guage which  shows  a  different  legisla- 
tive intent.  *  *  *  There  is  nothing 
in  the  Act  of  1885  from  which  it  can 
be  inferred  that  the  Legislature  meant 
so  far  to  depart  from  its  general  sys- 
tem and  policy  of  taxation  as  to  im- 
pose here  a  succession  tax  upon  prop- 
erty thus  situated.  It  Avas  dealing 
with  taxation  upon  property  of  per- 
sons domiciled  here,  and  not  upon 
property  of  nonresidents,  which  had 
no  situs  in  this  State."  ( lb.,  per  An- 
drews, J.) 

31  Matter  of  Clark,  29  St.  Rep.  G50 ; 
!)  X.  Y.  Supp.  444;  Estate  of  Vinot, 
7  id.  .517;  26  St.  Rep.  610.  Compare 
Matter  of  Hall,  29  St.  Rep.  367:  8 
N.  Y.  Supp.  556;  Matter  of  -lames, 
144  N.  Y.  6:  62  St.  Rep.  855.  In 
Matter  of  Embury  (19  App.  Div.  214; 
45  N.  Y.  Supp.  881;  aflFd..  154  N.  Y. 
746)  it  was  said  that  the  jurisdiction 
of  Surrogates'  Courts,  under  the 
amendment  of  1887,  was  limited,  as 
to  nonresidents,  to  cases  in  which  a 
nonresident  decedent  had  left  real  es- 
tate within  the  county,  and  did  not 
apply  to  personal  property  which  the 


executors  of  a  nonresident  decedent 
have  removed  from  the  State.  That 
as  to  residents  the  tax  was  upon  the 
right  of  succession,  but  that  as  to 
nonresidents  there  can  be  no  succes- 
sion tax,  the  right  of  a  State  to  im- 
pose a  tax  being  based  on  its  dominion 
over  the  property  situated  within  its 
territory.  Compare  Matter  of  Pettit, 
65  App^  Div.  30 :  Matter  of  Hubbard, 
21  ]\Iisc.  566;  Matter  of  Crerar,  31 
id.  481. 

■!2  Matter  of  Romaine,  127  X.  Y. 
80;  38  St.  Rep.  76.  In  that  case,  the 
court  said:  "Where  the  property  of 
a  nonresident  is  habitually  kept,  even 
for  safety,  in  this  State,  we  think 
tiiat  the  statute  applies  both  in  let- 
ter and  spirit.  Such  property  is 
within  this  State  in  every  reasonable 
sense,  receives  the  protection  of  its 
laws  and  has  every  advantage  from 
government,  for  the  support  of  which 
taxes  are  laid,  that  it  would  have  if 
it  belonged  to  a  resident.  We  think 
that  a  fair  constructicn  of  the  act 
permits  no  distinction  as  to  such 
property,  based  simply  upon  the  resi- 
dence of  the  deceased  owner.'"  See 
Matter  of  Embury,  supra.  It  had 
l)een  held,  that  a  taxable  intestate 
succession,  under  the  Act  of  1885,  was 
a  succession  by  the  intestate  laws  of 


;si 


Al).MIXISlI{ATI<)X     OI-'    EhTATK,     EtC. 


§  704. 


fcr  <>t  the  j>ropc'rty  of  ;i  iiniircsidcnt  "  hy  will  or  intestate  law  "  — ■ 
i.  c,  of  this  State  or  tlio  State  of  his  domicile, —  or  "  by  deed, 
grant,  bargain,  sale  or  gift  made  in  eontemplation  of  death,"  etc., 
is  subject  to  the  tax ;  provided  the  property  is  "^  within  this  State." 
The  legislative  intent  seems  to  be  that,  for  the  purpose  of  taxa- 
tion, the  law  of  the  place  where  the  j)roperty  actually  is  shall  gov- 
ern, while  for  the  general  pitrpose  of  administration  and  distribu- 
tion, the  law  of  decedent's  domicile  will  continue  to  govern.^^ 
But  it  does  not  seem  to  have  been  the  intention  .to  include  property 
of  a  nonresident,  casually  brought  into  the  State  for  a  temporary 

Q4, 

purpose. 

§  704.  Transfers  under  five  hundred  dollars  in  value. —  Bv  the  for- 
mer statute,  "  an  estate  valued  at  a  less  sum  than  live  hundred  dol- 
lars was  exempt  from  the  tax."  "An  estate  valued  "  was  held  to 
mean  not  the  estate  of  the  decedent,  but  the  estate  or  interest  of  the 
legatee  or  other  taker  ;  therefore,  no  tax  was  imposed  upon  a  particu- 
lar legacy  which  did  not  amount  to,  or  exceed,  that  smn  in  value.^^ 


this  State.  (Matter  of  Tulane,  51 
Hun.  213;  4  N.  Y.  Supp.  30.)  By 
L.  1891,  c.  215.  the  operation  of  the 
Act  of  1885  was  extended  to  prop- 
erty of  nonresidents,  within  this  State 
at  time  of  death.  It  was  lield,  un- 
der this  amendatory  statute,  that 
notes  secured  by  mortgages  of  land 
in  another  State,  and  owned  by  a  res- 
ident of  this  State,  at  the  time  of  his 
death,  were  subject  to  the  tax,  and  it 
was  not  material  that  the  notes  and 
mortgages  were  in  the  hands  of  the 
owner's  agent  in  the  State  where  the 
land  was  situated.  (Matter  of  Cor- 
ning, 23  N.  Y.  Supp.  285.)  In  Matter 
of  Thomas  (3  Misc.  388),  the  personal 
estate  of  testatrix  consisted  exclu- 
sively of  her  distributive  share  in  the 
estate  of  a  deceased  sister,  who  re- 
sided in  the  State  of  Ohio  at  the  time 
of  her  death,  no  part  of  which  came 
into  the  hands  of  the  testatrix 
before  her  death.  Held,  that  that 
portion  of  her  estate  was  not  taxable. 
Also  held,  that  certificates  of  stock 
of  corporations  created  under  the 
laws  of  other  States  owned  by  a  de- 
cedent at  the  time  of  his  death  were 
not  "  property  within  this  State,"  and 
hence  not  subject  to  taxation  under 
the  Act  of  1885,  or  amendatory  acts. 
But  in  Matter  of  Boudon  (X.  Y.  Law 
J..  Mar.  1.  1802).  it  was  held,  under 
the  authority  of  the  Romaine  case 
(supra),   that    such    stock    was    taxa- 


ble. Compare  Matter  of  Phipps,  77 
Ilun,  325:  28  N.  Y.  Supp.  330;  affd., 
143  X.  Y.  G41. 

33  See  Hardenberg  v.  Manning,  4 
Dem.  437.  Thus  money  of  a  nonresi- 
dent deposited  here  is  subject  to  the 
tax  CSfatter  of  Houdaver,  150  X.  Y. 
37;  Matter  of  Burr,  10  "Misc.  80;  Mat- 
ter of  Blackstone.  60  App.  Div.  127 ; 
74  X".  Y.  Supp.  508)  ;  also  bonds  and 
stock  of  domestic,  and  bonds  of  for- 
eign, corporations.  (Matter  of  Whit- 
ing. 150  X"^.  Y.  27:  flatter  of  Morgan, 
id.  35 :  ^Matter  of  Pullman.  4()  App. 
Div.  574. )  But  bonds  of  domestic 
corporations  held  at  the  decedent's 
domicile  ai'e  not  taxable  (Matter  of 
Bronson,  150  X.  Y.  I ) ,  otherwise  as 
to  stock  of  such  corporations.  ( lb. ; 
Matter  of  Kennedy.  20  Misc.  531 ; 
^Matter  of  Xewcomb,  71  App.  Div.  00(>.) 
See,  as  to  life  insurance  policies,  flat- 
ter of  Abbett.  20  Misc,  507:  debts 
due  from  nonresident  (Matter  of  Bent- 
ley,  31  !Misc.  05(>):  interest  in  firm 
doing  business  here  (Matter  of  King. 
30  ^lisc.  575)  :  mortgages  o!i  Xew 
York  real  estate.  (Matter  of  Preston, 
37   Misc.  230.) 

"4  Matter  of  Leopold,  35  Misc.  309 ; 
71  X.  Y.  Supp.  10.32.  See  Matter  of 
Komaine.  127  X.  Y.  80;  Matter  of 
Knston.   113   id.    182. 

•'?•"' ^fe Yean  v.  Shelden.  48  Hun,  103; 
:\[atter  of  Miller,  5  Dem.  132:  Matter 
of  Hopkins,  0  id.  1. 


§  705.  Administration  of  Estate,  Etc.  582 

On  the  other  hand,  an  inheritance  or  a  testamentary  gift  of  a  value 
exceeding  that  sum  was  taxable  to  the  extent  of  its  whole  value, 
it  not  being  the  intention  of  the  Legislature  to  exempt  all  taxable 
estates  to  the  extent  of  the  sum  named,  but  merely  to  limit  the 
estates  upon  which  the  tax  should  be  imposed. ''^^  The  language 
of  the  Act  of  1892  differs,  in  this  regard,  from  the  Act  of  1885, — 
the  tax  being  laid  "  upon  the  transfer  of  any  property  "  of  the 
value  of  five  hundred  dollars  or  over,  to  persons  not  exempt,  etc. 
Moreover,  "  the  property  "  means  "  the  property  or  interest  therein 
of  the  testator,"  and  not  ""  the  property  or  interest  therein 
passing  or  transferred  to  individual  legatees,"  etc.  It  is  not,  there- 
fore, the  property  passing  to  an  individual  legatee  or  distributee 
which  must  be  less  than  five  hundred  dollars,  in  order  to  entitle 
the  same  to  exemption,  but  the  amount  of  all  property  passing  to 
legatees  or  distributees  of  the  unexempted  class  which  must  be  less 
'than  five  hundred  dollars. ^^ 

§  705.  Express  exemptions  and  limitations. —  The  tax  attaches 
only  to  transfers  of  property  "  of  the  value  of  five  hundred  dollars 
or  more"  (§  220),  no  matter  to  what  description  of  person  the 
property  passes.  Certain  classes  of  persons  are  expressly  named 
(besides  those  wdio  are  already  "  exempted,  by  law,  from  taxa- 
tion "),  transfers  to  whom  are  not  taxed,  or  else  the  amount  of  tax 
is  reduced  in  amount.  The  statute  provides  that  ''  when  the  prop- 
erty or  any  beneficial  interest  therein  passes  by  any  such  transfer 
to  or  for  the  use  of  any  father,  mother,  husband,  wife,  child, 
brother,^*  sister,  wife  or  widow  of  a  son  or  the  husband  of  a 
daughter,^^  or  any  child  or  children  adopted  as  such  in  conformity 

36  Matter  of  Sherwell,  125  X.  Y.  376  ;  Bird    (2    Connolv.    376;    32    St.    Rep. 

3.5    St.    Rep.    403.      In   thsft   case,   the  899),  Ransom,  S.,  of  New  York,  held 

surrogate  had  held  that  a  legatee  was  otherwise. 

entitled  absolutely  to  an  exemption  of  37  Matter  of  Bliss,  6  App.  Div.  192; 
$500  from  a  legacy  of  a  greater  sum,  39  N.  Y.  Supp.  875;  Matter  of  Flynn, 
the  balance  only  being  assessable  for  N.  Y.  Law  J.,  Feb.  25,  1893.  It  was 
taxation.  (32  St.  Rep.  1020.)  In  held,  in  that  case,  that  as  the  prop- 
Matter  of  Peck  (2  Connolv,  201;  24  ertj^  passing  to  those  not  exempt  was 
Abb.  N.  C.  365),  Coffin,  S^,  of  West-  over  $1,800  in  value,  each  of  four 
Chester,  held,  that  as  a  legacy  is  not  legacies  of  $100  to  strangers  were  sub- 
payable  until  the  expiration  of  a  year,  ject   to  the  tax. 

its  "fair  market  or  cash  value"  at  38  In  Matter  of  Farley  ( 15  St.  Rep. 
testator's  death  could  not  be  said  to  727 ) ,  testatrix  bequeathed  all  her 
be  its  face  value,  but  what  it  will  be  property  to  her  executor,  individually, 
worth  when  the  legatee  is  entitled  to  agreeing  with  him  at  the  time  of  tb.'? 
receive  it  and  may  compel  its  pajTuent  execution  of  the  will  that  the  beque.-t 
or  delivery;  hence,  that  a  cash  legacy  should  be  in  trust  for  her  brothe". 
of  .$500  was  to  be  appraised  at  that  Held,  such  trust  was  within  the  ex- 
sum  less  a  year's  interest.  See  also  emption  of  the  statute. 
Matter  of  Underbill.  2  Connoly,  262:  30  A  legacy  to  a  husl)and  cf  a 
20  X.  Y.  Supp.  134.    But  in  Matter  of  daughter    is    not    subject    to    the    tax. 


583  Admixistratiox  of  Estati-:,  Etc.  §  TOG. 

"with  the  laws  of  this  State,  of  the  decedent,  grantor,  donor  or 
vendor,  or  to  any  chiW**^  to  whom  any  such  decedent,  grantor,  donor 
or  vendor,  for  not  less  than  ten  years  prior  to  such  transfer  stood 
in  the  mutually  acknowledged  relation  of  a  parent,  provided,  how- 
ever, such  relationship  ])egan  at  or  before  the  child's  fifteenth 
birthday,  and  was  continuous  for  said  ten  years  thereafter,  or  to 
any  lineal  descendarif*^  of  such  decedent,  grantor,  donor  or  ven- 
dor born  in  lawful  wedlock,  such  transfer  of  property  shall  not 
be  taxable  under  this  act,  unless  it  is  personal  property  of  ihe 
value  of  ten  thousand  dollars  or  more,  in  which  case  it  shall  be 
taxable  under  this  act  at  the  rate  of  one  per  centum  upon  the  clear 
market  value  of  such  property."  ^" 

It  is  important  to  observe,  in  this  connection,  that  it  is  the  ag- 
gregate amount  of  personal  property  of  the  decedent  passing  to 
taxable  persons,  which  determines  whether  the  tax  shall  be  im- 
posed or  not.  Hence,  if  aJJ  the  legacies  or  distributive  shares, 
passing  to  persons  of  that  class,  aggregate  ten  thousand  dollars 
or  more,  any  one  of  such  legacies  or  shares,  though  less  than  that 
amount,  is  subject  to  the  tax.^^ 

A  transfer  of  real  property  to  one  of  the  exempted  class  is  also 
within  the  terms  of  this  exemption  and  limitation,  and  although 
a  testamentary  distribution  of  real  property  requires  its  conver- 
sion into  personalty,  it  will  not  be  taxable  as  personalty.'*^ 

§  706,  Adopted  and  quasi-adopted  children. —  Adopted  children 
were  not  included  in  the  exempted  class  by  the  Act  of  1S8.5,  but 
were,  by  the  Act  of  1887  -^^  the  provisions  of  which  latter  act,  in 

although  the  daughter  died  before  the  -ts  L.  189(5.  e.  flOS,  §  221.  as  amended 

testator.     (Matter  of  Woolsev,  10  Abb.  L.  18!)8.  c.  88;   L.  1001.  o.  4.>8. 

N.  C.  232;   s.  c.  as  Matter  of  McCxar-  4.s  Matter  of  Corbett.  171  X.  Y.  516: 

vey.   6   Dem.   145;   Matter  of  Rav,   13  Matter  of  Hoffman.  143  id.  327:  Mat- 

Mrsc.  480.)                                          '  ter  of  Tavlor.  6  Mi?c.  277:   Matter  of 

40  The    word    "child"    was,    bv    L.  Birdsall.  22  id.  180. 

1898.  c.  88.  inserted  in  place  of  the  «  T^Iatter  of  Sutton.  3  App.  Div. 
word  "person,"  doubtless  to  meet  the  208;  affd..  140  X.  Y.  (ilS:  Matter  of 
decisions  of  the  courts  that  the  ex-  Cobb.  14  Misc.  400.  Comi)are  Matter 
emption  was  not  limited  to  illegitimate  of  Wheeler,  lid.  4.10:  22  X.  Y.  Supp. 
children.  ( Matter  of  Beach,  154  X.  Y.  1075:  Matter  of  Mills.  32  Misc.  403. 
242;  overruling  Matter  of  Hunt,  86  A  leasehold  interest  is  personal  prop- 
Hun,  232:  Matter  of  Xichols,  01  id.  erty  under  the  exemption  clause,  al- 
140;  IMatter  of  Stilwell,  34  X.  Y.  though  improvements  by  the  lessee  are 
Supp.   1123.)  taxable  as  realty  under  the  Tax  Law. 

41  The  term  "lineal  descendants,"  as  (Matter  of  Althause.  63  App.  Div. 
used  in  the  statute,  includes  only  the  252;   affd..   168  X.  Y.  ()70.) 

direct   descendants   of   the   testator   or  4.'i  It  was  accordingly  held,  that  the 

intestate,    and    does    not    include    the  interests    of    adopted    children,    which 

children  of  the  bmthei-s  and  sisters  of  became   vested   after    the   Act    of    1885 

the    deceased.       (Matter    of    Miller.    5  took   effect,   were   subject   to   the   tax, 

Dem.  132;  affd.,  45  Hun,  244;  Matter  notwithstanding     the     tax     was     not 

of  Smith,  5  Dem.  90.)  formally  assessed  until  after  the  Act 


§  706.  Admixistratiox  of  Estate,  Etc.  584r 

this  regard,  ^vere  rcadopted  by  the  Acts  of  1892,  1896,  and  (with 
certain  modifications)  the  Act  of  1901.  The  adoption  must  have 
been  made  "  in  conformity  with  the  laws  of  this  State."  This  does 
not  require  the  proceedings  for  adoption  to  have  l)een  instituted  in,, 
or  under  the  laws  of,  this  State;  hence,  where  the  adoption  was 
effected  under  proceedings  in  another  State,  which  substantially 
conform  to  the  requirements  of  our  own  statute,  in  that  regard, 
the  person  so  adopted  is  within  the  operation  of  the  exemption.^^ 
"  The  relation  of  a  parent,"  within  the  meaning  of  the  statute, 
may  arise  by  circumstances  surrounding  the  commencement  and 
continuance  of  such  relation ;  it  was  the  intent  of  the  statute  to 
give  this  class  of  cases  the  benefit  of  its  exempting  clause.  The 
statute  does  not  suggest  the  character  of  proof,  nor  require  the 
acknowledgment  of  the  parental  relation  to  be  in  writing  or  by 
declarations  in  public,  or  to  any  person  or  persons ;  so  that,  if 
the  evidence  conclusively  shows  that  the  parties  understood  that 
their  relations  were  parental,  and  that  they  thus  lived  together  in 
this  belief,  discharging  their  duties  and  obligations  to  each  other 
upon  the  theory  that  such  relations  existed,  such  manner  of  life 
is  a  mutual  acknowledgment  of  the  relation  which  each  sustains  ta 
the  other.*'  The  full  term  of  ten  years  of  such  acknowledged  re- 
lationship must  have  been  fully  completed,  in  order  to  secure  the 
benefit  of  the  exemption.*^ 


of  1887,  with  its  enlarged  exemption,  Matter  of  Fisch.  34  Misc.  146;   09  N. 

went  into  effect.     (Matter  of  Eyan.  18  Y.  Supp.  493.) 

St.    Rep.    992:    3    X.    Y.    Supp.    136.)  4T  Matter    of    Spencer.     1    Connolv, 

But  by  the  Act  of  1889    (c.  479)    the  208:  21  St.  Rep.  145.     In  that  case. 'a 

Act  of  1887    (including,  of  course,  the  niece  for   many  years  had   lived   with 

exemption    clause)     was    made    appli-  the  testatrix  and  had  been  supported 

cable  "  to  all  estates  of  deceased  per-  by    her,    in    the    apparent    relation    of 

sons  where  no  assessment  of  the  tax  parent  and  adopted  child,  although  the 

has  been  made  to  which  such  estate  or  parties  were  never  addressed  by  each 

estates  are  liable."     The  effect  of  this  other   as   "  mother  "   and   '"  daughter," 

amendment  was  to  exempt  from  tax-  but  it  was  apparent  that  the  niece  was 

ation   legacies  to   adopted   children   in  treated   in  all   respects   as   if   she  had 

cases  where  testator  died  prior  to  the  been  an  adopted  child;  the  legacy  was 

passage  of  the  Act  of  1887.  but  no  as-  held  exempt  from  the  tax.     See  Matter 

sessment   of   the    tax    has    been   made,  of  Sweetland,  47   St.  Rep.  287 :   20  X. 

and   the   order   thereon   entered,   prior  Y.   Supp.  310:    Matter  of  Birdsall.  22 

to  June  14,  1889.  .  (Matter  of  Kemeys,  Misc.   180;   49  X.  Y.  Supp.  4.50:   Mat- 

aO  Hun,  117.)      See  Matter  of  Thomas,  ter  of  Capron,  30  St.  Rep.  948:    10  X. 

3  Misc.  388;  24  X.  Y.  Supp.  713.     See  Y.    Supp.    23;    Matter    of    Wheeler,    1 

§  699a,  ante.  Misc.  450. 

4C  Matter   of   Butler,   58   Hun,   400 ;  48  Where    the    ten    years'    provision 

12  X.  Y.  Supp.  201.     A  legacy  to  the  had   not   been   complied   with,    as   the 

child   of   an   adopted   daughter   is   not  adopted    child    died    at    the   age    of   9 

exempt.      (Matter  of  Bird.  2  Connoly,  years,    after    living    with    the    testator 

376 :  32  St.  Rep.  899 :  Matter  of  Moore,  about  seven,  the  legacy  is  not  exempt. 

90   Hun,    162;    35   X.    Y.    Supp.    782;  (Matter    of    Gardner,  "^X.   Y.    Law   J., 

March  4,  1889.) 


585  Ad.mixisthatiox  of  Estate,   Etc.      ji;^  707,  708. 

§707.  Bishops  and  religious  corporations. —  '\\\iy  proinrty  here- 
tofore or  hereafter  (Jevi?ed  or  bcciiieathed  to  any  person  who  is 
a  bishop"*'**  or  to  any  reliirioiis  eor juration,  inehuling  corporations 
org-anized  exclusively  for  l)il)lc  or  tract  ))iirpo3es,"  is  declared  tf> 
be  exempted  from,  and  not  subject  to,  the  provisions  of  the  act.""*'^ 
Religions  corporations  were  included  in  the  list  of  corpcjrations 
declared  to  be  cxciiipt  from  the  operation  of  ilic  coHarcral  inherit- 
ance tax,  by  a  general  statute,  passed  in  l.sUO;  but  before  tliat 
act,  only  the  building  used  for  public  worship  was  exempt  from 
public  tax ;  hence  a  legacy  to  a  church  organization  was  held  not 
exempt  from  the  legacy  tax.""'^  And  so,  a  bequest  of  money  to  a 
church  corporation  toward  the  building  of  a  new  church,  or  the 
renovation  of  its  present  one,  was  held  to  be  subject  to  the  tax.^^ 

§  708.  Charitable,  educational,  and  literary  institutions. —  The 
statute  also  exempts  from  taxation  personal  property,  other  than 
money  or  securities,  bequeathed  to  a  corporation  or  association 
organized  exclusively  for  the  moral  or  mental  improvement  of 
men  or  women  or  for  charitable,  benevolent,  missionary,  hospital, 
infirmary,  educational,  scientific,  literary,  library,  patriotic,  ceme- 
tery or  historical  purposes,  or  for  the  enforcement  of  laws  relating 
to  children  or  animals,  or  for  two  or  more  of  such  purposes,  and 
used  exclusively  for  carrying  out  one  or  more  of  such  purposes. 
But  no  such  corporation  or  association  shall  be  entitled  to  such 
exem])tion  if  any  ofticer,  member,  or  employee  thereof  shall  receive 
or  may  be  lawfully  entitled  to  receive  any  pecuniary  profit  from 
the  operations  thereof,  except  reasonable  compensation  for  ser- 
vices in  effecting  one  or  more  of  sitch  purposes,  or  as  ])roper  bciu- 


40  Including  an  archbishop  or  cardi-  passage.     (lb.)     In  Matter  of  Murphy 

nal   archbishop    (Mutter   of   Kelly.   29  (X.  Y.  Law  J..  June  11.  180.S).  it  ap- 

Misc.    1(j1)).    tliou<rh    residing    without  peared  by  the  will,  in  connection  witli 

the    State.       ( Matter    of    Palmer.    33  the   proof   furnisiied   by   tiie  executors 

App.  Div.  307:   affd..   loS  X.  V.  (Ki!).)  as  to   the   understanding   between   the 

The    Young   ]\Ien"s   Christian    Associa-  executors  and  the  testator,  which  was 

tion    is    not     a    religious    corporation,  the  consideration   influencing  deceased 

(Matter    of    Watson.    171    X.   Y.    2.'i(i :  to   make   the   bequest   in    the   absoute 

Matter  of  Fay.  37  Misc.  532.)  fonn    in    which    it    apjjears,    a    va.id 

50  L.  ISnfi.  c.  n08.  §  221,  as  amended  pavdl    trust    was    created,    enforceable 

L.  1001.  c.  4.)S.  in    tMpiity    in    favor    of    the    various 

'''1  Matter    of    Kennedy.    X.    Y.    Law  leligicus   corporations    which    were   t<» 

J..  April  25,   ISftO.  share     in     the     proportions     specitied. 

52  Matter  of  Yan  Kleeck,  121  X.  Y.  Held,  that  these  corporations  were  ex- 

701:      31     St.     Rep.     89G.       L.     1S!»0.  emi)t    under    the    Act    of    1892.    citing 

c.  398,  exempting  legacies  to  religious  Lynch   v.    Loretta.   4    Dem.    318:    Wil- 

corporations    from    taxation,    is    pros-  letts   v.    Willetts.   35    Hun,   405:    Mat- 

pective  in  its  operation,  and  does  not  ter  of  OHara.  95  X.  Y.   413:    Matter 

relieve  from  payment  of  a  tax   which  of  Farley.  15  St.  Rep.  727;  Matter  of 

became    due    and    payable    before    its  Havens.  17  id.  837. 


§  709.  Admixistratiox  of  Estate,  Etc.  586 

iiciaries  of  its  strictly  charitable  purposes ;  or,  if  the  organization 
thereof  for  any  such  avowed  purpose  be  a  guise  or  pretense  for 
•directly  or  indirectly  making  any  other  pecuniary  profit  for  such 
corporation  or  association  or  for  any  of  its  members  or  employees, 
•or  if  it  be  not  in  good  faith  organized  or  conducted  exclusively  for 
one  or  more  of  such  purposes.^^  This  exemption  only  applies  to 
the  property  of  domestic,  not  to  that  of  foreig-n,  corporations.^* 

The  charter,  or  general  statute,  under  which  an  exemption  from 
taxation  is  claimed,  must  be  a  charter  granted  by,  or  a  law  in 
operation  in,  this  State.  It  is  no  ground  for  exempting  a  foreign 
-corporation  that  it  is  exempt  from  taxation  by  the  laws  of  the 
■State  of  its  origin. ^^ 

§  709.  Property  "  exempt  by  law."— The  Acts  of  1885  and  1887 
exempted  from  their  operation  "  the  societies,  corporations  and 
institutions  now  exempted  by  law  from  taxation ;"  the  Act  of  1896 
lays  the  tax  on  all  transfers  "  to  persons  or  corporations  not  ex- 
empt by  law  from  taxation  on  real  or  personal  property  "  (§  220), 
"  Exempt  by  law  "  means  exempt  by  some  general  statute  appli- 
cable to  specified  classes  of  persons  or  corporations  whose  property 
is  declared  to  be  exempt  from  taxation,  or  by  some  special  statute 
which  exempts  a  particular  person  or  corporation  therein  men- 
tioned.    Such  a  general  statute  is  the  Tax  Law  of  1896^°  which 


53  L.  1896.  c.  908.  §  221.  as  amended  of  Wolfe.  23  Misc.  439;  Matter  of 
L.  1901,  c.  4.58.  The  corporation  need  Prime,  136  N.  Y.  347.  It  was  further 
not  actually  be  in  existence  at  the  held,  in  that  case,  that  the  provisions 
death  of  the  testator.  Thus,  where  of  L.  1887,  c.  376,  enabling  a  desig- 
testator  gave  his  residuary  estate  to  nated  foreign  corporation  to  take  and 
trustees  for  the  purpose  of  founding,  hold  property  in  this  State,  did  not 
erecting,  and  maintaining  a  home  for  entitle  it  to  such  exemption. 

the  aged;  such  estate  to  be  held  bv  the  55  Catlin  v.  Trinitv  College.  49  Hun, 
trustees  until  the  termination  of  two  278;  22  Abb.  X.  C' 28 :  affd..  113  N. 
lives  in  being,  when  they  were  to  exe-  Y.  133.  See  Catlin  v.  St.  PauVs  M.  E. 
cute  the  trust.  Held,  that  such  residu-  Church,  17  St.  Rep.  707;  Matter  of 
ary  estate  actually  in  the  hands  of  McCoskey,  id.  829 :  6  Dem.  438 :  Mat- 
the  trustees  was.  under  L.  1893.  c.  701,  ter  of  Tuigg,  15  N.  Y.  Supp.  548. 
regulating  gifts  for  charitable  pur-  56  L.  1896,  c.  908,  §  4,  subd.  7,  re- 
poses, to  be  considered  as  if  in  the  pealing  1  R.  S.  388,  §  4 ;  L.  1866, 
possession  of  a  corporation  already  c.  136;  L.  1883,  c.  397;  L.  1884,  c.  537  ; 
formed  under  the  will,  or  in  the  con-  L.  1892,  c.  713.  The  exemption  in  the 
trol  of  the  Supreme  Court,  for  the  Act  of  1887.  of  bequests  to  "the 
purpose  of  carrying  out  testator's  societies,  corporations,  and  institutions 
charitable  scheme,  and.  therefore,  ex-  now  exempted  by  law  from  taxation  " 
empt  at  the  time  of  testator's  death,  did  not  apply  to  bequests  to  municipal 
(Matter  of  Graves,  171  K.  Y.  40.)  corporations.  (Matter  of  Hamilton, 
Compare  Matter  of  Chesebrough,  34  148  N.  Y.  310.)  But  a  bequest  to  a 
Misc.  365.  city  of  a  sum  of  money  to  be  used  for 

54  Matter  of  Smith,  77  Hun.  134;  the  construction  of  a  library  building 
Matter  of  Taylor,  80  id.  589 :  Matter  to  be  open  to  the  public,  is  exempt 
of  P.alleis.  144  N.  Y.  132;  Matter  of  from  the  transfer  tax.  (Matter  of 
Fayerweather,  62  St.  Rep.  74;  Matter  Thrall.     157    N.    Y.    46.)       The    pro- 


587  Admixistkation  of  E.statk,  Etc.  §  710. 

•exempted  certain  property  from  taxation.  Previous  to  1900,  that 
.statute  was  applicable  to  cases  of  taxable  transfers  ;"''^  but  in  that 
vear  an  act  was  passed  by  which  it  was  provided  that  the  exemp- 
tions enumerated  in  the  Tax  Law  should  not  apply. ^**  That  stat- 
ute, however,  is  not  retroactive,^'"*  so  that  transfers  of  ])r<jperty  to 
those  persons  and  corporations  formerly  exempt,  and  which  vested 
prior  to  the  Act  of  1900,  are  not  subject  to  the  tax;""  and,  per 
contra,  transfers  which  took  effect  after  the  act  are  not  exempt.'** 
Another  statute  of  general  application  exempts  the  cemetery  lands 
;and  property  of  duly  organized  cemetery  associations  from  public 
tax  so  long  as  the  same  shall  be  dedicated  to  the  purposes  of  a 
■cemetery.^^ 

§  710.  Application  of  the  statute. —  The  exemptions  granted  to 
:almshouses  and  the  like,  and  to  the  personal  property  of  incorpo- 
rated companies  not  liable  to  taxation  upon  capital,  are  those 
which  have  been  most  frequently  claimed  by  corporations  sought 
to  be  charged  either  with  the  collateral  inheritance  tax,  under  the 
Acts  of  1885  and  1887,  or  with  the  transfer  tax,  under  the  Acts 
of  1892  and  1896.  To  entitle  a  corporation  to  immunity  from 
the  tax  under  either  of  these  statutes,  if  exempt  at  all,  it  is  not 
necessary  that  its  O'^ti  charter  or  act  of  incorporation  should  ex- 
pressly exempt  it:  it  is  enough  if  it  belongs  to  the  class  of  institu- 
tions declared  exempt  by  the  general  statute.®^     It  ought  to  be 


vision  rf  tlip  RpA-ised  Statutes  exempt-  etc..   of  New  York,  supra;  Matter  of 
inff  buildin<rs  erected  for  the  u.?e  of  a  Vanderbilt.  10  N.  Y.  Supp.  2.39.) 
^'olleo'e  or  other  seminary  of  learninor,  ■'>"  Matter  of  Kimberly.  27  App.  Div. 
•churches,     schoolhouses,     courthouses,  470;    50   X.   Y.   Supp.    .")Sfi. 
jails,   etc.,   was   not    applicable   in   the  -^^  L.   IflOO.  c.  .382. 
•city  of   New  York,   "unless  the  same  so  Matter  of  Graves,   171  X.  Y.  40; 
shall  be  exclusively  used  for  such  pur-  ^Matter  of  Vanderbilt,  fiS  App.  Div.  27 ; 
poses  and  exclusively  the  property  of  74  N.  Y.  Supp.  4.50. 
a  relifrious  society."'   (L.  1882,  c.  410,  60  ;Matter  of  Vanderbilt.  siz/jro  ,•  Mat- 
§    827.)      See   Youns;   Men's   Christian  ter  of  Graves,  supra. 
Assn.  V.  Mayor,  etc.,  of  Xew  York.  113  61  Matter  of  Huntinjxton,  l(i8  X.  Y. 
N.    Y.    189.'    As    to   schoolhouses,    see  399:    Matter   of  Howell,   34   Misc.   40; 
<Jhurch  of  St.  Monica  v.   Mavor,  etc.,  09  X.  Y.  Supp.  505 ;  Matter  of  Crouse, 
119   id.   91.     For   institutions   in  Xew  34   Misc.    070;    70    X.    Y.    Supp.    731; 
York  city  exempt   from   taxation,   see  Matter  of  Watson,   171   X.  Y.  250. 
L.    1882.' c.   410,   §§   824,   827.     As  to  *2  L.  1847,  c.  133,  §   10,  as  amended 
Ihe    exemption    of    real    and    personal  L.  1877,  c.  31.     Hence  a  legacy  to  such 
property  of  public  libraries  under  the  a    cemetery   association    was    held   ex- 
Revised' Statutes,  see  Matter  of  Lenox,  empt   from   the   collateral    inheritance 
31   St.  Rep.  959;    9  X.   Y.   Supp.  895;  tax  of  1887.     (Matter  of  Dewey,  X.  Y. 
j\merican  Geographical  Society  v.  Com-  Law  J.,  Oct.  21,  1889.) 
missioners,  etc.,   11    Hun,  50.5".     Under  f>^  Matter    of    Miller,    5    Dem.    132; 
the  original  statute,  churches  and  col-  Matter  of  Hunter.  22  Abk  X.   C^  24; 
leges   were    not    included     within     the  Matter   of   Kavanagh,   5    X.   Y.   Supp. 
term  "  incorporated  companies."    (Cat-  070;    Matter    of    Curtiss,    1    Connoly. 
lin  v.  Trinity  College,   113  X.  Y.   133;  471;   7  X.  Y.  Supp.  207.     See  Colored 
Young  Men's  Christian  Assn.  v.  Mayor.  Orphans  v.  Mayor,  etc.,  104  X.  Y.  581; 


§711. 


Administration  of  Estate^  Etc. 


58S 


noted  that  the  exemption  clause  of  the  Act  of  1892  differed  from 
that  of  the  former  acts  in  this,  that  by  the  latter  act,  a  person  or 
corporation  claiming  to  he  "  exempt  by  law  "  must  have  been 
exempt  from  taxation  "  on  both  real  and  personal  property."  It 
was  held,  under  the  Act  of  1887,  that  it  was  not  necessary  that 
the  corporation  should  enjoy  complete  immunity  from  taxation; 
hence,  a  corporation  whose  charter  exempted  it  from  taxation,  on 
its  personal  property  only,  was  exempt  from  the  collateral  inherit- 
ance tax,^'*  and  this  distinction  is  recogiiized  in  the  present  statute. 
§  711.  The  almshouse  exemption. —  A  great  variety  of  institu- 
tions have  claimed  and  been  allowed  exemption,  as  coming  within 
the  meaning  of  an  almshouse,  as  that  word  was  used  in  the  origi- 
nal statute, —  such  as  institutions  for  the  blind, ^^  homes  for  the- 
aged  and  indigent,^^  for  consumptives,*^^  and  incurables,*'^  and 
hospitals,*'^   orphan    asylums,   children's    aid    societies,™   etc.     In 


Matter  of  Forrester,  35  St.  Rep.  776: 
12  N.  Y.  Supp.  774.  Hence,  a  legacy 
to  a  society  which  conducts  an  institu- 
tion, which  is  exempt  as  being  a 
house  of  industry,  is  exempt  from  the 
inheritance  tax,  although  there  is  no 
special  exempticn  from  taxation  in 
its  charter,  (flatter  of  Herr,  55  Hun, 
167:  7  X.  Y.  Supp.  852.)  But  a  cor- 
poration which  does  not  fall  within 
any  of  the  general  clauses  of  exemp- 
tion specified  in  the  general  statutes, 
and  which  is  not  exempt  by  the  act 
under  which  it  was  created,  is  liable 
to  the  collateral  inheritance  tax  un- 
der the  Act  of  1885.  (Matter  of 
Board  of  Foreisrn  Missions,  58  Hun, 
116;  11  N.  Y.^Supp.  310.)  As,  by 
L.  1884,  c.  65,  the  trustees  of  Colum- 
bia College  were  "  authorized  and  em- 
powered to  take  by  purchase,  gift, 
grant,  devise,  or  any  other  manner, 
and  to  hold  any  real  estate  which, 
when  acquired,  shall  be  used  for,  or 
the  income  thereof  shall  be  applied  to, 
the  proper  conduct  and  support  of  the 
several  departments  of  education  here- 
tofore established,  or  hereafter  to  be 
established,  by  such  trustees," —  Held, 
that  a  bequest  to  that  institution  was 
not  subject  to  the  tax.  (Matter  of 
Da  Costa,  X.  Y.  Law  J.,  March  12, 
1891.) 

64  Matter  of  Vassar,  127  X.  Y.  1: 
37  St.  Rep.  239.  In  Matter  of  For- 
rester (35  St.  Rep.  776:  12  X.  Y. 
Supp.  774),  decided  in  1890,  an  amend- 
ment to  the  charter  of  a  church  home, 
a  pure  charity,  exempted  it  from  tax- 
ation on  its  real  estate.     Held,  that  as 


this  excluded  the  personal  propertj^ 
from  exemption,  a  bequest  to  it  was 
not  exempt  from  the  collateral  in- 
heritance tax  under  the  Act  of  1887. 
"  If  the  case  stood  upon  the  Revised 
Statutes  alone,  there  would  be  little 
difficulty  i,n  sustaining  the  appellant's, 
position  [of  exemption].  But  under 
its  act  of  incorporation,  the  appellant 
is  only  exempted  from  taxation  on  its 
real  estate.  We  think  that  this  special 
statute,  prescribing,  as  it  did,  a  rul& 
for  this  particular  corporation,  takes 
the  case  out  of  the  operation  of  the 
general  exemption  contained  in  the 
Revised  Statutes.  *  *  *  Consider- 
ing the  existence  of  the  general  law, 
which  was  before  the  Legislature  when 
the  Act  of  1887  was  passed,  the  in- 
sertion, in  the  latter  act,  of  the  ex- 
emption of  real  estate,  was  idle  unless 
intended  as  a  special  rale  applicable 
in  future  to  this  corporation"  (per 
Barrett,  J. ) .  See  Excelsior  Petroleum 
Co.  V.  Lacey,  63  X.  Y.  426. 

t>5  Matter  of  Underbill,  2  Connoly,. 
262;  20  X.  Y.  Supp.   134. 

6o  Matter  of  Lenox.  31  St.  Rep.  959; 

9  X.  Y.  Supp.  895:  Matter  of  Keech^ 
32  St.  Rep.  227;  Matter  of  Vassar,. 
127  X.  Y.  1. 

67  Matter  of  Herr,  32  St.  Rep.  724; 

10  X.  Y.  Supp.  680. 

68  Matter  of  Xeale,  32  St.  Rep.  910; 
10  X.  Y.  Supp.  713. 

6i»  Matter  of  Vassar.  supra;  Matter 
of  Chittenden,  X.  Y.  Law  J.,  June  5,. 
1890  [de  Brooklyn  Eye  and  Ear  Hos- 
pital]. 

70  Matter  of  Chittenden,  supra   [de 


589  Ai).\ri.\isTRATi()N   OF  Estate,  Etc.  §  712. 

every  case  in  uhicli  the  exemption  was  granted  to  an  institution 
of  this  character,  it  was  placed,  by  the  lower  courts,  on  the  distinct 
ground  that  the  institution  in  question  did  not,  under  any  circum- 
stances, exact  or  receive  any  fee  or  gratuity,  from  patients,  inm^Tes, 
or  (ithcr  rccii)iciiT-^  of  its  charity;  and  wherever  the  exemption 
was  denied,  it  was.  on  the  ground  that  the  institution  required 
pay  for  the  benefits  conferred.  This  question  came  before  the 
Court  of  A])pi'als  in  the  case  of  a  home  for  aged  and  infirm  men, 
which  was  founded,  incorporated,  and  maintained  by  charity,  and 
posse^ssed  no  element  of  ]irivate  or  corporate  gain,  and  whatever 
income  it  had  was  devoted  exclusively  to  that  charity.  Its  Ijy-laws 
contained  a  jn-ovision  recpiiring  those  becoming  inmates,  or  some 
one  in  their  behalf,  to  pay  a  designated  sum  upon  their  admission, 
and  requiring  them,  if  they  had  any  property,  to  transfer  the  same 
by  suital)le  methods  to  the  home.  It  was  held  that,  being  char- 
tered for  purely  charitable  purposes,  and  supported  and  main- 
tained by  charita])le  contributions,  the  institution  was  none  the 
less  an  almshouse,  within  the  meaning  of  the  statute,  because  of 
the  foregoing  provision  of  its  by-laws.'^  The  jiresent  statute  con- 
forms to  that  view. 

§  712.  "  Beneficial  interest  "  of  legatee. —  A  bequest  in  which 
the  legatee  has  no  beneficial  interest,  such  as  a  bequest,  in  trust  or 
otherwise,  to  pay  testator's  debts  or  funeral  expenses,  or  to  apply 
the  income  of  a  certain  sum  to  the  maintenance  of  a  burial  plot, 
is  not  taxable  as  being  "  to  or  for  the  use  "  of  any  one,  within 
the  meaning  of  the  former  statute;  nor,  it  is  thought,  is  it  '"  any 
interest  "  in  the  property  transferred,  within  the  meaning  of  the 
statute.'"     A  bequest  of  a  specified  sum  to  the  executor  in  trust, 

■Children's   Aid   Soc.   of   Brookhm   and  \ng  Matter   of   Keech.   ftuprn ;   Matter 

•Orphan   Asylum    of  Brooklvnl  :  Matter  of  Lenox,  s!//*r«  .•  and  Matter  of  Van- 

of  Qnin.  X.  Y.  Law  J.,  .Tiily  24.  1S8D.  derbilt.  10  X.  Y.  S\\\yp.  -I'Ml     See  W-o- 

A  "  mutual  benefit  association."  whose  pie  v.  Purdy.  oS  Hun.  .'?S(i ;  .34  St.  Rep. 

constitution    provided    for    tlie    admis-  S!):5 :  affd..  12(i  X.  Y.  Vt~9. 
.sion  of  members  under  a  certain  a<ie,        '~  Hence,  a  bequest  of  the  income  of 

what   asse^vsments   should   be    paid    to  a    certain    sum    to   be   applied    to   the 

•entitle   to   membership,  and   for   what  maintenance   of   a    burial    plot   is   ex- 

■cause  membersliip  should  be  forfeited,  empt.     (Estate  of  Vinot.  7  X.  Y.  Supp. 

the  object  of  the  association   bcinfr  to  f)!?;  2G  St.  Rep.  (ilO. )      But  where,  by 

give  aid  to  the  sick  and  disabled,  and  the   terms   of    the.  will,    the    executor 

provisions  for  the  families  of  the  dc-  takes    one-third    of    the    estate    abso- 

ceased    members,    is    not    one    of    the  lutely,  he  is  n<it  relieved  from  the  in- 

societies  or   institutions  contemplated  heritance  tax  by  the  fact   that,  in  an 

by  the  statute.      (Matter  of  .Tones,   1  action  to  construe  the  will,  he  is  held 

•Connoly,  125;  22  Abb.  X.  C.  .)0.)     See  to  take   his   legacy   impressed   with   a 

Matter   of   Hunter.    11    St.   Rip.    704;  trust  in  favor  of  another,  as  a  result 

s.  e..  sub  nom.  Church  Charity  v.  Pec-  of    extrinsic    evidence    therein    intro- 

ple.  ()  Dem.   l.")4.  "  duced.       (Matter    of    Edson,    .38    App. 

71  Matter  of  Vassar,  supra;  ovcrrul-  Div.  19;  affd.,  159  X.  Y.  5tiS.) 


§  713.  Administration  of  Estate/  Etc.  590 

"  to  expend  the  same  for  masses  for  the  repose  of  the  soul  "  of 
testator,  naming  the  person  who  was  desired  should  celebrate  the 
masses,  being  a  valid  legacy,  and  being  given  in  a  clause  of  the 
will  separate  from  that  in  which  the  funeral  expenses  were  pro- 
vided for,  was  held  to  be  subject  to  the  tax.'^  It  has  been  held 
under  the  former  statute  that  a  legacy  to  a  creditor  of  so  much 
as  he  may  prove  due  him  is  not  subject  to  the  tax;  for  although 
in  form  a  legacy,  it  is  nothing  more  than  a  direction  to  pay  just 
debts,'^^  and  that  a  legacy  for  services  either  already  performed,''^ 
or  to  be  performed,  after  testator's  death,  confers  no  beneficial 
interest  and  is  not  taxable.  But  under  the  present  statute,  at 
least,  such  a  bequest  which  is  accepted  by  the  legatee  is  subject  to 
the  tax."^  If  the  beneficiary  desires  to  escape  payment  of  the- 
jDenalty,  he  must  establish  his  debt  and  let  the  legacy  fall  into  the 
residuary  estate."  The  proceeds  of  a  policy  of  insurance  on  the 
life  of  a  decedent,  made  payable  to  him  or  to  his  personal  repre- 
sentatives, are  subject  to  the  tax.'^  But  it  may  well  be  doubted  if 
the  proceeds  of  a  policy,  collected  by  the  beneficiary  therein 
named,  are  subject  to  the  tax,  as  being  any  part  of  the  estate  of 
the  person  whose  life  was  insured.'^ 

g  713.  Bequests  to  executors,  etc. —  In  harmony  with  the  fore- 
going principle,  the  statute  exempts  a  devise  and  bequest  to  an 
executor  or  trustee  in  lieu  of,  or  to  an  amount  not  exceeding,  his 
commissions ;  otherwise,  to  the  extent  that  such  a  bequest  exceeds 
the  amount  of  the  statutory  commissions ;  i.  e.,  ""  the  excess  in  value 
of  the  property  so  bequeathed  or  devised,  above  the  amount  of 

73  Matter  of   Black,   1   Connoly,   477;  our  opinion,  should  not  be  extended  to 

24  St.  Rep.  341.                              "  a     general     direction     to     pay     debts^ 

74  Matter    of    Rogers,    30    St.    Rep.  though  out  of  a  specific  fund. 

943:    10   X.   Y.    Supp.    22;    Matter   of  "Matter  of  Dotv,  7  Misc.    193;   27 

Underhill.   2  Connolv,  262.  X.  Y.  Supp.  053. 

T5  Matter  of  Reilly,  N.  Y.  Surr.  Ct.  TS  Matter  of  Knoedler,  68  Hun,  1.50; 

Decis.    1890,   p.   416:   Matter  of  Rich-  affd.,  140  X.  Y.  377. 

ardson.  X.  Y.  Law  J.,  March  9,  1893.  79  See  §  536.  ante.   The  fact  that  the 

See  ;Matter  of  Hulse,  39  St.  Rep.  402:  will  mentions  moneys  f.s  deposited  in 

Matter  of  Meyer,  X.  Y.  Law  J.,  March  trust  for  certain  beneficiaries,  does  not 

20,   1891.         '  make   them    part   of   the   estate   to   be 

76  Matter  of  Gould,  L56  X.  Y^.  423.  administered.  (Matter  of  \Valker.  4.5 
It  matters  not  what  the  motive  of  a  St.  Rep.  21;  17  X.  Y.  Supp.  666.) 
transfer  by  will  may  be,  whether  to  The  amount 'received  from  the  gratuity- 
pay  a  debt,  discharge  some  moral  ob-  fund  of  the  produce  exchange  is  not 
ligation,  or  to  benefit  a  relative  for  assets  of  the  estate,  since  it  belongs  to- 
whom  the  testator  entertains  a  strong  the  beneficiaries  specified  in  the  by- 
affection,  if  the  devise  or  bequest  be  laws  of  the  exchange,  and  is  properly 
accepted  bj-  the  beneficiary,  the  trans-  excluded  by  the  appraisers.  (Matter 
fer  is  made  by  A\ill  and  the  statute  of  Fay,  25  Misc.  468;  55  N.  Y.  Supp. 
imposes  a  tax.  (lb.)  That  case  749.) 
.should  be  applied  cautiously,  and,  in 


591  Admixistkatiox  of  Estate,  Etc.  §  714. 

commissions  or  allowances  prescribed  bv  law  in  similar  cases,"  is 
taxable,  under  the  statute.^  Where  a  bequest  is  made  to  persons 
named  as  executors,  but  the  will  directs  that  they  shall  receive 
no  compensation,  the  statutory  exemption  does  not  apply."  The 
amount  of  the  executor's  ''  commissions  or  allowances,"  being  fixed 
by  law,  there  is  no  occasion  for  the  surrogate  to  fix  them,  or  to 
determine  any  "  reasonable  compensation  "  to  be  made  to  the  ex- 
ecutor, as  he  was  required  to  do  under  the  former  act.*" 

§  714.  Representative  and  beneficiaries  personally  liable  for  tax. — 
So  far  as  the  act  imposes  a  tax  in  persoimrn,  it  was,  under  the 
former  statutes,  imposed  on  the  executor,  administrator,  or  trustee, 
and  not  on  the  heir,  legatee,  or  cestui  que  trust.  But,  under  the 
Transfer  Tax  Act,  the  tax  is  declared  to  be  a  lien  upon  the  prop- 
erty transferred,  until  paid,*'^  and  the  person  to  whom  the  property 
is  transferred  and  the  executor,  administrator,  or  trustee  of  the 
estate  are  personally  liable  for  it  until  its  payment.^'*  The  repre- 
sentative is  not  "  entitled  to  a  final  accounting  of  an  estate  in 
settlement  of  wliieli  a  tax  is  due  under  the  provisions  of  this  act 
unless  he  shall  produce  a  receipt  so  sealed  and  countersigned  [by 
the  comptroller],  or  a  certified  copy  thereof,  or  unless  a  bond,"" 
in  a  case  of  preferred  payment  (§  222).  It  is  obviously  the  in- 
terest of  the  representative  to  have  the  extent  of  his  personal 
liability  determined  by  the  surrogate  at  the  earliest  date  possible, 
and  to  this  end  he  may,  in  case  of  doubt,  apply  at  any  time  after 
grant  of  his  letters  for  the  appointment  of  an  appraiser.  The 
surrogate  has  no  jurisdiction  to  entertain  another  and  different 
proceeding  instituted  by  the  representative  for  the  determination 
of  the  question  whether  the  estate  or  any  interest  in  it  is  subject 


80  L.  1806.  c.  908.  §  227;  Matter  of  (2  Connoly.  202;  20  X.  Y.  Supp.  134)^ 
Gihon.   1G9   X.  Y.  443.  it  was  held,  that  a  bequest  to  an  exec- 

81  Matter  of  Vandorbilt.  08  App.  utol- of  a  certain  sum  "  over  and  above 
Div.  27:   74  X.  Y.  Su])p.  4.")0.  his   legal   commissions  and  expenses,*' 

82  By  L.  1887,  c.  713.  §  3.  it  was  was  not  within  the  purview  of  this 
provided  that  any  bequest  or  de-  provision  of  the  Act  of  1887.  See 
vise,  over  and  above  what  would  be  Matter  of  Sidell  (X.  Y.  Law  J..  March 
a  reasonable  compensation,  left  to  an  10.  1893).  where  the  entire  residuary 
executor  in  lieu  of  his  conunissions  or  estate  was  given  "as  extra  compcnsa- 
allowances.  was  taxable,  and  such  tion  in  addition  to  commissions,  and 
reasonable  compensation  was  to  be  de-  in  satisfaction  of  services  rendered 
termined    by    the    surrogate.      As    it  during  my  lifetime." 

would  be  impossible  to  determine  the  83  See   Ivitching   v.    Shear,   2(i   Misc. 

reasonable     compensation,     until     the  430. 

services   had   been    rendered,   the   sur-  84  The  executor  is  not  excused  from 
rogate.    in    Matter   of   Havens    (X.   Y.  payment  of  tlie  tax  because  the  whole- 
Law  J..  Aug.  1.  1890).  postponed  con-  estate  has  been  distributed.      (Matter 
sidering  the  question  until  an  account-  of  Hackett,  14  Misc.  282.) 
ing  was  had.     In  Matter  of  Underbill 


^  715.  Admixistr^vtiox  of  Estate,  Etc.  593 

to  tlio  operation  of  the  statute.®^  The  application  may  be  made 
with  the  sole  view  of  procuring  an  adjudication  as  to  the  liability 
of  the  estate,  or  any  part  of  it  to  taxation  under  the  statute,  upon 
ii  petition  setting  forth  the  facts  on  which  a  claim  to  exemption 
or  otherwise  is  based.  The  court  will,  if  thought  necessary  or 
desirable,  appoint  an  appraiser  to  notify  the  persons  interested, 
and  to  take  such  further  or  additional  evidence  as  may  be  offered 
and  report  to  the  court.^^  It  is  usual  for  the  court  to  require 
notice  of  such  an  application  by  the  representative  to  be  given  to 
the  county  treasurer  or  comptroller,  though  the  giving  of  such 
notice  is  not  essential  to  the  right  of  the  court  to  pass  upon  the 
■questions  presented.^'  A  rej^ort  of  an  appraiser,  finding  that  cer- 
tain legacies  are  the  only  ones  taxable,  and  confirmed  by  the  sur- 
rogate, will  protect  the  executor  from  a  claim  for  the  amount  of 
the  taxes  upon  other  legacies  not  included  in  the  assessment.^*  As 
the  surrogate  is  at  once  invested  with  the  office  and  functions  of 
an  assessor  for  the  State,  with  authority  to  determine  the  ques- 
tion whether  the  property  of  the  decedent  was  subject  to  taxation 
imder  the  act,  his  determination  thereon  is  final  and  conclusive  in 
any  subsequent  proceedings,*^  except  upon  an  application  for  a 
reappraisal,  hereafter  referred  to. 

§  715.  Collection  of  tax  by  representative. —  The  representative 
or  trustee  is  furnished  with  the  means  of  collecting  the  tax  out 
of  the  property,  and  thus  escaping  personal  liability.     He  is  de- 

^5  Matter  of  Farley,  15  St.  Rep.  727.  by  the   act :    nor   is  it  necessary  that 

^6  Matter    of   Cohn,   X.   Y.   Law   J.,  the    treasurer    or    comptroller    should 

April   13,  1S93.  have  notice.     \Yhere.  therefore,  in  pro- 

8"  Matter  of  Wolfe,   137   X.  Y.   205.  ceedings  instituted   by  the  district  at- 

^'  Where  it  is  sought  to  procure  an  ad-  torney  it  appeared  that,  upon  applica- 

judioation    that    property    passing   by  tion  of  the  executors,   appraisers  had 

the  will  of  a  decedent  is  not  liable  to  been  appointed  by  the  surrogate,  and 

the  transfer  tax,  a  proceeding  must  be  upon  the  coming  in  and  confirmation 

instituted  by  petition  and  the  persons  of  their  report,  the  surrogate  made  a 

interested  must  be  made  parties.  '  So  decree  adjudging  that  certain  legacies 

far  as   the   application   relates   to  the  were  exempt  from  taxation  under  the 

return  of  the  fund  deposited  upon  the  act, — Held,   that,   as   to    said   legacies, 

purchase   of   the   property,   the   surro-  the    former    adjudication    was    a    bar. 

gate  is  without  jurisdiction."      (Mat-  See  Matter  of  Smith.  23  N.  Y.  Supp. 

ter  of  Aherns,  X.  Y.  Law  J..  Xov.  29,  762;  Matter  of  Schermerhorn.  38  App. 

1892.)  Div.    350:    Matter    of    Seaver,    63    id. 

88  Matter   of   Yanderbilt.    10    X.   Y.  283.     As  to  the  surrogate's  power  to 

Supp.  239.  modify  or  vacate  an  order   fixing  the 

sr»:Matter  of  Wolfe.   137  X.   Y.   205.  tax,   see   Matter   of    Fulton.   30   Misc, 

Held,  also,  in  that  case,  that  in  order  70;    62   X.   Y.    Supp.    995:    Morgan   v. 

to   give  the   surrogate   jurisdiction,   it  Cowie,    49    App.    Div.    012:    63    X.    Y. 

is   not   essential   that  the   proceedings  Supp.    608:    Matter    of    Earle.    71    id. 

should  be  initiated  by  the  district  at-  1038.     Compare  Matter  of  Morgan,  3{; 

torney,  at  the  instance  of  the  treasu-  Misc.  753 ;   Matter  of  Crerar,  56  App. 

Ter  or  comptroller  for  the  enforcement  Div.    479;     Matter    of    Von  Post,   35 

and  collection  of  the  tax  as  authorized  Misc.   367. 


593  Admimstkatkjx  of  Estate,  Etc.  §  710. 

clared  to  *'  Lave  full  power  tu  tell  so  much  of  the  property  of  tlie 
decedent  as  will  enable  him  to  pay  such  tax,  in  the  same  manner  as 
he  might  be  entitled  by  law  to  do  for  the  payment  "  of  decedent's 
debts.  Where  he  has  in  charge,  or  in  trust,  any  taxable  legacy 
or  property  for  distribution,  he  '^  shall  deduct  the  tax  therefrom," 
and  pay  it  over  to  the  county  treasurer  or  comptroller  within, 
thirty  days.  If  the  legacy  or  property  is  not  in  money,  he  is 
required  to  collect  the  tax  tii)()u  the  appraised  value  thereof  from 
the  legatee  or  distributee ;  and  he  shall  withhold  delivery  of  any 
specific  taxable  legacy  or  property,  until  he  has  collected  the  tax 
thereon.  In  the  case  of  a  legacy  chargeable  on,  or  payable  out  of, 
real  property,  the  tax  remains  a  lien  on  the  property,  and  is  payable 
by  the  heir  or  devisee  to  the  representative  or  trustee ;  failing  to  do 
which,  the  representative  or  trustee  may  enforce  it  by  the  sale 
of  the  property,  or  the  district  attorney  may  take  the  proceeding 
for  its  collection,  hereafter  mentioned.  Where  a  money  legacy 
is  given  for  a  limited  period,  the  representative  shall  retain  the 
tax  upon  the  whole  amount,  l)ut  where  the  legacy  is  not  in  money, 
he  must  apply  to  the  surrogate  for  an  apportionment,  if  the  case 
require  it,  of  the  sum  to  be  paid  into  his  hands  by  the  h^gatees 
(§  224).  Provision  is  also  made  by  the  statute  for  a  composition 
of  the  tax,  between  the  representative  and  the  county  treasurer  or 
comptroller,  in  certain  cases  where  the  tax  upon  an  expectant 
estate  is  not  presently  payable,  or  where  successive  beneficiaries  are 
not  liable  at  the  same  rate,  or  some  of  them  exempt.  But  where 
successive  trust  estates  are  taxable  at  the  same  rate,  the  representa- 
tive may  pay  the  whole  tax  out  of  the  principal  of  the  fund.*^*^ 

§  716.  Collection  of  tax  by  district  attorney. —  On  the  refusal 
or  neglect  of  the  persons  liable  for  the  tax  to  pay  the  same,  it  is 
made  the  duty  of  the  county  treasurer  or  comptroller  to  give  the 
district  attorney  written  notice  thereof;  and  if  the  latter  have 
probable  cause  to  believe  the  tax  is  due  and  unpaid,  he  shall  apply 
to  the  court  for  a  citation  to  show  cause  why  the  tax  should  not 
be  paid."^  The  citation  is  addressed  to  the  persons  liable  to  pay 
the  tax,  and  must  be  made  returnable  not  more  than  three  months 


"JOL.  1890).  0.  flOS.  §  2.'30,  as  amended  months    after    tlie    decedent's    death. 

L.   18!)7,  0.  284.  (Matter  of  Astor.  G  Dem.  402 :   Frazer 

91  The  formor  statute  was  silent  as  v.    People,   id.    174.)      The   Statute  of 

to  the  time  when  the  application  was  Limitations  is  not   available  as  a  de- 

to  be  made;  and  the  surrofjate  of  New  fense  in  proceedinjrs  to  collect  the  tax. 

York  county  decided  that  he  would  not  (Matter  of   Crerar,  31   Misc.  481;   03 

proceed  on   his  own  motion   to  assess  N.  Y.  Supp.  573.) 
the  tax  until  the  expiration  of  eighteen 

38 


§§  717,  718.     Administkatiox  of  Estate,  Etc.  594r 

after  its  date.  The  service  of  the  citation,  the  time,  manner  and 
proof  thereof,  and  the  hearing  and  determination  thereon,  and 
the  enforcement  of  the  determination  or  order  made  must  con- 
form to  the  course  of  procedure  prescribed  by  the  Code  for  Sur- 
rogates' Courts ;  where  a  controversy  arises  or  may  arise  as  to  the 
relationship  of  the  beneficiaries  to  the  decedent,  the  comptroller 
may,  with  the  approval  of  the  attorney-general,  and  a  justice 
of  the  Supreme  Court  of  the  judicial  district  in  which  the  dece- 
dent resided,  compromise  and  settle  the  amount  of  any  tax. 
(§  235.) 

§  717.  Duty  of  certain  corporations  as  to  tax. —  On  the  transfer, 
by  a  foreign  executor,  administrator,  or  trustee,  of  any  stock  or 
obligations  in  this  State  standing  in  the  name  of  a  decedent,  or  in 
trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall  be  paid 
to  the  treasurer  or  the  comptroller.  "  'Ro  safe-deposit  company, 
trust  company,  corporation,  bank,  or  other  institution,  person  or 
persons  having  in  possession  or  under  control  securities,  deposits 
or  other  assets  of  a  decedent,"  including  stock  of,  or  interest  in  such 
companies,  '^  shall  deliver  or  transfer  the  same  to  the  executors, 
administrators,  or  legal  representatives  of  said  decedent,  or  upon 
their  order  or  request,  unless  notice  of  the  time  and  place  of  such 
intended  transfer  be  served  upon  the  State  comptroller  at  least 
ten  days  prior  to  the  said  transfer."  Nor  shall  any  such  corpora- 
tion or  person  deliver  or  transfer  any  securities,  deposits,  or  other 
assets  of  the  estate  of  a  nonresident  decedent,  without  retaining  a 
sufficient  portion  or  amount  thereof  to  pay  any  tax  wdiicli  may 
thereafter  be  assessed  thereon,  unless  the  comptroller  consents 
thereto  in  writing.  The  treasurer  or  comptroller,  personally  or  by 
representative,  may  examine  said  securities  or  assets  at  the  time 
of  such  delivery  or  transfer.  "  Failure  to  serve  sucli  notice  or  to 
allow  such  examination,  or  to  retain  a  sufficient  portion  or  amount 
to  pay  such  tax  as  herein  provided,  shall  render  said  safe-deposit 
company,  trust  company,  corporation,  bank,  or  other  institution, 
person  or  persons  liable  to  the  payment  of  three  times  the  amount 
of  the  tax  and  penalty  due  upon  said  securities,  deposits,  or  other 
assets."  ^^^ 

§  718.  Proceedings  to  assess  the  tax. —  The  surrogate  who  has 
jurisdiction  to  grant  letters  on  the  estate  of  the  decedent,  or  to 
appoint  a  trustee  of  such  estate,  is  invested  with  the  office  and 
function  of  an  assessor  of  the   State,  upon   whom   is  conferred 


ML.  1896,  c.  908,  §  228,  as  amended  L.   1001.  e.   173. 


595 


AliMlMSlKATION    OF    EsTATE,    EtC. 


§T18. 


'■  jurisdiction  to  la-ar  and  dL'tcrniiiic  all  (jiu'stions  arising  under 
the  provisions  of  this  article,  and  to  do  any  act  in  relation  thereto 
authorized  by  law  to  be  done "  by  him  in  <^ther  matters  or 
l)roceedings  of  which  he  has  jurisdiction."'  As  in  other  proceed- 
ings, in  case  two  or  ukuh-  Surrogates'  Courts  have  concurrents 
jurisdiction,  the  onetirst  acquiring  it  may  retain  it  to  the  exclu- 
sion of  all  others  (§  lii^U).''*  lie  lias  power  to  decide  every  question 
that  may  arise  in  a  proceeding  under  the  act,  which  nuiy  be  neces- 
sary to  fully  discharge  the  duties  imposed  upon  him.  He  may, 
therefore,  decide  the  (piestion  whctlier  any  of  decedcnit's  property 
passed  under  the  will,  or  under  the  laws  (jf  intestacy,  and  may 
determine  the  validity,  or  otherwise,  of  testamentary  dispositions, 
and  if  void,  may  declare  the  succession,  under  the  Statutes  of  De- 
scent and  of  Distribution.^'^ 

In  the  matter  of  the  appraisal  of  the  property,  to  the  end  that 
the  tax  may  be  assessed,  the  surrogate's  jurisdiction  may  be  in- 
A'oked  by  any  interested  party,  including  the  State  comptroller,  or 
upon  his  own  motion,^^  and  he  may  "  determine  the  cash  vahie  of 
all  such  estates  and  the  amount  of  tax  to  which  the  same  are  lial)lc, 
without  appointing  an  appraiser  "  (§  232).^^  In  the  case  of  non- 
residents' estates,  upon  which  either  ancillary  letters  testamentary 

f''5  The  provisions  of  the  Taxable 
Transfer  Act  prescribinfj  what  prop- 
erty is  subject  to  taxation  and  au- 
thorizing the  Surrogate's  Court,  whicli 
has  jurisdiction  to  grant  letters  upon 
the  estate,  to  hear  all  proceedings  un- 
der the  provisions  of  the  act.  and 
those  of  the  Code  prescribing  tlie  right 
to  grant  letters,  should  have  the  same 
construction,  and  where  it  appears 
that  shares,  of  a  nonresident  testator, 
in  a  corporation  of  this  State  are 
taxable  under  the  act,  because  situ- 
ated here,  such  shares  will  also  be 
ileemed  property  wliich  would  author- 
ize the  Surrogate's  Court  of  the  county 
where  the  principal  oilice  is  located, 
to  issue  letters  and  such  court,  there- 
fore, has  jurisdiction  of  proceedings 
to  assess  the  tax.  ( Matter  of  Fitch, 
160  N.  Y.  87.) 

04  Matter  of  Hathaway,  i?  Misc. 
474;   ;■)(»  X.  Y.  Sui)p.   Kiti.' 

'•5  Matter  of  I'Uman,  1.37  X.  Y.  404. 
In  that  case,  decedent's  will  attempted 
to  create  trusts  for  the  dis|)osition  of 
his  residuary  estate,  which  unduly 
suspended  the  power  of  alienation. 
Held,  that  the  surrogate  had  juris- 
diction to  determine  that  the  residu- 
ary estate  did  not  pass  to  the  legatees 


or  devisees,  but  to  the  heirs  and  next 
of  kin :  and  that  a  decree  assessing 
the  heirs  for  that  portion  of  the  es- 
tate which  passed  to  them  was  valid. 
To  the  same  eflfect.  Matter  of  Peters, 


(in    App.    Div.    465;    74    X.    Y. 


nipp. 


1028. 

•ML,.  ISflfi.  c.  908.  §  230,  as  amended 
bv  L.  1902,  c.  490.  See  Matter  of 
d'Donohue,  44  App.  Div.  186;  60  X. 
Y.  Supp.  690. 

^7  Under  the  former  statutes,  which 
contained  no  such  provision,  it  was 
lield,  ne\-^rtheless.  that  no  formal  ap- 
]iraisal  was  necessary  where  the  legacy 
or  distributive  share  was  a  fixed, 
known  sum,  on  which  the  amount  of 
tax  pavable  was  readily  calculated. 
(:\rattef  of  Astor.  6  Dem.  402.)  See 
Matter  of  Jones.  19  Abb.  X.  C.  221. 
But  where  a  surrogate  has  ai)pointed 
an  appraiser  and  made  appliiation  to 
the  superintendent  of  the  insurance 
department  to  determine  the  value  of 
a  vested  rcnuiinder.  the  determination 
of  the  latter  is  binding  upon  him  and 
he  cannot  thereafter,  without  revers- 
ing the  entire  proceeding,  make  an  ap- 
praisal himself.  (Matter  of  Davis.  91 
Hun.  53:   alTd.,   149  X.   Y.  539.) 


§§  719,  720.     Administkation  of  Estate,  Etc.  596 

or  ancillary  letters  of  administration  are  applied  for,  the  surro- 
gate is  required  to  determine  the  amount  of  the  tax  which  may  be  or 
become  due,  and  in  his  decree  awarding  such  ancillary  letters,  he 
may  make  provision  for  the  payment  or  securing  .the  tax.  To  this 
end,  every  petition  for  ancillary  letters  must  set  forth  the  name 
of  the  county  treasurer  or  comptroller,  and  also  "  a  true  and  correct 
statement  of  all  the  decedent's  property  in  this  State,  and  the  value 
thereof;"  on  which  a  citation  must  issue  to  the  treasurer  or  comp- 
troller, and  upon  its  return  the  amount  of  the  tax  will  be  deter- 
mined as  above  (§  229). 

§  719.  Appointment  of  appraiser. — Formerly  the  surrogate  was 
not  restricted  in  the  selection  of  an  appraiser ;  all  that  was  re- 
quired was  that  his  appointee  should  be  "  a  suitable  person  "  to 
ascertain  the  value  of  the  estate.  In  1900,^^  however,  the  nomina- 
tion of  appraisers  was  vested  in  the  State  comptroller  with  re- 
spect to  certain  specified  counties  of  the  State,  and  in  other  coun- 
ties the  duties  of  appraiser  were  imposed  upon  the  county  treas- 
urer. Since  that  time  the  surrogate  has  had  no  power  to  appoint  an 
appraiser,  but  should  direct  one  of  the  official  appraisers,  or  the 
county  treasurer,  as  the  case  may  be,  to  proceed  with  the  ap- 
praisal.^^ Under  the  former  statute  the  appointment  could  be 
made  at  any  time  when  the  surrogate  was  able  to  determine  the 
amount  of  the  estate,  Avithout  waiting  for  the  ascertainment  of 
debts,^  and  doubtless  that  proposition  is  still  true. 

§  720.  Proceedings  by  appraiser. —  On  notice  first  given  by  mail 
to  all  persons  knoA\Ti  to  have  a  claim  or  interest  in  the  property 
to  be  appraised,  including  the  State  comptroller,  and  such  other 
persons  as  the  surrogate  may  by  order  direct,  of  the  time  and 
place  when  he  will  appraise  the  property,^  the  appraiser  will  "  fix 
the  fair  market  value,  at  the  time  of  the  transfer,"  i.  e.,  at  the  time 
of  decedent's  death,  except  as  mentioned  below.  He  is  author- 
ized to  issue  subpoenas  to  witnesses,  compel  their  attendance,  and 


98  L.  1900,  c.  658.  quired  by  law,  of  the  time  and  place 

99  flatter  of  Sonheim,  32  Misc.  296.  when    the    appraisal    would    he    made, 

1  Matter  of  Westurn,  152  N.  Y.  9.3.  and   that   upon  the  coming   in  of   the 

2  In  Matter  of  Miller  (110  N.  Y.  appraiser's  report,  the  order  in  ques- 
216),  which  was  a  proceeding  to  va-  tion  was  made.  Held,  that  in  the  ab- 
cate  the  order  of  the  surrogate,  af-  sence  of  any  allegation  or  proof  to  the 
firming  the  appraisement  of  the  estate,  contrary,  it  was  to  be  presumed  that, 
and  assessing  the  amount  of  the  tax,  immediately  after  making  the  order, 
it  was  objected  that  it  was  made  the  surrogate  gave  the  notice  pre- 
without  notice  to  the  legatee.  It  ap-  scribed  by  the  act,  and  that  no  prior 
peared  that  the  appraisers  were  duly  notice  was  required. 

appointed,    and    gave    notice,    as    re- 


597  Admixistratiox  of  I^^tatk,  Etc.  §  720. 

take  their  testimony  under  oath  concerning  the  property  and  its 
value,^  and  is  required  to  report  the  same  and  the  value  of  the 
property  to  the  surrogate,  and  also  such  other  pertinent  facts  as 
the  surrogate,  by  order,  may  require  (§  231).^  The  appraiser  is  re- 
quired ''  to  fix  the  fair  market  value  of  property  of  persons  whose 
estates  shall  be  subject  to  the  payment  of  the  tax  (§  230).  The 
lien  of  the  tax,  which  attaches  at  the  time  of  decedent's  death,  is 
subject  to  the  superior  lien  of  the  decedent's  debts,  and  also  to  the 
charges  for  administrative  expenses.  In  fixing  "  the  fair  market 
value  "  of  land  which  is  subject  to  the  lien  of  decedent's  mort- 
gage debt,  it  would  seem  reasonable  to  appraise  the  value  of  the 
equity  of  redemption  only,  and  this  whether  the  succession  is  by 
devise  or  by  descent.^  But,  however  that  may  be,  it  is  clear  that 
mortgage  debts  are  not  to  be  deducted  in  fixing  the  value  of  the 
personalty,  even  though  directed  to  be  paid  by  the  executor.^  If 
the  land  is  ndt  worth  more  than  the  debt,  there  is  no  basis  for  fix- 
ing any  value  to  it.  The  fact  that,  under  the  statute,  the  heir 
or  devisee,  and  not  the  general  estate,  is  charged  with  the  burden 
of  the  mortgage,  does  not  alter  the  principle  that  the  value  of  the 
property  over  and  above  the  incumbrance  is  the  only  basis  for  as- 
sessing the  tax.^  Provision  is  made  for  the  case  of  debts  proved 
against  the  estate,  after  the  payment  of  any  legacy  or  distribu- 
tive share  from  which  the  tax  has  been  deducted,  or  upon 
Avhich  the  legatee  or  distributee  has  paid  the  tax,  and  has  been 
called  on  to  contribute  to  the  payment  of  the  debts.       In  such 

3  The  surrogate  may  issue  a  com-  his  death  was  a  house  and  lot  in  Xow 
mission  to  take  testimony  of  nonresi-  Jersey,  which,  of  course,  was  not  tax- 
dent  witnesses,  for  use  on  the  ap-  able.  This  house  was  worth  $9,000. 
praisal  (Matter  of  Wallace.  71  App.  and  was  subject  to  a  mortgage  of 
Div.  284),  and  the  appraiser  may  $7,000.  The  decedent  was  entitled  to 
hear  evidence  as  to  such  debts  as  could  a  one-half  interest  therein.  The  exec- 
be  enforced  against  the  estate.  (Mat-  utors  claimed  that,  being  responsible 
ter  of  Wormser,  30  Misc.  434;  73  X.  for  the  amount  of  the  mortgage  as  a 
Y.  Suj)p.  748.)  debt  of  the  testator,  there  should  be  a 

•*  Witnesses'  fees  are  to  be  paid  by  deduction  from  the  amount  of  the  es- 

the  treasurer  or  comptroller;  likewise  tate    by    one-half    of    this    debt,    and 

the   appraiser's   compensation    (unless  that  there   was   no  provision   of  stat- 

his    salary   is    fixed),   and    his   actual  ute  in  New  .Jersey  similar  to  that  in 

and  necessary  traveling  expenses.  this  State  which  charges  the  heir  (Jt 

•'">  See   Matter  of  Kene,  8   Misc.    102.  devisee  with  tlie  burden  of  the  mort- 

<!  Matter  of  Livingston.   1   A])p.  Div.  gage.     The  appraiser  refused  to  make 

.■)(i8 ;    Matter    of    Opperman.    ■2'^    App.  the    deduction.       The     surrogate    con- 

Div.  04:   48  N.  Y.  Sujjp.  !)!)3 ;    Matter  lirmed   tlie    report,   apparently   on   the 

of  Sutton,  3  App.  Div.  208;  atl'd..  14!)  giound  that  there  was  no  proof  of  the 

N.   Y.   018;    Matter   of   De   Oraaf.   24  law   of   >lew  Jersey,   and   even   if   the 

Misc.  147;  Matter  of  Berry.  23  id.  230.  law  was  as  claimed,  he  would  require 

"In  Matter  of  Colhoun    (X.  Y.  Law  proof  that  the  property  would  not  be 

J..  May  24.   1802),  the  only  property  sufficient  to  pay  the  mortgage  debt, 
owned  by  the  testator  at  the  time  of 


§  720.  ADMiNisTKAa-iox-  OF  Estatf:,  Etc.  598 

case,  an  equitable  proportion  of  the  tax  nuist  be  repaid  hinL.'* 
If  the  property  has  no  sahtble  value,  nor  any  actual  or  poten- 
tial annual  value  at  the  time  of  the  transfer,  it  would  seem 
to  be  incapable  of  being  appraised.'-^  Another  principle  of  ap- 
praisement is,  that  the  act  only  applies  to  the  property  of  which 
the  decedent  died  seized  and  possessed,  and  not  to  the.  interest 
or  increase  between  that  time  and  the  accounting  of  the  execu- 
tors.^" In  appraising  legacies  for  taxation,  the  appraiser  should 
report  their  value,  irrespective  of  any  direction  in  the  will  as  to 
payment  of  the  tax ;  and  the  fact  that  the  will  charges  the  pay- 
ment of  all  the  taxes  upon  the  residuary  estate  does  not  authorize 
the  deduction  of  that  amount  in  appraising  the  residuary  legacy. ^^ 
But  in  general  it  may  be  said  that  deductions  should  be  made  for 
debts, ^^  commissions  of  the  executors  ^^  and  the  probable  expenses 
of  administration,  but  not  for  the  amount  of  the  Federal  inherit- 
ance tax.^*  The  deductions  should  be  made  from  the  whole  es- 
tate, including  exempt  property,  so  that  every  species  of  property 
shall  bear  its  just  burden. ^^  It  was  held,  under  the  former  statute, 
not  to  be  the  duty  of  the  appraiser  to  appraise  the  whole  estate  of 
the  decedent,  but  only  the  estates  of  those  persons  whose  estates  are 
inherited,  or  are  created  by  will,  and  which  are  subject  to  the  tax.^^ 

8  See  §  732,  post.  fied,  and  some  of  such  persons  are  ex- 

9  Thus  a  worthless  account  (Matter  empt  from  legacy  tax,  it  is  error  to 
of  Manning.  1G9  N.  Y.  449).  or  notes  assess  the  tax  upon  the  whole  gift, 
which  the  maker  testifies  have  been  but  it  should  be  limited  to  the  bene- 
paid  (Matter  of  Westurn,  152  X.  Y.  ficial  interests  which  are  not  exempt. 
93).  should  not  be  included.  But  a  (s.  c.  below.  2  Connoly.  644.)  Taxes 
judgment  against  a  legatee  or  next  of  assessed  against  the  deceased  in  his 
kin  should  be  appraised,  as  payment  lifetime,  though  not  levied  until  after 
may  be  enforced  by  deduction  from  his  his  death,  when  they  were  paid  by 
legacy  or  distributive  share.  (Mat-  the  executor,  should  be  deducted, 
ter  of  Smith,  14  Misc.  169.)  Notes  (Matter  of  Brundage.  31  App.  Div. 
directed  to  be  canceled  should  be  ap-  348 ;   .52  N.  Y.   Supp.  362. ) 

praised  at  their  actual,  not  face,  12  Matter  of  Westurn,  152  X.  \'.  93 : 
value.  (Morgan  v.  Warner,  45  App.  Matter  of  Millward,  6  Misc.  425.  See 
Div.  424;  affd.,  162  X.  Y.  612.)  As  Matter  of  C4ould,  156  X.  Y.  423.  Corn- 
to  the  method  of  valuing  marketable  pare  Matter  of  Ludlow,  4  ^Misc.  594. 
and  industrial  stocks,  see  Matter  of  13  Matter  of  Westurn,  152  X.  Y.  93 ; 
Crary,  31  Misc.  72;  Matter  of  Smith,  Matter  of  Gihon.  169  id.  443  (com- 
71  App.  Div.  602.  The  value  of  the  missions  of  temporary  administra- 
gpod-will  of  a  joint-stock  association,  tor)  -.  Matter  of  Millward,  supra. 
in  which  decedent  was  interested,  i^  Matter  of  Gihon,  supra;  Matter 
should  be  included.  (Matter  of  Jones,  of  Curtis,  31  Misc.  83;  64  X.  Y'.  Supp. 
09  App.  Div.  237.)  574. 

10  Matter  of  Vassar,   127   X.   Y.   1:  15  Matter  of  Purdv,  24  Misc.  301. 
37     St.     Rep.     239.       See    Matter    of  16  Matter  of  Robertson.  5  Dem.   92. 
Sloane.  154  X.  Y.   109.  But    the   appraiser    should    report   all 

11  Matter  of  Swift,  137  X.  Y.  77.  property  as  to  which  he  is  in  doubt, 
Where  the  will  leaves  to  the  executor,  as  subject  to  the  tax.  (Matter  of 
certain  articles  to  be  specified  in  a  Hendricks,  1  Connoly,  301:  IS  St. 
subsequent  memorandum,  in  trust  for  Rep.  989.)  See  Matter  of  Swift, 
such  persons  as  shall  be  therein  speci-  supra. 


599  Admix isTKATiox  ok  Estate,  Etc.  §  721. 

But  it  iri  quite  clear  that  in  the  case,  for  example,  of  an  inrostate 
succession,  it  may  be  necessary  to  appraise  the  whole  estate,  in 
order  to  tletermine  whether  the  value  (if  the  several  distril)utive 
shares  will  exceed  the  amount  on  which  the  tax  is  limited  to  one 
per  cent.  The  apjiraiser  must  necessarily  examine  the  will,  and 
it  is  his  duty  to  call  the  court's  attention  to  any  facts  that  appear 
to  him  as  constituting  sufficient  reasons  for  reportiui;  the  legacies 
subject  to  the  tax.  Where  other  interests  accrue,  after  his  ap- 
pointment, but  before  his  report  is  filed,  he  has  power  to  appraise 
and  report  such  interests.^'  Tn  case  any  property  is  discovered  to 
have  been  omitted  by  mistake,  fraud,  or  concealment,  from  the 
first  appraisal,  the  court  may  send  it  back  to  him  for  correction.^® 
§  721.  Valuing  estates  which  are  subject  to  defeat, —  The  statute 
contains  a  provision  under  which,  whenever  an  estate  for  life  or 
years  can  be  divested  by  the  act  or  omission  of  the  legatee  or 
devisee,  it  shall  be  taxed,  as  if  there  were  no  possibility  of  such 
limitation. ^^  In  estimating  the  value  of  any  present  estate,  no 
allowance  shall  be  nuide  for  any  contingent  incumbrance  thereon,  or 
for  any  contingency,  u]i*ui  tlie  ha])pcning  of  which  the  estate  or  in- 
terest therein  might  l)e  abridged,  defeated,  or  diminished  ;  provided, 
that  in  the  event  of  such  incumbrance  taking  effect  as  an  actual 
burden  u])<tn  the  interest  of  the  beneficiary,  or  in  the  event  nf  the 
abridgment,  defeat,  or  diminution  thereof,  a  return  shall  be  made 
to  the  person  entitled  thereto,  of  a  proportionate  amount  of  such 
tax  in  respect  of  the  amount  or  value  of  the  incuml)rance  when 
taking  effect,  etc.""  It  is  also  provided,  by  the  same  amendment, 
that  where  a  transfer  of  property  is  made  subject  to  a  life  estate, 
the  increase  of  benefit  accruing  to  the  remainderman  upon  the 
termination  of  the  precedent  estate,  shall  be  deemed  a  transfer  of 
property  under  the  act,  as  though  such  increase  had  been  acquired 

17  Matter  of  Stewart,  30  St.  Rep.  interests,  and  in  reporting:  the  interest 
738.  passing  to  Susan  A.  Heatnn  the  ap- 
is IMatter  of  McPherson,  104  X.  Y.  praiser  acted  properly.  Should  the 
t^On ;  Matter  of  Lansing,  31  ^liso.  148;  events  liappen  upon  which  her  estate 
()4  X.  V.  Supp.  112.5:  Matter  of  Kelly,  or  interest  was  limited,  before  the  ex- 
•2!'  Misc.  1()!).  haustion  of  the  trust  funds,  relief  may 
1!^  But  this  does  not  apply  to  estates  be  accorded  to  her  as  provided  in  the 
wliich  had  terminated  before  the  act  act.  The  appraiser  was  also  riirht  in 
took  etTect,  nor  to  a  remainder  which  reportinfj  for  taxation  so  much  cf  the 
is  subject  to  a  life  estate,  which  may  residuary  estate  as  was  ascertainable 
be  so  terminated.  (Matter  of  Sloane,  at  the  time  of  the  appraisement. 
L>4  X.  Y.  109.)  See  Matter  of  Plum,  Should  that  fund  be  temporarily  iu- 
37  ]\Iisc.  4(i();  75  X.  Y.  Supp.  040.  creased  by  the  receipt  of  additional 
2<'  In  Matter  of  Stanford  (  N.  Y.  Law  assets,  or  by  other  defeasible  interests 
J.,  ^lay  0.  ISO."?),  the  surroirate  said:  fallin<T  into  and  becoming  a  part  of 
*'  It  has  been  the  rule  of  decision  here-  the  same,  another  appraisement  may 
tofore,  to  tu.\  vested  thouiih  defeasible  be  had." 


§  722.  Administration  of  Estate,   Etc.  GOO 

from  the  person  from  whom  the  interest  is  derived  (§  230). 
Where  property  is  transferred  in  trust,  or  otherwise,  and  the  in- 
terests of  the  transferees  are  dependent  npon  contingencies  whereby 
they  may  he  defeated,  extended,  or  abridged,  a  tax  shall  be  imposed 
"  at  the  highest  rate  which,  on  the  happening  of  any  of  the  said 
contingencies  or  conditions,  would  be  possible  under  the  provisions 
of  this  article."  Such  tax  shall  be  due  and  payable  forthwith  out 
of  the  property  transferred ;  provided  that,  on  the  happening  of 
any  contingency  whereby  the  property  is  transferred  to  persons 
either  exempt  or  taxable  at  a  less  rate,  such  persons  shall  be  en- 
titled to  a  rebate  specified  in  the  statute.^^ 

§  722.  Valuing  future  and  contingent  estates. —  The  difficultv  of 
valuing  a  contingent  interest  before  the  contingency  happens,  and 
the  impossibility  of  determining  before  that  time  (in  many  cases) 
the  person  to  whom  the  eventual  estate  Avould  pass,  led  to  a  doubt, 
under  the  former  statute,  whether  the  Legislature  intended  to  tax 
such  contingent  interests  at  all,  at  least  before  the  happening  of 
the  contingency.^^  The  present  law  provides,  however,  that, 
"  whenever  a  transfer  of  property  is  made,  ujDon  which  there  is,  or 
in  any  contingency  there  may  be,  a  tax  imposed,  such  property 
shall  be  appraised  at  its  clear  market  value  immediately  after  such 
transfer,  or  as  soon  thereafter  as  practicable."  It  is  expressly 
provided,  however,  that  contingent  or  defeasible  expectant  estates,, 
of  Avhich  the  value  has  not  been  fixed,  shall  be  appraised  "  when 
the  persons  entitled  thereto  shall  come  into  the  beneficial  enjoy- 
ment or  possession  thereof,"  v.-ithout  reference  to  the  valuation^ 
theretofore  made,  of  the  particular  estate.^'^  The  value  of  every 
future  or  limited  estate,  income,  interest,  or  annuity,  dependent 


21  L.  1806.  c.  008.  §  230,  as  amended  life  tenant,  the  tax  does  not  accrue 
L.  1800,  c.  76.  Under  this  statute  the  until  that  event.  (^Matter  of  Davis,, 
tax  on  a  contin^rent  remainder  is  not  149  X.  Y.  530;  Matter  of  Roosevelt, 
payab"e  until  the  estate  vests  in  pos-  143  id.  120:  Matter  of  Curtis.  142  id. 
session,  as  otherwise  the  effect  would  210;  Matter  of  Hoffman,  143  id.  327; 
be  to  tax  the  property  and  not  the  Matter  of  Howell.  34  Misc.  432:  Mat- 
succession,  (flatter  of  Vanderbilt.  68  ter  of  Eldridge,  20  id.  734;  Matter  of 
App.  DiA-.  27;  74  X.  Y.  Supp.  4.50.)  Irwin,  36  id.  277.)  See  Matter  of 
The  Act  oi  1899,  in  its  original  form,  Sloane.  154  X.  Y.  100.  In  that  case 
attempted  to  tax  remainders  which  the  remainder  could  not  be  determined 
had  vested  prior  to  June  30,  1885,  until  the  death  or  remarriage  of  the 
and.  in  this  respect,  was  unconstitu-  life  tenant.  The  provisions  of  the  act 
tional.    (Matter  of  Pell.  171  X.  Y.  48.)  do    not    apply    to    a    case    where    the 

22  See  flatter  of  Wheeler,  1  Misc.  transfer  was  made  prior  to  the  passage 
450;  22  X.  Y.  Supp.  1075.  of    the    act,    though    the    contingency 

23  See  Matter  of  Plum,  37  Misc.  upon  which  the  estate  actually  vested 
46G;  75  X.  Y.  Supp.  940.  \Yhere  the  in  possession  took  place  after  the  act 
person  entitled  to  the  remainder  can-  took  effect.  (Tallmadge  v.  Seaman,  9 
not  be  known  until  the  death  of  the  Misc.  303;  30  X.  Y.  Supp.  304.) 


GOl 


Au.UlMSTUATlOA    OF    ESTATE,    EtC. 


^722. 


upon  any  life  or  lives  in  being,  shall  be  determined  by  the  rule^ 
method,  and  sta^idard  of  mortality  and  value  employed  by  the 
superintendent  of  insurance  in  ascertaining  the  value  of  policies 
of  life  insurance  and  annuities,  for  the  determination  of  liabilities 
of  life  insurance  companies ;  except  that  the  rate  of  interest  for 
making  such  computation  shall  be  five  per  centum  per  annum."* 
The  statute  further  pfovides  that  "  the  superintendent  of  insurance 
shall,  on  the  application  of  any  surrogate,  determine  the  value  of 
any  such  future  ur  contingent  estate,  income  or  interest  therein, 
limited,  contingent,  dependent  or  determinable  upon  the  life  or 
lives  of  persons  in  being,  upon  the  facts  contained  in  any  such 
appraiser's  report,  and  certify  the  same  to  the  surrogate,  and  his 
certificate  shall  be  conclusive  evidence  that  the  method  of  compu- 
tation adopted  therein  is  correct  "  (§  232).^" 

This  clearly  brings  contingent  remainders  within  the  operation 
of  the  law,  and  supersedes  some  rulings  to  the  effect  that  the  former 
statute  applied  only  to  vested,  and  not  to  contingent,  remainders.^* 
But  where,  under  the  will,  the  whole  estate  may  be  absorbed  by  the 
life  tenant,  or  first  taker  ;^^  or  where  the  ultimate  estate  is  de- 
pendent upon  the  contingency  of  the  exercise,  by  the  first  taker, 
of  a  right  to  dispose  of  the  property  by  will,  there  would  seem 
to  be  no  basis  for  the  impo^:iti(ln  of  the  tax,  it  being  a  question 
whether  any  property  at  all  will  pass.^^ 


24  L.  1896.  c.  908.  §  230.  as  amended 
L.  1902,  c.  496.  "All  estates  upon  re- 
mainder or  reversion,  wliich  vested 
prior  to  May  1,  1892,  but  which  will 
not  come  into  actual  possession  or  en- 
joyment of  the  person  or  corporation 
beneficially  interested  tlierein.  until 
after  the  pa.ssage  of  this  act,  shall  be 
appraised  and  taxed  as  soon  as  the 
person  or  corporation,  beneficially  in- 
terested therein,  shall  be  entitled  to  the 
actual  possession  or  enjoyment  there- 
of.'' (lb.)  By  an  amendment  made  in 
1901  (c.  173).  addinfr  a  new  section 
to  the  act  (§  130(/),  power  was  jjiven 
to  the  county  treasurer  of  any  county 
in  whicli  tlie  otlice  of  appraiser  is  not 
sahiried.  with  the  written  consent  of 
the  State  comptroller,  and  in  other 
counties,  the  State  comptroller,  with 
the  written  consent  of  the  attorney- 
peneral,  to  compromise  with  the  trus- 
tees of  any  estate,  the  amount  of  the 
tax  upon  any  expectant  estate,  which, 
under  tlie  Collateral  Inheritance,  or 
Transfer  Tax.  Act.  were  not  thon  a-^- 
certainable,  and  to  prant  discliarges 
thereof;   provided,  that  no  such  com- 


promise should  be  conclusive  against 
the  cestui  que  trtist  without  the  lat- 
ter's  consent. 

25  Under  the  Act  of  ISS.i,  the  sur- 
rof^ate  was  froverned  by  the  North- 
ampton table  of  mortality,  under  the 
ireneral  rules  of  practice.  (Matter  of 
Robertson,  o  Dem.  92. ) 

20  See  flatter  of  Lefever.  o  Dem. 
184:  Matter  of  Clark.  1  Connoly.  431: 
22  St.  Rep.  354:  Matter  of  Hopkins. 
6  Dem.  1.  The  collateral  inheritance 
tax  imposed  by  L.  188.5.  c.  483,  was. 
upon  every  interest,  immediate  or 
future,  derived  under  a  testator  or  in- 
testate, not  embraced  in  tlie  clause  of 
exemption  in  the  act.  (Matter  of 
Stewart.  131  N.  Y.  274:  43  St.  Rep. 
171.) 

2T  Matter  of  Babcock,  37  Misc.  445 : 
75  X.  Y.  Supp.  926.  See  Estate  of 
Fleming.  X.  Y.  Law  J..  Oct.  15, 
1889:  Matter  of  Wallace,  18  St.  Rep. 
387:  Matter  of  Mathews,  N.  Y.  Law 
.T..  .Tulv  27,  1889. 

28  Matter  of  Cafrer,  111  X.  Y.  343: 
19  St.  Rep.  497:  Matter  of  Field,  3(> 
Misc.  279. 


:§  723.  Administration  of  Estate,  Etc.  602 

In  the  case  of  a  vested  remainder,  no  difficulty  arises.  Thus, 
in  the  case  of  a  bequest  to  the  wife  for  life,  with  remainder  ab- 
solutely to  a  son  and  his  heirs,  etc.,  the  remainder  vested  on  the 
■death  of  the  testator,  and  passed  to  the  son's  heirs  on  his  death 
before  the  life  tenant.  It  is,  therefore,  subject  to  the  tax,^^  at  the 
value  of  the  whole,  less  the  life  estate.^'^  In  the  case  of  a  devise,  to 
a  brother  and  his  wife,  of  an  estate  for  life  as  tenants  in  the  en- 
tirety in  certain  real  property,  the  beneficiary  being  known,  the 
property  definite,  and  the  event  certain  to  occur,  the  wife  has  an 
interest  which  is  capable  of  assigiiment,  and  of  which  the  present 
value  can  be  fixed,  and,  therefore,  the  wife's  interest  is  subject  to 
the  tax.^^  So,  too,  remainder^  absolutely  vested  in  the  decedent  at 
the  time  of  death,  one  under  a  will  and  the  other  under  a  power 
of  appointment,  are  both  presently  assessable  against  the  legatee 
of  such  decedent.^^ 

Where  a  tax  is  assessed  on  a  life  estate,  and  also  on  the  re- 
mainder, the  former  is  to  be  taken  out  of  the  income,  and  the  lat- 
ter is  to  be  deducted  from  the  principal.  The  fact  that  the  latter 
will  thus  be  reduced  is  no  objection,  since  such  reduction  is  law- 
fully made.^^ 

§  723.  Transfers  under  power  of  appointment. —  The  statutorv^ 
provisions  relating  to  this  subject  have  already  been  referred  to,^^ 
but  a  fcAv  observations  in  connection  with  the  appraisal  of  such 
transfers  may  not  be  out  of  place.  It  has  been  held,  that  where  a 
power  of  appointment,  given  by  a  will  which  took  effect  prior  to 

29  Matter  of  Van  Rensselaer.  N.  Y.  0  id.  1.  In  Matter  of  Cockey  (N.  Y. 
Law  J.,  May  25,  1889;  Matter  of  Law  J..  March  21.  1893),  the  surro- 
Vinot,  7  N.  Y.  Supp.  .517;  26  St.  Rep.  gate  of  New  York  county  said,  in  ref- 
•610.  See  Matter  of  .Johnson.  6  Deni.  erence  to  Matter  of  .Johnson  (supra), 
14G;  Matter  of  Runcie.  .36  [Misc.  607:  holding  that  the  tax  upon  the  re- 
Matter  of  Dows,  167  X.  Y.  227;  Mat-  mainder  was  payable  out  of  the  prin- 
ter of  Sherman.  30  Misc.  547.  cipal  fund,  and  that  the  fact  that  such 

30  Matter  of  Lange.  55  N.  Y.  Supp.  payment  would  affect  the  income  did 
750;  Matter  of  Hall.  36  Misc.  618.  not  alter  this  result,  that  he  must 
See  Matter  of  JJoyt.  37  id.  720;  Mat-  dissent  from  the  decision.  "In  my 
ter  of  Sloane.   154  N.  Y.  109.  opinion,   the   tax    should   be   borne   by 

31  Matter  of  Hiworins.  X.  Y.  Law  .J.,  the  beneficiaries  in  remainder,  and  the 
Dec.  7,  1889.  order    should   run    against   those    who 

32  Matter  of  Zefita,  167  X.  Y.  280.  have  been  served;   that  the  executrix 

33  Matter  of  Johnson,  6  Dem.  146;  lias  power  under  section  7  to  sell  that 
20  St.  Rep.  134.  See  Matter  of  Mc-  interest  in  remainder  for  the  purpose 
Mahon,  28  Misc.  697 ;  60  X.  Y.  Supp.  of  paying  the  tax.  and  that  it  is  the 
G4.  Where  the  interest  of  the  life  "  property '  referred  to  in  that  section." 
beneficiary  is  not  taxable,  the  amount  34  See  §  699a.  ante.  As  to  taxing 
of  the  remainderman's  tax  is.  never-  such  transfers  before  the  amendment 
theless,  lawfully  payable  out  of  the  of  1897,  see  Matter  of  Stewart.  2  Con- 
principal,  (lb.')  See  Matter  of  Lea-  noly.  281:  afTd..  131  X.  Y.  274:  Mat- 
vitt.  22  St.  Rep.  81:  ISIatter  of  I^-  ter  of  Hyde,  N.  Y.  Law  J.,  April  27, 
iever,  5  Dem.  184;  Matter  of  Hopkins,  1892. 


603  Ar)^rI\ISTKATIo^•   of  Kstatk,   Etc.  §  724. 

the  orlf2;inal  Inheritance  Tax  Law,  was  exercised  before  the  amend- 
ment of  1897  (chap.  2S4),  legacies  g-iven  by  the  donee  of  the  power 
shonhl  not  be  taxed,"'*^  but  a  transfer,  under  an  appointment,  made 
jiftcr  the  :iiii(ti(liiicnt,  is  taxal)](',  irrespective  of  the  time  when  the 
grant  of  the  power  took  effect.^''  The  appraisal  is  to  be  made  as 
of  the  time  the  power  was  exercised, ^^  hence  property  which,  at 
that  time,  was  in  the  form  of  personalty  should  be  so  treated,  al- 
though consistinu"  of  real  estate  at  the  death  of  the  original 
testator.^^  Upon  the  (piestion  of  exemption,  it  is  also  to  be  iiotccl 
that  transfei's  umU'i-  a  ])o\vcr  of  appointment  are  regarded  as  ])ass- 
ing  under  the  will  or  grant,  by  which  the  power  is  exercised  and 
not  from  the  instrument  creating  the  power;  so  that,  transfers 
by  the  donee  to  his  lineal  descendants,  or  to  the  other  persons  speci- 
fied in  section  221  of  the  act,  are  exempt,  although  such  persons 
may  be  collateral  heirs  of  the  donor.^^ 

§  724.  Notice  of  appraisal. —  We  do  not  understand  it  to  be  re- 
quired that  a  notice  of  a  voluntary  application  for  the  appointment 
of  an  appraiser  should  be  given  to  the  parties  interested  in  the 
estate,  including  the  county  treasurer  or  comptroller,  as  the  appli- 
cation will  be  granted  as  of  course,  though  the  surrogate  may,  and 
usually  does,  direct  such  notice  to  be  given. ^'^  The  important  thing 
is,  that  notice  of  the  appraisal  shall  be  given  to  those  interested, 
whose  names  must  be  designated  in  the  order  appointing  th(>  aj)- 
praiser.  It  must  not  be  forgotten  that  this  is  a  judicial  proceedr 
ing  to  fix  the  liability  of  a  taxpayer,  and-  he  must  have  due  notice 
of  the  proceeding  against  him,  and  must  be  given  a  hearing,  or 
an  opportunity  to  be  heard,  in  reference  to  the  value  of  his  prop- 
erty and  the  amount  of  the  tax  which  is  to  be  imposed.  Fnl(>ss  he 
has  these,  his  constitutional  right  to  due  process  of  law  has  been 
invaded,  and  the  tax  iin])osed  is  invalid  as  having  been  inqiosed 
without  jurisdiction.'*^  The  notice  may  be  served  personally  or 
by  mail,  but  as  the  statute  does  not  prescribe  the  length  of  notice 
to  be  given,  it  is  the  duty  of  the  surrogate  to  fix  a  reasonable  time 
accordinii'  to  the  circumstances  of  each  case. 


35  Matter  of  Harbook.  101  X.  Y.  211.  Ro^rois.  71    App.  Div.  462:  Matter  of 

36  Matter    of    Vanderbilt.     50    App.  Seaver.    (i3    id.    283;    71    N.    Y.    Supp. 
Div.  24(5;  affd..  1(53  N.  Y.  597;  Matter  544. 

of  Potter,  51  App.  Div.  212.  40  See   Matter   of  Wolfe.    137    X.   Y. 

37  Matter  of  Tueker,   27    Misc.  RIO;  20.").     Tiie  practice  is  to  require  notice 
59  X.  Y.   Supp.  099.  of   the   proceediiifj  to  be   <riven    to  the 

38  iSIatter  of  Dows,   107  X.  Y.  227.  county    treasurer    or    comptroller. 

3!>  Matter  of  Wahvortli.  tiO  App.  Div.  41  See  Matter  of  Daly.  34  Misc.  148; 

171;    72  X.   Y.   Supp.   984:   Matter  of  Matter  uf  liolton.  35  id.  088. 


§§  725-727.     Ad.mi.xistratiox  of  Estate,  Etc.  604r 

§  725.  Appraiser's  report. —  The  appraiser  should  note  in  his  re- 
port to  the  surrogate  the  appearances,  on  the  appraisal,  of  any  in- 
terested parties ;  and  also  their  objections,  if  any,  to  his  appraisal. 
It  is  usual  to  file  such  objections  in  writing  with  the  appraiser, 
and  for  him  to  annex  them  to  his  report.  This  will  give  the  party 
filing  objections  the  right  to  notice  of  the  hearing  before  the  sur- 
rogate, on  the  coming  in  of  the  report ;  though  we  do  not  under- 
stand that  the  filing  of  formal  written  objections'  to  the  appraisal 
and  report  is  necessary  to  entitle  a  party  to  be  heard  in  opposi- 
tion before  the  surrogate.  To  make  a  record  for  appeal  to  the 
Supreme  Court,  it  is  better  practice  for  the  appraiser  to  make 
findings,  as  in  an  ordinary  reference.^^  The  report  must  be  made 
in  duplicate,  one  of  which  should  be  filed  with  the  surrogate  and 
the  other  with  the  State  comptroller  (§  232). 

§  726.  Proceedings  on  appraiser's  report. —  '*  Erom  such  report 
and  other  proof  relating  to  any  such  estate  before  the  surrogate,"' 
he  shall  "  forthwith,*^  as  of  course,  determine  the  cash  value  of  all 
estates,  and  the  amount  of  the  tax  to  which  the  same  is  liable  '^ 
(§  232).^ 

§  727.  Review  of  appraisement. —  The  State  comptroller,  or  any 
person  dissatisfied^^  with  the  appraisement  or  assessment  and  deter- 
mination of  the  tax,  "  may  appeal  therefrom  to  the  surrogate  within 
sixty  days  from  the  fixing,  assessing,  and  determination  of  the  tax 
by  the  surrogate  as  herein  provided,  upon  filing  in  the  office  of  the 

42  See  Matter  of  Bolton,  supra.  calendar  for  the  next  regiilar  motion 

43  The  great  age  of  a  life  tenant  day.  This  notice  must  specify  the 
whose  share  is  subject  to  the  collateral  grounds  of  objection.  (3)  A  special 
inheritance  tax  is  no  reason  for  post-  ffuardian  will  be  appointed  to  protect 
poning  the  confirmation  of  the  report  the  interests  of  infants  upon  the  re- 
of  the  appraiser.  (Estate  of  Wilkes,  turn  of  the  appraiser's  notice,  if  it 
X.  Y.  Law  .T..  Oct.   31.   1889.)  appears  that  their  rights  are  involved 

44  The  following  rules  prevail  in  and  they  are  not  otherwise  adequately 
New  York  county:  (1)  Upon  the  fil-  represented.  The  last  rule  is  now 
ing  of  the  appraiser's  report  the  sur-  made  statutory.  (§  232.)  Where  the 
rogate  will  immediately  enter  the  estate  of  an  infant  is  not  taxable,  no- 
order  determining  the  value  of  the  allowance  can  be  made  to  his  special 
property  and  the  amount  of  the  tax.  guardian.  (Matter  of  Post,  5  App.. 
The    matter    will    not    appear    on    the  Div.   113.) 

calendar    at    this    stage,    nor    will    the        45  The  executor  may  appeal  from  an 

court  then  consider   objections  to  the  order  fixing  the   tax    (Matter  of  Cor- 

report.     (2)  A  party  having  objections  nell,  GO  App.  Div.  I(i2:   170  X.  Y.  423), 

to    the    report,    or    the    order    entered  and  as  the  comptroller  of  the  citj'  of 

thereupon,  may,  within  sixty  days,  file  Xew  York   has   authority  to   institute 

a  notice  of  appeal.     This  notice  to  be  the  proceedings  to  enforce  the  tax,  he, 

served  upon  all  parties  appearing  be-  too,  may  appeal,  although  his  powers, 

fore  the  appraiser,  and  proof  of  such  in  respect  thereto  have  devolved  upon 

sAi-vice  to  be  filed  with  the  clerk,  with  the     State     comptroller.       (Matter    of 

tne  notice  of  appeal.     Thereupon   the  Blackstone,  69  App.  Div.  127.) 
proceeding   will    be    placed    upon    the 


^05  Admimstkatid.x   of  Estate,  Etc.  §  728. 

.■surrogate  a  Avrittcn  notice  of  appeal,  which  shall  state  the  grounds 
upon  which  the  appeal  is  taken.""*  The  surrogate  shall  immediately 
^ive  notice,  ujion  the  determination  bv  him  as  to  the  value  of  any 
estate  which  is  taxable  under  this  article,  and  of  the  tax  to  which 
it  is  liable,  to  all  parties  known  to  be  interested  therein,  including 
the  State  comptroller"  (§  2:52).  The  ap^oeal  is  not  limited  to 
•questions  of  law,  but  may  be  taken  to  the  surrogate  upon  both  the 
law  and  the  facts,  and  he  has  ample  power  to  correct  any  error 
brought  to  his  attention.  For  the  purpose  of  making  such  correc- 
tion, the  surrogate  is  not  bound  by  the  estimate  of  the  ajipraiser  or 
hy  the  facts  which  appeared  before  him,  but  he  may  hear  such 
new  evidence  and  allegations  as  may  be  properly  presented  to  him.^^ 
An  appeal  to  the  Supreme  Court  is  taken  from  the  surrogate's  de- 
termination of  the  appeal  to  him,  not  from  his  order  made  on  the 
return  of  the  appraiser's  report. 

In  addition  to  the  remedy  by  appeal,  the  statute  also  provides 
that  if  such  comptroller"*®  believes  that  the  appraisal  or  determina- 
tion was  made  fraudulently,  collusively,  or  erroneously,  he  may, 
within  two  years  after  the  entry  of  the  order,  apply  to  a  justice 
of  the  Supreme  Court  of  the  judicial  district  in  which  the  former 
owner  resided,  for  a  reappraisal. "*''  Such  justice  may  appoint  an 
appraiser  for  that  purpose,  who  shall  possess  all  the  powers,  be  sub- 
ject to  the  same  duties,  and  receive  the  same  compensation,  as  is 
provided  with  respect  to  an  appraiser  appointed  by  the  surrogate. 
His  report  shall  be  filed  with  the  justice  by  whom  he  was  ap- 
pointed,  and  thereafter  the  same  proceedings  shall  be  had  before 
•such  justice,  as  is  provided  to  be  taken  before  the  surrogate.  The 
ascessment  of  the  justice  supersedes  that  of  the  surrogate  and  must 
be  filed  with  the  State  comptroller,  a  certified  copy  being  trans- 
mitted to  the  surrogate. ^"^ 

§  728.  When  and  to  whom  tax  payable. — The  tax  is  to  be  paid  to 
the  treasurer,  in  a  county  in  which  the  office  of  appraiser  is  not 

■ic  Matter  of  Davis,   149  X.  Y.  539;  49  The   application   should   be  based 

Matter  of  Wormser.  .51  App.  Div.  441.  on  errors  of  fact  only,  as  those  of  law 

47  See  Matter  of  McPherson.  104  can  be  reviewed  by  appeal.  (Matter 
N.  Y.  30t):  Matter  of  \Vesturn,  152  of  Xiven.  29  Misc.  550 ;  01  N.  Y.  Supp. 
id.  93;  Matter  of  Thompson,  57  App.  95G.)  But  a  reappraisenient  should 
Div.  317.  not   be    ordered    simply   because    jirop- 

48  This  remedy  is  available  only  to  erty,  since  the  appraisal,  lias  sold  for 
the  State  comptroller  (Matter  of  a  larger  sum.  (Matter  of  Bruce.  50 
Smith,  40  App.  Div.  480),  but  is  not  X.  Y.  Supp.  10S3;  Matter  of  Rice,  ."><> 
exclusive,  as  he  mav  appeal  to  the  Su-  .\pp.  Div.  253.)  See  Matter  of  .Tohn- 
preme  Court  under  Co.  Civ.  Proc,  son,  37  Misc.  542 :  75  X.  Y.  Supp.  1040. 
§  2570.  (^Morgan  v.  \Varner,  45  App.  5o  L.  1S90.  c.  508,  §  232,  as  amended. 
Div.  424;  affd.,  102  X.  Y.  612.)  L.  1897,  c.  284. 


§  729.  Administration  of  Estate,  Etc.  600^ 

salaried,  and  in  other  counties,  to  the  State  comptroller;  and  th& 
treasurer  or  comptroller  is  required  to  give,  and  every  executor,  ad- 
ministrator, or  trustee  is  required  to  take,  "  duplicate  receipts  from 
him  of  such  payment."  If  such  receipts  were  received  from  a 
county  treasurer,  the  executor  shall  send  one  of  them  to  the  State 
comptroller,  and  if  received  from  the  State  comptroller,  to  the 
State  treasurer.  The  State  comptroller  or  the  State  treasurer^ 
as  the  case  may  be,  receiving  such  receipt  shall  charge  the  officer 
receiving  the  tax  with  the  amount  thereof,  and  seal  said  receipt 
with  the  seal  of  his  office  and  countersign  the  same  and  return  it 
to  the  executor,  administrator,  or  trustee,  whereu])on  it  shall  be  a 
proper  voucher  in  the  settlement  of  his  accounts."  ^^ 

The  time  of  the  transfer  is  fixed  as  the  time  when  the  tax  shall 
be  due  and  payable,  I.  e.,  the  day  of  the  death  of  the  testator,  in- 
testate, grantor,  etc.,  as  the  case  may  be.  An  exception,  however, 
is  made  in  the  case  of  a  '^  transfer  of  any  estate,  property,  or  in- 
terest therein  limited,  conditioned,  dependent  or  determinable 
upon  the  happening  of  any  contingency  or  future  event  by  reason 
of  which  the  fair  market  value  thereof  cannot  be  ascertained  at 
the  time  of  the  transfer."  As  to  the  tax  on  such  an  estate,  it  "  shall 
accrue  and  become  due  and  payable  when  the  persons  or  corpora- 
tions beneficially  entitled  thereto  shall  come  into  actual  possession 
or  enjoyment  thereof''  (§  222). 

§  729.  Discount  for  prompt  payment;  penalty  for  nonpayment. — 
"  If  such  tax  is  paid  within  six  months  from  the  accruing  thereof,, 
a  discount  of  five  per  centum  shall  be  allowed  and  deducted  there- 
from. If  such  tax  is  not  paid  within  eighteen  months  from  the- 
accruing  thereof,  interest  shall  be  charged   and  collected  thereon 


f>l  By  section  230  of  Act  of  lS!)(i,  '  tran^-fer  tax."  "  Under  a  similar  pro- 
"  any  person  shall,  upon  ihe  payment  vision  of  the  original  act,  it  was  held, 
of  the  sum  of  fifty  cents,  be  entitled  tliat  where  the  tax  was  paid  in  New 
to  a  receipt  from  the  county  treasurer  York  county  on  decedent's  real  estate 
of  any  county  or  the  State  comptroller,  situate  in  that  county  and  another 
or,  at  his  option,  to  a  copy  of  a  receipt,  county,  it  having  been  appraised  in 
that  may  have  been  given  by  such  bulk,  the  receipt  of  the  comptroller  in 
treasurer  or  State  comptroller  for  the  the  former  county,  filed  in  the  latter 
payment  of  any  tax  under  this  article,  county,  is  conclusive  evidence  that  the 
under  the  official  seal  of  such  treasu-  tax  on  the  real  estate  situated  in  the 
rer  or  comptroller,  which  receipt  shall  latter  county  has  been  paid.  (Matter 
designate  upon  what  real  property,  if  of  Keenan,  1  Connoly  22(5.)  The 
any.  of  which  any  decedent  may  have  comptroller,  by  accepting  the  tax  im- 
died  seized,  such  tax  shall  have  been  posed  upon  a  life  estate,  is  not  es- 
paid,  by  whom  paid,  and  whether  in  topped  from  contesting  the  part  of  the 
full  of  such  tax.  Such  receipt  may  be  order  declaring  that  the  "  remainder 
recorded  in  the  clerk's  office  of  the  estate  is  at  present  undeterminable, 
coimty  in  which  such  property  is  situ-  and  not  now  subject  to  tax."  (Mat- 
ate,  in  a  book  to  be  kept  by  him  for  ter  of  Bogert,  25  Misc.  466 ;  55  N.  Y» 
that   purpose,   which   shall   be   labeled  Supp.  751.) 


007  AnMl.NISTKATlo.N     oF     E-STATK,     EtC.  §  730. 

at  the  rate  of  ten  per  eeiituni  [k-v  anmiiu  from  the  time  the*  tax 
aecrued,^"  unless  by  reason,  of  ehiims  made  up<jn  the  estate,  neces- 
sary litigation  or  other  miavoidable  cause  of  delay,  such  tax  can- 
not be  determined  and  paid  as  herein  })rovided,  in  which  case  in- 
terest at  the  rate  of  six  per  centum  i)er  annum  shall  be  charired 
upon  such  tax  from- the  accrual  thereof  until  the  cause. of  such 
delay  is  removed,  after  which  ten  i)er  centum  shall  be  charged. 
In  all  cases,  when  a  bund  -hall  be  given  (as  below j,  interest  shall 
be  charged  at  the  rLte  of  six  per  cent,  from  the  accrual  of  the- 
tax  until  the  date  of  payment  thereof"  (§  228).  As  a  tax  does- 
not  carry  interest  by  implication  of  law,  as  in  the  case  of  a  debt, 
all  systems  of  taxation,  where  default  is  made  in  the  payment  of 
the  tax,  add  interest  by  way  o*f  a  penalty.  What  ;s  called  ''  in- 
terest ''  in  the  statute  is  no  part  of  the  tax,  but  only  a  penalty,  to 
be  exacted  or  not,  according  to  whether  the  tax  has  been  paid  in 
time  or  otherwise. ^^ 

g  730.  Remission  of  penalty.—  The  reduction  of  the  penalty  of 
ten  j)er  cent,  to  six  })er  cent,  in  a  case  where  the  tax  cannot  be  de- 
termined and  paid  within  eighteen  months  after  decedent's  death, 
as  above,  amounts  to  this :  that  whether  the  delay  to  pay  the  tax 
is  unavoidable  or  not,  interest  by  way  of  a  penalty  is  imposed  from 
the  expiration  of  that  period ;  if  the  delay  is  unnecessary  and 
avoidable,  then  an  additional  four  per  cent,  is  added,  making  ten 
])er  cent,  as  the  maximum  penalty.^"*  The  law  does  not  provide 
for  a  remission  of  all  interest. ^^  The  application  for  a  remission 
of  the  extreme  penalty  may  be  made  on  motion  and  affidavits  (and 
notice  to  the  county  treasurer,  or  to  the  comptroller,  as  the  case  may 
be),  setting  forth  the  ground  or  occasion  for  the  delay  beyond  the 
eighteen  months,  in  paying  the  tax.  "  Claims  made  upon  the  estate, 
necessary  litigation,  or  other  unavoidable  cause  of  delay,"  are  the 
grouiuls  mentioned  in  the  statute.  The  suspension  of  the  executor's 
action,  after  he  is  served  with  a  citation  to  revoke  a  probate,  under 
Code  Civ.  Proc,  §  2050,  is  not  an  "  unavoidable  delay,"  so  as  to 
relieve  him  of  the  liability  to  pay  interest  prior  to  the  decree.^" 
Ignorance  of  the  law  is  no  excuse,  nor  the  fact  that  the  payment  of 
the  penalty  will  be  a  hardship  to  the  legatees.^'     The  Act  of  1SS7 

f>2  Tntorest  is  oliarpteable  apainst  tho  f>-i  People    v.     Prout.     futpra.    wliitli 
estate  of  a  remainderman  under  a  will  jrives  in  effeet  this  eonstniction  to  sec- 
made    prior    to    lSn-2.    only    from    the  tions  4.  .').  of  the  Act  of  ISS."). 
death  of  the  life  tenant.   "  flatter  of  f.r.  ^[atter   of   Brown,  X.   Y.  Law  .T., 
Da\'is,   91    Hun.   ."kI;    affd..    140    X.   Y.  Fch.  S.   ISO:?    idr   Act   of  1S02). 
■'i3n.)  •">«  Matter  of  Stewart.  131  X.  Y.  274. 

n-T  People    v.    Prout.    5.3    Hun.    541  :  57  Matter  of  Platt.  S  Misc.  144. 
25  St.  Rep.  33;   affd.,   117  X.  Y.  UoO. 


§  731.  Admixistkatiox  of  Estate,  Etc.  608 

pruvidc'J  that  the  penalty  should  not  be  imposed  where,  by  reason 
of  claims  upon  the  estate,  litigation  or  other  unavoidable  cause  of 
delay,  "  the  estate  of  any  decedent,  or  a  part  thereof,  could  not  be 
settled  at  the  end  of  eighteen  months  from  the  death  of  the  de- 
cedent," which  was  a  re-enactment  of  the  Act  of  1S85,  except  that 
the  period  of  settlement  v»'as  therein  fixed  at  one  year  instead  of 
eighteen  months.  Under  the  Act  of  1892  the  penalty  is  not 
charged  where  claims,  litigation,  or  other  unavoidable,  cause  of 
delay  prevents  "  the  determination  and  payment  of  the  tax."  ^* 
It  also  changes  the  terms  upon  which  the  remission  is  granted. 
In  the  prior  acts,  the  six  per  cent,  interest  ran  from  the  expiration 
of  eighteen  months  from  accrual  to  the  date  when  the  cause  of 
delay  was  removed  ;^^  while  in  th?  Act  of  1892,  in  cases  where 
the  penalty  is  not  imposed,  interest  at  the  rate  of  six  per  cent,  is 
charged  from  the  date  of  accrual  (the  date  of  death)  until  the 
cause  of  delay  is  removed.  Under  whatever  act  an  application  of 
this  character  may  be  made,  it  is  of  the  utmost  importance  that 
the  date  when  the  cause  of  delay  was  removed,  should  be  fixed. ^"^ 
§  731.  Giving  bond  on  deferring  payment. —  Where  the  transfer 
is  limited,  conditioned,  dependent,  or  determinable  on  the  happen- 
ing of  any  contingency  or  future  event,  the  beneficiary  or  the 
representative  or  trustee  thereof  may  elect  within  eighteen  months 
from  the  date  of  the  transfer  (decedent's  death)  not  to  pay  the 
tax  "  until  the  person  or  persons  beneficially  interested  therein 
shall  come  into  the  actual  possession  or  enjoyment  thereof."  If 
the  transfer  be  of  personal  property,  the  representative  or  trustee 
is  required  to  give  a  bond  to  the  State  in  a  penalty  of  three  times 
the  amount  of  any  such  tax,  with  such  sureties  as  the  surrogate 
of  the  proper  county  may  approve,  conditioned  for  the  payment 
of  such  tax  and  interest  thereon,  at  such  time  or  period   as  the 

58  See  Matter  of  Wormser,  .51  App.  seat  in  the  Stock  Exchange;  yet  the 
Div.  441 ;  Matter  of  Bolton,  .3.5  Misc.  date  when  this  asset  was  realized 
688.  upon  is  not  given.      It  could  have  been 

59  Matter  of  Moore,  90  Hun.  162.  sohl  at  an  earlier  date,  though  possi- 
The  statute  in  force  at  decedent's  bly  at  a  sum  less  than  that  actually 
death  governs,  even  though  the  period  realized.  The  tax  was  actually  fixed 
of  exemption  from  interest  did  not  and  determined  about  a  year  after  its 
expire  until  after  the  later  act  took  accrual,  and  it  is  very  clear  could 
effect.  (Matter  of  Fayerweather.  143  then  have  been  paid.  The  representa- 
X.  Y.  114;  Matter  of  Milne,  76  Hun,  tives  of  an  estate  cannot  wait  for 
328.)  higher  prices  on  assets  at  the  expense 

60  Matter  of  Colhoun,  X.  Y.  Law  J.,  of  the  State."  See  Matter  of  Acker, 
June  15.  1893.  In  that  case,  the  sur-  X.  Y.  Law  J.,  May  9,  1893;  Matter  of 
rogate  said:  "The  petitioner  herein  Somerville,  id.,  .Jan.  21,  1893;  Matter 
hases  his  application  upon  the  circum.-  of  Purroy,  id.,  May  6,  1892;  Matter 
stance  that  there  was  no  asset  out  of  of  .Johnson,  id.,  Apr.  8,  1893. 

"which  the  tax  could  be  paid  beside  the 


^09  Admixistkatiox  ov  E.state,   Etc.  §  732. 

person  or  persons  beneficially  interested  therein  may  come  into 
the  actual  possession  or  enjoyment  of  such  property,  which  bond 
shall  be  filed  in  the  office  of  the  surrogate.  Such  bond  must  be 
executed  and  filed,  and  a  full  return  of  such  pr(jperty,  upon  oath, 
made  to  the  surrogate,  within  one  year  from  the  date  of  transfer 
thereof  as  herein  provided,  and  such  b(jiid  must  be  renewed  every 
five  years  "  (§  220). 

g  732.  Refund  of  tax. —  The  statute  provides  for  the  refunding 
of  any  tax  "  erroneously  paid,"  and  for  the  refunding  of  "  an  equi- 
table jiortion  "  of  it  in  a  case  where  a  legatee  or  distril)utee,  after 
having  received  his  legacy  or  distributive  share,  less  the  tax,  has 
been  required  to  refund  to  the  representative  an  amount  necessary 
to  satisfy  debts  of  the  decedent  subsc(|uently  proved  against  the 
estate.  In  such  a  case,  the  legatee  or  distributee  is  entitled  to  a  re- 
fund of  an  equitable  portion  of  the  tax,  either  by  the  representa- 
tive, unless  he  has  paid  it  over  to  the  county  treasurer  or  State 
comptroller,  and  if  so,  by  the  latter  officers.  Provision  is  also  made 
for  the  refunding  of  any  tax,  in  part  or  whole,  where  the  order 
fixing  the  same  has  been  modified  or  reversed  within  two  years"^ 
from  the  entry  of  such  order,  but  an  application  for  a  refund  must 
be  made  within  one  year  from  such  reversal  or  modification.  On 
the  other  hand,  if  deductions  for  debts  were  allowed  on  the  ap- 
praisal, which  are  afterward  proved  to  have  been  erroneously  made, 
the  surrogate  may  assess  the  tax  upon  the  amount  wrongfully  or 
erroneously  deducted. *^^  The  remedy  furnished  by  the  statute  is 
exclusive ;  hence,  the  Supreme  Court  has  no  power,  on  reversing  a 
surrogate's  assessment  of  the  tax,  to  direct  the  county  treasurer 
or  the  comptroller,  as  the  case  may  be,  to  refund  the  tax  paid 
under  the  surrogate's  order.^  Of  course,  if  a  representative  pays 
the  tax  on  a  legacy  or  a  distributive  share  which  is  not  subject  to 
the  tax,  or,  having  erroneously  ])ai(l  it.  takes  no  steps  to  recover 
the  amount  \)n\d,  he  is  chargeable  with  the  amount  on  his  account- 
ing; that  is,  the  legatee  or  distributee,  as  the  case  may  be,  is  en- 
titled to  receive  his  entire  legacy  or  share  without  (lecluetion  of 
the  amount  thus  erroneously  paid,"'*  unless  the  payment  was  made 
with  the  knowledo-e  and  assent  of  the  leo-atee  or  distributee.^*^ 


fii  See   Matter   of   Sherar.    25    Misc.  6'i  Matter  of  Howard.  .')4  Ilnn.  r.O.'i : 

138.  7   N.   Y.   Supp.   094;    Matter  of   Hall. 

62  L.  1896.  c.  908.  §  225.  as  ainoiulcMl  27   St.  Rep.    133:   7   X.  Y.   Supp.  595. 

L.   1901,  c.   173.     See  :\Iattor  of  Win-  fi4  Matter  of  Peyser.  5   Dcmu.  244. 

ters.  21  Misc.  552;  Matter  of  Park,  8  '5  Pa,quharsou  v.   Xugont.    0   Dcm. 

id.  550.  296. 

39 


§§  733,  734.     Administration  of  Estate.  Etc.  610 

§  733.  Costs  of  compulsory  proceeding. —  In  proceedings  insti- 
tuted by  a  district  attorney,  at  the  instance  of  the  connty  treasurer 
or  State  comptroller,  costs  may  be  awarded,  which,  "  after  the- 
collection  and  payment  of  the  tax  to  the  treasurer  or  comptroller, 
may  be  retained  by  the  district  attorney  for  his  own  use."  These 
costs  are  in  the  discretion  of  the  surrogate,  but  it  is  provided  that 
they  ''  shall  not  exceed  in  any  case,  where  there  has  not  been  a 
contest,  the  sum  of  one  hundred  dollars,  or,  where  there  has  been 
a  contest,  the  sum  of  two  hundred  and  fifty  dollars."  It  is  also 
provided  that,  whenever  the  surrogate  shall  certify  that  there  was 
probable  cause  for  issuing  a  citation  and  taking  the  proceedings, 
the  State  treasurer  shall  pay  or  allow  to  the  treasurer  or  the  State 
comptroller  all  expenses  incurred  for  the  service  of  citations  and 
other  lawful  disbursements  not  otherwise  paid.  Where  any  county 
treasurer  or  the  comptroller  is  cited  as  a  party  in  a  proceeding 
by  the  representative  for  the  appointment  of  an  appraiser,'  the 
State  comptroller  is  authorized  to  designate  and  retain  counsel  to 
represent  such  county  treasurer  or  comptroller  therein,  and  to 
,  direct  the  payment  of  the  expenses  thereby  incurred;  except  that 
in  the  collection  of  taxes  upon  estates  of  nonresidents,  which  have 
been  concealed,  or  the  taxes  thereon  evaded,  not  more  than,  ten 
per  cent,  of  the  tax  and  penalties  collected  shall  be  allow^ed  for 
legal  services. ^^ 

§  734.  Fees  of  county  treasurer  and  comptroller. —  The  treasurer 
of  each  county,  in  which  the  office  of  appraiser  is  not  salaried,  shall 
be  allowed  to  retain  on  all  taxes  paid  and  accounted  for  by  him 
each  year,  under  this  act,  five  per  centum  on  the  first  fifty  thou- 
sand dollars,  three  per  centum  on  the  next  fifty  thousand  dollars, 
and  one  per  centum  on  all  additional  sums.  Such  fees  shall  be 
in  addition  to  the  salaries  and  fees  now  allowed  by  law  to  such 
officers     (§  237). 


6*1  L.  ISOfi,  c.  008.  §  235,  as  amended  the   tax,   costs   shou'd   not   have   been 

L.    1001.   c.    17.3.      Where  the   district  awarded    against    the    executors,    and 

attorney     commenced     the    proceeding  (2)    that  there  was  probable  cause  for 

before   the  expiration  of   the  eighteen  instituting  the  proceeding,  and  the  dis- 

months,  and,  four  days  before  the  ex-  trict  attorney  was  entitled  to  a  certifi- 

piration  of  that  period,  the  executors  cate.     (Frazer  v.  People,  15  Dem.  174; 

paid  the  tax  assessed  upon  a  life  es-  s.  c.  as  Matter  of  Frowe,  20  St.  Rep. 

tate  and  remainders  passing  under  the  3.5.5.)      See    Matter    of    ^McCarthy,    5 

will,    held. —  (1)    that     there    having  ^lisc.    276;    Matter    of    Hoffman,    7G. 

been  no  "  refusal  or  neglect "  to  pay  Hun,  399. 


611  ADMI^•I.sTUATIo^'  of  Estate,  Etc.      §§  735,  736, 


TITLE  SEVEXTII. 

PAYMENT    OF    LEGACIES. 

ARTICLE  FIRST. 

DIFFERENT    KINDS    OF    LEGACIES. 

§  735.  General  description. —  The  most  general  description  of 
legacies/''  with  regard  tu  their  subject-matter,  is  that  they  are 
either  general  or  specific.  Certain  legacies  are  also  called  demon- 
strative, having  the  appearance,  in  some  respects,  of  a  specific 
legacy,  and  partaking  of  the  nature  of  a  general  legacy.  With 
respect  to  their  enjoyment,  legacies  are  again  divided  into  vested 
and  contingent,  absolute  and  conditional.  They  may  also  be 
viewed  as  subject  to  other  incidents,  such  as  being  cumulative,  in 
distinction  from  a  repetition  of  the  same  legacy.  There  are  also 
annuities  and  residuary  legacies. 

§736.  Specific  and  demonstrative  legacies. —  A  specific  legacy  *s 
a  bequest  of  a  partieuhir  thing,  specified  and  distinct  from  all 
others  of  the  same  kind  belonging  to  the  testator.  It  is  not  sub- 
ject to  abatement,  like  general  legacies,  and  is  payable  at  the  end 
of  the  year,  with  all  the  advantages  which  would  have  accrued  to 
the  legatee,  had  tlie  subject  of  the  gift  been  delivered  when  the 
will  took  cff"cct.^^    On  the  other  hand,  if  the  specific  legacy  be  dis- 

67  Every   bequest   of   personal   prop-  the    testator    owned    360    shares   of    a 

erty    is    a    legacy,    including    as    well  certain  bank  stock,  and  he  bequeathed 

those   made   in  lieu   of   dower   and  in  240    shares    to    one    legatee,    and    120 

satisfaction    of    an     indebtedness,    as  shares   to   another,   but   without    indi- 

those    which    are    wholly    gratuitous,  eating     that     the     shares     bequeathed 

It   is   the  synonjnn  of  the   word  "be-  were  to  be  taken  from  those  which  he 

quest."       (Orton    v.    Orton,    3    Keyes,  owned  at  the  time  of  his  death.     Held, 

480. )  that  the  legacies  were  general  and  not 

&8TifFt  V.  Porter,  8  N".  Y.  510;  specific,  and  the  legatees  were  not  en- 
Bevan  v.  Cooper,  7  Hun,  117;  reversed  titled  to  dividends  intermediate  his 
on  another  point,  approved  as  to  this,  death  and  the  delivery  of  the  stock, 
in  72  X.  Y.  317.  A  direction  to  the  Compare  De  Xottebeck  v.  Astor.  13 
executors  to  allow  certain  persons  to  N.  Y.  98.  In  Brundage  v.  Brundage 
take  certain  property  at  an  appraised  (00  id.  544),  it  appeared  that  the  will 
or  the  inventoried  value,  is  not  a  spe-  bequeathed  to  S.  ten  shares,  and  to  E., 
cific  legacy,  and.  until  the  propertj'  is  "  during  life,"  twenty  shares  of  rail- 
set  apart'to  such  persons,  the  execu-  road  stock.  After  the  execution  of 
tors  are  chargeable  with  its  value,  the  will,  and  before  the  testator's 
(Matter  of  Pollock.  3  Redf.  101.)  By  death,  the  company  issued  to  its  stock- 
thc  terms  of  a  will,  property  which  holders  what  were  styled  "  interest 
had  been  the  subject  of  previous  gifts  rertilicates."  stated  to  be  for  moneys 
was,  in  legal  effect,  givtn  by  specific  expended  out  of  its  earnings  in  ini- 
bequests  to  such  prior  donees.  Held,  jtrovements.  By  their  terms  they  were 
to  amount  to  a  confirmation  of  sufh  made  assignable,  and  were  payable, 
donations.  (Decker  v.  Waterman,  07  at  the  option  of  the  company,  out 
Barb.  400.)      In  Tifft  v.  Porter  (s«/>/-a),  of     future'  earnings,    with    dividends 


§736. 


Administration  of  Estate,  Etc. 


612 


appointed,  as  by  failure  of  the  specific  fund,  or  delay  in  its  de- 
livery,*'^ the  legatee  will  not  be  entitled  to  any  recompense  or  satis- 
faction out  of  the  personal  estate  of  the  testator.  To  make  a  money 
legacy  specific,  the  money  must  be  so  described  by  the  testator  as 
to  enable  the  legatee  to  point  it  out  to  the  executor  as  in  a  par- 
ticular i^lace,  chest,  bag,  or  purse,  or  in  some  person's  hands,  so 
that  it  can  be  delivered  in  specie.  Thus  a  bequest  of  "  all  the 
money  left  in  the  W.  S.  Bank,  after  carrying  out  "  certain  prior 
directions  contained  in  the  will,  is  a  specific  legacy  of  a  chose  in 
action,  which  the  legatee  is  entitled  to  receive  in  specie,  together 
only  with  such  increment  as  may  have  attached  thereto."^  Xo 
claim  will  lie,  under  any  circumstances,  against  the  executors,  for 
interest,  eo  nomine,  thereon ;  nor  are  they  bound  to  make  the  same 
productive." 

A  legacy  is  demonstrative  when  the  particular  fund  or  personal 
property  is  pointed  out,  from  which  it  is  to  be  taken  or  paid,'"  ac- 
companied by  a  bequest  of  the  fund  or  thing  given.  Thus  a  be- 
quest of  a  specified  sum  in  such  securities  as  the  legatee  may  select 
is  a  demonstrative  legacy  and  not  a  specific  legacy  of  the  securi- 


thereon,  or  were  convertible  into  stock. 
Tlie  testator  received  and  retained 
these  certificates  on  the  shares  held  by 
him,  and  also  the  dividends  declared 
thereon,  and  held  the  certificates  at 
the  time  of  his  death.  In  an  action 
for  the  construction  of  the  will,  held, 
that  the  lenjatees  took  the  specified 
number  of  shares  of  stock,  as  they 
were  at  the  time  of  the  testator's 
death,  and  could  claim  no  right  to,  or 
interest  in,  the  certificates ;  that  if 
the  certificates  were  invalid,  the  stock 
was  unaff"ected  thereby;  if  valid  — 
having  been  issued  to,  and  received 
by,  the  testator,  they  became  an  inde- 
pendent part  of  his  estate.  For  other 
illustrations,  see  Cogswell  v.  Cogswell, 
2  Edw.  231;  Clarkson  v.  Clarkson,  18 
Barb.  646 ;  ilurphy  v.  Marcellus,  1 
Dem.  288;  Matter  of  Clark,  16  Misc. 
405:   39  N.  Y.   Supp.  722. 

69  Piatt  V.  Moore,  1  Dem.  191.  Com- 
pare Matter  of  Stone,  15  Misc.  317; 
37  X.  Y.  Supp.  583. 

■<■"  Such  a  bequest,  however,  does  not 
include  testator's  equity  in  stocks 
hypothecated  as  security  for  a  loan  by 
the  bank.  (]\Iontignani  v.  Blade,  145 
N.  Y.   Ill;   64  St.  Rep.  558.) 

71  Larkin  v.  Salmon,  3  Dem.  270. 
In  Matter  of  Hodgman  (140  N.  Y. 
421;    55   St.   Rep.   800),  testator   left 


his  widow,  who  was  made  an  executrix 
of  the  will,  the  sum  of  .$50,000, 
"  which  may  be  invested  in  bank  stock 
*  *  *  and  in  bonds."  Held,  that 
the  legacy  was  not  specific,  and  hence 
she  was  not  entitled  to  diA-idends  on 
the  stock  or  bonds  from  the  testator's 
death  to  the  time  of  the  pajnnent  of 
the  legacy. 

72  See  Walton  v.  \Yalton,  7  Johns. 
Ch.  258;  Enders  v.  Enders,  2  Barb. 
362.  In  Florence  v.  Sands  (4  Redf. 
200 ) ,  the  testatrix,  after  bequeathing 
certain  general  and  specific  legacies, 
directed  the  payment  of  $50  per  month 
to  F.  during  life,  etc.,  "  out  of  the 
rents  and  income  of  her  estate,"  and 
further  directed  the  executors  to  keep 
down  the  interest  on  the  mortgage  on 
her  real  estate,  and  to  pay  all  taxes, 
assessments,  and  repairs.  The  per- 
sonal estate  was  not  sufficient  to  sat- 
isfy the  general  legacies  in  full.  Held, 
that  the  legacy  to  F.  was  a  demonstra- 
tive legacy,  and  should  be  paid  out  of 
tlie  particular  fund,  in  preference  to 
general  legacies :  if  the  particular 
fund  was  inadequate  to  satisfy  the 
demonstrative  legacy  in  full,  the  de- 
monstrative legatee  was.  as  to  the  un- 
paid balance  of  his  legacy,  a  general 
legatee,  and  his  legacy  was  subject  to 
abatement  with  the  other  general  leg- 


613 


Admixistratiox  or  Estatk,  Etc. 


§737, 


ties."^  Where,  however,  only  cue  of  these  elements  is  present,  c  rj. 
—  the  one  directing-  ])aynient  out  of  a  particular  fund,  it  is  a 
sjK'cific  legacy,  and  the  legatee  is  entitled  to  only  so  much  of  the 
fund  as  existed  at  the  tinu-  of  the  dwedent's  death. '^  If  the  fund 
or  property,  out  <if  wliicli  a  demonstrative  legacy  is  payable,  fails, 
in  whole  <>r  in  part,  I'e.-urt  may  be  had  to  the  general  assets,  as  in 
the  case  of  a  general  legacy.'^  As  to  the  legatee,  it  is  considered 
specific,  and,  therefore,  does  not,  at  common  law,  abate  on  failure 
of  assets."" 

^  737.  General  and  residuary  legacies. — Everv  legacy  not  spe- 
cific or  demonstrative  is  a  general  legacy.  The  presumption,  both 
in  law  and  eciuity,  is  in  favor  of  general  legacies. ''^^  This  definition 
includes   annuifies,  which   are  defined   to  be  bequests   of  certain 


aeies.  But  wlion  it  is  clearly  the  in- 
tention of  the  testator  that  a  fund  is 
to  be  created  by  the  sale  of  certain 
property,  and  the  income  of  the  pro- 
ceeds of  such  sale  paid  to  the  legatee, 
it  is  a  specific  and  not  a  demonstra- 
tive legacy;  and  it  is  the  duty  of  the 
executors  to  invest  the  money  arising 
from  the  sale,  and  to  pay  tlie  legatee; 
the  income  only.  (W'atrous  v.  Smith, 
7  Ilun,  r)44.)  See  Matter  of  Von  Kel- 
ler, 28  I\Iisc.  600;  .59  N.  Y.  Supp.  1079. 
■^3  Dunning  v.  Dunning,  82  Hun, 
402;  31  N.  Y.  Supp.  719;  Matter  of 
Anderson,  19  Misc.  210;  43  N.  Y. 
Supp.  1146;  Spencer  v.  De  Witt  C. 
Hay,  etc..  Assn.,  36  Misc.  393;  73 
N.  Y.  Supp.  712;  Olcott  v.  Ossowski, 
34  Misc.  376;  69  N.  Y.  Supp.  917; 
Matter  of  Van  Vliet,  5  Misc.  169; 
W'etmore  v.  Peck,  66  How.  Pr.  54. 
In  ]\liitter  of  Hadden  ( 1  Connoly, 
306),  the  testator,  owning  various 
stocks  and  bonds,  bequeathed  to  differ- 
ent legatees  certain  sums  of  money 
"  out  of  any  stocks  or  bonds  that  I 
may  own  at  the  time  of  my  deatn,  the 
same  to  be  reckoned  and  counted  at 
their  par  value  dollar  for  dollar." 
Held,  the  legacies  were  general,  not 
specific,  and  it  was  the  right  and  duty 
of  the  executors  to  select  the  bonds 
for  the  legatees.  In  flatter  of  Brett 
(.57  Hun.  400:  10  X.  Y.  Supp.  871), 
the  will  bequeathed  specifically  a  note, 
with  all  portions  due  thereon,  to  one 
legatee  and  a  portion  of  the  proceeds 
of  the  sale  of  specific  fiirniture  to 
another.  The  rest  of  the  estate  was 
directed  to  be  sold  and  certain  lega- 
cies to  be  paid  therefrom,  any  siirplus 
or   deficit   to   be    apportioned    among 


them.  Held.  that,  as  the  bequests  to 
the  first  two  legatees  were  specific, 
they  were  not  entitled  to  a  propor- 
tionate share  of  the  surplus  from  the 
residuarv  estate. 

74  Crawford  v.  McCarthy,  1.59  X.  Y. 
514.  In  that  case,  testatrix  directed 
her  daughter,  out  of  a  deposit,  to  pay 
testatrix's  son  the  sum  of  .$1,500,  the 
irill  containiiuj  no  f/rnrrtil  bequest  of 
that  amount. —  Held,  that  where  the 
testatrix  had  reduced,  in  her  lifetime, 
the  amount  of  the  deposit  to  a  sum 
insufficient  to  pay  the  legacy,  the  son 
was  only  entitled  to  the  amount  that 
was  left. 

75  See  ^lethodist,  etc..  Church  v. 
Hebard.  28  App.  Div.  548;  51  N.  Y. 
Supp.  546.  Legacies  directed  to  be 
first  paid,  are  a  charge  ujion  tJie  gen- 
eral estate,  notwithstanding  the  ex- 
ecutors had  set  apart  a  special  lot  of 
securities  to  meet  them  as  they  be- 
came due.  (Collin  v.  Wilcox,  47  St. 
Rep.  917.)  As  to  the  application  of 
the  rule  that  where  one  claimant  has 
two  funds  to  which  he  may  resort,  and 
another  has  an  interest  in  only  one  of 
them,  the  latter  may  compel  the  for- 
mer to  satisfy  his  claim  out  of  the 
fund  on  which  the  latter  has  no  claim, 
see    Fargo   v.    Squicrs,    154    X.    Y.   250. 

7GSee  Xewton  v.  Stanlev,  28  X.  Y. 
61:  Giddings  v.  Seward.  16  id.  .365; 
Pierrepont  v.  Edwards,  25  id.  128,  and 
§   754.  post. 

77  This  presumption  must  yield  to 
the  expressed  intention  of  the  testa- 
tor, that  securities  shall  pass  in  kind. 
(Cramer  v.  Cramer.  35  Misc.  17;  71 
N.  Y.  Supp.  CO.) 


§  738.  Administration  of  Estate,  Etc.  614 

specified  sums  periodically.'*  If  the  fund  or  property  out  of  which, 
they  are  payable  fail,  resort  may  be  had  to  the  general  assets  as 
in  case  of  a  general  legacy. ^^  It  also  includes  residuary  legacies, 
which  embrace  only  that  wdiieh  remains  after  all  the  bequests 
of  the  will  are  discharged,  and  the  debts  of  the  testator  are  satis- 
fied. It  carries  not  only  what  the  tes<:ator  did  not  attempt  to 
dispose  of,  but  every  part  of  his  property  which,  by  lapse  or  other- 
wise, is  not  effectually  bequeathed  to  others,*''  unless  the  residuary 
clause  is  limited  by  its  terms  to  wdiat  remains  after  payment  of 
specific  legacies.  In  such  case,  if  any  of  the  legacies  are  void, 
there  is  another  residuum  which  is  undisposed  of.*^  In  the  inter- 
pretation of  a  residuary  clause,  the  court  will  look,  not  only  at  the 
language  employed,  but  at  the  surrounding  circumstances,  to  dis- 
cover what  the  intention  of  the  testator  was.*^ 

§  758.  Legacies  charged  upon  land. —  So  the  question  whether  a 
particular  legacy  is  a  charge  upon  the  real  estate,  so  as  to  exonerate 
the  personalty  from  its  payment,  depends  upon  the  intention  of 
the  testator,  either  clearly  expressed  by  the  will,  or,  with  equal 
clearness,  inferred  from  the  language  and  dispositions  of  the 
instrument.  Where  there  is  not  a  clear  and  manifest  intention 
on  the  part  of  the  testator  to  charge  a  legacy  upon  lands,  and  the 
personal  estate  is  not  in  terms  exonerated,  and  is  not  specifically 
given  away  by  the  will,  it  will  be  deemed  the  primary  fund  for 
the  pa^anent  of  legacies,  notwithstanding  such  legacies,  by  the 
terms  of  the  wall,  are  expressly  charged  upon  devisees.*^  The  usual 
clause,  devising  all  the  rest  of  the  testator's  real  and  personal  es- 
tate not  before  devised,  is  not  sufficient  to  show  an  intention  to 
charge  the  real  estate  f*  nor  is  the  mere  direction  that  all  debts 
and  legacies  are  to  be  paid.*^     But  where  the  testator  directs  his 

78  A  gift  of  the  interest  on  a  speci-  added  to  the  residue.  (Matter  of  Ben- 
fied  sum,  payable  annually,  is  not  an    son,  96  N.  Y.  499.) 

annuity.     (Matter  of  Dewey,  153  N.  Y.  83  Hoes  v.  Van  Hoesen.  1  N.  Y.  120. 

63.)  See  Dodge  v.  Manning,  id.  298;   Kel- 

79  See  Spencer  v.  Spencer.  38  App.  sey  v.  VVestern,  2  id.  500 ;  Clason  v. 
Div.  403;  56  N.  Y.  Supp.  460.  Lawrence.  3  Edw.  48. 

80  King  V.  Strong,  9  Paige,  93;  84  Hindman  v.  Haurand.  2  Ann.  Div. 
Banks  v.  Phelan,  4  Barb.  80.  See  146;  37  N.  Y.  Supp.  828:  affd..  1.19 
Pirnie  v.  Purdv.  19  id.  60;  Havens  v.  N.  Y.  546.  See  Matter  of  :McKav.  33 
Havens,  1  Sandf.  Ch.  324.  Misc.  520 :  68  N.  Y.  Supp.  925 ;  Lvons 

81  Kerr  v.  Dougherty.  79  N.  Y.  327 ;  v.  Steinhardt,  37  Misc.  628 ;  76  N.  Y. 
Beekman  v.   Bonsor,   23   id.   298,   312.  Supp.  241. 

See  also  Downing  V.  Marshall,  id.  382;  85  Lupton   v.   Lupton.   2   Johns.   Ch. 

White  V.  Howard.  46  id.  144.  614:   Matter  of  Grotian.  30  ^Nlisc.  23; 

82  Kerr  v.  Dougherty,  79  N.  Y.  327.  62  N.  Y.  Supp.  996;  Carberry  v.  Ennis, 
To  ascertain  the  amount  of  a  general  72  App.  Div.  489.  See  Crawford  v. 
residue,   all  the  income  of  the  estate,  McCarthy,  159  N.  Y.  514. 

not    otherwise   disposed   of,    must   be 


•615                     Administration  of  Estate,  Etc.                 §  738. 

debts  to  be  first  paid,  and  then  devises  real  estate,  or  where  he  de- 
vises the  residue  of  his  estate,  real  and  personal,  after  payment 

of  debts  and  legacies,  and  there  is  a  deficiency  of  assets  to  pay 
the  debts  or  legacies,  an  intention  to  charge  the  real  property  will 

be  inferred.*^  And  where  a  will  directs  one  to  whom  a  life  estate 
is  given,  with  full  power  to  dispose  thereof,  to  pay  a  legacy, 
whether  ."^ueh  devisee  be  the  executor  or  another,  the  legacy  is 
charged  up<iii  the  real  estate  so  devised.^'     So,  too,  where  all  the 

86  RaflFerty  v.   Clark.   1   Bradf.   473;  personal    estate,    and    keep    the    same 

Flynn   v.   Croniken,    9   How.    Pr.    214.  invested  in  good  securities."    Then  fol- 

JSee    Reynolds    v.    Reynolds,    Iti    X.    Y.  lowed    a    specification    of    the    trusts. 

2o7  ;  Taylor  v.  Dodd.  2  Sup.  Ct.   ( T.  &  which  were  for  the  benetit  of  tho  te-- 

C. )    88;    Spilane   v.    Duryea,   51    How.  tator's     widow     and     children.       The 

Pr.    260;    Tracy    v.    Tracy,    15    Barb,  clause  contained  the  only  provision  for 

503;   Stewart  v.  Crysler,  52  App.  Div.  the  latter,  and  the  principal  provision 

597  ;   65   N.  Y.   Supp.  483 ;   Matter  of  for  the  former,  and  embraced  the  larg- 

Ryder,   41    App.    Div.    247;    58   N.   Y.  est  part  of  the  testator's  estate.     The 

tSupp.  635;  Hogan  v.  Kavanaugh.  138  personal   estate   proved   insufficient  to 

X.  Y.  417;  52  St.  Rep.  884.      But  that  pay  the  debts  and  general  legacies,  the 

rule  does  not  apply  where  it  appears  inadequacy    being     revealed   after   the 

that  there  was  sufficient  assets  when  testator's  death.      Held,  that  the  gen- 

tlie     will     was     made.      ( Hindman    v.  eral  legacies  were  not  chargeable  upon 

Haurand.   supra.)       In   Kalbllcisch    v.  the   residuary   real   estate.       See   Gue- 

Kalbtleisch    (67  X.  Y.  354),  the  testa-  lich   v.   Clark,   3   Sup.   Ct.    (T.   &   C.) 

tor  devised  and  bequeathed  his  rcsidu-  315;    Purdy    v.    Purdy.    36    App.    Div. 

ary  estate  to  his  nine  children  equally.  535;  57  X'.  Y.  Supp.  166.     In  Dunham 

By  a  codicil,  he  authorized  his  execu-  v.  Deraismes   (165  X.  Y.  65),  testator 

tors  to  sell  his  real  estate  not  specifi-  bequeathed  to  his  wife  an  annuity  dur- 

cally    devised,    and    directed    that   the  ing   her    life,    and,    in    express   terms, 

pecuniary     legacies     should     be     paid  charged    the   rents   and    profits   of   his 

over,  not  to  the  life  tenants,  but  upon  real  estate  with  its  payment,  and  by  a 

their    decease,    respectively,    to    their  later   clause  gave   another   annuity   of 

issue,    the    former    receiving    only    the  $300  to  another  person  to  be  paid  by 

income;  no  provision  was  made  in  the  his  executors,  and  devised  all  the  rest 

will  for  the  payment  of  the  testator's  and  residue  of  his  real  estate  upon  a 

debts;  his  personal  property  was  much  trust  that  might  continue  for  eighteen 

more  than  sufficient  to  pay  them,  but  years   after   the   making   of   the    will, 

the    residue,    with    $113,000    and    the  while   the   disposition   of   his   personal 

$15,000  added,  was  insufficient  to  pay  property  was  immediate, —  Held,  upon 

the    pecuniary    legacies.       Held,    that  a  consideration  of  the  whole  will,  that 

the    intent    of    the    testator    was    to  the    $300    annuity    was    charged    upon 

charge    the    pecuniary    legacies    upon  the   real    property,   even   after   the   ex- 

the   residiuiry   real   estate,   and   to    lu-  piration   of   the   trust,    in   exoneration 

thorize  the   sale  thereof,   if   necessary,  of     the     personal     property     although 

to  make  up  the  sum  required  for  their  there  was  no  proof  of  any  inadequacy 

payment.      See   Matter   of   Spencer,   8  of  the  latter.      See  Matthews  v.  Stud- 

Mi'sc.   193;   29  N.  Y.  Supp.    1083.     In  ley,  17  App.  Div.  303:  affd.,  161  X.  Y. 

Bevan  y.  Cooper    (72  X.  Y.  317),  the  633;   Arthur  y.  Dalton,   14  App.  Div. 

will,   after   directing   the   pajnnent   of  108:  Smith  v.  A.  D.  Farmer,  etc..  Co., 

the  debts  out  of  the  personal  property,  16  id.  438. 

and  certain  other  general  bequests  to  87  Cohin  v.  Young,  81  Hun,  116: 
strangers  to  his  blood,  and  a  specific  30  X.  Y.  Supp.  (»89 :  Wellbrook  v. 
devise  of  certain  real  estate,  de\-ised  Otten,  35  Misc.  459;  71  X.  Y.  Supp. 
and  l)equeathed  all  "the  rest,  residue  937;  Hutchins  v.  Hutchins.  IS  Misc. 
and  remainder  of  my  estate,  real  and  633;  42  X.  Y.  Supp.  601.  See  Sher- 
personal,  to  the  executors  of  my  will,  rer  y.  Bartlett.  45  App.  Div.  135;  60 
in  trust,  to  rent  the  rest  of  m'y  real  N.  Y.  Supp.  1067.  Compare  Craw- 
estate,  and  to  invest  the  rest  of  my  ford  y.  McCarthy,  159  X.  Y.  514. 


§739. 


ADMi:S-lbTliATION    OF    EsTATE,    EtC. 


GIG 


personal  estate  is  specifically  bequeathed  and  power  given  to  the 
executors  to  sell  the  real  property  for  the  purposes  of  administra- 
tion.^** But  a  direction  for  the  payment  of  legacies  out  of  the 
proceeds  of  the  only  piece  of  real  property  then  owned  by  testator, 
does  not  indicate  an  intent  to  charge  the  legacies  upon  real  estate 
subsequently  purchased  by  him.^^  Where  a  testator  directs  that 
certain  real  estate  be  sold,  and  the  proceeds  divided  among  persons 
named  in  the  will,  the  general  rule  is,  that  the  legatees,  if  of  full 
age,  may  elect  to  take  either  the  land  or  the  money,  provided  the 
rights  of  others  are  not  thereby  affected. ^*'^' 

§  739.  Personal  liability  of  devisee  for  legacy  charged. —  If  a 
devisee  of  land,  charged  with  the  payment  of  legacies,  accepts  the 
devise,  he  has  the  personal  duty  imposed  on  him  to  pay,  without 
reference  to  the  fact  whether  the  property  devised  and  accepted  is 
sufficient  for  that  purpose.  The  liability  is  created  by  the  accept- 
ance charged  with  the  duty,  and  the  duty  being  clear  and  personal, 
the  law  will  raise  an  implied  promise  to  discharge  it.^^ 


88Toch  V.  Toch.  81  Hun.  410:  30 
N.  Y.  Supp.  1003:  Matter  of  James. 
80  Hun,  371:  30  X.  Y.  Supp.  1.  See 
Matter  of  Vandevort.  8  App.  Div. 
341:  40  X.  Y.  Supp.  791;  Matter  of 
Goetz,  71  App.  Div.  272. 

sajouffret  v.  .Jouflfret.  20  App.  Div. 
455;  46  N.  Y.  Supp.  810. 

SOMellen  v.  Mellen.  139  X.  Y.  210; 
54  St.  Rep.  G70.  See  McDonald  v. 
O'Hara,  144  X.  Y.  566;  64  St.  Rep. 
236:  Harper  v.  Chatham  Xat.  Bank. 
17  Misc.  221:  40  X.  Y.  Supp.  1084; 
Prentice  v.  Janssen,  14  Hun.  548; 
affd..  79-  X.  Y.  478:  Armstrong  v. 
McKelvey,  104  id.  179.  Compare 
P^oote  V.  Bnicrgerhof .  84  Hun.  473 ; 
Smith  V.  A.  D.  Farmer,  etc.,  Co.,  16 
A  mortgage  debt  has 
legacies  in  the  pro- 
of realty  to  satisfy 
(Rauchfuss  v.  Rauch- 
fuss.  2  Dem.  271:  citing  Erwin  v. 
Loper,  43  X.  Y.  521.)  See  Beekman 
V.  Vanderveer,  3  Dem.  619.  As  to 
paying  debts  from  proceeds,  see  Dun- 
ning V.  Dunning,  82  Hun,  462. 

OlGridlev  v.  Gridlev,  24  X.  Y.  130: 
Gilbert  v.  Taylor,  148  id.  298;  Collis- 
ter  V.  Fassitt',  163  id.  281:  Thurber  v. 
Chambers,  66  id.  42 :  Keteltas  v.  Pen- 
fold,  4  E.  D.  Smith.  122;  Matter  of 
Boyd,  4  Redf.  154;  Ragan  v.  Allen, 
7  Hun.  537:  Hoyt  v.  Hovt.  17  id.  192: 
Stoddard  v.  Johnson.  13  id.  606:  San- 
ford  V.   Sanford,  4  id.   753;    Hillis  v. 


App.  Div.  438. 
preference    over 
ceeds  of  a  sale 
such  legacies. 


Hillis.  16  id.  76;  Shanlev  v.  Shanley,. 
22  App.  Div.  375;  48  X.  Y.  Supp.  32; 
Zweigle  v.  Hohman,  75  Hun,  377  :  27 
X.  Y.  Supp.  111.  See  Buffalo  L.  & 
T.  Co.  V.  Leonard,  9  App.  Div.  384 ; 
41  X.  Y.  Supp.  294:  affd..  154  X.  Y. 
141;  Colvin  v.  Young,  81  Hun,  116; 
30  X.  Y.  Supp.  689.  Where  a  tes- 
tator gave  one-fourth  of  his  residu- 
ary estate,  and  a  like  share  in  cer- 
tain real  property,  "  to  have  and  to 
hold  the  same,  subject  to,  and  charged 
with,  the  payment  hy  him  out  of  the 
same,"  so  soon  as  practicable,  and 
within  two  years  after  testator's 
death,  of  specified  sums  of  money  to 
certain  persons  mentioned  ( the  two 
years  having  expired  and  the  legatee 
having  died  before  payment),  it  was 
held,  that  the  bequest  was  burdened 
with  sub-legacies  in  the  nature  of  a 
condition  subsequent,  and  that  the  ex- 
ecutors' duty  would  be  discharged  by 
pajTuent  to  the  primary  legatee. 
(Brittin  v.  Phillips.  1  Dem.  57.)  A 
will  giving  to  two  of  testator's  daugh- 
ters a  farm  of  250  acres  and  directing 
them  to  pay  to  another  daughter 
$3,000  in  annual  instalments,  in  de- 
fault of  which  payments,  or  any  of 
them,  she  was  to  take  specified  sixty 
acres  of  the  farm. —  Held,  to  give  the 
two  devisees  the  right  to  elect  to  re- 
fuse to  take  the  sixty  acres,  and  be 
exonerated  from  the  pa\nnent  of  the 
$3,000.     (Damuth  v.  Lee,"  29  App.  Div. 


(517 


Admimstkatiun   of  Kstatk,   Etc. 


§740. 


§740.  Vested  and  contingent  legacies. —  A  legacy  is  contingent 
Avhc'ii  the  onjuyinent  of  il  dcpeiKU  upon  tlic  happening  of  some 
event  —  as  the  arrival  of  the  legatee  at  a  certain  age  —  and  vested^ 
when  given  generally,  in  which  case,  if  payable  out  of  the  per- 
sonalty, it  vests  immediately  npon  the  testator's  death.  The  dis- 
tinction between  vested  and  contingent  legacies  is  important  mainly 
with  reference  to  the  t[uestion  of  lapse.  It  also  becomes  important 
as  bearing  upr)n  the  question  whether,  and  from  what  time,  the 
legatee  is  entitled  to  interest  on  the  legacy,  and  to  what  person 
the  legacy  goes  when  limited  over.  The  leading  inquiry  upon 
which  the  question  of  vesting  or  not  vesting  turns,  is,  whether 
the  gift  is  immediate,  and  the  time  of  payment  or  of  enjoyment 
only  ]X)stponed,  or  is  future  and  contingent,  depending  upon  the 
beneficiary  arriving  of  age,  or  surviving  some  other  person,  or  the 
like.  If  futurity  is  annexed  to  the  substance  of  the  gift,  the  vest- 
ing is  suspended  ;  but  if  it  api3€ar  to  relate  to  the  time  of  pryment 
only,  the  legacy  vests  instantly.  The  mere  circumstance  that  the 
gift  is  future,  that  is,  the  actual  possession  is  postponed,  does  not 
make  time  of  the  substance  of  the  gift,  or  affix  a  condition  to  the 
immediate  vesting  of  the  interest.  That  question  is  determined 
by  the  intention  of  the  testator,  as  gathered  from  the  whole  will, 
and  not  by  particular  expressions. 


The  law  favors  the  vesting 


2(1:  .")!  X.  Y.  Supp.  648.)  Compare 
tlie  instructive  case  of  Dill  v.  Wisner. 
2.3  Hun.  12.3.  A  (levi.>;eo  of  lands 
charjreable  with  a  legacy  is  Hable  to 
])ay  interest  on  the  legacy  from  the 
time  it  was  payable,  whether  payment 
was  demanded  or  not.  (Glen  v.  Fisher. 
G  Johns.   Ch.  3.3:    Birdsall  v.  Hewlett, 

1  Paige,  32:  Tole  v.  Hardv.  0  Cow. 
333.)  See  Gilbert  v.  Taylor."  148  N.  Y. 
2fl8.  In  such  a  case,  the  legacy  is  an 
equitable  charge  upon  the  land,  al- 
though the  devisee  is  also  the  executor 
or  residuary  legatee,  unless  the  will 
indicates  a  contrary  intention.  (Har- 
ris V.  Fly.  7  Paige.  421:  Dodge  v. 
Manning.  11  id.  334;  Jenkins  v. 
Freyer,  4  id.  47 ;  Livingston  v.  Free- 
land,  3  Barb.  Ch.  510.)  If  he  accept 
the  devise,  he  is  personally  liable  for 
the  legacy  in  equitii.  without  an  ex- 
press   promise.       (Kelsey    v.    Western, 

2  X.  V.  .")00. )  At  common  law  an 
ex])rcss  jiromise,  made  after  the  ex- 
ecutors liad  assented  to  the  legacy,  and 
in  consideration  of  his  having  become 
seized  under  the  devise,  was  necessary 
<  Beecker  v.  Beecker.  7  Johns.  99): 
and  an  action  at  law  will  not  lie  upon 


a  mere  implied  assumpsit  arising  from 
tlie  devise.  ( Livingston  v.  Living- 
ston. 3  .Tohns.  ISn.)  Compare  Lock- 
wood  v.  Stockholm.  11  Paige,  87.  But 
see,  now,  Stoddard  v.  .John.son,  13 
Hun.  606,  and  Soott  v.  Stebbins,  91 
X.  Y.  G05. 

OSEveritt  v.  Everitt.  29  X.  Y.  .39; 
Fargo  V.  Squiers.  ti  App.  Div.  48.5 ;  39 
X.  Y.  Supp.  (148:  l.")4  X.  Y.  2.10 :  Rudd 
v.  Cornell,  58  App.  Div.  207:  68  X. 
Y.  Supp.  757:  aflfd.,  171  X.  Y.  114. 
For  cases  in  which  the  language  of  the 
will  was  held  to  create  an  immediate 
vesting  of  the  estate,  or  otherwise, 
see  Warner  v.  Durant,  76  X.  Y.  133; 
Loder  v.  Hatfield.  71  id.  92;  Fincke  v. 
Fincke.  53  id.  528 :  Stevenson  v.  Les- 
ley, 70  id.  512:  Cushman  v.  llorton, 
59  id.  149;  McLean  v.  Freeman,  70 
ill.  81  ;  Theological  Seminarv  v.  Kel- 
logg. 1/5  id.  83:  Tucker  v.  B'ishop,  id. 
402;  Bedell  v.  Giiyon,^  12  Hun,  39(! ; 
Brown  v.  Xicluilson.  8  id.  464 ;  Five 
Points  House  of  Industry  v.  Aniernian» 
11  id.  161:  Ross  v.  Roberts.  2  id.  90; 
Hays  v.  Gourley,  1  id.  38 ;  Smith  v. 
Rockefeller.  3  id.  295;  Delavergne  v. 
Dean.  45  How.  Pr.  206:  Llovd  v.  Yan 


1740. 


ADMlNlSTKATiaX    OF    EsTATE,     EtC, 


618 


•of  estates,  and  unless  a  contrary  intention  is  unequivocally  ex- 
pressed, it  will  not  be  imputed  to  the  testator. '^^  The  contingency 
which  will  render  a  legacy  inalienable  must  be  one  which  relates 
to  the  person  who  will  take,  and  not  to  the  happening  of  a  future 
<_went/'^'*  If  a  legacy  is  directed  to  be  paid  when  the  legatee  at- 
tains full  age,  the  gift  is  absolute,  and  vests  on  the  death  of  the 
testator ;  but  if  it  is  payable  when  he  comes  of  age,  or  if,  or  pro- 
vided, he  lives  till  he  is  twenty-one,  it  does  not  vest  till  the 
contingency  happens,  and  if  it  never  happens,  the  legacy 
lapses.^^ 

The  question  of  the  vesting  or  nonvesting  of  a  legacy  becomes 
important  in  the  case  of  the  death  of  a  tenant  for  life,  or  for  the 
life  of  another,  or  until  majority,  or  depending  upon  any  other 
limitation.  If,  for  example,  a  legatee  who  is  entitled  to  income 
-during  the  life  of  another,  dies,  such  income  passes  to  the  legatee's 


Antwerp,  50  id.  81;  Belts  v.  Betts, 
4  Abb.  N.  C.  317;  Meyer's  Will,  57 
How.  Pr.  203;  Flovd  v.  Fitcher,  38 
Barb.  409 ;  Larocque  v.  Clark.  1  Redf. 
4G9 :  Hamlin  v.  Osgood,  id.  409;  Kelso 
V.  Cuming,  id.  392 ;  Young  v.  Case,  2 
id.  55 ;  Van  Wyck  v.  Bloodgood,  1 
Bradf.  154;  Ex  p.  Turk.  id.  110;  An- 
drews V.  N.  Y.  Bible  Soc.,  4  Sandf. 
156;  Marsh  v.  Wheeler,  2  Edw.  156; 
Tucker  v.  Ball,  1  Barb.  94;  Sharp- 
steen  v.  Tillou,  3  Cow.  651;  Post  v. 
Hover,  30  Barb.  312;  Williams  v.  Con- 
rad, id.  524 ;  Dubois  v.  Ray,  7 
Bosw.  244;  Ennis  v.  Pentz,  3  Bradf. 
382;  Dixon  v.  Storm,  5  Redf.  419; 
Steinele  v.  Oechsler,  id.  312;  Spencer 
V.  See,  id.  442;  Magill  v.  McMillan, 
23  Hun,  193;  Matter  of  Bogart,  28 
id.  466;  Hitchcock  v.  Peaslee,  89  id. 
506;  Matter  of  Cameron,  76  id.  429; 
McKay  v.  McAdam,  80  id.  260;  Mat- 
ter of  Ball,  11  Misc.  433;  Matter  of 
Lehman,  2  App.  Div.  531;  Farmers' 
L.  &  T.  Co.  V.  Ferris,  67  id.  1 ;  Matter 
of  Battelle,  24  Misc.  61;  Karstens  v. 
Karstens,  29  App.  Div.  229.  The  rule 
that,  when  legacies  are  payable  in  the 
future,  without  any  condition  annexed, 
or  expressed  intention  to  the  con- 
trary, they  vest  at  testator's  death, 
does  not  apply  where  his  interition  is 
apparent  that  they  shall  only  vest  at 
the  happening  of  a  particular  event 
and  on  the  fulfilment  of  the  condi- 
tions annexed.  (Shipman  v.  Fanshaw, 
15  Abb.  N.  C.  288.)  Although,  where 
there  is  no  gift  but  in  a  direction  to 
pay  at  a  future  time,  the -vesting  is 


postponed  until  that  time  arrives 
(Paget  V.  Melcher,  21  Misc.  196;  Mat- 
ter of  Crane,  164  N.  Y.  71;  Hafner  v. 
Hafner,  62  App.  Div.  316)  :  there 
are  many  exceptions  to  the  rule. 
(Carr  v.  Smith,  25  App.  Div.  214; 
aflFd.,  161  N.  Y.  636;  Matter  of  Bat- 
telle, supra :  Matter  of  Young,  78 
Hun,  521;  Matter  of  Watts,  68  App. 
Div.  357;  Bowditch  v.  Avrault,  138 
N.  Y.  222;  Matter  of  Embree,  9  App. 
Div.  602  ;  affd.,  154  X.  Y.  778  ;  Shangle 
V.  Halloek,  6  id.  55.) 

93  McKinstry  v.  Sanders,  2  Sup.  Ct. 
(T.  &  C.)    181. 

04  Sawver  v.  Cubby,  146  X.  Y.  192; 
66  St.  Rep.  582.  See  Matter  of  Dip- 
pel,  71   App.  Div.   598. 

»5  Patterson  v.  Ellis.  11  Wend.  259; 
Burrill  v.  Shell,  2  Barb.  457  ;  Hone  v. 
Van  Schaick,  20  Wend.  504 ;  Weyman 
V.  Ringold,  1  Bradf.  40 ;  Wheeler  v. 
Lester,  id.  213;  Post  v.  Hover,  30 
Barb.  312,  319;  Dupre  v.  Thompson, 
8  id.  537;  Colvin  v.  Young,  81  Hun, 
116;  Dimmick  v.  Patterson,  06  id. 
492.  A  direct  gift  to  a  minor  is  vested, 
notwithstanding  it  is  given  over,  in 
case  of  his  death  under  age,  or  "  with- 
out heirs;"  and  though  liable  to  be 
divested  on  a  contingency,  the  substi- 
tuted legatees  will  only  take  the  prin- 
cipal ;  and  the  interest  accruing  mean- 
while belongs  to  the  minor,  and  may 
be  appropriated  for  his  support.  (  Pin- 
nev  V.  Fancher,  3  Bradf.  198.)  See 
Matter  of  Goodrich,  2  Redf.  45;  Wil- 
lets  V.  Titus,  14  Hun,  554;  Smith  v. 
Parsons,  146  N.  Y.  116. 


619  AuMixisTUATiox  OF  EsTATK,  Etc.     §§  741,  742. 

personal  representatives  for  the  remainder  of  the  life  of  the  cestui 
que  ric.^^ 

§  741.  Vested  right  to  a  contingent  estate. —  The  estate  may  be 

contingent,  but  tlu-  right  to  lake  it  in  posse.ssion,  if  it  ever  does  vest, 
is  a  vested  right."'  Contingent  estates,  some  of  wliieh  foi-m  the 
basis  of  vested  rights;  although  all  alike  in  being  outstanding,  wait- 
ing for  the  happening  of  a  contingency,  fall  into  two  distinct 
groups:  (1)  those  where  the  contingency  arises,  either  wholly  or 
partly,^^  from  uncertainty  concerning  the  person  to  whom  they 
are  limited;  and  (2)  where  the  contingency  arises  wholly  from 
uncertainty  concerning  the  event  on  which  they  are  limited  to 
take  effect'.^^ 

§742.  Conditional  legacies. —  An  absolute  legacy  is  where  a 
thing  is  bequeathed  without  any  qualification,  while  a  conditional 
legacy  is  one  depending  upon  the  hap])ening  or  not  happening  of 
some  uncertain  event,  by  which  it  is  either  to  take  place  or  be  de- 
feated.-^ But  where  there  is  no  provision  for  forfeiture,  and  noth- 
ing to  indicate  an  intention  that  vesting  is  to  depend  upon  per- 
formance, a  provision,  in  terms  a  condition,  will  be  held  to  import 
a  covenant,  and  not  a  condition.^  The  condition  may  be  either 
precedent  or  subsequent.  If  precedent,  the  estate  vests  upon  its 
performance ;  if  subsequent,  it  vests  upon  the  testator's  death,  sub- 
ject to  be  divested  by  nonperformance.^     Failure   to  perform   is 


9«  Morgan  v.  Williams,  66  How.  Pr.  nating  any  person  by  whom  that  ques- 

139.     See  Tiittle  v.  Tuttle,  2  Dem.  48.  lion    is   to    be   determined,    is    too   in- 

9"  Hennessy  v.   Patterson,   85  N.   Y.  definite  and  uncertain  to  be  capable  of 

Dl;   Nellis  v.  Nellis,  99  id.  505;   Ham  observance.       ( Horndorf    v.    Horndorf, 

V.  Van  Orden,  84  id.  257.  13  Misc.  343;   34  N.  Y.  Supp.  5(i0. ) 

'->**  Haynes    v.    Sherman,    117    X.    Y.        2  Cunningham  v.   Parker,   146  X.  Y. 

433.  29;   65  St.  Rep.  774. 

9!*  See  Chaplin  on  Susp.  of  Power  of        -^  Five  Points   House  of  Industry  v. 

Aliena.,  p.  48.  §  73  ct  seq.,  for  a  satis-  Amermann,    11     Hun.    161;    American 

factory    statement   of   New   York    law  Church,  etc.,  Soc.  v.  Griswold  College, 

on  this  subject.  27  ]\Iisc.  42;    58  N.  Y.  Supp.  3;   Mat-, 

1  See  Caw  v.  Robertson,  5  N.  Y'.  ter  of  Woods,  33  Misc.  12;  67  N.  Y. 
125;  Cooper  v.  Romsen,  3  Johns.  Ch.  Supp.  1123.  A  bequest  to  a  charitable 
382;  id.  521;  5  id.  459;  Crocheron  v.  institution,  on  condition  that  it  care 
Jaques,  3  Edw.  207.  Of  the  duty  of  for  a  certain  i)erson.  is  valid,  and  the 
•executors,  in  the  payment  of  a  be-  society  is  entitled  to  it.  if  willing  to 
<iuest  conditioned  on  their  being  satis-  confoiiu  to  the  conditions  imposed,  al- 
lied that  the  beneficiary  had  reformed  liiough  previous  to  testator's  death  the 
from  dissipation,  see  Dustan  v.  Dustan,  party  named  has  been  expelled  from 
1  Paige,  509 ;  Smith  v.  Rockefeller,  3  the  institution  for  a  violation  of  its 
Hun,  295;  Matter  of  Keenan,  15  Misc.  rules.  (Livingston  v.  Gordon,  84  X. 
368.  A  condition  that  a  legatee  shall  Y.  136.)  See  De  Veaux  College  v. 
he  free  from  immoral,  disorderly,  and  Highlands  Co.,  63  App.  Div.  461. 
intemperate  conduct,  without  provid-  Wliere  a  bequest  is  made  to  a  cor- 
ing any   standard  by  which  or  desig-  poration  for  its  own  benefit,  no  trust 


g  742.  Admi.xisteation  of  Estate,  Etc.  620 

sufficient  to  warrant  tlie  inference  that  tlie  legatee  refused  the  be- 
quest.'* Precedent  contingencies  are  such  as  must  happen  or  be 
performed  before  the  estate  can  vest  or  be  enlarged;  subsequent 
arc  such  that,  by  their  failure  or  nonperformance,  an  estate  already^ 
vested  may  be  defeated.^  There  are  no  technical  Avords  to  distin- 
guish them,  and  whether  they  be  the  one  or  the  other  is  a  matter 
of  construction,  and  depends  upon  the  intention  of  the  party  creat- 
ing the  estate.''  Thus  a  legacy  in  trust,  conditioned  upon  the  im- 
mediate and  continued  engagement  of  the  beneficiary  in  the  busi- 
ness conducted  by  the  testator  in  his  lifetime,  fails  upon  the  dis- 
continuance of  such  services,  although  caused  by  illness  and  perma- 
nent jjliysical  disability.^  If  a  legatee  upon  condition  accepts  the 
legacy,  and  enters  into  possession,  he  must  perform  the  condition, 
however  burdensome.*^  He  is  not  bound  to  make  his  election 
whether  or  not  to  take  the  bequest,  until  the  condition  and  value 
of  the  gift  can  be  reasonably  ascertained.  A  mere  design  or  in- 
tention to  accept  will  not  conclude  him,  or  prevent  a  retraction,  if 
he  was  ignorant  of  the  real  state  of  the  legacy,  and  the  extent  of 
the  charge  upon  it.  If  he  refuses  to  accept  the  legacy,  the  execu- 
tor will  be  considered  as  a  trustee  holding  the  fund  for  the  bene- 
fit of  those  interested  in  the  legatory  charges.'' 


is  created  by  a  suggestion  as  to  the  divided  on  the  question  whether  a  cer- 
use of  the  fund.  (Matter  of  Isbell,  1  tain  condition  was  precedent  or  sub^ 
App.  Div.  1,58;  37  N.  Y.  Supp.  919.)  sequent.  For  conditions  held  pre- 
S.  P..  Preston  v.  Howk,  3  App.  Div.  cedent,  see  Parmelee  v.  The  Oswego  &■ 
■43;  37  N.  Y.  Supp.  1079:  atid.,  154  S.  R.  R.  Co..  6  X.  Y.  74;  Kenyon  v. 
N.  Y.  734.  Where  a  will  attaches  to  See,  94  id.  563:  Bennett  v.  Culver,  97 
a  legacy  an  enabling  condition,  it  is  id.  250:  Matter  of  Bratt,  10  Misc. 
an  immaterial  circumstance  whether  491.  Conditions  subsequent,  see  Vail 
the  condition  is  fulfilled  before  or  v.  L.  I.  R.  R.  Co..  lOG  X.  Y.  283; 
after  testator's  death.  Thus,  where  Matter  of  Traver,  101  N.  Y.  54:  Mat- 
testator  directed  that,  upon  his  son  ter  of  Raab,  42  App.  Div.  141;  Col- 
"  M.  attaining  the  age  of  twenty-one  lister  v.  Fassitt.  7  id.  20;  La  Chapelle 
years,"  his  executors  give  to  his  said  v.  Burpee.  69  Hun,  430:  Nicoll  v.  X. 
son  the  sum  of  $10,000,  and  M.  be-  Y.  &  E.  R.  Co.,  12  X.  Y.  121;  Hogan. 
came  twenty-one  years  of  age  before  v.  Curtin,  88  id.  162;  Garrett  v. 
his  father's  death ;  held,  upon  his  Scouten.  3  Den.  334 ;  Towle  v.  Rem- 
petition  to  compel  payment  of  a  por-  sen.  70  X.  Y.  303.  See  Chaplin,  Susp. 
tion  of  his  legacy,  that  the  legatee's  of  Power,  etc.,  §  54.  For  conditions 
attainment  of  majority  being  the  es-  held  void  as  against  public  policy,  see 
sence  of  the  condition,  the  purpose  Matter  of  Haight,  51  App.  Div.  310; 
Avas  answered  by  his  coming  of  age  Cruger  v.  Phelps,  21  Misc.  252; 
in  the  lifetime  of  the  testator,  and  O'Brien  v.  Barkley,  60  St.  Rep.  520. 
the  application  was  granted.  (Eisner  "Welsh  v.  Welsh,  20  Week.  Dig. 
v.  Koehler,  1  Dem.  277.)  369. 

4Haebler  v.  Eichlcr  Brewing  Co.,  42        8  Soper  v.  Halsey,  85  Hun,  464;   33: 

App.  Div.  95:  58  X.  Y.  Supp.  894.  X.  Y.  Supp.   105. 

5  2  Bl.  Comm.  154.  » Wheeler   v.   Lester,    1    Bradf.   293; 

2  4  Kent  Comm.  124:  Towle  v.  Rem-  Cronkite  v.   Cronkite,   1   Sup.   Ct.    (T> 

sen.   70   X.   Y.    303.     .See   Xewkerk   v.  &   C.)    266;    Stoddard  v.   Johnson,   IS 

Newkerk.  2  Cai.  345,  where  the  court  Hun,  GOo. 


C21  Ai).\rrMsTHATi()\   ok  Estatk,  Etc.      §§  74.j,  744. 

§  743.  Legacy  to  executor. —  A  legacy  to  a  person  named  as  ex- 
ecutor in  the  will  is  a  conditional  legacy,  and  the  right  of  the 
legatee  to  receive  it  depends  upon  his  assumption  of  the  otiice,  un- 
less it  appears  by  the  will  itself,  or  the  nature  of  the  legacy,  or 
other  circumstances,  that  the  legacy  was  given  as  a  mark  of  re- 
gard, or  l)y  reason  of  relationship  of  the  legatee,  in  which  case  the 
legacy  will  he  considered  absolute  and  not  conditional.  But  the 
presumi)tion  is  that  a  legacy  to  an  executor  was  given  to  him  in 
that  character,  and  hence  will  fail,  if  he  renounces  or  neglects  to 
accept  the  appointment,  or  if,  having  accepted,  he  gives  up  the 
trnst.^^ 

Before  a  gift  to  executors,  eo  nomine,  can  be  held  to  vest  in 
them  individually,  the  intention  that  it  should  so  vest  must  be 
plainly  manifested,  and  where  it  is  coupled  with  an  expression 
of  confidence  that  they  will  follow  his  known  wishes,  the  gift  will 
he  deemed  a  trust. ^^ 

§  744.  Cumulative  legacies. —  Where  the  will  contains  two  lega- 
cies, of  the  same  thing  or  amount,  to  the  same  person,  whether 
the  legatee  takes  both  (in  which  case  they  are  called  cumulative) 
or  only  one  (the  second  being  a  mere  repetitio'n  of  the  first),  is 
always  governed  by  the  intention  of  the  testator.  The  presump- 
tion is  that  the  latter  legacy  is  a  mere  repetition  or  substitution ; 
but  where  the  two  are  in  different  instruments,  e.  g.,  where  one  is 
given  by  will  and  the  other  by  codicil,  the  presumption  is  that 
l)oth  are  intended.      But  either  presumption   is  liable  to  be  con- 

10  See  ^Morris  v.   Kent.  2  Edw.   175.  ters.    althoiifrh    in   oonspqiience   of   ob- 

In  Canipboll  v.  Mackie    (1  Dem.  18.5),  jections  raised  to  his  servinjj  by  a  co- 

the    testator    gave    a    le<racy    "  to    my  executor  and  a  lej^atee,  took  no  share 

friend    B.    or    his   heirs   one   thousand  in    the    bequest.      Compare    ^Matter    of 

dollars,"    and    named    B.-  as   an   exec-  Brigg.    .30   App.    Div.    4S5 :    5"    X.    Y. 

ntor.     Held,  that  the  bequest  was  not  Supp.  390:   Matter  of  Strong.  5  ilisc. 

designed    as   a    compensation   for   ser-  4.33. 

vices    which    testator    expected    would  n  Edson    v.    Bartow,    10    App.    Div. 

be  rendered  by  the  legatee  in  the  ad-  104:    modified    in    other    respects,    154 

ministration  of  the  estate.     In  flatter  X.    Y.    l!)!t.      Also    held,   in   that    case, 

of   Cameron    (X.   Y.    Daily   Reg.,   .Tan.  that  as  to  the  other  two  execiitors  who 

27.   ISSl).  the  testator  gave  .$2,000  to  were   not  aware  of  their  appointment 

«ach    of   liis   executors.      One   of   them  or  of  the  provisions  of  the  will,  until 

Avas  ten  days  tliereafter  discharged  on  its  publication,  the  will   made  an  ab- 

his    own    application.      Held,    that    he  solute  transfer  and  the  executors,  tak- 

was   not    entitled    to    a    proportionate  ing  as  tenants  in  conuuon,  and  not  as 

share   of  the   legacy.      In   Fletcher  v.  joint    tenants,    they    were    entitled    to 

Hurd      (38    St.    Rep.    648:     14    X.    Y.  two-thirds  of  the  legacies  which  failed. 

Supp.    388),    testator    bequeathed    the  See    Trustees    of    Amherst    College    v. 

residue    of    his    estate,    to    be    divided  Ritch.  01    Hun.  500:    afTd..   151    X.  Y. 

txmong   the   executors    in   lieu   of   com-  282:      Forster     v.     Winfield.     142     id. 

pensation     for     services.       Held,     they  327.       Compare  Cletnents   v.    Babcock. 

took   in   their  character   of  executors:  2(1    Misc.    00:     Peoples    Trust    Co.    v. 

and  one  who  failed  to  apply   for   let-  Smitli.  02  St.  Rep.   104. 


§§  745,  746.     Administration  of  Estate,  Etc.  62^ 

truUed  and  repelled  by  internal  evidence  and  the  circumstances  of 
the  case/^  Where  the  directions  of  the  will  are  repugnant,  e.  g.,. 
where,  after  an  absolute  legacy  of  money,  there  was  a  subsequent 
direction  to  the  executors  to  invest  it  for  the  support  of  the  legatee,, 
the  two  directions  are  inconsistent,  and,  therefore,  void.^^ 

§  745.  Legacy  in  lieu  of  dower. — Legacies  or  devises  are  fre- 
quently given  to  the  widow,  in  lieu  of  her  dower  right.  In  such 
case,  the  legatee  has  an  election  to  accept  or  refuse  the  legacy  or 
devise.  In  cases  where  the  will  does  not  declare,  in  express  terms, 
that  such  legacy  is  in  lieu  of  dower,  difficult  questions  may  arise 
as  to  whether  the  widow  is  put  to  her  election.  The  general  prin- 
ciple is  well  settled,  that  unless  the  testator  has  manifested  his 
intention  to  deprive  her  of  her  dower,  either  by  express  words  or 
by  necessary  implication,  she  cannot  be  deprived  of  it  by  a  testa- 
mentary provision  in  her  favor.  It  is  held,  indeed,  that  the  claim 
of  dower  must  be  inconsistent  with,  or  repugnant  to,  the  provisions 
of  the  will,  before  an  intention  to  bar  the  dower  can  be  implied ; 
that,  in  other  words,  the  claim  cannot  be  resisted  by  implication, 
unless  iU  allowance  would  disturb  or  disappoint  the  will.'''* 

§  746.  To  executor  in  lieu  of  commissions. —  A  provision  made  hy 
the  will  for  specific  compensation  to  the  executor,  is  declared  by 

12  De  Witt  V.  Yates,   10  Johns.   156.    plate,  etc.,  in  lieu  of  dower.     Payment 

13  Borland   v.    Borland.   2   Barb.    63.    of    the    annuity.   "  in   lieu    of   doweji," 
l-t  See  Fuller  v.  Yates,  8  Paige,  328 ;    was  opposed  by  those  interested  in  the 

Hawley  v.  .James.  .5  id.  318:  Wood  v.  residuary  estate,  on  the  ground  that 
Wood.'  id.  .596 ;  Sanford  v.  .Jackson,  10  it  was  void.  Held,  that  the  misde- 
id.  260 ;  Adsit  v.  Adsit,  2  Johns.  Ch.  scription  of  the  legatee  as  testator's 
451;  Liipton  v.  Lupton,  id.  014;  Bab-  wife  did  not  avoid  the  legacy,  as  there 
cock  V.  Stoddard,  3  Sup.  Ct.  (T.  &  C.)  was  no  ambiguity  in  respect  to  the 
207;  Fevre  v.  Toole,  84  N.  Y.  95;  person  intended,  and  no  fraud  was 
Bullard  v.  Benson,  1  Bern.  486 :  Close  practiced  on  the  testator :  that  the  ex- 
V.  Eldert,  30  App.  Biv.  338 ;  Purdy  v.  pressed  consideration,  "  in  lieu  of 
Purdy,  18  id.  310;  Kimbel  v.  Kimbel,  dower,"  though  untrue  and  inipos- 
14  id.  570;  Conner  v.  Watson.  1  id.  sible.  did  not  avoid  the  legacy,  since 
54;  Gray  v.  Gray,  5  id.  132;  Horst-  no  consideration  was  necessary  to  its 
mann  v.' Flege,  01  id.  518:  Miller  v.  validity.  As  to  what  will  be  deemed 
INliller,  22  Misc.  582;  Hopkins  v.  to  be  an  acceptance  of  the  bequest,  see 
Cameron,  34  id.  688;  Fenton  v.  Fen-  Grout  v.  Cooper,  9  Hun.  326.  As  to 
ton,  35  id.  479 ;  Matter  of  Grotian.  id.  contribution  by  parties  benefited  from 
257 ;  30  id.  23 ;  Buncklee  v.  Butler,  widow's  election  to  take  or  refuse  pro- 
id.  58.  Compare  Nelson  v.  Brown.  144  vision,  see  Tehan  v.  Tehan,  83  Hun, 
X.  Y.  384:  Jurgens  v.  Rogge,  16  Misc.  368;  Matter  of  Lawrence.  36  Misc. 
100:  Koezlv  v.  Koezlv.  3rid.  397.  In  275:  and  s.  c.  37  id.  702.  See  also 
Klein  v.  Hayek  (5  Redf.  210).  it  ap-  L.  1896.  c.  547,  §  181,  as  to  when 
peared  that  the  testator  was  divorced  widow  is  deemed  to  have  elected  tO' 
from  h's  wife,  and  though  forbidden  accept  provision,  in  lieu  of  dower., 
to  remarry,  thereafter  cohabited  with  Every  provision  for  a  widow,  in  lieu 
X.  as  his  wife  without  a  marriage,  of  dower,  is  forfeited  in  a  case  iit 
By  his  will,  he  gave  to  his  "  beloved  which  she  would  forfeit  her  dower- 
wife,"  N.,  all  his  household  furniture,  (L.   1896,  c.  547,  §   182.) 


623  Admixistkation  of  Estate,  Etc.  §  747. 

the  statute^^  to  be  a  full  satisfaction  for  his  services,  in  lieu  of  the 
commissions,  unless  he  elects  to  renounce  all  claim  to  such  specific 
legacy.  lie  is  not  required  to  elect  which  he  will  accept,  until  he 
has  sufficiently  ascertained  which  will  be  the  more  advantageous. 
ViWt  to  put  him  to  his  election,  the  language  of  the  wiL  should 
clearly  indicate  that  the  legacy  was  intended  as  a  specific  com- 
pensation for  his  services;  if  it  does  not,  his  right  to  charge  com- 
missions is  not  defeated.^*^ 

§  747.  Legacies  to  creditors. — The  rule  that  a  legacy  to  a  creditor 
is  a  satisfaction  of  the  debt,  is  subject  to  many  exceptions.  In 
general,  a  legacy  implies  a  bounty,  and  not  a  payment.'^  But 
one  who  accepts  a  bequest  and  is  put  to  his  election  between  the 
gift  in  the  will  and  a  claim  against  the  estate,  his  acceptance  of 
the  former  is  a  satisfaction  of  the  latter ;  and  it  is  immaterial 
whether  what  he  takes  turns  out  to  be  of  greater  or  less  value  than 
that  which  he  surrendered.^*  The  cases  justify  the  following  state- 
ment of  doctrine  on  this  subject:  (1)  A  legacy  is  n^^v^r  deemed  a 
satisfaction  of  a  debt  contracted  after  the  date  of  the  will.  (2) 
It  is  not  considered  a  payment,  when  the  will  contains  an  express 
direction  that  the  debts  and  legacies  shall  be  paid,  such  as  ^'  after 
all  my  debts  and  legacies  are  paid,  then  I  give,"  etc.,  or  words  of 
like  import.^®  (3)  "Where  the  particular  motive  or  purpose  for 
which  the  legacy  is  stated  in  the  will,  e.  g.,  as  a  token  of  regard, 
or  from  ancient  friendship,  or  from  relationship,  and  the  like,  it 
will  not  be  deemed  a  satisfaction  of  the  debt.  (4)  "VMiere  the 
legacy  is  contingent  and  uncertain,  or  payable  at  a  future  time, 
or  upon  condition,  it  is  not  a  satisfaction.  (5)  Where  the  legacy 
is  Jess  than  the  debt,  or  the  debt  is  unliquidated,  or  in  negotiable 

15  Co.    Civ.   Proc.    §   2731,   amended        19  An  express  direction  for  the  pay- 

1805    (former  §  2737).  ment  of  all  the  testator's  debts,  rebuts 

ifi  flatter   of   Mason.   98   X.   Y.   .527.  the    presumption    that    a    lefracy    to   a 

1"  Reynolds    v.    Robinson.    82    N".    Y.  creditor    was    intended    as    a    satisfac- 

103 ;  Smith  v.  Murray.  1  Dem.  34.    In  tion  of  the  debt.      (  Fort  v.  Goodin?,  i> 

Adams    v.    Olin    (21    Civ.    Proc.    Rep.  Barb.  371.)      See  Bouphtdn  v.   Flint.  5 

227).  a  gift  to  the  testators  wife  in  Abb.   X.   C.  215:    74  X.   Y.  47(i.     The- 

lieu   "  of   all   dower   or   other   interest  common-law  right  of  a  creditor  of  the 

in  my  property  and  estate,"'  Held,  not  testator,  appointed  the  executor  of  his 

to   require  the   satisfaction  of  a   debt,  will,  to  pay   himself  first,  if  his  debt 

from  the  husband  to  the  wife  for  the  is   by  specialty  or   of   record,   and   hi* 

amount  of  her  separate  estate,  held  by  right  of  retainer  to  that  end.  has  been 

him    for    investment,   especially   where  abolished  in  this  State.      (2  R.  S.  88» 

the  books  of  the  testator  indicated  the  §   33:    Co.   Civ.   Pnc..    §    2719.   former 

continuance   of   the    ol)ligati()n    by  en-  §    2739.)       See    Williams   v.    Purdy.    6 

tries  made  subsequent   to  the  date  of  Paige.  1G6:  Smith  v.  Kearney,  2  Barb, 

the  will.     See  Matter  of  Sherman.  24  Ch.   533:    Treat  v.    Fortune,   2    Bradf. 

Misc.  65:  53  X.  Y.  Supp.  37«.  HG;  and  ante,  §  641. 

isCaulfield    v.    Sullivan,    85    X.    Y. 
153. 


I  748.  Administration  of  Estate,  Etc.  624 

paper,  or  in  a  current  account,  the  debt  is  not  satisfied.  (6)  Where 
the  legacy  is  of  a  different  nature  from  the  debt,  as  where  the  testa- 
tor is  indebted  by  bond,  and  he  bequeaths  an  interest  in  land,  it  is 
not  a  satisfaction.  (7)  A  specific  legacy  is  never  a  satisfaction, 
unless  expressly  so  declared  by  the  will,  and  it  is  so  accepted  by 
the  legatee.^"  The  general  rule  is  that  the  effect  of  a  legacy  to 
testator's  creditor  is  governed  by  testator's  intent,  and  that  an 
intention  thereby  to  pay  the  debt  must  be  either  evidenced  by  the 
language  of  the  provision  or  be  fairly  inferable  from  the  circum- 
stances.^^ 

§  748.  Legacies  to  debtors. —  A  bequest  by  a  creditor,  to  his 
debtor,  of  the  amount  of  his  debt  is  a  forgiveness  of  the  debt,  or  a 
specific  legacy;  it  is  not  a  pecuniary  legacy.^^  The  naming  of  a 
person  executor  in  a  will  does  not  operate  as  a  discharge  or  be- 
quest of  any  just  claim  which  the  testator  had  against  the  executor, 
but  such  claim  must  be  included  among  the  credits  and  effects  of 
the  deceased  in  the  inventory,  and  the  executor  is  liable  for  the 
same,  as  for  so  much  money  in  his  hands  at  the  time  the  debt  or 
demand  becomes  due.^^  The  discharge  or  bequest,  in  a  will,  of 
any  debt  or  demand  of  the  testator,  against  any  executor  named  in 
bis  will,  or  against  any  other  person,  is  declared  by  statute  not 
to  be  valid  as  against  the  creditors  of  the  deceased,  but  is  to  be 
construed  only  as  a  specific  bequest  of  such  debt  or  demand.^'*     If 

20  \Yillard  on  Exrs.  366 :  Williams  ject  to  deduction  of  the  husband's 
V.  Crary,  5  Cow.  370;  8  id.  246;  4  debt.  (Clarke  v.  Bogardus.  12  Wend. 
Wend.  443;  Clarke  v.  Bogardus,  12  67.)  But  a  bequest  to  a  daughter  of 
Wend.  67.  Compare  Mulheran  v.  Gil-  a  mortgage  given  to  secure  her  hus- 
lespie,  id.  349.  And  see  Eaton  v.  Ben-  band's  bond,  will  include  the  latter, 
ton,  2  Hill,  576.  A  legacy  to  the  cred-  (Klock  v.  Stevens,  20  Misc.  383.) 
itor's  wife,  and  its  acceptance,  is  not  Compare  Matter  of  Lee,  141  N.  Y. 
an  extinguisliment.  (Mulheran  v.  Gil-  .58.  In  Williams  v.  Crary  (5  Cow. 
lespie.  12  Wend.  340.)  368),    the    will    contained   a    provision 

21  Sheldon  v.  Sheldon,  33  St.  Rep.  directing  the  executors  to  enter  satis- 
754;  11  N.  Y.  Supp.  477.  In  that  faction  of  A.'s  mortgage,  and  to  cancel 
■case,  testator  gave  a  legacy  to  his  his  bond,  upon  his  paying  $1,600.  The 
wife  expressly  in  lieu  of  dower.  Held,  bond  and  mortgage  were  for  $4,000, 
not  to  cancel  the  wife's  claim  for  and,  including  his  current  account 
money's  received  by  the  testator,  the  against  the  testatrix,  the  balance  due 
<;laim'  being  wholly  unliquidated  at  at  her  death  was  $1,600.  Held,  not 
the  date  of  the  will,  and  liable  to  be  a  legacy,  but  a  proposition  of  settle- 
largely  increased  or  diminished  before  ment,  and  that  A.,  having  paid  the 
his  death.  See  Van  Slooten  v.  $1,600,  could  not  recover  on  his  ac- 
Wheeler,  50  St.  Rep.  873.  count.       See    Matter    of    Temple,    36 

22.Sholl   V.   ShoU,   5   Barb.   312.     As  Misc.   620. 

to     the    effect    of    a    bequest     to     the  2.';  Co.  Civ.  Proc,  §  2714,  as  amended 

obligor's    wife,    of    the    interest    of    a  1803:   adopting  2  R.   S.  84,   §    13. 

bond  which,  by  its  terms,  was  to  bear  24  Co.  Civ.  Proc,  §  2714,  as  amended 

no    interest    till     after    demand,    see  1893.      For  the  common-law  rule,   see 

Sweet    V.     Irish,    36     Barb.    467.       A  Rickets   v.    Livingston,    2   Johns.    Cas. 

legacy  to  a  debtor's  wife  is  not  sub-  97.      The    provision    of    the    Revised 


•C2; 


Admixistkatiox  of  Estate,  Etc. 


§  749. 


there  are  sufficient  assets  to  pay  debts  without  it,  it  may  be  paid 
ill  the  same  manner  and  in  like  pr<jportions  as  legacies  of  that 
kind.  In  any  case,  the  intention  to  relinquish  the  debt  must  be 
clearly  expressed  in  the  will,  or  otherwise  proven;^""  the  presump- 
tion is,  that  such  was  not  the  testator's  intL-ution.'*' 

§  749.  Legacy  for  life,  with  remainder  over. —  (Questions  some- 
times arise  between  a  tenant  for  life  and  the  remainderman,  as  to 
whether  the  bequest  is  general  or  specific.  If  it  is  specific,  and  the 
article  bequeathed  is  necessarily  perishable,  such  as  household 
stores,  the  tenant  for  life  takes  it  absolutely ;  where  the  articles 
are  not  necessarily  consumed  in  the  using,  and  there  is  no  direc- 
tion to  the  executor  to  hold  them  in  trust  for  the  remainderman, 
the  executor  may  deliver  them,  taking  a  receipt  for  them,  recogniz- 
ing the  remainder,"^  unless  there  are  special  circumstances  render- 
ing it  hazardous  to  surrender  the  principal  of  the  estate  to  the 
care  of  the  life  tenant  without  requiring  security  for  the  protection 
of  the  remainderman."^  But  where  there  is  a  general  bequest  for 
life,  with  roniaindor  over,  althdiigli  it  includes  articles  which  are 
consumed  in  the  usinir,  the  wholo  must  be  sold  hv  the  executor. 


Statutes  (§  13)  does  not  discharjie  a 
lien  vipon  real  estate  by  which  the  debt 
is  secured,  or  so  affect  it  as  to  give 
subsequent  incumbrances  priority  of 
lien:  it  merely  adds  to  the  original 
obligation  a  liability  to  account,  as 
executor,  for  the  debt :  and  until  the 
executor,  in  the  performance  of  his 
trust,  has  paid  the  amount  of  the  debt, 
and  thus  discharged  it,  all  liens  by 
which  it  is  secured  remain  in  force. 
(Soverhill  v.  Suvdam,  59  N.  Y.   140.) 

25  Clark  V.  P.o'gardus,  2  Edw.  .387; 
Stagg  V.  Beekman,  id.  89. 

20  Matter  of  Leslie.  3  Redf.  280; 
:Matter  of  Foster.  15  Misc.  175;  37 
X.  Y.  Supp.  13(1.  A  direction  that  ad- 
vancements be  not  deducted  from  a 
child's  share,  does  not  release  a  debt 
incurred  subsequent  to  the  execution 
of  the  will.  (Rogers  v.  McGuirc,  90 
Hun,  455.) 

27  Spear  v.  Tinkham.  2  Barb.  Ch. 
211.  Although  a  first  legatee  is  au- 
thorized to  consume  the  legacy,  if 
necessary  for  his  subsistence,  yet  the 
right  to  make  use  of  it  for  that  pur- 
pose is  rather  in  the  nature  of  a  power 
than  an  ownership,  and  a  gift  over,  of 
what  the  first  legatee  shall  leave,  is 
good.  Where  the  gift  to  the  first  taker 
is  absolute  in  its  terms,  or  when  the 
use  only  of  the  property  is  given,  and 

40 


the  property  is  such  that  its  use  is 
its  consumption,  the  gift  will  be 
deemed  an  absolute  one.  and  a  gift 
over  would  be  void  for  repugnancv. 
(  Bell  V.  \Yarn.  4  Hun.  40(1. )  A  legacy 
to  E.,  '■  for  her  use  during  her  natural 
life."  entitles  her  to  inunediatc  ])(>>- 
session.  (Matter  of  \Yej)peler.  2  Dem. 
02(5.)  See  Smith  v.  Van  Ostrand.  04 
N.  Y.  278.  A  legacy  to  a  wife  "'  dur- 
ing her  lifetime  for  the  support  of 
herself  and  children."  remainder  to 
such  children,  goes  to  the  wife.  (Clark 
V.  Eeupp.  S8  X.  Y.  230;  Smith  v.  Van 
Ostrand,  04  id.  278:  Billar  v.  Loun.les. 
2  Dem.  590.)  See  Matter  of  Bevea, 
10  Misc.  198:  Pell  v.  Folger.  08  Hun. 
443.  Compare  Ketcham  v.  Ketcham. 
(iO  id.  ()08;  Matter  of  McClure.  130  N. 
Y.  238 :  Gross  v.  Mathewson.  34  Misc. 
>i70:  Baumgras  v.  Baumgras.  5  id.  8: 
Dwyer  v.  Wells,  id.  IS:  Matter  of 
Geisler.  30  id.  7.")0 :  Matter  of  Moehr- 
ing,  154  X.  Y.  423. 

28  Matter  of  Eernbacher.  17  Abb.  X. 
C.  339 ;  s.  c.  as  Fernbacher  v.  Fern- 
bacher,  4  Dem.  227.  But  the  executors 
are  grossly  remiss  in  turning  ovt-r  the 
jirincipal  to  the  life  tenant  without 
security,  with  knowledge  of  the  lat- 
ter's  purpose  to  appropriate  it  to  her 
own  use,  and  thereby  destroy  the  in- 
terestq  of  the  remaindermen.     So  held 


§  749. 


Administkatiojv  of  Estate,  Etc. 


G2a 


and  the  interest  or  income  only  be  paid  to  tlie  legatee  for  life."** 
Dividends  upon  stock  owned  by  a  testator  which  had  been  declared 
at  the  time  of  testator's  death,  but  which  were  payable  subse- 
quently, are  principal  of  the  estate  and  do  not  go  to  a  legatee  who 
is  ''to  receive  the  rents,  interest,  and  income."  The  dividend  to 
which  a  life  tenant  may  be  entitled  as  income  can  only  be  that 
which  the  company  declares  after  that  relation  is  acquired. ^^ 

It  may  be  stated  generally  that  one  having  a  life  interest  has  a 
right  to  call  upon  the  trustee,  from  time  to  time,  to  disclose  to 
him  the  nature  and  character  of  the  property  in  his  hands  constitut- 
ing the  trust  fund ;  to  show  its  value ;  the  income  derived  there- 
from, and  the  expenses  to  which  the  trustee  is  subjected  in  its 
management,  in  order  that  he  may  be  able  in  the  future  to  watch 
and  look  after  his  own  interests. ^^     A  remainder  mav  be  limited 


in  proceedings  to  remove  executors  for 
misconduct.  (lb.)  In  Matter  of  Lewis 
(23  X.  Y.  Supp.  287).  the  bequest  was 
to  trustees  to  pay  the  income  to  A. 
for  life,  and  at  A.'s  death  to  pay  the 
principal,  to  a  third  person;  the  life 
beneficiary  afterward  purchased  the 
interest  of  the  remainderman.  Held, 
that  the  life  estate  and  the  remainder 
were  not  thereby  merged  so  as  to  en- 
title the  life  beneficiary  to  the  posses- 
sion of  the  principal. 

29  Covenhoven  v.  Shuler,  2  Paige, 
122;  Matter  of  Beyea,  10  Misc.  198. 
Compare  Clark  v.  Clark.  8  Paige,  153; 
Cairns  v.  Chaubert.  9  id.  160.  In  the 
last  case,  a  life  estate  in  a  toll-bridge, 
the  franchise  of  which  was  limited  to 
a  number  of  years,  was  held  not  to 
give  the  legatee  all  the  tolls,  but  only 
such  portion  of  them  as  would  equal 
the  interest  of  a  capital  equivalent  to 
the  cash  value  of  the  franchise  at  the 
time  of  the  testator's  death.  And  see 
Auburn  Theological  Seminary  v.  Cole, 
20  Barb.  321:  and  the  Same  v.  Kel- 
logg, 16  N.  Y.  83;  Bundy  v.  Bundy, 
38  id.  410.  As  to  what  form  of  be- 
quest will  raise  a  life  estate  by  im- 
plication.' see  Doughty  v.  Stillwell,  1 
Bradf.  300.  Compare  Minges  v. 
Mathewson,  66  App.  Div.  379 ;  Kendall 
v.  Case.  84  Hun.  124. 

30  Matter  of  Kernochan,  104  N.  Y. 
618.  Where  such  stock  is  sold  by  the 
executors  at  a  fixed  price  per  share, 
and  in  addition  thereto  a  sum  is  paid 
as  being  equivalent  to  a  ratable  pro- 
portion of  accumulated  profits  in  the 
hands  of  the  company  at  the  time  of 
the  death  of  the  testator,  such  latter 


sum  is  to  be  considered  a^  principal 
and  not  as  income.  In  such  case,  the 
ordinary  rule  which  gives  cash  divi- 
dends, declared  from  accumulated  earn- 
ings and  profits,  to  the  life  tenant, 
should  be  applied,  whether  such  ac- 
cumulated profits  are  earned  before  or 
after  the  death  of  the  testator.  The 
value  of  certain  options  or  privileges 
given  to  stockholders  by  various  com- 
panies to  subscribe  for  and  take  at 
par  a  certain  amount  of  their  stock 
and  bonds,  shou'd  be  classed  as  prin- 
cipal and  not  as  income.  (lb.)  See, 
generally,  ]\Iatter  of  .James,  146  N.  Y. 
78;  Lowrv  v.  Farmers'  L.  &  T.  Co.,  56 
App.  Div.'  408 :  Matter  of  Rogers,  161 
N.  Y.  108:  Matter  of  Kane,  64  App. 
Div.  566:  ]McLouth  v.  Hunt.  154  N.  Y. 
179;  Monson  v.  New  York  Security, 
etc.,  Co.,  140  id.  498;  Stewart  v. 
Phelps,  71  App.  Div.  91 :  Cross  v. 
Long  Island  Loan  Co.,  75  Hun,  533. 

31  Hancox  v.  Wall.  28  Hun,  214. 
The  authorities  relating  to  the  rights 
of  life  tenants  and  remaindermen  re- 
spectively, are  collated  and  discussed 
in  Cragg  v.  Riggs  (5  Redf.  82;  26 
Hun,  90).  See  also  Scovel  v.  Roose- 
velt (5  Redf.  121),  where  5  per  cent, 
governments  were  exchanged  for  4  per 
cents.  No  deduction  should  be  made 
from  the  income  to  make  up  the 
diminution  in  value  of  United  States 
bonds  purchased  at  a  premium.  (Mc- 
Louth  V.  Hunt,  154  X.  Y.  179;  Mat- 
ter of  New  York  Life  Ins.  &  Trust 
Co.,  24  Misc.  71.)  See  Farwell  v. 
Tweddle.  10  Abb.  N.  C.  94.  See  also 
§  626,  ante.  Where  the  will  directed 
the  executors,  as  trustees,  to  retain  the 


(;27 


AltMIMSTK'A  rioN     ol'    IvsTATK,    EtC. 


§  749. 


ii])on  a  bequest  of  monov  as  well  as  of  other  personal  property, 
and  the  testator  niav  confide  the  money  to  a  legatee  for  life,  trust- 
iii^ii;  to  siieli  le<>'at('('  to  jircscrvc  the  fund  for  the  benefit  of  the  re- 
mainderman; in  wliicli  case,  the  Iciiatcf  for  life  becomes  trustee 
of  the  prin(*i[)al,  duritii:-  the  continuance  of  the  life  estate. ^^  He 
may,  thcretore,  be  com.p(lled  at  the  instance  of  the  remainderman 
to  give  security  for  the  legacy,  or  to  submit  to  the  appointment 
of  a  receiver,  if  it  ajijx'ars  that  his  intci-csts  would  otherwise  be 
i  m  peri  led. "''^  An  executor  may  turn  over  the  principal  of  the  life 
estate  to  the  life  tenant,  without  exacting  security,  where  such  an 
intention  on  the  part  of  the  testator  can  be  gleaned  from  the  terms 
<if  the  will,  unless  there  are  circumstances  rendering  such  a  course 
])erilous  or  unadvisable,  but  the  tendency  of  the  decisions  is,  that 
an  executor  shonld  not  tni'u  over  property  to  one  who  has  simply 
a  life  estate  therein  without  obtaining  from  such  life  tenant  se- 
curity for  the  protection  of  the  remainderman.^'* 


stock  of  two  banks,  pay  the  income  to 
testator's  daujiliter  during  lier  life, 
and  turn  over  the  stock  at  her  deatli 
to  lier  issue,  and  an  assessment  was 
made  upon  the  stockholders  of  one  of 
the  banks  for  the  amount  of  their 
stock. —  Held,  that  the  stock  in  the 
other  bank  should  be  sold  to  pay  the 
assessment,  since  tlie  leoatees  took  the 
bequest  subject  to  incidental  burdens. 
(Matter  of 'P.ull,  .ll    St.   Rep.  .1.18.) 

;?2  Smith  V.  Van  Ostrand,  04  N.  Y. 
278:  Russell  v.  Hilton.  37  Misc.  642; 
76  N.  Y.  Supp.  23.].  Where  a  fund  is 
directed  to  be  invested,  and  the  in- 
terest, dividends,  and  income  are  to  be 
a])plied  to  the  use  of  the  beneficiary 
for  life,  the  profit  realized  upon  the 
sale  of  stock,  in  which  a  portion  of 
such  sum  is  invested,  does  not  belong 
to  the  life  tenant  as  income,  but  must 
l)e  addctl  to  the  }»rinei])al,  of  which  he 
is  entitled  to  tiie  interest  and  income. 
(Wliitney  v.  I'luenix.  4  Rcdf.  180.) 
'i'he  legatee  in  remainder  may  call  on 
the  legatee  for  life  for  an  inventory  of 
tlie  ])ro))ertv.  ( Westcott  v.  Cadv.  5 
.loims.  til.  334:  De  Peyster  v.  Clen- 
dcnitig,  8  Paige.  205:  ('ovenhoven  v. 
Sliulcr,  2  id.  122:  Matter  of  Hunt, 
38  Misc.  30.)  Compare  Douglas  v. 
Ilazen,  8  App.  Div.  2.1. 

•'•■{  Washbon  v.  C'o])e,  22  N.  Y.  Supp. 
241.  As  to  requiring  a  bond  from  the 
life  tenant,  wl  o  is  also  the  trustee, 
see  Matter  of  Shipman,  ;13  Hun,  oil: 
<l«^".  S  473. 

34  Tyson    v.    Blake,    22    N.    Y.    5G3: 


Smith  v.  Van  Ostrand,  G4  id.  281; 
Livingston  v.  Murrav,  08  id.  485; 
Montfort  v.  Montfort',  24  Hun,  120; 
Fernbacher  v.  Fernbaeher,  4  Dem.  227 ; 
^Matter  of  Lowery,  19  Misc.  83;  Scott 
v.  Scott,  0  id.  174:  Matter  of  Rotlo,' 
51  App.  Div.  35:  Matter  of  McDougall, 
141  N.  Y.  21.  Compare  Matter  of 
Ungrich,  48  App.  Div.  594:  Matter  of 
Haskell.  19  ?klisc.  200.  In  :Matter  of 
Landa  (X.  Y.  Law  J.,  Jan.  .30,  1891), 
the  surrogate  said :  "  It  is  the  duty 
of  the  e.\ecutors  to  exact  a  bond  which 
will  protect  the  persons  who  may 
eventually  become  entitled  to  the 
fund.  These  possible  beneficiaries  are 
of  two  classes:  the  possible  ai)i)ointees 
under  the  power  contained  in  the  will, 
and  the  residuary  legatees  who  will 
become  entitled  to  the  fund  in  case  of 
the  failure  of  the  donee  of  the  power 
to  exercise  the  same.  It  is,  therefore, 
incumbent  upon  tlie  executor  to  re- 
quire a  bond  to  the  full  present  value 
of  the  securities  to  be  transferred. 
The  present  value  of  the  securities  ap- 
])ears  to  exceed  the  original  amount 
of  the  legacy,  and  the  bond  to  be  given 
should  he  on  the  larger  sum.  The 
reason  for  this  course  is  apparent. 
After  giving  a  bond  for  the  face  of 
the  legacy,  the  life  tenant  might  dis- 
pose of  the  securities,  appropiiate  the 
difference,  and  the  bond  would*  be  no 
adeipiate  protection  to  the  persons  en- 
titled to  receive  the  securities  on  the 
termination  of  the  life  estate.  The 
l)rovision  in  the  decree  releasing  and 


§§  750,  751.     Administration  of  Estate,  Etc.  628 

AETICLE  SECOND. 

ADEMPTION   AND    SATISFACTION    OF   LEGACIES. 

§  750.  Ademption  defined. —  "Ademption  "  and  "  satisfaction  '' 
are  inaccurately  used  as  synonyms ;  but  they  are  not,  for  each  is 
descriptive  of  a  distinct  state  of  facts.  When  a  testator  devises  or 
bequeaths  specific  property  wliich  he  subsequently  disposes  of,  or 
if  the  thing  devised  or  bequeathed  is  not  in  existence  at  his  death, 
the  devise  or  legacy  is  adeemed  or  cut  off."'''  But  when  a  legatee, 
subsequently  to  the  execution  of  the  will,  receives  from  the  testator 
property  in  lieu  of  the  devise  or  legacy,  the  devise  or  legacy  is 
satisfied. ^^  The  principle  is  applicable  to  a  residuary  legacy, 
where  such  appears  to  be  the  clear  intent  of  the  testator.^^ 

§751.  Ademption  of  specific  legacies. —  Subject  to  some  qualifi- 
cations,^® the  general  rule  is,  that  in  order  to  complete  the  title  of 
the  specific  legatee  to  the  thing  given,  it  must  be  in  such  condition 
at  the  testator's  death  as  described  in  his  wall.  If  the  particular 
thing  bequeathed  has  been  sold  or  disposed  of,  there  is  complete 
extinction,  and  nothing  remains  to  which  the  words  of  the  will 
can  apply.  Whether  the  testator,  by  such  disposition,  intended  an 
ademption,  is  immaterial,^^  though  it  is  otherwise  in  the  case  of 
general  legacies,  for  w'hether  an  advancement  to  the  legatee  shall 
be  considered  an  ademption,  or  in  substitution  of  a  legacy  given 
to  him  by  the  will,  depends  upon  the  intention  of  the  testator.'**^ 

discharging  the  executors  is  improper  the  testator  bequeathed,  became  insol- 

for  the  reason  that  it  will  be  the  duty  vent,  but  renewed  its  capital  under  a 

of  the  executors,  upon  the  termination  special  statute.     Pursuant  to  the  stat- 

of  the  life  estate,  to  deliver  and  trans-  ute,   he   filled   up   only   a   part  of   his 

fer   the   securities   in  which   the   fund  stock,   and   suffered   the   remainder   to 

may   be    invested   to   the    persons   en-  be   issued   to   others.      Held,   that  the 

titled  thereto,  or,  in  case  of  their  in-  part    he    retained    passed    by   the    be- 

ability  to  do  so,  to  prosecute  the  bond  quest.      (Havens  v.    Havens,    1    Sandf. 

given  for  their  return."  Ch.    324.)      See   ^Yalton  v.   Walton.   7 

35Hosea   v.    Skinner.    .32   Misc.    6.53.  Johns.  Ch.  2.58;   Doughty  v.  Stillwell, 

Compare  Matter  of  Andrews.  25  id.  72.  1  Bradf.  300. 

36  Burnham    v.    Comfort,    37    Hun,  39  Beck  v.  McGillis,  9  Barb.  3.5. 

216.  40Tillotson   v.   Race.   22   X.  Y.   122. 

3T  Matter  of  Turfler,  23  N.  Y.  Supp.  See  Terrill  v.  Public  Adm'r,  4  Bradf. 

135.  245;    Glover    v.    Glover,    47    St.    Rep. 

38  Thus  there  is  no  ademption  of  a  765.  A  legacy  to  a  church  or  religious 
specific  legacy  where  the  alteration  of  corporation  for  the  purpo.se  of  paying 
the  fund  was  made  by  a  mere  act  or  off  a  debt  is  not  adeemed  by  the  re- 
operation of  law,  or  where  it  was  made  duction  of  such  debt  by  other  means, 
without  the  testator's  concurrence  or  except  to  the  extent  that  subsequent 
authority,  or  fraudulently,  or  in  breach  subscriptions  by  testator  have  con- 
of  trust,  or,  finally,  where  the  testator  tributed  thereto.  (Matter  of  Gasten, 
lends  the  thing,  "to  be  afterward  re-  16  Misc.  125;  38  N.  Y.  Supp.  948.) 
turned.    A  corporation,  stock  in  which 


0)20  Admixistkatiox  of  Estatk,  Etc,  §  752. 

It  is  also  a  general  rule,  that  under  a  bequest  of  specific  articles 
in  the  possession  of  the  testator  when  he  made  tlu^  will,  those  only 
jiass  which  he  then  had  ;  hut,  on  the  other  hand,  if  the  testamentary 
words  relate  to  the  period  of  his  death,  the  articles  which  were  in 
his  possession  at  that  time  will  be  included/^  But  if  a  specific 
legacy  does  not  exist  at  the  death  of  the  testator,  it  is  adeemed, 
notwithstanding  the  contrary  intention  of  the  testator  or  the  hard- 
ship of  the  case.  Thus,  where  the  testator,  having  specifically  be- 
queathed a  bond  and  mortgage,  foreclosed  the  mortgage  and  sold, 
and  the  purchaser  gave  him  a  new  bond  and  mortgage  for  the 
price,  and  the  testator  left  a  memorandum  declaring  that  the  new 
mortgage  was  but  a  renewal  of  the  one  bequeathed,  and  that  he 
intended  it  should  pass  to  the  legatee,  it  was,  nevertheless,  held 
that  the  legacy  was  adeemed.^^  If  a  testator,  having  devised  land, 
sells  the  same  before  his  death,  the  proceeds  become  personalty ; 
and  the  court  will  not  substitute  the  money  received  by  testator 
for  the  land  devised."*^ 

§  752.  Demonstrative  legacies. —  The  question  sometimes  arises 
whether  a  bequest  was  intended  by  the  testator  to  be  paid  at  all 
events,  the  fund  being  pointed  out  by  the  way  only  of  demonstra- 
tion. The  leading  principle  is  that  when  a  testator  bequeaths  a 
sum  of  money,  or,  what  is  the  same  thing,  a  life  annuity,  in  sucb 
a  manner  as  to  show^  a  separate  and  independent  intention  that 
the  money  shall  be  paid  to  the  legatee  at  all  events,  such  inten- 
tion will  not  be  permitted  to  be  overruled  merely  by  a  direction  in 
the  will  that  the  money  is  to  be  raised  in  a  particular  way  or  out 
<if  a  particular  fund;  although  no  positive  rule  of  ready  applica- 
tion to  every  case  can  be  laid  down.  Each  case  will  depend  upon 
a  consideration  of  all  the  material  provisions  of  the  will,  and  of 
the  extrinsic  circumstances  respecting  the  testator's  family  and 
estate,  which  may  be  fairly  brought  to  bear  upon  the  question  of 
intent."*^ 

■»i  See  ante,  §  2G0.  sis  of  cases  showinpr  the  course  of  de- 

42  Beck  V.  McGillis.  9  Barb.  .35.      If  cisions   in  this  State   in  applyin<r  the 

the  niort<!:a<,'e  is  paid  durin<^  testator's  (hx'trine  of  ademption  in  the  cases  of 

lifetime,  the  lejjacy  is  adeemed.     (Aber-  jj;ifts   of   particuhir    securities,    as   dis- 

netliy    v.    Catlin,    2    Dem.    341.)       See  tinjiuislied  from  demonstrative  lepaciea 

Gardner  v.  Printup,  2  Barb.  S3:   Gil-  payable  out  of  a  particular  fund. 

Christ  V.  Stevenson,  9  id.  9;   Douf,'hty  ^'UMiilson  v.  Moore.  23  Hun,  l.")2. 

V.    Stilhvell.    1    Bradf.    300;    T.<)<,'an    v.  ^^  Picrrepont    v.    Edwards.   24   How. 

Deshav.    Clarke.    209;     De     Graaf    v.  I'r.    419;    (iiddinfrs   v.    Seward,    16    N. 

Cochrane.  21   App.  Div.  381  :   Hopkins  V.   3()o.      See  ante,   S   2(i9  cf   scq..  for 

V.  Genraud,  30  Abb.  N.  C.  235.     And  general  rules  of  construction  of  wills, 
see  note  to  this  case,  giving  a  synop- 


753. 


Administration   of  Estate,  Etc. 


G30 


§  753.  Satisfaction  of  general  legacies  by  advancements. —  Tlu> 
doctrine  of  advancements,  included  in  the  Statute  of  Distribu- 
tions, applies  only  to  cases  of  intestacy.'*"'  But  courts  of  equity 
have  always  treated  advancements,  hy  way  of  portions,  as  a  satis- 
faction of  general  legacies  given  by  a  parent,  or  other  person  stand- 
ing in  loco  parentis,  to  a  child  or  grandchild.'*''  Such  an  advance- 
ment will  be  presumed  to  have  been  made  in  satisfaction  of  the 
legacy.'*'^  That  such  was  the  intention  of  the  testator  may  be  shown 
by  parol  evidence,'*^  and  even  by  his  declarations,  if  made  at  the 
time  of  making  the  advancement,  but  'not  otherwise.*''     Declara- 


45  Thompson  v.  Carmichael,  3  Sandf. 
Ch.  120;  Hays  v.  Hibbard,  3  Redf.  28. 
See  post,  tit.  8,  art.  3  of  this  chapter. 

4G  Story's  Eq.   Jur.,    §§    1111.    1112; 

1  lloper  on  Leg.  374 ;  2  Wms.  on  Exrs. 
1143;  Langdon  v.  Aster,  16  N.  Y.  34; 
Hine  v.  Hine,  39  Barb.  507 ;  Benjamin 
V.  Dimmick,  4  Redf.  7 :  Lawrence  v. 
Lindsay,  68  X.  Y.  108.  Compare 
Stevens  v.  Stevens,  2  Redf.  26.5;  Gil- 
man  V,  Gilman,  63  N.  Y.  41.  A  di- 
rection that  all  moneys  or  indebted- 
ness which  should  appear  upon  any 
inventory  or  ledger  or  book  of  account, 
kept  by  him  or  under  his  direction, 
charged  as  due  to  him  from  any  or 
either  of  his  children,  or  from  Robert 
College  (a  corporation),  and  as  out- 
standing and  unsettled  accounts  at  the 
time  of  his  decease,  should  be  con- 
sidered as  forming  part  of  his  estate, 
and  that  a  discharge  from  such  in- 
debtedness by  his  executors  should  be 
deemed  and  taken  as  an  equivalent  to 
an  equal  amount  paid  to  such  child 
or  college  on  account  of  his  or  its 
share,  was  held  valid  in  Robert  v. 
Corning,  23  Hun,  299.  See  Matter 
of  Van  Home,  25  Misc.  391.  When  a 
parent  procures  a  third  person  to  con- 
vey property  to  his  child,  for  a  con- 
sideration, moving  from  himself,  the 
presumption  is  that  it  is  an  advance- 
ment, equally  as  where  he  makes  the 
conveyance  himself.      (Piper  v.  Barse, 

2  Redf.  19.)  The  circumstance  that 
he  subsequently  executed  a  codicil  in 
which  he  made  no  reference  to  the 
legacy  has  no  weight  on  the  question, 
(lb.)  As  to  whether  an  advancement 
made  in  stocks,  and  charged  on  the 
testator's  books  at  an  estimated  value, 
may  be  regarded  as  a  satisfaction,  if 
the  stocks  were  valueless  at  the  time 
the  charge  was  made,  see  Marsh  v. 
Gilbert,  2  Redf.  465.     See  also  Matter 


of  Burdsall,  64  App.  Div.  346. 
Whether  or  not  a  conveyance  by  a  de- 
cedent, in  his  lifetime,  to  the  wife  cf 
his  son,  was  an  advancement,  is  a 
question  cf  fact  on  all  the  evidence. 
See  Palmer  v.  Culbertson,  143  X.  Y. 
213.  L'nless  the  will  so  requires  by 
its  terms  or  by  necessary  implication, 
interest  is  not  to  be  charged  against 
advancements.  (Matter  of  Keenan,  15 
Misc.  368;  38  X.  Y.  Supp.  426;  sub 
nom.  Matter  of  Downing,  72  St.  Rep. 
823.) 

•1"  Ax\  advance  to  enable  a  legatee  to 
engage  in  business  is  not  within  the 
rule.  (Lockwood  v.  Lockwood.  3  Redf. 
330. )  As  to  advancement  by  way  of 
a  marriage  portion,  see  ;^Iiller  v. 
Coudert.  36  Misc.  43. 

48  2  Whart.  on  Evid..  §  1077  :  Palmer 
V.  Culbertson,  143  X.  Y.  213;  62  St. 
Rep.    164. 

49  De  Groff  v.  Terpenning,  14  Hun, 
301,  and  cases  cited.  Compare  Phil- 
lips V.  McCombs.  53  X'.  Y.  494.  In 
Pijjcr  V.  Barse  (2  Redf.  19).  it  was 
held,  tliat  the  burden  was  on  the  exec- 
Titor  to  prove  the  satisfaction  raised 
by  him  against  the  claim  of  the 
legatee.  In  Camp  v.  Camp  ( 18  Hun, 
217),  the  testator,  having  before  his 
death  advanced  various  sums  to  sev- 
eral of  his  children,  taking  from  each 
a  written  receipt  for  the  sums,  "  as 
a  part  of  my  apportionment  of  his 
estate.''  "  to  be  deducted  out  of  the 
estate,"  etc.,  by  his  will  directed  his 
executor  to  sell  his  real  and  personal 
estate,  and  divide  the  proceeds  equally 
among  his  ten  children,  naming  them. 
Held,  that  as  the  will  did  not  direct 
the  advances  to  be  charged  against 
the  recipients,  they  were  not  to  be 
considered  in  dividing  the  estate. 
Compare  Matter  of  Bartlett,  4  Misc. 
380;  Kinyon  v.  Kinyon,  G  id.  584. 


-631  Administkation   oi-  Estate,  Etc.  §  753. 

tions  made  sub.se(|uoiitly  to  the  making  of  the  advancement  may, 
perha})s,  be  ^hown,  to  rebut  tlie  })resumption  of  .satisfaction,  and 
^vh(•u  this  is  done,  siinihir  evidence  to  the  contrary  will  be  allowed.^'^ 
The  testator's  books,  wherein  certain  sums  are  directed  to  be  taken 
from  a  child's  portion  as  bequeathed  to  him  by  the  will,  are  not 
prv  sc  evidence  of  advancements.  The  fact  of  advances  must  be 
proved  by  evidence  aliunde,  which,  in  connection  with  the  books, 
■would  be  sufficient  for  that  purpose.^^  There  is,  however,  no  pre- 
sumption of  satisfaction  where  the  advancement  depends  upon  a 
contino'ency,  and  the  legacy  is  certain  and  absolute  ;^^  nor  where 
the  advancement  is  expressed  to  be  in  satisfaction  of  an  interest 
to  which  the  child  is  entitled  otherwise  than  under  the  will,  nor 
where  the  bequest  to  the  child  is  of  a  residue  or  some  portion  of 
the  residue,^^  in  which  case  it  is  not  regarded  as  a  portion.  And, 
■clearly,  a  gift  to  a  child  will  not  be  held  to  be  an  advancement 
when  it  expressly  appears  that  the  parent  intended  it  should  not  be 
so  considered.^''  It  has  been  decided,  in  England,^^  that  there  is 
no  legal  presumption  that  money  advanced  by  a  widowed  mother 
to  her  child  was  intended  as  a  gift,  and  not  as  a  loan,  such  as  there 
is  in  the  case  of  a  father ;  because  there  is  no  such  legal  obligation 
■upon  her  to  support  the  child.  Hence,  the  question  is  one  of  evi- 
dence in  such  case.  The  principle  of  ademption  by  subsequent 
portion  has  not  been  applied  to  devises  of  real  estate. ^^ 

f^0  3    Greonl.    on    Evid..     §    300:     2  Statuto  of  Wills ;  such  aot  amounted  to 

AVhart.  on  Evid.,  §  074:  Hino  v.  Hine.  an  ademption  of  the  fjift  of  the  several 

39  Barb.  507  ;  De  Groff  v.  Terpenning,  accounts.      ( Webster  v.  Grav,  54  Hun, 

supra.  113:   7  N.  Y.   Rupp.  200.)    "A  finding 

51  Benjamin  v.  Dimmick.  4  Redf.  7 :  by  the  surrogate,  that  a  gift  of  bonds 
Lawrence  v.   Lindsay.   08   X.   Y.    108;  by  the  testator  in  his  lifetime  was  an 
s.  c.,  on  new  trial,  sub  nam.  Lawrence  advance  upon,  an^l-in  part  satisfaction 
V.    Lawrence.   4   Redf.   278;    Marsh   v.  of,  a  legacy,  was  sustained  in  Matter 
Brown.   18  Hun,  319.     A  provision  in  of  William's,  39   St.  Rep.  815;     15  X. 
a    will    requiri7ig   advances  made   to   a  Y.     Supp.     320.       As    to    moneys    ad- 
testator's    children,    as    shown    by    his  vanced   or   debts   contracted   after   the 
books,  to  1)0  charged  against  them  in  execution    of    the    will,    see    Rogers   v. 
ascertaining   their    share,    is    rendered  McGuire,     90     Hun,     455;     Rogers     v. 
inelTectual    by   a    subsequent    entry    in  Rogers,    153   X.   Y.   343. 
the  books  of  a  settlement  of  such  ad-  •'•2  De  GrofT  v.  Terpenning,   14   Hun, 
vances,  with  the  intention  of  canceling  301  ;    Arnold  v.   Haroun,  43  id.  278. 
and  discharging  the  several  accounts:  •'>3  Hays  v.  Hibbard.  3  Redf.  28. 
there   being  no  force  to  the  objection  54  Matter  of  Morgan,  104  X:  Y.  74; 
that  such  act  is  eipiivalent  to  a  change  flatter  of  Munson,  25  Misc.  580. 
of    the    testamentary    instrument    and  •'>•'>  Rennet  v.  Bennet,  40  Law  T.   (X. 
can   only   be   evidenced   by    an    instru-  S. )    379. 
ment  executed  in  accordance  with  the  56  2  Redf.  on  Wills,  441. 


§§  754,  755.     Admi.nistkatio.n   of  Estate,  Etc.  632 

ARTICLE  THIRD. 

ABATEMENT  OF  LEGACIES. 

§  754.  Specific  legacies. —  As  a  general  rule,  nothing  can  be 
abated  from  spoeilic  legacies  because  the  estate  of  the  testator  turns 
out  to  be  insufticient  to  pay  the  general  legacies ;  they  are  not  sub- 
ject to  abatement  except  for  the  payment  of  debts,  funeral  ex- 
penses or  expenses  of  administration.^"  It  is  the  duty  of  executors 
to  turn  over  specific  legacies  at  the  end  of  one  year,  with  all  the 
advantage  that  would  have  accrued  to  the  legatees,  had  the  prop- 
erty thus  bequeathed  been  deliverable  when  the  will  took  effect. ^^ 
But  cases  may  arise,  it  seems,  where  even  Specific  legacies  (as 
where  the  testator  directs  that  they  shall  come  out  of  his  personal 
estate,  or  where  they  are  charged  with  the  payment  of  general 
legacies)  may  also  be  subject  to  abatement. ^^ 

§  755.  General  legacies. —  Where  there  are  sufficient  assets  to  pay 
all  the  debts  in  full,  and  the  specific  legacies,  but  not  enough  to 
pay  all  the  general  legacies  in  full,  the  latter  are  subject  to  abate- 
ment between  themselves.  The  common-law  rule  to  this  effect  is 
declared  by  the  Revised  Statutes.^'^  In  this  connection,  a  distinc- 
tion is  to  be  observed  between  legacies  which  are  mere  bounties, 
and  such  as  are  given  in  consideration  of  a  prior  indebtedness  by 
the  testator  to  the  legatee,  or  of  the  relinquishment  of  dower  or 
for  maintenance  and  education,  etc.  These  latter  do  not,  except 
as  between  themselves,  so  abate,  but  must  be  paid  in  full.^^  In 
the  sense  of  its  being  a  money  bequest,  a  legacy  may  be  a  general 
one ;  but  where  it  was  given  expressly  for  the  maintenance  and 
support  of  a  person  or  persons  standing  in  near  relation  to  the 
testator,  the  latter  will  be  deemed  to  have  intended  to  give  a  prefer- 
ence to  such  le2:acv  over  all  others  of  a  jxeneral  character.*^"     So,  a 


57  Taylor  v.  Dodd.  ,58  N.  Y.  335.    See  3.i  Misc.  .560;  72  N.  Y.  Supp.  30.   Com- 

Matter'of  Tompkins,  9  Misc.  436.  pare  Matter  of  Spencer,  8  Misc.   103; 

58Bevan    v.    Cooper,    7    Hun.    117;  20  N.  Y.  Supp.  1083. 

revd.  on  a  question  cf  iiirisdiction.  72  61  Williamson      v.      Williamson,      6 

N.  Y.  317:  Taylor  v.  Dodd,  58  id.  335.  Paige,  298;  Waters  v.  Collins,  3  Dem. 

^■9  Pierrepont   v.  Edwards.   25  X.  Y.  374,  and  cases  infra.     This   rule   does 

128;    Xewton    v.    Stanley,    28    id.    61;  not  apply,  however,  where  such   lega- 

Giddings   v.    Seward.    16    id.    365.      A  tees   are   otherwise   liberally  provided 

legacy    of    a     specified    amount     "in  for.      (Matter  of  Carr,  24  ^Misc.   143; 

government    bonds  "    held     a    general  53  X.  Y.  Supp.  555.) 

legacy,   payable   in   a  certain   manner,  62  Bliven  v.  Seymour.  88  X.  Y.  469. 

and.  therefore,  subject  to  abatement  in  Tn  Scofield  v.   Adams    (12   Hun,  366), 

case   of  deficiency.        flatter   of  Xew-  the  testatrix,  in  addition  to  legacies  to 

man.  4  Dem.  65 ;  Tifft  v.  Porter,  8  X.  others,  gave  to  her  husband  the  use  of 

Y.  516.)      See  §  736,  ante.  certain    specific    articles   of   furniture, 

60  2  R.  S.  90,  §  45;  Morse  v.  Tilden,  and  also  the  use  or  avails  of  $5,000, 


633  Admixistratiox  of  Estatk,   Etc.      §§  750-750. 

legacy  for  piety,  for  the  erection  of  headstones  at  the  graves  of 
the  testator's  ]>arents  or  otlior  near  relatives,  does  not  abate  ratably^ 
and  should  be  ]»aid  in  fnll.*^^ 

§  756.  Legacies  to  widow. —  A  bequest  to  a  widow  is  a  general 
legacy,  and,  primarily,  cannot  be  paid  out  of  real  estate,  and,  lik" 
other  general  legacies,. will  abate  or  fail  where  the  personal  proj)- 
crty  is  insufficient.*''*  But  a  bequest  given  and  accepted  in  lieu  of 
dower  must  be  paid  in  preference  to  other  legacies,  the  widow 
being  regarded  as  a  purchaser  for  consideration.*'^  The  rule  ap- 
plies notwithstanding  the  legacy  exceeds  in  value  the  dower  right 
relinquished.*'*' 

§  757.  Bequests  to  executor. —  A  legacy  to  the  executor,  as  such, 
for  his  services  in  that  relation,  has  no  preference,  however,  over 
general  legacies,  and  is  subject  to  abatement  Avitli  them,  and  an 
assignment  of  the  legacy  will  not  discharge  it  from  abatement.*" 

§  758.  Residuary  legacies. —  A  strictly  residuary  bequest  must 
defer  t(»  all  general  legacies  and  annuities,  and  can  only  be  paid 
after  all  such  claims  are  satisfied. 

§  759.  Testator's  intention  governs. —  As  to  legacies  which  the 
testator  intended  should  be  paid  in  full  and  at  all  events,  and 
which  he  has  charged  upon  a  particular  fund  or  upon  real  estate, 
the  general  rule  is  that  they  are  not  subject  to  abatement  with  gen- 
eral legacies.^  There  is  no  positive  rule,  it  is  said,  for  determin- 
ing whether  a  ]^articular  legacy  is  to  be  paid  in  full,  at  all  events, 

with    so    mucli    of    the    principal    as  (T.   &    C. )    207;    !McCorn   v.    McCorn. 

should  be  necessary  for  his  comforta-  100   X.   Y.   511:    Sanford   v.   Sanford, 

ble   support.      What  remained   on  his  4  Hun.  753. 

decease  was  left  to  other  parties.    The  *■'-">  Habcock   v.    Stoddard.    3    Sup.   Ct. 

estate  of  the  testatrix  was  insufTicient  I T.    «S:    C. )     207:     isenhart    v.    Brown, 

to  pay  tlie  lefracies.  it  haviiijjf  been  sup-  1    Edw.  Ch.  411:    Brink  v.   Mastcrson. 

posed  by  her  to  be  much   larger  than  4  Den;.  525;    Dunning  v.  Dunning.  S2 

it  was.      HeUl.  that  though  the  legacy  Hun,  463.      A  legacy  of  the  inconu>  of 

to  the  husband  was  a  general  one.  yet  tlie     residuary     estate     to     testator'.-i 

it    was    not    subject    to    abatement,    it  widow  in  lieu  of  dower  does  not  abate 

having  been  given  for  the  maintenance  as  other  legacies,  and  hence  other  re- 

and   support  of  a  near  relation.      But  siduary  legatees  are  not  necessary  par- 

Avhere   the  beneficiary,   though   a    near  ties  to  her  action  to  lecover  the  h>gacy 

relative,  was  not   dejtendent    upon   the  of  tlie  executrir.     (  Pittman  v.  Johnsor, 

testator   in  his  lifetime,  tlie  rule  does  35  Hun.  3S :   15  Abb.  X.  C.  472.) 

not    applv.       (.Matter    of    Hinman.    32  •:«  Matter  of  Brooks.  30  St.  Rep.  041  : 

Misc.    530.)       in    Petrie   v.    Petrie    (7  10  X.  Y.  Supp.  20 :  Matter  of  McKay, 

Lans.  90).  a  legacy  for  education  was  5   Misc.   123. 

declared    to    be    preferred    to    general  <'"Chipp  v.  Meserole.  1  Abb.  Ct.  App. 

legacies.  Dec.  302. 

63  Wood  v.  Vandenburgh.  G  Paige,  '"'S  Pierrejiont  v.  Edwards.  25  X.  Y. 
277.  128:  24  How.   I'r.  410.      See  Morse  v. 

64  Babcock   v.    Stoddard,   3   Sup.   Ct.  Tilden.  35  Misc.  500. 


§§  7G0,  761.     Administration  of  Estate,  Etc.  634 

or  whether,  in  case  the  estate  is  insufficient  to  pay  all,  it  shall 
abate  in  proportion  to  others.  Each  case  will  depend  upon  a  con- 
sideration of  all  the  material  provisions  of  the  will  to  be  construed, 
and  of  the  extrinsic  circumstances  which  bear  upon  the  question 
of  intent.^''  The  mere  fact  that  a  legacy  is  given  by  a  codicil  does 
not  entitle  it  to  a  preference  over  other  general  legacies ;  nor  will 
the  fact  that  the  amount  is  given  for  a  specific  purpose  which  can- 
not be  accomplished  by  a  lesser  payment,  indicate  an  intention 
that  it  shall  not  be  subject  to  abatement  with  other  general  lega- 
cies.^" 

§  760.  Order  of  abatement. —  In  the  absence  of  any  express  di- 
rection in  the  will  giving  a  priority  of  payment  of  a  particular 
legacy,  any  deficiency  of  assets  is  to  be  charged  in  the  following 
order:  (1)  Residuary  legacies.  (2)  General  legacies.^^  (3) 
Legacies  given  for  a  valuable  consideration,  or  for  the  relinquish- 
ment of  dower  or  some  right  or  interest.  (4)  Specific  and  demon- 
strative legacies. 

§  761.  Liability  of  legatee  to  refund  or  contribute. —  At  common 
law,  a  legatee  who  had  received  his  legacy  might  be  compelled,  at 
the  suit  of  the  executor,  to  refund  the  legacy  where,  after  pay- 
ment, debts  appeared,  of  which  he  had  no  previous  notice,  and 
which  he  was  obliged  to  discharge.'^^  The  statute  provides  a  similar 
remedy  to  the  creditor,  directly  against  the  legatee,  etc.''^^     So,  on 

69  Where  a  will  provided  for  the  each,  to  five  separate  sets  of  grand- 
<?onversion  of  the  bulk  of  the  estate  children.  The  estate  proving  insiiffi- 
into  money  and  the  payment  of  the  cient  to  satisfy  all  of  them,  and  a 
various  legacies  therewith,  most  of  belief  on  the  part  of  the  testatrix  be- 
which  were  not  to  be  paid  before  the  ing  indicated  that  .it  would  be  suffi- 
expiration  of  two  years  after  the  pro-  cient, — •  Held,  that  no  one  set  of  lega- 
l)ate  of  the  will,  but  some  were  ex-  tees  had  a  preference,  since  among  a 
cepted  from  this  restriction,  and  the  group  of  general  legacies  which  are 
latter  were  paid  in  full  —  the  execu-  mere  bounties,  priority  will  not  be 
tors  having  reason  to  believe  that  the  given  to  any,  unless  the  intention  to 
estate  would  suffice  to  pay  all  in  full,  create  a  preference  is  most  clearly  and 
which  proved  not  to  be  the  case  owing  unequivocally  expressed, 
to  the  subsequent  depreciation  in  its  '^  Wctmore  v.  St.  Luke's  Hospital, 
value.— Held,  that  the  preference  of  56  Hun,  31,3;  9  N.  Y.  Supp.  753. 
the  legacies  last  mentioned  extended  "l  See  Lyons  v.  Steinhardt,  37  Misc. 
only  to  the  time  of  pajnnent,  and  that  028;  76  N.  Y.  Supp.  241. 
they  were  to  abate,  pro  rata,  with  the  "2  The  surrogate  has  no  power  to 
other  legacies.  (Harvard  College  v.  compsl  a  legatee  to  restore  an  over- 
Quinn,  3  Redf.  521.)  In  Matter  of  pajanent,  but  the  executor  should  re- 
Williams  (27  Misc.  716;  59  N.  Y.  sort  to  an  action.  (Matter  of  Lang, 
Supp.    606),   the    testatrix,    who   gave  144  N.  Y.  275.) 

the  estate  to  executors  in  trust,  di-  "3  Co.  Civ.  Proc,  §  1837,  which  pro- 
jected a  sale  thereof  upon  the  death  vides  that  "  an  action  may  be  main- 
of  her  husband,  and  the  payment  of  tained,  as  prescribed  in  this  article, 
the  "  following  respective  bequests  in  against  the  surviving  husband  or  wife 
the  order  named  in  this  my  will,  '  of  a  decedent,  and  the  next  of  kin  of 
which    were    five    bequests    of    $2,000  an   intestate,   or   the  next   of   kin    or 


<;;35  Admixistuatiox   of  Kstatk,   Erf.  §  702. 

a  cleficiencj  of  assets,  one  legatee  who  has  received  his  legacy  is 
liable  at  the  suit  of  another  legatee,  who  has  not  been  paid,  tr>  re- 
fund a  proportioiuible  part  to  nuike  up  the  deficiency;  although, 
it"  the  deficiency  has  been  caused  by  the  waste  of  the  executor,  it 
i.s  said  that  the  legatee  who  has  l)<?en  paid  may  retain  the  advantage 
he  has  gained  by  his  superior  diligence,  as  against  his  co-legatw.'* 
P)Ut  this  rule  does  not  apply  as  between  general  and  residuary 
legatees.'"'"' 

§  762.  Contributing  to  share  of  post-testamentary  child,  etc. — 
Express  provision  is  made  by  the  statute'''  for  an  action  by  a  child, 
born  after  the  making  of  a  will,  who  is  entitled  to  succeed  to  a 
part  of  the  property  of  the  testator,  or  by  a  subscribing  witness" 
to  a  will,  who  is  also  entitled  to  succeed  to  a  share,  against  the 
legatees  or  devisees,  as  the  case  requires,  to  recover  his  share  of 
the  property;  ''and  he  is  subject  to  the  same  liabilities,  and  has 
the  same  rights,  and  is  entitled  to  the  same  remedies,  to  compel 
a  distribution  or  partition  of  the  property,  or  a  contribution  from 
other  i)ersons  interested  in  the  estate,  or  to  gain  possession  of  the 
property,  as  any  other  person  who  is  so  entitled  to  succeed."  The 
design  of  the  statute,  in  reference  to  posthumous  children,  was  to 
give  them  the  same  portion  precisely  as  they  would  have  if  the 
parent  had  died  intestate ;  and  where  the  children  are  the  devisees, 
the  object  of  tlie  statute  can  only  l)e  accomplished  by  requiring 
each  to  contribute,  in  proportion  to  his  devise,  to  make  \\])  such 
share  of  the  property  as  would  have  gone  to  the  after-born  in  case 
of  intestacy,  and  subjecting  each  devise  to  the  same  burdens  as  the 
after-born,  in  proportion  to  the  estate  held  —  /.  c,  to  contribute 
proportionally  toward  the  payment  of  any  claim  against  the  de- 
ceased, to  enforce  which,  proceedings  are  taken  against  the  dev- 
isees and  heirs,  in  default  of  personal  projierty.'^*' 

leorateps   of   a   testator,   to   rooover,   to  "^  Liipton   v.    Lupton.   2   Jolin*.   Cli. 

the   extent  of  the   assets   paid  or  dis-  014:  Mills  v.  Siiiitli.  141  X.  V.  •lr^C,■.  .l? 

tributed    to   them,    for    a    debt   of   the  St.  Rep.  3SiS.      C(>iu])are  ButTalo  Loan, 

decedent,  upon  which  an  action  nii^ht  etc.,  Co.  v.  Leonard.  1;')4  X.  Y.   141. 

have  been  maintained  against  the  ex-  "!>  Gilbert    v.    Taylor.    70    Hun.    02: 

<>cutor  or  administrator.      The  nejilect  afTd..   148  X'^.  Y.  20S :    Mills  v.   Smith, 

of  the  creditor  to  present  his  claim  to  141  id.  2.56;   "jT  St.  Rep.  .3.SS.     Residu- 

the  executor  or  administrator,  within  arv    legatees    are    liable    to    refund    if 

the    time   prescribed    by   law    for    that  there  proves  to  be  a  deficiency  of  as- 

purpose.  does  not  imjiair  his  rijzht  to  sets  (in  case  they  have  been  paid  with- 

maiiitain  such  an  action."     Actions  of  out    decree),    but.    in    the    ab-cnce    of 

lliis    class    are    resiulated    by    sections  fraud  or  collusion,  they  take  the  pay- 

18:57-1800.       See    Howell    v".    \Vallace.  ment  without  other  risk.      (lb.) 

37   App.   Div.   .323:    ^klertens  v.   Roche.  ^r.  Co.   Civ.  Proc.   §    1S08. 

39  id.  .398:   Siecjel  v.  Cohen.  23  :Misc.  "See  ^fatter  of  Smith.  1  Tuck.  83. 

36.5.       It   is   beyond   the   scope  of   this  "S  Rockwell    v.    Geery,    4    Hun.    607. 

-ivork  to   present  this  subject  further.  The  rule  as  to  the  mode  of  Jetermin- 


§§  703,  764.     Administration  of  Estate,  Etc.  63(> 

ARTICLE  FOUETH. 

LAPSE    OF    LEGACIES. 

§  763.  Death  of  legatee  prior  to  testator's  death. —  The  common- 
law  rule,  that  the  legacy  is  extinguished  by  the  death  of  the  legatee 
before  the  testator's  death,  was  modified  by  the  Revised  Statutes^ 
SO  that  now,  when  the  devisee  or  legatee  is  a  child  or  other  de- 
scendant of  the  testator,  and  such  legatee  or  devisee  dies  dnring-^ 
the  testator's  lifetime,  leaving  a  child  or  other  descendant  who^ 
survives  the  testator,  the  devise  or  legacy  does  not  lapse,  but  the 
property  vests  in  the  surviving  child  or  other  descendant  of  the 
legatee  or  devisee,  as  if  the  devisee  or  legatee  had  survived  the 
testator,  and  had  died  intestate.'^'^  It  will  be  observed  that  the 
statute  provides  only  for  the  case  of  a  testator  who  is  the  ancestor 
of  his  legatee  or  devisee.  The  word  descendant  is  limited  to  issue,, 
in  any  degree,  of  the  person  referred  to,  and  does  not,  therefore,, 
embrace  collateral  relations.^*^  Hence,  a  bequest  to  a  person,  not 
a  descendant,  though  to  him  "  and  his  heirs,"  lapses  on  such  per- 
son's death  before  the  testator ;  the  words  "  and  his  heirs  "  being: 
Avords  of  limitation,  and  not  of  substitution.^^ 

§  764.  Death  prior  to  execution  of  will. —  In  view  of  the  reme- 
dial character  of  the  statute,  the  courts  have  given  its  provisions 
a  liberal  construction,  and  the  words  ''  shall  die,"  in  the  statute, 
have  been  construed  as  not  referring  to  a  time  intermediate  the 
making  of  the  will  and  the  death  of  the  testator,  and  hence  that 


ing  the   share  of  a   post-testamentai'y  tain    nephews    and    nieces,    several    of 

child    in    the    estate    of    his    deceased  wliom  died  in  her  lifetime,  some  leav- 

parent     is     discussed     in     Sanford     v.  ing  children  and  others  without  issue. 

Sanford,  4   Hun,   75.3.      In  estimating  Held,  that  the  shares  of  all  those  dev- 

the   amount   of  '  the    several    contribu-  isees  so  dying  before  her  lapsed,   and 

tions,  even  a  legacy  to  the  widow,  in  that    such     shares    descended    to    her 

lieu  of  dower,  must  be  taken  into  ac-  heirs-at-law.       See  Hamlin  v.  Osgood,, 

count.       (Mitchell    v.    Blain.    5    Paige,  1  Redf.  409;  Bishop  v.  Bishop,  4  Hill„ 

588.)      See  Sanford  v.  Sanford,  5  Lans.  138;   Christie  v.  Phyfe,  22  Barb.   195; 

480;   s.  c,  01   Barb.   293.  Armstrong  v.  Moran.  1  Bradf.  314.     A 

"9  2  R.  S.  66,  §  52;  Vernon  v.  Ver-  bequest  to  a  charitable  home,  to  care 
non,  53  X.  Y.  351;  Savage  v.  Burn-  for  the  wife  of  the  testator  and  re- 
ham,  17  id.  5(51.  575;  Matter  of  Wells,  tain  the  residue  after  her  death, — 
113  id.  396:  Cruikshank  v.  Home  for  tiekl  to  fail,  the  wife  dying  before  the 
the  Friendless,  id.  338;  Matter  of  Haf-  will  took  effect.  (Matter  of  Denipsey, 
ner,  45  App.  Div.  549;  61  N.  Y.  Supp.  25  Misc.  257;  55  N.  Y.  Supp.  427.) 
505.  81  Kimball    v.    Chappel.    27    Abb.    N. 

so  Van     Buren    v.    Dash,    30    X.    Y.  C.  437;   18  N.  Y.  Supp.  30.      See  Mat- 

.393.      In   that   case,   the   testatrix    de-  ter  of  Wells.  113  N.  Y.  .396;   Bolles  v. 

vised   separate    aliquot    shares   of   her  Bacon,  3  Dem.  43,  and  cases  cited, 
real  estate  to  two  sisters  and  to  cer- 


C37 


Ai>.\ri.\isTKATiox  OF  INSTATE,  Etc.     §§  765,  766. 


the  statute  would  apply  to  the  case  of  the  death  of  a  proposed  lega- 
tee (if  a  descendant),  before  the  date  of  making  the  will.**^ 

§  765.  Death  of  legatee  subsequent  to  testator's  death. —  Unless 
the  intention  of  the  testator  was  to  the  contrary,  a  legacy  vests  on 
the  testator's  death,  though  not  payable  until  one  year  thereafter; 
iind  hence  the  legatee's  death  within  the  year  does  not  affect  a 
lapse,  but  his  interest  passes  to  his  ])ersoiuil  representatives.*^'*  So, 
too,  where  a  sum  of  money  is  directed  to  be  held  in  trust,  the  in- 
come to  be  paid  to  the  beneficiary  until  the  happening  of  certain 
event,  remainder  over,  no  lapse  will  be  effected  by  the  death  of  the 
beneficiary  before  the  event  takes  place.^^  If  the  legatee  acquires 
only  a  contingent  interest,  his  death  before  the  happening  of  the 
contingency,  even  after  the  death  of  the  testator,  will  effect  a  lapse 
of  the  legacy.  The  distinction  between  a  vested  and  contingent 
legacy,  which  is  mainly  important  as  bearing  on  the  question  of 
lapse,  has  been  already  considered. 

§  766.  Lapse  of  joint  legacies. —  Where  a  legacy  is  given  to  two 
or  more  persons  jointly,  if  one  dies,  even  in  the  lifetime  of  the 
testator,  such  interest  does  not  lapse,  but  the  survivor  will  take 


82  Barnes  v.  Huson,  00  Barb.  598. 
"  Whoro  tlie  proposed  devisee  or  lega- 
tee, being  a  descendant  of  vhe  testator, 
had  died  before  the  testator,  leaving 
lienal  deseendants,  who  were,  of  coiu'se, 
equally  the  dcsc-endants  of  the  testa- 
tor, the  presinnption  is  strong  that, 
except  for  ignorance,  inadvertence,  or 
accident,  the  will  would  have  been  so 
altered  as  to  continue  the  designed 
provision  in  the  line  which  had  been 
intended.  Therefore,  the  Legislature 
designed  to  provide  a  remedy  in  such 
a  case,  against  the  consequences  of 
such  ignorance,  inailvertcnce,  or  acci- 
dent, by  enacting,  tliat  in  case  the  pro- 
posed devisee  or  legatee,  who  had  died 
before  the  testator,  was  a  child,  or 
other  descendant  of  the  testator,  then 
the  issue  of  such  proposed  devisee  or 
legatee  should  take  in  his  place.  No 
reason  can  be  perceived  for  any  dif- 
ferent rule,  whether  the  death  hajipen 
before  or  after  the  making  of  the  will ; 
either  occuircncc  is  entirely  witliin 
the  mischief  intended  to  be  remedied." 
(lb.,  per  Talcott.  J.)  In  Matter  of 
Howard  (3  Misc.  170:  2.3  N.  Y.  Supp. 
8.3()),  testator  bequeathed  the  residue 
of  his  estate,  after  giving  the  income 
to  his  widow  for  life,  to  "  my  sisters, 
and  to  their  heirs  and  assigns;"  the 
children  to  take  the  same  share  that 


their  parents  would  have  received  if 
living  at  the  decease  of  the  wife. 
Held,  that  the  members  of  each  class 
must  be  ascertained  as  of  the  date  of 
the  determination  of  the  life  estate, 
and  that  a  son  of  one  of  the  testator's 
sisters,  who  had  died  before  the  exe- 
cution of  the  will,  was  entitled  to  the 
share  his  mother  would  have  taken, 
had  she  been  living  at  the  widow's 
death.  See  Westcott  v.  Biggins.  42 
App.  Div.  (59:   58  N.  Y.  Supp.   938. 

8^  See  Owens  v.  Owens.  04  Ai)p.  Div. 
212:  71  X.  Y.  Supp.  1108;  Matter  of 
Gardner,  140  N.  Y.  122:  55  St.  Rep. 
299.  \Vhere  a  legacy  is  directed  to  he 
])aid  at  a  certain  time  after  testator's 
death,  with  limitation  over  in  case  of 
legatee's  death  before  payment,  the 
limitation  does  not  take  effect  if  the 
legatee  lives  to  become  entitled  to  it, 
although  pavment  has  not  been  made. 
(Finley  v.    i?ent,  95  X.  Y.   304.) 

s4  Montanye  v.  Montanye,  29  App. 
Div.  377.  Compare  Southgate  v.  Con- 
tinental Trust  Co.,  30  Misc.  415.  The 
court  will  seize  upon  any  expression 
in  a  will  to  prevent  the  disinheritance 
of  the  issue  of  the  primary  object  of 
the  gift  in  the  event  of  the  death  of 
that  object  before  the  period  for  dis- 
trilmtion.  (Shangle  v.  Halloek,  6 
App,  Div.  55:  39  N.  Y.  Supp.  619.) 


§§  767,  768.     ADMI^'lSTRATION  of  Estate,  Etc.  638 

the  whole. **■'  So,  too,  where,  for  any  cause,  any  one  of  the  legatees 
is  disciualiiied  to  take  his  share,  c.  g.,  because  he  is  a  witness  to  the 
execution  of  the  will,  the  testator  does  not  die  intestate  as  to  that 
share,  but  the  same  passes  to  the  remaining  legatees,  .as  a  class.^^ 
But  in  the  case  of  a  bequest  to  several  legatees  named,  "  equally,, 
share  and  share  alike,"  the  legatees  are  tenants  in  common,  and 
the  share  of  any  one  happening  to  die  before  the  testator  lapses 
for  the  benefit  of  the  testator's  next  of  kin.^'^ 

§  767.  Lapse  of  prior  estate. —  Where  the  bequest  depends  upon 
an  intervening  estate  under  the  will,  and  is  thus  made  to  take  effect 
only  at  the  termination  of  the  prior  estate,  and  the  prior  estate 
lapses  by  the  death  of  the  legatee  or  devisee  during  the  life  of  the 
testator,  this  will  not  defeat  the  estate  over,  but  it  will  take  effect 
immediately.^^  In  such  a  case,  both  estates  vest  at  the  same  time, 
and  if  both  devisees  survive  the  testator,  the  estate  in  remainder 
will  not  fail  by  the  devisee  in  remainder  dying  before  the  tenant 
for  life.^''  Where  both  legatees  survive  the  testator,  but  both  die 
during  the  prior  estate,  the  legacy  over  is  defeated,  and,  as  against 
the  next  of  kin  of  the  latter  legatee,  the  estate  over  goes  to  the 
testator's  next  of  kin.^'^  A  legacy  to  "  W.,  or  to  his  heirs,"  upon 
the  death  of  a  life  tenant,  vests  in  the  next  of  kin  upon  W.'s  death, 
—  the  word  '^  or  "  preventing  the  lapsing  of  the  legacy. ^^ 

§  768.  Lapse  of  legacy  to  a  debtor  or  creditor. —  As  we  have  seen,, 
where  the  intention  of  the  testator  was  that  a  legacy  to  his  debtor- 
should  be  deemed  a  satisfaction  of  the  debt,  the  acceptance  of  the 


^5  Gardner  v.   Printup,  2  Barb.  83;  Div.  199;  50  X.  Y.  Supp.   1079;  affd.. 

Hoppock  V.  Tucker.  3   Sup.  Ct.    (T.  &  163  N.   Y.   578:   Matter  of  Riches,   37 

C.)    053:   1   Hun.   132;   affd..  59  X.  Y.  Misc.   404;    Hart   v.   Marks,   4    Bradf. 

202:  Matter  of  Keenan.  15  Misc.  308;  101:    :\[cLoskev    v.    Reid,    4    id.    334; 

38  X.  Y.  Supp.  426.      The  principle  of  Floyd  v.  Barker,  1  Paiore,  480;  Matter 

survivorsiiip,  as  applied  to  leofacies,  is  of   Howard,   5    Misc.    293.       See   Wey- 

stated  in  Everitt  v.  Everitt,  29  X.  Y.  man  v.   Rinpold.   1   Bradf.   40:    Down- 

39.      Compare  Fisher  v.  Banta.  66  id.  ing  v,  Marshall,  1  Abb.  Ct.  App.  Dec. 

468.      For  cases  of  gift  held  made  to  525;    Embury    v.    Sheldon,    68    X.    Y. 

a    class,    or   otherwise,    see    flatter    of  227 :  2  Abl).  X.  C.  404. 

Paer,   147   X.  Y.   348:   Matter  of  Rus-  88  See    Xorris    v.    Bevea,    13    X.    Y. 

sell.  16S  id.  169;  Matter  of  Watts,  68  273:   Taylor  v,  Wendel,  4  Bradf.  324; 

App.     Div.     357;     Matter    of    Collins,  McLean  v.   Freeman,  9  Hun,  247. 

70  Hun,  273:  Bisson  v.  West  Shore  R,  89  Terrill  v.  Public  Adnrr.  4  Bradf. 

Co.,  60  id.  004;   Matter  of  Merriman,  245;    Barker   v.   Woods,    1    Sandf.   Ch. 

91    id.    120:    Eckert    v.    Wilklow,    26  129.     See  Conklin  v.  Moore,  2   Bradf.. 

Misc.    294;    Dougherty    v.    Thompson,  179:    Anthony    v.    Brouwer,    31    How. 

27   id.   738:    Matter  of  Munter,    19  id.  Pr.   128;  Adams  v.  Beekman,  1  Paige, 

201:   Smith  v.  Lansing,  24  id.  566.  031. 

8*iMartineau   v.   Simonson,   59  App.  »(•  Williams  v.  Seaman,  3  Redf.  148. 

Div.  100:  09  X.  Y.  Supp.  185.  91  McCormick  v.  Burke,  2  Dem.  137^ 

87  Matter    of   Kimberly,    150   X.    Y,  and  cases  cited. 
90;     Hornberger    v.    Miller,    28    App. 


639  Administkatio.v  of  Estate,  Etc.  §  TtJU. 

legacy  will  satisfy  the  debt.  If  a  creditor  dies  before  the  testator, 
and  the  personal  representative  of  the  creditor  accepts  a  legacy,  a 
contract  is  completed,  by  which  the  latter  becomes  entitled  to  the 
legacy,  not  as  a  bounty,  but  as  the  purchase  price  of  the  claim 
which  was  thereby  canceled  or  abandoned."" 

§  769.  Effect  of  lapse. —  Where  a  legacy  lapses,  it  falls  into  the 
residuum  unless  it  is  expressly  excluded  therefrom.''^  In  case  there 
is  no  residuary  bequest,  it  goes  to  the  next  of  kin,  as  estate  undis- 
posed of  by  the  will."^  If  the  remainder  itself  lapses,  it  also  goes 
to  the  next  of  kin,  including  life  tenants  upon  whose  death,  wnth- 
out  issue,  the  remainder  was  limited.'"'^  In  the  case  of  a  devise  of 
real  property  failing,  whether  because  it  was  originally  void  or 
because  the  devisee  is  incompetent  to  take,  the  common-law  rule 
is,  that  the  property  goes,  not  to  the  residuary  devisees,  but  to 
the  heirs  of  the  testator  ;'^"  but  since  the  Revised  Statutes  has 
changed  the  rule  that  a  will  of  land  speaks  as  of  its  date,  the  rule 
as  to  lapsed  devises  is  changed  also,  and  such  devises  now  fall 
into  the  residuum.""  In  respect  to  lapsed  legacies,  or  those  which 
for  any  reason  fail  of  execution,  the  will  is  to  be  considered  the 
same  as  though  it  gave  no  such  legacies ;  they  do  not  constitute  a 
fund  separate  and  apart  from  the  rest  of  the  estate,  to  which  the 
residuary  legatees  are  entitled  in  any  event,  and  notwithstanding 
the  fact  that  the  assets  are  insufficient  to  pay  the  debts  and  the 
general  legacies.  Until  the  general  legacies  have  been  satisfied, 
nothing  can  he  devoted  to  the  residuary  legatees. ^^ 

92  Cole  V.  Niles,  .3  Hun,  ,326;  .5  Sup.  supra;   Matter   of   Whitinjr,   33    Misc. 

Ct.   (T.  &  C.)   4.51  :  affd.,  62  N.  Y.  636.  274. 

See    Lyons    v.    Mahan,    1    Dem.    180;  osDoane    v.    Mercantile    Trust    Co., 

Rauchfuss    v.    Rauchfuss,    2    id.    271;  160  N.  Y.  494. 

Williams  v.  Crarv,  4  Wend.  444.  9'' Van  Kleeck  v.  Dutch  Church,  20 

93Cxilman  v.  Oilman.  Ill  N.  Y.  26.5;  Wend.  498. 

Matter  of  Crossman.   113   id.   .503:   23  9T  Cruikshank     v.     Home     for     the 

St.  Rep.  250:   Matter  of  Hodpman,  60  Friendless.  113  X.  Y.  337:  22  St.  Rep. 

Hun,  484:   affd.,   140  X.  Y.  421:    Mat-  738;   Moffett  v.  Elmendorf,  152  X.  Y. 

ter  of  Bonnet.  46  Hun,  529;  affd.,  113  475;    Matter    of   Allen.    151    id.    243; 

N.  Y.  522;  Wetmore  v.  Peck,  66  How.  Youno^s  v.   Youn<rs,   45  id.   254:    Hi  lis 

Pr.   54;    Kimhall   v.   Cliappel,   27   Abb.  v.  Hillis,  16  Hun.  76;  Adams  v.  Ander- 

N.    C.   437:     Matter   of   Champion.    39  son,  23  Misc.  705:  53  X.  Y.  Supp.   141. 

St.    Rep.    400:     15    X.    Y.    Supp.    768:  See    Downinjr    v.    Marshall.    23    X.    Y. 

Carter    v.    Board    of    Education.     144  366 ;  Leslie  v.  Marshall.  31  Barb.  560 ; 

X.  Y.  621;  64  St.  Rep.  218;  Matter  of  Gallavan    v.    Callavan.    57    App.    Div. 

Howard,   3   Misc.    170:    Spencer  v.   De  320:   68  X.  Y.   Supp.  30.      For  a  case 

Witt  C.  Hay.  etc.,  Assn.,  36  id.  393;  of   the   lapse   of   a   conditional   devise, 

Xewcomb  v.  Xewcomb,  33   Misc.   191 ;  see  Ditmas  v.  Baas,  50  St.   Rep    632 

U.  S.  Trust  Co.  V.  Black,  146  X.  Y.  1.  98  Wetmore  v.   St.   Luke's   Hospital, 

W  Armstrong    v.    Moran.     1     Bradf.  56  Hun,  313 :  9  X.  Y.  Supp.  753.     See 

314.      See  Brown  v.  Richter,  25  App.  Matter    of    Whiting.     33     Misc.     274. 

Div.  239;   49  X.  Y.  Supp.  368;   Spen-  Compare  Matter  of  Botsford.  37  App. 

cer   V.    De   Witt   C.   Hay,   etc.,   Assn.,  Div.  73;   55  X\  Y.  Supp.  495. 


§§  770-772.     Administration  of  Estate,  Etc.  640 

§  770.  legacies  charged  on  land. —  Unlike  bequests  payable  out 
of  the  personal  estate,  legacies  charged  on  land  lapse  on  the  death 
of  the  legatee  before  payment,  unless  payment  is  deferred  to  ac- 
commodate the  estate,  and  not  out  of  regard  to  the  condition  or 
circumstances  of  the  legatee.^^ 

ARTICLE  FIFTH. 

PROCEEDINGS    TO    COMPEL    PAYMENT    OF    LEGACIES. 

§  771.  Executor's  assent  to  legacy. —  Though  title  to  a  legacy 
2)asses  by  the  will,  yet  it  does  not  become  perfected  at  law,  until 
after  the  assent  of  the  executor,  from  whom  only  possession  of  the 
legacy  can.  be  obtained.  He  has  a  right  to  the  possession  of  the 
whole  of  the  estate  for  the  purpose  of  applying  it,  in  the  first 
place,  to  the  payment  of  debts ;  and  a  legatee  cannot,  therefore, 
take  the  thing  bequeathed,  without  the  assent,  expressed  or  implied, 
of  the  executor,^  though  his  assent  may  be  compelled,  if  wrongfully 
refused. 

§  772.  When  legacies  are  payable. —  At  common  law,  a  legacy 
was  due  on  the  expiration  of  one  year  after  the  death  of  the  testa- 
tor ;  but  the  statute  declares  that  "  no  legacy  shall  be  paid  by  any 
executor  or  administrator  until  after  the  expiration  of  one  year 
from  the  time  of  firanting  letters  testamentary  or  of  administra- 
tion, unless  directed  by  the  will  to  be  paid  sooner."  ^    The  manifest 

C9  Marsh   v.   Wheeler,   2   Edw.    163;  statute  is  inapplicable  to  the  case  of 

Harris  v.   Fly,   7   Paige,  429:    Birdsall  a  legacy  given  by  the  execution  cf  a 

V.    Hewlett,    1    id.    32,    in    which    case  power  of  appointment  contained  in  the 

Chancellor  Walworth  said  he  was  not  will.      (Dixon  v.  Storm,  n  Redf.  419.) 

aware   that  the  rule   stated   had  ever  The  words  "  letters  testamentary  "  or 

been  extended  to  a  case  where  the  es-  of    "  administration  "    include    tempo- 

tate  was  devised  to  a  stranger,  upon  rary  letters,  so  that,   where  such   let- 

the  express  condition  that  he  paid  the  ters   have   been    granted,    pending    the 

legacy     charged     thereon.        See     also  probate     proceedings,     interest     on     a 

Sweet  v.  Chase,  2  N.  Y.  73:   Loder  v.  legacy   begins    to   run   one   vear    after 

Hatfield,  71  N.  Y.  92;  Hillis  v.  Hillis,  the  date  of  the   issue  of  such   letters. 

16  Hun,  76.  (Matter  of  McGowan.  124  X.  Y.  526.) 

iTole  V.  Hardy,  6  Cow.   333;   Hud-  In  Matter  of  Patterson   (.5  Misc.  178), 

son  V.  Reeve,  1  Barb.  89.      See  Matter  decedent    left    two    wills,    one    dated 

of   Pye,    18   App.   Div.   306:    46   X.  Y.  April    18,    1888,   and   the   other   dated 

Supp.  350.      The  assent  of  the  execu-  April  19,  1888.      The  first  will  named 

tors,    once  given  to   a    specific   legacy,  different  executors  from   those  named 

A^ests   the   interest  at   law   irrevocably  in  the   second   will.     It  was   admitted 

in   the   legatee.       (Onondaga    Trust   &  to    probate,    and    all    the    legacies    but 

Deposit   Co.   v.   Price,   87   X.   Y.    542. )  petitioner's    were    paid    out    under    it 

To  the  same  effect,  Linthicum  v.  Cas-  (being  identical  with   those  contained 

well,  19  App.  Div.  541;  46  X.  Y.  Supp.  in    the    second     will).       Subsequently 

610;  afTd.,  160  X.  Y.  702.  the   probate   of  the   first  will   was  re- 

2  Co.  Civ.  Proc,  §  2721,  as  amended  voked  and  the  will  of  April   19,   1888, 

1893;  adopting  2  R.  S.  90,  §  43.      This  admitted    to    probate.        Letters    were 


641  Ao-MiM.si  KATio.N   Di    EsTATK,  Etc.  §  773. 

object  of  the  statute  is  to  give  the  representative  a  specified  time 
to  reduce  the  estate  to  possession  and  turn  it  into  money,  to  ascer- 
tain and  liquidate  the  ch\inis  of  creditors,  and  to  await  the  expi- 
ration of  the  year  allov  cd,  after  ])rubate,  to  persons  interested,  to 
present  a  petition  for  the  revocation  of  the  probate,  on  alh-iiations.''' 
After  the  expiration  of  the  year,  the  executor  must  discharge  the 
specific  legacies  and  pay  the  general  legacies,  if  there  be  assets ; 
and  if  there  be  not  sufficient  assets,  then  an  abatement  of  the  gen- 
eral legacies  must  be  made  in  equal  proportions.'* 

§  773.  Voluntary  anticipation  of  payment. —  Although  the  stat- 
ute is  in  form  prohibitory,  it  is  not  regarded  as  making  it  illegal 
and  a  breach  of  trust  to  anticipate  payment,  but  only  as  negativing 
the  right  of  the  claimant,  and  as  throwing  upon  the  executor,  if 
such  payments  are  made  during  the  year,  the  peril  of  making  good 
the  deficiency,  in  case  the  assets  are  found  insufficient  for  the  de- 
mands Avhich  prove  to  be  entitled  to  prior  satisfaction.  It  is 
not  uncommon,  where  the  assets  are  ample,  and  there  is  no  practi- 
cal doubt  of  the  justice  of  such  a  course,  to  deliver  specific  lega- 
cies, and  pay  a  portion  or  all  of  the  legacies,  and  a  portion  of  dis- 
tributive shares  in  advance  of  the  jieriod  thus  limited.  But  an 
executor  who  withdraws  productive  funds,  in  order  to  pay  legacies 
before  they  become  due,  is  chargeable  with  the  loss  thus  occasioned 
to  the  residuary  estate,  that  is,  the  interest  which  might  have  been 
enrned.^  An  executor  who  advances  to  legatees  from  his  own 
funds  is  entitled  to  be  subrogated  to  their  rights,  but  he  can  be  cred- 
ited only  with  their  pro  rata  share  of  the  assets  available  for  dis- 
tribution at  the  time  of  the  accounting.^  lie  cannot,  as  trustee, 
advance  to  a  beneficiary  any  money  in  anticipation  of  income, 

i>siif>(l  nndor  tho  first  will  on  July  petitioner  rlaimefl  his  lesraev.  Held,  on 
2(1.  ISSS.  whifh  were  afterward  re-  the  antliority  of  ^fatter  of  ^leOowan 
Aoked.  Letters  under  the  second  fftupra].  that  petitioner  was  only  en- 
will  were  issued  on  May  20.  1,S92.  titled  to  interest  from  the  year  after 
Petitioner  claimed  interest  from  July  the  prant  of  letters  on  the  last  will. 
26,  1S80,  one  year  after  issuance  of  "  If  the  other  lejjacies  were  paid  pre- 
letters  under  the  first  will,  on  the  maturely,  that  is  a  matter  l)otween 
jrround  that  the  other  legacies  were  them  and  the  residuary  lejjatees.  and 
all  paid  at  that  time,  and  have,  there-  does  not  warrant  a  departure  from  the 
fore,  had  the  benefit  of  subsequent  in-  rule  in  this  instance." 
terest  or  use.  the  petitioner's  lejracy  3  Co.  Civ.  Proc.  §  2047.  See  §  276 
not    beincr    paid    then   because   he   was  ci  srq..  nnfr. 

an    infant.      Respondent    claimed    that        4  Co.  Civ.  Proc.  §  2721.  as  amended 

interest    should   only  be   allowed   from  ISO.S:   adopting  2  R.  S.  00,  §  4.t. 
■one  year  from  the  issuance  of  letters         5  ^[,Loskey  v.  Reid.  4  Rradf.  .1.34. 
under    the    second    will,    the   only    one         •' Tickel  v.  Quinn.  1   Dem.  42.1.     See 

now  in   force,  under  which  the  execu-  ^tatter  of  Rogers.   10   App.   Div.  593; 

tors  were  acting,  and  under  which  the  42  N.  Y.  Supp.   133. 

41 


§§  77-i,  775.     ^Vbministkatiox  of  Estate,  Etc.  G42' 

Avlicn  there  is  no  income  in  his  hands,  and  reimburse  himself  there- 
after out  of  subsequently  accrued  income.^ 

§  774.  Liability  and  remedy  of  executor  for  erroneous  payment 
of  legacy. —  An  executor  who  voluntarily  overpays  a  legatee,  or 
pays  a  void  legacy,  is,  of  course,  bound  to  make  the  estate  good  for 
the  amount  so  erroneously  paid.  The  general  rule  is,  that  where 
an  executor  volunteers  to  pay  the  whole  or  any  portion  of  a  legacy^ 
and  it  subsequently  turns  out  that  the-  assets  are  not  sufficient  to 
justify  a  payment  to  that  extent,  the  loss  must  fall  on  him,  and 
he  cannot  compel  the  legatee  to  refund.^  But  it  is  held  that  this 
rule  does  not  apply  to  a  case  where  the  payment  is  not  made  volun- 
tarily and  upon  the  assumption  that  there  are  assets  sufficient, 
which  -assumption  turns  out  to  be  erroneous.  Where  the  will  di- 
rects a  legacy  to  be  paid,  and  the  executor  has  no  reason  to  believe 
that  it  is,  for  any  reason,  a  void  legacy,  he  does  nothing  more 
than  his  duty  in  paying  it,  and  will  be  protected  in  so  doing ;  a 
remedy  at  law  against  the  legatee  being  given  him  for  a  refund 
of  the  amount  paid.®  The  sole  remedy  of  the  executor,  in  such 
a  case,  or  in  a  case  where  he  has  overpaid  a  legatee,  is  by  an  action. 
The  Surrogate's  Court  has  no  power,  where  it  is  found,  on  the 
executor's  accounting,  that  he  has  overpaid  a  lesratee,  to  render  an 
affirmative  judament  for  the  excess. ^*^  "When  the  fact  of  overpay- 
ment is  determined,  the  excess  is,  in  contemplation  of  law,  in  the 
hands  of  the  accountino;  executor,  and  the  fact  thus  fouud  should 
be  conclusive  in  any  further  litigation  between  the  executor  and 
the  legatee,  when  it  come?  in  question. ■'^ 

§  775.  Legacies  directed  by  will  to  be  paid  within  the  year. —  If 
the  will  directs  that  a  legacy  be  paid  before  the  lapse  of  a  year 
from  the  issue  of  letters,  the  executor  may  require,  as  a  condition 
of  payment,  a  bond,  with  two  sufficient  sureties,  conditioned  that 


7  Matter  of  Odell.   1   Connolv.  91.  recover  the  same,  see  Ha^-iland  v.  Wil- 

8  Matter    of    Hodgman.    140'  X.    Y.  lets.  141  N.  Y.  35.     See  also  Matter  of 
421;    55    St.    Rep.   800.     An   overpay-  Tatum.  34  Misc.  25. 

njent   to    some    of    the   legatees    of    a  ^  Carter  v.  Board  of  Education.   68 

class,   the  estate   not  sufficing  to  pay  Hun.  435. 

all  in  full,  is  made  at  the  risk  of  the  i'^' flatter   cf  Lang.    144   X.   Y.   275; 

executor,    and    he    cannot    compel    the  (53  St.  Rep.  694:   Johnson  v.  Weir.  34 

others  to  wait  until  he  shall  have  re-  IMisc.  683:   70  X.  Y.  Supp.   1020. 

covered  back  the  excels  of   payments.  n  ^Matter    of    Underhill,    117    X.    Y. 

but    is    personally    liable   to    them    for  -471  :  27  St.  Rep.  720.      It  seems  that, 

their  share.     (Matter  of  Robertson.  51  by   virtue   of  his  power  to  direct  and 

App.  Div.   117:   64  X.   Y.   Supp.   385;  control   the  conduct  of   executors,  the 

affd..  165  X.  Y.  675.)     As  to  an  action  surrogate  can  direct  the  collection  of 

by  one  of  the  next  of  kin.  to  set  asido  the   debt  from  the  legatee  by   action. 

a  release  of  his   interest  in   a   lapsed  (lb.) 
legacy,  paid  by  the  executor,  and  to 


043  Administration  of  Estate,  Etc.  '  §  77G. 

if  any  debts  against  the  deceased  shall  duly  appear,  and  there  arc 
not  other  assets  to  pay  the  same,  and  no  other  assets  sufficient  to 
pay  other  legacies,  then  the  legatee  shall  refund  the  legacy  so 
paid,  or  such  ratable  portion  thereof,  with  the  other  legatees,  as 
may  bo  necessary  for  the  payment  of  the  said  debts,  and  the  pro- 
portional parts  of  such  other  legacies,  if  there  be  any,  and  the 
costs  and  charges  incurred  by  reason  of  the  payment  to  such  lega- 
tee ;  and  that  if  the  probate  of  the  will  be  revoked,  or  the  will  de- 
clared void,  then  that  the  legatee  shall  refund  the  whole  legacy, 
with  interest.'"  It  is  suggested  that,  where  the  will  directs  the  pay- 
ment of  one  legacy  before  another,  and  it  is  not  made  preferential, 
the  executor  should  not  pay  the  first  legacy  in  full  when  due,  even 
after  the  year,  if  a  deficiency  of  assets  appears  probable,  without 
requiring  a  bond  for  repayment,  as  in  the  case  of  a  legacy  paid 
within  the  year.'^ 

§  776.  Interest  on  general  legacies. —  As  the  statute,  above  cited, 
prohibits  the  payment  of  legacies  until  a  year  after  the  granting 
of  letters,  the  general  rule  is,  that  interest  upon  legacies  is  not 
payable  until  the  principal  of  the  legacy  becomes  due.  If,  in  any 
case,  interest  is  allowed  before  that  time,  without  a  specific  direc- 
tion in  the  will,  it  constitutes  an  exception  to  the  rule,  and  is 
founded  generally  upon  certain  facts  which  the  courts  have  agreed 
are  equivalent  to  an  express  direction  in  the  will  to  pay  interest, 
because,  from  such  facts,  the  courts  will  presume  an  intention  on 
the  part  of  the  testator  to  have  it  paid.-**    Such  a  case  is  where  the 

12  Co.  Civ.  Proc.  §  2721.  as  amended  Conoral  Term  in  IMattor  of  Prior  (32 
1893;    adoptinfr  2  R.   S.   !)0.   §   44.  St.    Rep.    712;    10    N.    Y.    Supp.    801). 

13  Harvard  College  v.  Qninn,  3  Redf.  Tn  Kerr  v.  Dongherty  (17  Hnn.  341), 
514.  See  Matter  of  Williams,  27  the  General  Term  had  held,  in  efTeet, 
Misc.   716;   59  N.  Y.   Supp.  006.  that  interest  only  began  to  run  from 

14  Per  Peckham,  J.,  Thorn  v.  Garner,  a  vear  after  the  grant  of  letters. 
113  N.  Y.  198;  citing  Bradner  v.  (Affd.,  79  N.  Y.  327,  without  discus- 
Faulkner,  12  id.  472;  Cooke  v.  Meeker,  sion  of  this  question.)  Referring  to 
30  id.  18;  Brown  v.  Knapp,  79  id.  this  case,  the  court,  in  the  !MoGowan 
130;  Goodwin  v.  Crooks,  58  App.  Div.  case,  said:  "  Wliile  it  is  probably 
4(i4 :  09  N.  Y.  Supp.  578;  flatter  of  true  that,  in  no  other  case,  has  this 
^IcGowan,  124  N.  Y.  526;  s.  c.  below,  court  been  required  to  pass  on  the 
siih  nam.  flatter  of  Wallace,  32  St.  question,  still  the  effect  of  the  statiite 
Rej).  220 ;  24  id.  405,  expressly  over-  in  that  respect  has  been  commented 
ruling  surrogates'  decisions  in  Carr  v.  on  so  frequently  as  to  leave  no  room 
]>eiinctt,  3  Dem.  459 ;  Duntan  v.  Car-  to  doubt  the  view  of  the  court,  though 
ter,  id.  149;  Clark  v.  Butler,  4  id.  Kerr  v.  Douirhertv  were  not  control- 
378;  :\rattcr  of  fJibson.  24  Abb.  N.  C.  ling."  See'  Matter  of  Oakes.  19 
45.  The  General  Term  case  of  Camp-  Aj)p.  Div.  192;  45  N.  Y.  Supp.  984. 
bell  V.  Cowdrey  (31  How.  Pr.  172).  Whether  tJie  assets  of  an  estate  have 
which  reversed  IMatter  of  Fish  (1  lieen  fruitful  or  unproductive  does  not 
Tuck.  122;  s.  c,  19  AI>b.  I'r.  209).  is  ;iffect  the  right  of  a  legatee.  He  is 
also,  in  effect,  overruled.  The  rule  in  the  same  position  as  a  creditor, 
stated  in  the  text  was  followed  by  the  and   entitled   to   be   awarded    interest 


§  777.  Administration  of  Estate^  Etc.  04i 

income  of  an  estate,  or  of  a  designated  portion,  is  given  to  a  lega- 
tee for  life.  Such,  a  bequest  is  not  a  part  of  the  jDrincipal  of  the 
estate,  or  of  any  property  possessed  by  the  testator  in  his  lifetime, 
but  of  that  which  is  to  arise  or  accrue  after  his  death  from  a  speci- 
fied fund  to  be  set  apart  for  that  purpose.  As  it  is  the  income 
which  constitutes  the  legacy,  the  executor  is  accountable  for  the 
income  from  the  time  of  testator's  death,  unless  there  is  some  pro- 
vision in  the  will  from  which  a  contrary  intent  can  be  inferred.^" 

§  777.  Interest  from  testator's  death. —  Where  the  beneficiary 
is  a  child  of  the  testator  or  a  person  to  whom  he  stood  in  loco  pa- 
rentis, the  bequest  bears  interest  from  the  date  of  the  testator's 
death,  especially  where  there  is  no  other  provision  made  in  the  will 
for  the  maintenance  of  such  legatee.-^^  It  is  not  needed,  for  the 
application  of  this  rule,  that  the  testator  should  have  been  under 
a  legal  obligation,  at  the  time  of  his  death,  to  support  the  legatee ; 
it  is  sufficient  that  he  has  voluntarily  assumed  such  a  relation, 
similar  in  some  respects  to  that  of  parent,  so  that  it  may  be  pre- 
sumed he  did  not  intend  to  leave  the  legatee  without  support.^' 
It  is,  therefore,  entirely  competent  to  prove  the  surrounding  cir- 
cumstances in  order  to  raise  a  presumption  that  testator  intended 
the  legacy  to  draw  interest,  as  it  is  also  proper  to  prove  all  those 
circumstances  in  order  to  rebut  any  such  presumption,  or  to  show 


at  the  legal  rate  for  such  time  as  he  How.   Pr.   .54.)      Except  under   special 

is  kept  out  of  his  demand.      (lb.)    But  circumstances,  interest  is  not  allowed 

■where  a  legacy  is  payable  out  of  rents  upon    arrears    of   an    annuity.      (Isen- 

or  income,  interest  should  be  allowed  hart  v.    BroA\Ti.    2    Edw.    .341.)       Com- 

only  from  the  time  sufficient  had  ac-  pare    Lawrence    v.    Embree.    3    Bradf. 

cumulated  to  pav  the  legacy.      (Wells  364;   ^Matter  of  O'Hara.   10  ^lisc.  2.54. 
r.  Disbrow.  48  St.  Rep.  746:  20  IST.  Y.         l*?  Brown  v.    Knapp.   70   X.   Y.    136: 

Supp.   518.)      Where  the  probate  of  a  Matter    of    Travis.    85    Hun.    420:    32 

will    is   revoked   and   a   later   will    ad-  X.  Y.  Supp.  887 ;   Xalimens  v.  Copeiy. 

mitted    to   probate,   the    interest   on   a  2  Dem.  253.  and  cases  cited.      See.  in 

legacy  begins  to  run  a  year  after  the  addition.  King  v.  Talbot,  40  X.  Y.  76 : 

issue  of  letters   under   the   later   will.  Lupton  v.  Lupton.  2  Johns.  Ch.  G14; 

(Matter  of  Patterson,  5  Misc.  178.)  Burtis  v.  Dodge.  1  Barb.  Ch.  77:  Loder 

15  Matter    of    Stanfield.    135    X.    Y.  v.    Hatfield.    71    X'.    Y.    02;    Lvons    v. 

292;  47  St.  Rep.  813      To  same  effect,  Steinhardt,    37    Misc.    028:    76    X.    Y. 

see   Cooke   v.    Meeker,    36   X.   Y.    15;  Supp.  241.    A  legacy  given  to  an  adult 

Matter  of  Slocum,  60  App.  Div.  438;  married     daughter     for    her     support. 

69  X.  Y.  Supp.  1036;    169  X.  Y.  L53 ;  although  not  out  of  the  residue  of  the 

Pierce   v.    Chamberlain,    41    How.    Pr.  estate, —  Held,    to    bear    interest   from 

501 :    Matter    of    Lynch,    52    id.    367 ;  testator's   death   at   the   same    rate   as 

Powers   V.    Powers,    40    Hun,    219;    16  the  fund,  if  invested  as  directed,  would 

St.   Rep.   770:    Barrow   v.   Barrow,   55  have  produced.      (Matter  of  Lasak,   2 

Hun.  503:    29   St.  Rep.   240:    Craig  v.  Connofy.   380.)      See  Matter  of  Wood. 

Craig,  3  Barb.  Ch.  76;   Booth  v.  Am-  1   Dem.  550;   Bliss  v.  Olmstead.  3   id. 

merman.  4  Bradf.   129.     A  bequest  in  273:    Morgan   v.   Yalentine.   6    id     18: 

such  securities  as  the  legatee  may  se-  Xeder  v.   Zimmor.  6  id.   180:    Keating 

lect  draws  interest  from  the  death  of  v.  Bruns.  3  id.  233. 
the  testator.      (Wetmore   v.   Peck,   66        i"  Brown  v.  Knapp,  supra. 


045 


Ai).Mi.Msri;.\'ri().\   OF  EsTATK,   Etc. 


§  777. 


ihat  no  >iicli  intent  couM  have  existed.^**  It  will  be  presumed  that 
a  legacy  to  testator's  widow,  in  lieu  of  her  dower  or  thirds,  was 
intended  to  draw  interest  from  his  death,  in  the  absence  of  some 
express  or  implied  directions  in  his  will  to  the  contrary.^'"*  The 
fact  that  the  will  makes  a  legacy  to  a  son  payable  a  certain  num- 
ber of  months  after  testator's  death,  there  being  no  provision  for 
ilic  |iayiiiiiit  of  interest,  or  for  the  support  of  the  legatee  until  it 
is  paid,  precludes  the  idea  that  testator  intended  the  legatee  to 
have  interest  on  the  legacy  previous  to  the  cx]-)iration  of  the  time 
fixed  for  its  jiaynient.""     A  direction  in  the  will  that  the  legacy 


if^Lvou  V.  Industrial  Schcol  Assn., 
52  Hun,  3.V.).  As  to  interest  on  a 
Icyacy  to  a  postliuinous  cliild,  see  Law- 
rence V.  Lawrenee.   1   Edw.  o'lT. 

i!»  Williamson  v.  Williamson,  G 
l'ai<re.    21)8;    Parkinson    v.    Parkinson, 

2  r>radf.  77:  Sevmour  v.  Butler,  3  id. 
H)3;  Matter  of' Combs.  3  Doni.  348; 
:\ratter  of  Fogg,  5  id.  422;  Matter  of 
McKav,  5  INIisc.  123;  Carr  v.  Bennett, 

3  Den'i.  433:  Stevens  v.  Melcher.  80 
Hun,  514;  62  St.  Rep.  590;  152  N.  Y. 
551.  Compare  flatter  of  Barnes,  7 
App.  Div.  13;  40  N.  i'.  Supp.  494; 
alfd.,  154  N.  Y.  737.  Where  the  widow 
receipts  for  her  legacy,  given  in  lieu 
of  dower,  this  is  an  admission  that 
she  has  received  all  she  is  entitled  to 
on  account  of  the  legacy,  and  she  is 
not  entitled,  on  the  executor's  ac- 
counting, to  be  allowed  a  further  sum 
bv  wav  of  interest.  (  Matter  of  Hodg- 
n'lan,  "(i9  Hun,  484;  23  N.  Y.  Supp. 
725:  afTd.,  140  N.  Y.  421.) 

20  Thorn  v.  Garner,  113  N.  Y.  198; 
Van  Rensselaer  v.  Van  Rensselaer, 
id.  207.  In  Vernet  v.  Williams  (3 
Dem.  349),  the  testator  gave  a  legacy 
1o  his  daughter,  V.,  a  married  woman, 
directing  his  executors  to  i)ay  i^ 
"  as  soon  as  pi'acticable  ''  after  his 
death;  and.  by  a  later  clause,  provided 
that,  "after  the  payment"  of  V.'s 
legacy,  and  "  as  soon  as  possible " 
after  his  death,  the  executors  should 
inve>t  ii  specified  sinu.  and  pay  to  his 
widow  the  interest  and  increase  "  eom- 
lucncing  from  my  (his)  decease." 
Held,  that  no  feature  of  the  case  took 
the  I)e(|uest  to  V.  out  of  the  operation 
of  the  general  rule,  that  interest  does 
not  begin  to  run  on  a  legacy  until  the 
expiration  of  a  year  after  the  death 
of  the  testator,  in  the  absence  of  an 
express  or  implied  direction  of  the 
■will  to  the  contra rv.  See  Matter  of 
Hodgman,  140  N.  Y.  421;  55  St.  Rep. 


800.  Where  some  action  is  made 
necessary  on  the  part  of  the  legatee 
by  the  terms  of  the  will  — c.  y.,  pro- 
ceedings for  the  sale  of  property  to 
liave  a  legacy  paid  —  the  legatee  can- 
not claim  interest  dining  his  delay  to 
institute  such  proceedings.  (Crocheron 
V.  Jaques.  3  Edw.  207.)  See  Haight 
v.  Pine.  10  App.  Div.  470;  42  N.  Y. 
Supp.  303.  In  Kerr  v.  Doughertv  (17 
Hun,  341;  afTd..  79  X.  Y.  327  )\  the 
will  provided  that  "  the  legacies  are 
to  be  paid  as  soon  as  the  amount  can 
be  collected  out  of  the  funds  now  in- 
vested in  bond  and  mortgage  at  the 
city  of  Grand  Rapids,  Mich."  Held, 
that  interest  ran  only  from  one  year 
after  the  issue  of  letters.  The  time 
when  interest  begins  to  run  depends 
largely  upon  the  qiu'stion  whether  the 
legacy  vested  ujmn  the  testator's  death, 
or  afterward,  upon  the  happening  of 
a  contingency.  See  ante,  §  740,  and 
cases  there  cited.  See  also  Harward 
v.  Hewlett,  5  Redf.  330;  Dixon  v. 
Storm,  id.  419;  St.  F.  Xavier  College 
V.    Dohertv.   id.   520;    Piatt   v.   Moore, 

1  Dem.  191;  Matter  of  Gerard,  id. 
244.  Thus,  a  remainderman  is  en- 
titled to  interest  only  from  the  ter- 
mination of  the  life  estate.  ( Dodire 
V.  Manning.  1  N.  Y.  298:  Wheeler  v. 
Ruthven,  74  id.  429.)  The  legal  rate 
of  interest  is  proper,  though,  pending 
the  administration,  a  less  rate  has 
been  earned  by  the  executor.  ( Godon's 
Estate.  5  Law  Bui.  15;  HolTman  v. 
Penn.  Hospital.  I  Dem.  118:  Clark  v. 
Butler.  4  id.  378.)  A  legacy  which, 
by  the  direction  of  the  will,  draws 
interest  from  the  attainment  of  the 
majority  of  the  legatee,  draws  interest 
from  such  time,  although  the  death  of 
the  testator  took  place  subsequent 
thereto.  (Matter  of  Brownell.  1  Con- 
noly.  175.)     See  Kerrigan  v.  Kerrigan. 

2  Redf.    517  :    Pinnev    v.    Fancher.    3 


§  778.  Administration  of  Estate^  Etc,  046 

bo  paid  ^^  with  interest,"  but  specifying  no  time  from  wliicli  inter- 
est is  to  be  computed,  does  not  take  the  case  out  of  the  operation 
of  the  rule  that  interest  commences  from  the  expiration  of  the 
year.^^ 

A  legacy  of  a  debt  draws  interest  from  the  date  of  the  will  ;^^ 
but  a  legacy  to  an  executor  for  executing  the  office  does  not  in 
general  draw  interest.^^ 

§  778.  Remedy  of  legatee  by  action.—  The  legatee  has  a  remedy 
for  the  recovery  of  his  legacy,  by  action,  or  by  a  special  pro- 
ceeding in  the  Surrogate's  Court.  The  executor  is  liable  indi- 
viduaUy  for  a  tortious  conversion  of  the  legacy,  but  his  mere  fail- 
ure to  pay  the  full  amount  of  the  legacy,  when  due,  will  not,  in 
the  absence  of  proof  of  some  illegal  or  improper  conduct,  or  that 
he  himself  claims  to  be  entitled  thereto,  authorize  an  action 
against    him    individually    for    the    amount    due.^'*      Rights    of 


Eradf.   198.     Where  a  legacy  is  given  304.     See  Booth  v.   Ammerman,  4  id. 

to  be  paid  at  a  future  day,  the  amount  129. 

should  be  raised  from  the  personal  es-  22  Gilbert  v.  Morrison,  5.3  Hun,  442. 
tate.  and  invested  until  it  becomes  23  Morris  v.  Kent,  2  Edw.  17.5. 
payable;  and  the  interest  in  the  mean-  24  Hurlbut  v.  Durant,  21  Hun,  481. 
time,  if  not  otherwise  disposed  of,  be-  A  surrogate's  decree,  directing  the  ex- 
longs  to  the  widow  and  next  of  kin.  ecutor  to  pay  a  legacy,  renders  it  a 
(Hone  v.  Van  Sohaick,  7  Paige,  221;  personal  debt,  and  in  a  legatee's  action 
affd.,  20  Wend.  .564.)  The  executor  on  the  decree,  a  debt  due  the  executor 
may  take  one  year  to  make  the  in-  personally  may  be  set  oflf.  ( Dubois 
vestment,  in  analogy  to  the  time  al-  v.  Dubois,  6  Cow.  494.)  In  Bellinger 
lowed  for  paying  legacies.  (Cogswell  v.  Potter  (36  St.  Rep.  601;  13  N.  Y. 
v.  Cogswell,  2  Edw.  231.)  -See  Mat-  Supp.  9),  property  specifically  be- 
ter  of  Howard,  23  N.  Y.  Supp.  836.  queathed  was  sold  by  an  executor. 
In  Matter  of  Maine  (62  Hun,  334;  17  Held,  that  he  was  not  chargeable  at 
N.  Y.  Supp.  114),  the  will  gave  $5,000  the  suit  of  other  legatees  with  the 
to  testator's  daughter  and  her  chil-  proceeds,  as  he  was  presumably  ac- 
dren,  which  the  executor  was  directed  countable  to  the  particular  legatee 
to  invest  in  a  house,  and  deed  it  to  her  therefor,  in  the  absence  of  evidence  of 
for  life  and  after  her  death  to  sell  it  the  latter's  abandonment  of  the  legacy, 
and  divide  the  proceeds  among  the  In  Camp  v.  Smith  (117  X.  Y.  354:  27 
children,  the  money  for  the  purchase  St.  Rep.  322),  the  -executor  having 
to  be  raised  by  the  sale  of  a  farm  at  given  a  legatee  notes  of  himself  and 
the  termination  of  a  lease  to  the  others  for  the  amount  of  her  legacy, 
daughter's  husband,  and  the  will  pro-  which  w^ere  received  for,  and  treated  as, 
vided  for  the  payment  of  interest  on  payments  upon  a  subsequent  judicial 
$5,000,  until  a  house  was  purchased:  settlement  of  his  account. —  Held,  that 
the  daughter  died  before  such  pur-  he  could  not  thereafter  be  charged,  as 
chase,  which,  in  fact,  was  never  made,  upon  an  implied  personal  obligation. 
Held,  that  the  children  were  entitled  to  pay  the  legacy  arising  out  of  the 
to  interest  on  $5,000  from  her  death  transaction,  but  that  the  remedy  was 
until  the  executor's  accounting,  and  upon  the  note.  The  rule,  that  de- 
anniially  thereafter  until  they  were  livery  of  the  debtor's  obligations  to 
paid  the  principal :  the  rule  that  in-  the  creditor  are  not  considered  a  pay- 
terest  is  not  due  upon  a  legacy  until  ment  of  the  debt  previously  existing, 
the  legacy  itself  is  due  not  applying  does  not  apply  in  such  case,  as  the 
in  such  a  case.  executor  is  not  personally  indebted  to 
21  Lawrence    v.    Embree,    3    Bradf.  the   legatee   except   by   reason    of   the 

notes. 


G4T  Admixistkatiox  of  Estate,  Etc,  §  779. 

iiction  against  the  representative,  by  a  legatee  for  his  legacy, 
and  by  a  next  of  kin  for  his  distributive  share,  are  given  by  the 
statute.  Where,  after  one  year  from  the  granting  of  letters  testa- 
mentary or  of  administration,  an  executor  (jr  administrator  refuses, 
upon  demand,  t<>  pay  a  legacy,  or  distrilmtive  share,  the  person 
entitled  thereto  may  .maintain  an  action  against  him.  ''  But  for 
the  purpose  of  C(jmputing  the  time,  within  which  such  an  action 
must  be  commenced,  the  cause  of  action  is  (U'cuied  to  accnu'  when 
the  executor's  or  administrator's  account  is  judicially  settled,  and 
not  before."  ^^  Formerly,  the  statute"*'  recpiiretl  that  the  demand 
of  i)ayiii('nt,  ])reliininai'y  to  the  action,  sli<iul<l  be  acconij)aiiicd  with 
an  offer  of  a  bond  of  indemnity  in  double  the  amount  of  the  legacy, 
conditioned  for  the  refunding  of  the  legacy,  if  necessary,  etc.  But, 
by  the  ])resent  statute,  such  a  bond  is  required  oidy  on  an  ai)]dica- 
tion  to  the  surrogate,  after  judgment  in  the  action,  for  an  order  on 
which  execution  nuiy  be  issued.-' 

§779.  Defenses  to  action;  judgment. —  Bv  the  former  statute,"* 
the  representative  miglit  plead  insufficiency  of  assets,  and  if  such 
insufficiency  was  shown,  the  ]daintiif  could  recover  only  a  propor- 
tionate part  of  the  assets.  But  under  the  now  system  of  proce- 
dure, the  existence,  sufficiency,  or  want  of  assets  cannot  be  pleaded 
by  either  party,  in  an  action  for  money,  against  an  executor  or 
administrator,  in  his  representative  capacity,  and  the  plaintiff's 
right  of  recovery  is  not  affected  thereby.^''  An  execution  upon  a 
judgment  for  the  amount  of  a  legacy,  or  distributive  share,  as  in 
every  case  of  a  judament  against  the  representative  as  such,  can 
be  issued  only  upon   the  order  of  the   Surrogate's   Court  which 

2.')  Co.  Civ.  Proc.  §    1819.     See  IMat-  for    tlio    recovery  of   leffacie>;   and   dis- 

ter  of  ^lav,  31   St.  Rep.  50;   9  N.  Y.  tribulive   shares,    see   Rundle   v.   Alli- 

Supp.  78;)":   Cooks  v.   Ilaviland.  31   St.  son,     34     N.     Y.     180;     Eherhardt    v. 

Rep.    742:     9    X.    Y.    Siipp.    872.      A  Selmster.   0   Abb.   X.   C.    141:    Ho>-t   v. 

\vido\v  may  maintain  an  action  for  her  Iloyt,     17     Hun.     192:     Hitchcock    v. 

share  under  this  statute.      ( Betsinper  Linsley.    id.    n.Ki :    Xichols   v.    Xichols. 

V.  Chapman,  24  Hun,  15.)      ^Vhere  the  12  id.  428 :  Lewis  v.  Maloney.  id.  207 : 

action   is   brought   by   a   guardian   nd  Porter     v.     Kingsbury.     13     id.     33; 

litem,  he  must  give  a  bond,  etc.     See  Prentice    v.    .Tanssen.    79    X.    Y.    478: 

Co.    Civ.    Proc.    §    1820.       *  Fisher    v.    Hubboll.    05    Barb.    74;    De 

20  2  R.  S.  114,  §§  9-11.  C.rofT  v.  Terpenning.  14  Hun.  302.     An 

2T  Co.    Civ.    Proc,    §    1827.     An   un-  action  to  enforce  the  legal  liability  of 

dertaking.  and  not  a  bond,  is  required,  tlie     devisee     and     executor     may     he 

Tlie  last  chuise  of  section  1819  (.s/z/xv; )  brought    in    this'  State,    although    the 

is  new.  and  is  intended  to  change  tlie  testator    was    a    resident    of.    and    the 

rule    with    respect    to    the    Statute    of  executor    was    appointed    in.    ancUher 

Limitations  adopted  in  American  Bible  State.      (Brown   v.    Knapp.    79   X.    Y. 

See.   V.    Hebard.   51    Barb.    552:    afTd..  137.) 

41   N.   Y.   019.   n.      See   also   Clark   v.  2s  2  R.  S.  115.  §  13. 

Ford,  3  Keyes.  370.     For  illustrntions  20  Co.     Civ.     Proc,     §      1824.       See 

-of    the    principles    reguh^ting    actions  §§  631,  677,  ante. 


§§  780,  781.     Admi.mstkation  of  Estate,  Etc.  648- 

granted  the  letters,''"  and  in  the  case  of  such  a  judgment,  the  court 
may,  and  in  a  proper  case  it  must,  before  permitting  an  execution 
to  be  issued,  require  the  applicant  to  give  an  undertaking,  con- 
ditioned as  provided. '^^  Having  already  described  the  proceeding 
by  a  judgment  creditor  for  leave  to  issue  execution,  it  ^vill  not  be 
necessary  to  speak  further  of  it  here."*" 

§  780.  Remedies  by  special  proceeding —  Besides  the  remedy  by 
action,  a  person  entitled  to  a  legacy,  or  other  pecuniary  provision 
under  a  will,  or  to  a  distributive  share  in  an  intestate's  estate,  is 
given  a  remedy  by  special  proceeding  in  the  Surrogate's  Court, 
which  may  be  availed  of  either  before  or  after  the  expiration  of  a 
year  froui  the  grant  of  letters.  It  is  desirable  to  speak  of  the  latter 
proceeding  iirst. 

§  781.  Compulsory  payment  of  legacy  after  the  year. —  At  any 
time  after  one  year  has  expired  since  letters  were  granted,  "  a  per- 
son entitled  to  a  legacy,  or  any  other  pecuniary  provision  under 
the  will,  or  a  distributive  share,"  may  petition  for  a  decree  direct- 
ing the  executor  or  administrator  to  pay  the  same  or  its  just  pro- 
portional part.'^'^  This  remedy  by  a  legatee  is  given  by  the  same 
section  which  gives  a  like  remedy  to  a  creditor  for  the  payment  of 
a  debt,  and  it  has  been  held,  in  Surrogates'  Courts,  that  the  remedy 
in  each  case  was  confined  to  the  creditor  or  legatee,  as  the  case 
might  be,  a"nd  could  not  be  availed  of  by  his  assignee.  The  Su- 
preme Court  has  decided,  however,  that  the  language  of  the  section 
does  not  limit  it  to  original  creditors,  and  that  there  is  no  distinc- 
tion between  the  position  of  an  assignee  of  a  claim  and  the  original 
owner  of  a  claim,  if  it  had  not  been  assigned.^'*  The  language 
above  quoted,  as  to  the  remedy  of  a  legatee  to  obtain  payment,  has 
been  held  not  to  include  the  assignee  of  a  legatee,  as  an  assignee 
cannot  be  said  to  take  "  under  the  will,"  but  under  his  assignment ; 
and  that  an  assignee's  only  remedy  for  the  recovery  of  the  amount 
of  the  legacy  is  by  an  application  that  it  be  paid  him,  on  the  judi- 
cial settlement  of  the  executor's  account, —  the  statute  authorizing 
the  surrogate,  in  that  proceeding,  to  decree  payment  to  legatees 
"  or  their   assigns."  ^^     It  may  be  suggested,   however,   that   the 

30  Co.  Civ.  Proc,  §§  1825,  1826.  Matter   of   Brewster.    1    Connolv.    172. 

31  Co.  Civ.  Proc,  §   1827.  In  Tilden  v.   Dows    (.3   Dem.   240).  it 

32  See  §  681.  ante.  was  said  that  the  language  of  Co.  Civ. 

33  Co.  Civ.  Proc.  §  2722,  as  amended  Proc.  §  2804.  which  allows  a  person 
1893    /former    §   2717,   subd.   2).  who  "is  entitled,  by  the  terms  of  the 

34  ]Matter  of  Moderno,  63  Hun,  261.  will."  to  the  pa\Tnent  of  money  or  de- 
See  §   690.  ante.  livery  of  property,  to  proceed  against 

35  Peyser    v.    Wendt,    2    Dem.    221;  a    testamentary   trustee    for    satisfac- 


649 


Au.MlMSTKATlOX     OF    EsTATE,     EtC. 


782. 


Avords  "  und-cr  the  will  "  are  words  of  description,  and  not  of  limi- 
tation, and  refer  to  the  words  "  or  any  other  jteeuniary  jirovision,'' 
not  to  the  words  "  of  a  legacy ;"  and  that  an  assignee  of  a  legacy, 
or  the  representative  of  a  deceased  legatee,  is  ''  a  person  entitled 
to  a  legacy,"  within  the  meaning  of  the  statute.^*' 

§  782.  Petition  for  payment —  Upon  the  presentation  of  tho 
petition,  the  surrogate  must  issue  a  citation,  **  and  upon  the  return 
thereof,  he  must  make  such  a  decree  in  the  premises  as  justice  re- 
quires." ^'  The  petition  should  set  forth  the  necessary  jurisdic- 
tional facts,  the  possession  of  assets,  and  the  nonpayment  of  the 
legacy.  It  is  not  necessary  that  the  petition  should  allege,  except 
in  a  general  way,  that  there  is  money  applicable  to  the  petitioner's 
claim  —  this  being  more  likely  to  be  known  to  the  executor  than 
the  legatee. ^^  Xor  is  it  necessary  to  allege  a  demand  on  the  execu- 
tor and  his  refusal  to  pay."^  The  petition  must  be  presented  within 
six  years  from  the  day  the  legacy  is  payable  —  that  is,  speaking 


lion,  indicator,  oven  more  stronply 
than  tliat  of  section  2717  [now  sec- 
tion 2722  I .  relatinfr  to  executors,  etc.. 
a  i)iirp()se  to  postpone,  until  a  judicial 
settlement  of  the  account,  proceedings 
to  enforce  claims  made  against  a  tes- 
tator'.s  estate  by  persons  holding  as- 
signnteiits  of  legacies. 

"30  Matter  of  Dunscomb  (32  St.  Rep. 
.33.3:  10  N.  Y.  Supp.  247)  was  an  ap- 
plication by  the  administrator  of  a 
deceased  legatee,  and  it  was  not  ob- 
jected (as  it  might  have  been  on  the 
interpretation  cf  the  statute  in  the 
above  case)  that  the  petitioner  took 
under  his  letters  of  administration, 
and  not  "under  the  wi  l."  But.  in 
Matter  of  Hoduman  (  1 1  App.  Div. 
344:  atTd..  IGl"  N.  Y.  G27 ) ,  it  was 
held  that  the  next  of  kin  of  a  legatee 
cannot  maintain  an  action  or  prose- 
cute a  claim  for  tlie  sliai^e  of  the  es- 
tate which  under  the  will  went  to  the 
legatee.  An  ap{)lication  by  a  general 
guardian  of  an  infant  legatee  for  the 
pa.\nnent  to  him  of  the  legacy  and  au- 
thority to  apply  the  same  to  the  sup- 
port of  the  infant  cannot  be  granted 
under  section  2722  of  the  Code.  (Mat- 
ter of  Paton.  7  Misc.  377:  28  N.  Y. 
Supp.  KiO.)  A  proceeding  to  compel 
an  executor  of  a  deceased  executor  to 
pay  a  legacy  under  the  earlier  will, 
cannot  be  maintained.  (Matter  of 
Moehring.   1.54  N.  Y.  423.) 

37  Co.  Civ.  Proc..  §  2722.  as  amended 
1803.  In  Matter  of  Dunscomb  (supra) . 
instead  of  a  petition,  the  application 


was  by  a  motion  upon  affidavit,  stat- 
ing the  necessary  facts.  Held,  that 
the  affidavit  was  sufficient  as  a  peti- 
tion to  authorize  a  citation,  and  that 
the  notice  of  motion  did  no  harm. 
But  in  Matter  of  Lyon  (  1  Misc.  447  ; 
23  X.  Y.  Supp.  146)'.  it  was  held,  that 
the  court  does  not  acquire  jurisdiction 
where  no  petition  is  presented,  or 
citation  issued,  or  answer  filed,  and 
no  proof  that  there  is  sufficient  per- 
sonalty to  pav  the  legacv.  Compare 
Matter  of  Hitchler.  21 "  Misc.  417. 
Where  the  executor  is  a  testamentary 
trustee,  an  application  to  compel  a 
payment  of  income  cannot  be  made 
under  this  section,  citing  respondent 
as  executor,  but  he  must  be  cited  as  a 
testamentary  trustee  under  sections 
2804.  280;").'  (Matter  of  B\Tnes.  20 
Abb.  X.  C.  380:  14  X.  Y.  Su"pp.  371.) 
See  §  791.  post.  A  will  devising  to 
executors  the  residue  of  testator's 
I)roperty.  in  trust,  during  the  life  of 
two  grandchildren,  authorizing  them 
to  mortgage  or  lea.se  the  real  estate, 
to  receive  the  rents  and  profits  and  to 
pay  the  same  to  designated  bene- 
ficiaries, creates  the  executors  t<>sta- 
mentarv  trustees.      (lb.) 

3s:Matter  of  Macaulay.  04  X.  Y. 
.574.  See  Thomson  v.  Tavlor.  7 1  id. 
217. 

3i>  Matter  of  Dunham.  1  Connolv. 
323:  22  Abb.  X.  C.  470:  Matter  of 
^rav,  31  St.  Rep.  50;  9  N.  Y.  Supp. 
785. 


,^  783. 


Admijn^istration  of  Estate^,  Etc. 


650 


generally,  six  years  after  the  expiration  of  one  year,  or  seven  years 
in  all,  after  the  grant  of  letters  —  or  it  is  barred  by  the  Statute  of 
J. imitations."*"  When  the  will  fixes  a  date  for  payment,  the  time 
i?  computed  from  that  day."*^  Where,  by  reason  of  a  deficiency  of 
assets,  the  proceeding,  if  commenced  within  the  time,  would  have 
been  fruitless,  an  exception  to  the  rule  might  arise.  Inasmuch  as 
a  demand  is  not  necessary  to  entitle  a  legatee  or  distributee  to  main- 
tain an  action  or  proceeding  for  his  legacy  or  share,  the  time  cannot 
bo  computed  from  the  time  the  claimant  has  actual  knowledge  of 
the  facts,  as  is  permitted  in  certain  cases. ^^  A  legatee  may  include 
in  one  petition  an  application  for  the  payment  of  his  legacy,  and 
for  the  settlement  of  the  executor's  accounts.'*^ 

§  783.  The  answer  to  the  petition. —  If  the  application  is  op- 
posed, the  answer  must  be  in  writing  and  verified,  and  must  "  set 
forth  facts  which  show  that  it  is  doubtful  whether  the  petitioner's 
claim  is  valid  and  legal,  and  denying  its  validity  or  legality,  abso- 
lutely or  upon  information  and  belief."  It  is  not  sufficient  merely 
to  deny  the  validity  or  legality  of  the  petitioner's  claim ;  it  must 
set  forth  fads  showing  that  the  claim  is  douhtfuJ.^'^    If  the  petition 


40  In  Matter  of  Dunham  ( 1  Con- 
Tioly,  323).  it  was  held  that  section 
1819,  providing  that  "  for  the  purpose 
of  computing  the  time  within  which 
such  an  action  must  be  commenced, 
the  cause  of  action  is  deemed  to  ac- 
crue when  the  executor's  or  adminis- 
trator's account  is  judicially  settled 
and  not  before,"  applies  to  actions 
only,  and  not  to  special  proceedings, 
and,  therefore,  a  legatee  cannot  take 
this  proceeding  after  the  Statute  of 
Limitations  has  run  against  the 
legacy;  also  held,  that  this  proceed- 
ing is  not  governed  by  section  410, 
which  provides  that  where  a  right 
grows  out  of  the  receipt  or  the  reten- 
tion of  money  or  property  by  a  per- 
son acting  in  a  fiduciary  capacity,  the 
time  within  which  an  action  nuist  be 
brought  is  to  be  computed  from  the 
time  when  the  person  having  a  right 
to  make  the  demand  therefor,  has 
actual  knowledge  of  the  facts  upon 
which  the  right  depends.  See  Cobb  v. 
IMcCormack,  3  Dcm.  006 :  House  v. 
Agate,  3  Redf.  307;  Matter  of  Van 
Dyke.  44  Hun.  394.  A  payment  made 
within  six  years,  to  a  person  other 
than  the  moving  party,  in  the  ab- 
sence of  proof  as  to  the  circumstances 
under  which  it  was  made,  will  not 
take  the  proceeding  out  of  the  statute. 


(Matter  of  Miller.  1.5  Misc.  556;  37 
X.  Y.  Supp.  1129.)  A  right  of  ac- 
tion to  recover  a  remainder  does  not 
accrue  until  the  death  of  the  life 
tenant.  (Gilbert  v.  Tavlor,  148  X.  Y. 
298.)  Whether  it  is  the  duty  of  an 
administrator  to  plead  the  Statute  of 
Limitations  in  every  action  brought 
against  him  to  recover  a  legacy,  as  it 
would  be  in  an  action  for  a  debt  of 
the  testator,  was  doubted  in  Pratt  v. 
Roman  Catholic  Orphan  Asylum,  20 
App.  Div.  352:  46  X.  Y.  Supp.  1035; 
affd.,  106  X.  Y.  593. 

■il  In  Smith  v.  Remington  (42  Barb. 
75),  the  legacy  was  payable,  by  the 
terms  of  the  will,  when  the  legatee 
reached  his  majority.  Held,  that  a 
proceeding  to  compel  the  payment  of 
the  legacy  was  barred  after  six  years 
from  that  time.  See  McCartee  v. 
Camel.  1  Barb.  Ch.  455,  465. 

42  See  Matter  of  ^lay.  supra. 

43  ;Matter  of  ]\Iacaulay,  27  Hun, 
577:  affd.,  94  X.  Y.  574.  * 

44  Matter  of  Macaulay.  94  X.  Y. 
574:  Hurlburt  v.  Durant.  88  id.  121: 
Matter  of  Muller.  25  App.  Div.  269; 
50  X.  Y.  Supp.  780:  Matter  of  Riley. 
4  :\Iisc.  338:  Matter  of  Alexander,  83 
Hun,  147:  31  X.  Y.  Supp.  411.  A 
denial  of  knowledge  or  information 
sufficient  to  form  a  belief  is  not  suffi- 


<;:)! 


Ad.mi.mstkation  of  Estate,  Etc. 


§  TS3. 


■of  an  assignee  of  a  legatee  can  be  entertained  at  all,  it  is  no  suffi- 
cient answer  to  it  to  deny  knowledge  whether  the  assignment  to 
the  petitioner  is  sufficient,  in  law,  to  transfer  the  legatee's  inter- 
■est.  An  answer  denying  the  incorporation  of  the  legatee  applying 
for  papnent  of  its  legacy,  is  insufficient  to  oust  the  surrogate  of 
jurisdiction  where  the  validity  of  claim  is  not  ]iut  in  question.'*^ 
An  answer  that,  by  the  express  terms  of. the  will,  the  legacy  was 
to  be  paid  "  after  the  sale  of  "  certain  real  property,  and  that  the 
■executors  had  not  yet  sold  the  pro])erty,  is  good."**"'  When  payment 
•of  a  legacy  is  left  to  the  discretion  of  the  executor,  although  he 
cannot  arbitrarily  postpone  delivery  to  the  legatee  indefinitely,*^ 
where  the  answer  puts  in  issue  a  question  of  the  construction  of 
the  will  affecting  the  petitioner's  rights,  the  proceeding  should  be 
dismissed.**  Where  it  appeared,  notwithstanding  a  proviso  in  the 
will  that  the  legatee  should  have  no  portion  of  the  estate  until  he 
had  accounted  for  and  settled  the  account  charged  against  him 
on  the  testator's  books,  for  money  advanced,  etc.,  that  an  adjust- 
ment of  this  account  between  the  legatee  and  the  executor  had  l)i'('n 
had  and  a  balance  was  found  due  to  the  legatee,  it  was  held  that 
while  this  adjustment  might  be  impeached  on  the  final  accounting 
of  the  executor,  it  removed  the  objection  to  an  advancement  to  the 
legatee  for  the  balance,  founded  upon  this  clause  of  the  will ;  and 
the  legatee  might  apply  for  a  decree  directing  the  payment  of  this 
balance.**^ 


■cient.  (Moorhouse  v.  H\itchinson,  4 
Deni.  362.)  In  answer  to  a  petition 
for  payment  of  an  instalment  of  a 
legacy,  amounting  to  $500,  after  the 
same  had  Ix'cdiiu'  i)ayal)le  by  tlie  terms 
of  tlie  will,  the  executor  all(>ged  upon 
information  and  I)elief,  that  petitioner 
had  unlawfully  come  into  ])ossession 
(  f  four  bonds,  of  the  value  of  $4,000, 
formerly  belonging  to  decedent,  of 
which  respondent  was  entitled  to  pos- 
session  as  executor,  and  had  unlaw- 
fully concerted  the  same,  and  lefused 
to  tram^fer  them  or  to  pay  their  val'.ie, 
and  that  an  action  was  pending  l)e- 
tween  the  parties  "  for  the  recovery  of 
said  bonds  or  their  value."  Held,  that 
the  answer  was  insufficient  as  a  de- 
fense. (Matter  of  Selling.  5  Dem. 
225.)  See  Cocks  v.  Haviland.  28  St. 
Rep.  389:  7  N.  Y.  Supp.  S71. 

4S  ]\Iatter  of  Congregational  Church 
of  Cutchogue,  37  St.  Rep.  17!1:  l:?  X. 
Y.    Supp.    140.      Compare    ]\Iatter    of 


Young  Men's  Christian  Assn.-.  22  App. 
Div.  32.5:  47  N.  Y.  Supp.  854. 

41!  Matter  of  Fischer.  N.  Y.  Law  .J., 
Jan.  30,  1892.  "  The  surrogate  is 
without  power  to  compel  a  sale  of  the 
lot,  and  is,  therefore,  compelled  to 
deny  the  application.  The  remedy  of 
petitioners  is  in  a  court  of  equity  to 
compel  a  sale  or  to  move  for  the 
revocation  of  letters  for  the  alleged 
misconduct  of  the  executors  in  revis- 
ing to  carry  out  the  terms  of  the  will, 
(lb.)  But.  in  Matter  of  Travis  (85 
Hun,  420 :  32  N.  Y.  Supp.  SS7 ) .  it  was 
said  tliat  where  the  will  effects  an 
e(putal)!e  conversion  of  the  realty  and 
the  executor  has  neglected  to  sidl  the 
same,  tiie  surrogate  may  compel  pay- 
ment of  past-due  interest  on  a  legacy 
to  a  minor. 

47  ]M(.Kay  v.  McAdam.  SO  Hun.  2li0; 
30  X.  Y.  Supp.  2SS. 

•JJ*  Matter  of  IMcClouth.  9  Misc.  385; 
30  X.  Y.  Supp.  274. 

•»»  Oilman  v.  Oilman.  03  X.  Y.  41. 


§§  784,  785.     Administratio.x  of  Estate,  Etc.  65i 

§  784.  Dismissing  the  proceeding  on  the  answer. —  The  statute 
is  imperative  that  upon  the  presentation  of  these  facts  which  affect 
the  jurisdiction  of  the  court,  in  the  manner  therein  provided,  the 
surrogate  must  dismiss  the  proceeding.  When  the  right  of  the 
claimant  is  denied  by  the  representative,  the  surrogate  is  prohib- 
ited from  hearing  and  deciding  the  issue  thus  formed,  and  the 
party  is  remitted  to  another  proceeding  or  tribunal  to  establish  or 
enforce  his  claim. ^°  Where  the  identity  of  the  petitioner  with 
the  legatee  is  put  in  doubt  by  the  answer,  it  is  the  duty  of  the 
court  to  dismiss  the  proceeding. ^^  An  answer  setting  up  notice  of 
an  assignment  of  a  portion  of  the  legacy  liy  the  petitioner,  greater 
than  the  amount  then  in  the  executor's  hands,  is  enough  to  create 
a  doubt,  and  requires  a  dismissal  of  the  proceeding.^"  Where, 
pending  probate  proceedings,  one  of  the  next  of  kin,  who  was 
named  as  legatee  in  the  disputed  instrument,  applied  for  a  decree 
directing  the  payment  to  her  of  a  sum  of  money,  to  be  reckoned 
as  part  of  her  distributive  share,  or  of  her  legacy,  according  to  the 
event,  the  executor  filed  an  answer  setting  forth  that  the  applicant 
was  opposing  the  admission  to  probate  of  the  alleged  will,  which 
contained  a  clause  declaring  that,  in  case  any  legatee  should  con- 
test the  validity  of  the  instrument,  the  provision  in  his  favor  should 
cease,  and  fall  into  the  residue;  it  was  held  that  the  facts  set  forth 
showed  the  claim  to  be  "  doubtful,"  and  the  petition  was  dis- 
missed.'^^ 

§  785.  What  questions  viall  be  determined. —  Possessing  only 
limited  powers,  the  surrogate  cannot  in  these  proceedings  determine 

50  Fiester  v.  Shepard,  02  X.  Y.  251.  termine  the  validity  of  the  legacy,  see 
It  was  held,  in  a  proceeding  under  the    c.  XIX,  jiost. 

Revised  Statutes  ( Riggs  v.  Cragg.  89  52  flatter  of  Phalen.  22  St.  Rep. 
N.  Y.  479),  that  the  surrogate  had  908 ;  affd.,  6  X.  Y.  Supp.  2.52.  In  Mat- 
jurisdiction  to  decree  payment  only  ter  of  Hammond  (92  Hun.  478;  36  N. 
where  the  legacy  was  undisputed.  An  Y.  Supp.  1074),  the  proceeding  was- 
application  by  residuary  legatees  for  dismissed  upon  an  allegation,  by  the 
the  payment  to  them  of  a  sum  in  ex-  executor,  that  the  legatee  had  released 
cess  of  the  balance  of  personalty  after  his  interest. 

payment  of  debts,  on  tlie  ground  tliat.  53  Rank  v.  Camp,  3  Dem.  278.  As- 
hy a  provision  of  the  will  directing  to  the  effect  of  such  a  clause  in  a  will 
the  sale  of  the  realty  and  distribution  on  the  rights  rf  the  contesting  legatee,, 
of  the  proceeds  among  others,  tliere  see  Woodward  v.  .James,  16  Abb.  X. 
was  a  conversion  which  subjected  the  C.  246:  Matter  of  Stewart,  1  Connoly,, 
realty  to  a  pio  rata  liability  for  debts,  412:  Matter  of  Bratt.  10  Misc.  491; 
should  be  dismissed  where  the  answer  ^Matter  of  Beck.  6  App.  Div.  211; 
of  the  executor  denies  this  and  alleges  affd..  154  X.  Y.  750;  Scott  v.  Ives,  22 
that  the  personalty  is  the  primary  ]Misc.  749.  A  clause  in  a  will,  that 
fund.  (Matter  of  Mansfield.  7  Misc.  "  should  any  legatee  be  dissatisfied 
383:   28  X.  Y.  Supp.  394.)  with    any  gift    herein    made.   then,    in 

51  Matter  of  Hedding  Meth.  Epis.  that  case,  said  gift  shall  be  wholly- 
Church,  35  Hun.  315.  As  to  the  power  withheld."  is  void  for  want  of  cer- 
of  the  court,  on  the  accounting,  to  de-  taintv.      (Matter  of  .lackson,  20  X.  Y. 

Supp".  380.) 


1)53  Ad.mixistkatk^.x   of  Ksta'ik,  Etc.  §  786. 

every  question  which  iiiaj  arise  between  the  executor  and  a  legatee. 
lie  cannot,  for  exanqjle,  pass  upon  the  validity  of  a  h'pite<''s  al- 
leged debt  to  the  estate,  set  up  ])v  the  executor  in  reduction  of  the 
legacy;'^'*  nor  can  he  determine  the  validity  of  a  release  given  by 
the  legatee  to  the  executor,"''^  or  other  like  questions.  The  ])ower 
of  a  Surrogate's  Court  to  determine  the  validity  of  a  legacy  or  the 
capacity  of  a  legatee  to  take,  is  a  necessary  incident  of  its  power 
to  order  the  payment  of  a  legacy.""  "Where  the  standing  of  the 
beneficiary  is  such  as  to  render  the  a])prnval  of  any  provision  for 
liim,  in  particular,  contrary  tn  ])iibli('  jjolicy,  as  for  example,  where 
the  beneficiary  ha>  iinirdercil  tlic  testator,  the  legacy  is  void.'''^ 

§  786.  Dismissal  on  the  merits. —  Tf  the  application  is  enter- 
tained on  the  petition  and  answer,  then  to  entitle  the  executor 
to  a  dismissal,  it  must  be  proved  "  to  the  satisfaction  of  the  sur- 
rogate "  that  there  is  no  ''money  or  other  personal  projicrty  of 
the  estate,  applicable  to  the  payment  or  satisfaction  of  the  peti- 
tioner's claim,  and  which  may  be  so  applied,  without  injuriously 
affecting  the  rights  of  others  entitled  to  prioi-ity  or  e(iuality  of 
payment  or  satisfaction."  ^^  A  mere  doubt,  raised  by  the  answer, 
as  to  Avhether  there  is  money  or  other  property  of  the  estate  api)li- 
cable  to  the  payment  of  tli(>  legacy,  will  not  justify  a  dismissal 
of  the  proceeding.  Where  the  only  question  before  the  surrogate, 
on  the  merits,  is  whether  there  is  money  or  property  so  ap])licable, 
and  such  application  can  be  made  without  affecting  the  rights  of 
others,  etc.,  an  accounting  should  be  ordered  to  determine  the 
question. ^'^  But  where  it  appears  that  several  suits  are  pending 
against  the  estate,  to  pay  which,  if  they  are  successful,  there  are 

•'54  ;Mattor    of    Colwell.    15    St.    Rep.  appear    how   many    of    tliem    were    in 

742;   Matter  of  Jones,  10  id.   17G.  lieinjf    when    the    petitioner    attained 

55  Matter  of  Wagner,  lit)  N.  Y.  28;  majority,    such    children    having    the 

and  other  cases  cited,  ante,  §  002.  right  to  be  joined  with  the  petitioner. 

50  See  §  253,  ante.  -f>  Brown    v.    IMielps.    48    Hiin.    210. 

57  Riggs  V.  Palmer,  115  N.  Y.  500.  A  legacy  ouglit  not  to  be  ordered  i)aid 
See  Matter  of  Fleming,  5  App.  l)iv.  jjcnding  the  executor's  acc(ainting. 
190;  30  N.  Y.  Siipp.  150.  In  Pennsyl-  (Matter  of  Harris,  1  Civ.  Proc.  Rep. 
vania,  a  devise  to  an  "  infidel  society"  102.)  Compare  Matter  of  Ockers- 
is  void  for  the  same  reason.  (Zeis-  hausen.  32  St.  Rep.  700:  10  X.  Y. 
weiss  v.  James.  03  Pa.  St.  405.)  Supp.    028.      But    where    an    executor 

58  Co.  Civ.  Proc.  §  2722,  as  amended  fails  to  apply  for  an  accounting  for  si^ 
1893  (former  §  2718,  subd.  2)  ;  Mat-  years,  and,  when  compcKed  to  do  so, 
ter  of  Macaulay,  04  X.  Y.  574.  In  files  a  bill  for  construction  of  the  will 
Neaves  v.  Xeaves  (2  Dem.  230).  an  for  the  obvious  purjiose  of  securing  a 
application  to  compel  payment  of  a  delay,  the  surrogate  may  projierly  di- 
legacy  "to  A.  until  his  youngest  child  rcct  jiayment  of  a  legacy.  (Matter  of 
shliUcome  of  age.  the  fund  tiien  to  be  Scheidelcr.  75  Hun.  185;  27  X.  Y. 
divided  between  A.  and  his  said  chil-  Supp.  7:  atTd.,  142  X.  Y.  608.) 
drcn,"'    was   dismissed,    as    it    did    not 


§  787.  Administration  of  Estate,  Etc.  654r 

not  sufficient  assets  in  the  estate,  the  surrogate  will  not  direct  th© 
executors  to  pay  the  legacies.*'"  Where  the  application  is  made 
pending  an  action  in  another  court,  which  involves  the  validity  of 
the  legacy  in  question,  it  will  not  he  dismissed,  hut  be  allowed  to 
stand  undetermined  until  the  decision  is  had  in  the  other  court. ^^ 

§  787.  When  payment  ordered  within  the  year. —  While  the  stat- 
ute gives  no  absolute  right  to  the  legatees  and  next  of  kin,  to  insist 
on  payment  of  what  is  coming  to  them  from  the  estate  until  the 
expiration  of  the  year,  the  representative  may,  though  at  his  peril, 
make  such  payments  to  legatees  and  next  of  kin,  in  advance,^^  and 
the  statute  expressly  authorizes  an  appeal  to  be  made,  at  any 
time,  to  the  discretion  of  the  surrogate,  to  direct  a  payment  or 
part  payment,  if  the  condition  of  the  assets  is  such  as  to  make  it 
safe  to  allow  so  doing.  Such  application  may  be  made  at  any  time 
after  letters  granted,  although  a  year  has  not  expired.  To  war- 
rant the  court  in  granting  such  an  application,  the  following  must 
appear,  in  addition  to  the  validity  of  the  claim,  to  wit : 

1.  That  there  is  money  or  other  personal  property  of  the  estate,, 
applicable  to  the  payment  or  satisfaction  of  the  petitioner's  claim, 
and  which  may  be  so  applied,  without  injuriously  affecting  the 
rights  of  others  entitled  to  priority  or  equality  of  payment  or  satis- 
faction. 

2.  That  the  amount  of  money,  and  the  value  of  the  other  prop- 
erty, in  the  hands  of  the  executor  or  administrator,  applicable  to 
the  payment  of  debts,  legacies,  and  expenses,  exceed,  by  at  least 
one-third,  the  amount  of  all  known  debts  and  claims  against  the 
estate,  of  all  legacies  which  are  entitled  to  priority  over  the  peti- 
tioner's claim,  and  of  all  legacies  or  distributive  shares  of  the 
same  class, 

3.  That  the  payment  or  satisfaction  of  the  legacy,   pecuniary 

wi  Matter    of    Brewster.    1    Connolv,  (Matter    of    Kavanagh.    29    St.    Rep. 

172:    19  St.  Rep.  (598.     Compare  Mat-  215;   9  N.  Y.  Supp.  44.3.)      Where  two 

ter  of  O'Connor,  90  Hnn,  284;    35  N.  legacies    in    a   will    were    declared    in- 

Y.  Supp.  779;  affd.,  149  N.  Y.  573.  valid    and    one    of    the    legatees    ap- 

61  Wliere  a  will  has  been  declared  pealed, —  Held,  that  it  should  appear 
invalid  and  a  decree  made  directing  that  the  time  for  the  other  legatee  to- 
distribution  to  the  next  of  kiii,  and  appeal  had  expired  before  the  exec- 
only  one  residuary  legatee  has  ap-  iitors  should  be  compelled  to  dis- 
pealed  and  given  an  undertaking  tribute  the  amount  of  such  legacy,  or 
therecn. —  Held,  that  the  executors  cl?e  there  should  be  some  arrangement 
should  set  aside  and  retain  a  sum  suf-  made  for  reimbursing  the  executors  in 
ficient  to  protect  appellant's  interest,  case  it  should  be»  finally  adjudieqited 
in  case  of  a  possible  reversal  on  ap-  that  the  fund  should  be  differently 
peal,  and  then  carry  out  the  directions  disposed  of.  (Matter  of  Armstrongs 
of  the  decree  so  far  as  they  will  not  32  St.  Rep.  441.) 
be     affected     by     appellant's     success.  (^2  Matter  of  Austin,  19  St.  Rep.  211. 


(',~t!y  Admimstration  of  Estate,  Etc.  §  788. 

])rovision,  or  distributive  share,  or  some  part  thereof,  is  necessary 
for  the  support  or  education  of  the  petitioner.'^ 

These  restrictions  on  the  power  of  the  surrogate  do  not  apply 
to  the  case  of  a  legacy  directed  by  the  will  to  be  paid  within  the 
yiar.  It  is,  consequently,  no  ground  for  dismissing  a  petition 
for  the  payment  of  such  a  legacy  that  it  does  not  allege  such  a 
state  of  facts  as  can  alone  justify  a  direction  to  pay  under  this 
section  of  the  Code.^  But  where  there  is  no  such  testamentary 
direction,  all  three  requirements  as  to  the  state  of  facts  necessary 
to  give  the  court  jurisdiction  must  be  complied  with  —  that  is^ 
satisfactory  proof  must  be  given,  for  instance,  that  there  is  a 
surplus  of  assets  by  at  least  one-third,  and  the  surrogate  must  so 
adjudge,  on  the  proof,  before  granting  the  order  for  an  advance 
payment.^^  He  cannot,  by  mere  force  of  the  language  of  the  Code, 
uuike  the  order  for  payment  as  a  matter  of  discretion  or  of  arbi- 
trary power.*^^  His  discretion  is  a  judicial  discretion,  and  his  de- 
cree is,  therefore,  subject  to  review,  on  appeal.  The  fact  that 
the  representative  has  neglected  to  ascertain  the  debts  by  advertis- 
ing a  notice  to  creditors  to  present  their  claims  is  not  a  good 
ground  nf  objection  to  the  petition,  provided  the  advertised  notice 
would  have  been  completed  if  he  had  jiubli^hed  it,  as  soon  as  he 
was  entitled  to  do  so,  after  grant  of  letters. ^^ 

§  788.  Payment  pending  probate  controversy. —  Before  the 
amendment  (1881)  of  section  2072,  authorizing  the  court  to  di- 
rect the  payment  of  a  legacy  or  distributive  share  hij  a  tcmporanj 


'3  Co.  Civ.  Proc,  §  272.3.  as  amended  "  It  is  frequently  urired  in  defense  to 

1S1).3    (former   §   2719).     See  Hoj-t   v.  applications  of  this  character  that  the 

Jackson,   1  Dem.   jI.IS.  pcri(<d    for    advertising    has    not    ex- 

*^4  Matter  of   Selling,  5  Dem.  225.  ]iired;   but  it  is  obvious  that  it  would 

''5  Barnes  v.  Barnes.  13  Hun,  233.  he  fruitful  of  delay  in  the  settlement 
The  language  of  the  former  statute  of  estates  if  a  personal  representative 
was,  "  at  least  one-third  more  of  as-  might  delay  advertising  and  then  in- 
sets in  the  hands  of  the  executor  or  terpose  his  own  neglect  successfully  as 
administrator  than  necessary  to  pay  a  defense  to  the  payment  of  a  legacy. 
all  tlie  debts,  legacies,  and  claims  The  time  for  the  payment  of  legacies 
against  the  estate  then  known."  (2  is  a  year  from  the  issuance  of  letters, 
B.  S.  08,  §  83.)  Under  this,  it  was  and  'the  law  for  years  has  fixed  the 
held,  that  the  residuary  legacies  might  time  when  the  executor  could  procure 
be  excluded  in  computing  the  amount  leave  to  .advertise,  so  that  he  was 
of  the  legacies.  (Lnckwood  v.  Lock-  amply  protected  in  their  payment 
wood,   3   l\edf.   330.)  when  due.     Since  the  1st  of  September, 

'■fi  Matter  of  :Mc(lowan,  28  TTun,  240,  1800,    when   the   law   went   into   effect 

asexp'ained  and  distinguished  in  Mat-  permitting  advertisement  for  claims  at 

ter  of  lloyt.  31  id.  170.  any  time  after  the  issuance  of  letters. 

6"  ^Matter  of  Cain,  42  St.  Tvep.   14;'J:  there  is  less  reason   than   ever  for  an 

17  N.  Y.  Supp.  11:  affg.  a  decision  of  executor  ur<:ing  as  a  reason  for  delay 

Surrogate's      Court      of      Xew      York  in   distribution   the   possible   existence 

county,  in  which  the  surrogate  said:  of  debts." 


§  789.  Admixistratiox  of  Estate,  Etc.  656 

administrator,  appointed  pending  a  contested  probate  proceeding, 
it  was  held  that  there  was  no  power  to  decree  the  payment  of  a 
legacy  or  distributive  share  pending  a  controversy  over  the  pro- 
bate, and  that  it  must  be  first  determined  whether  the  decedent 
died  testate  or  intestate.^^  But  since  such  amendment,  the  pend- 
ency of  such  a  controversy  is  no  bar  to  the  proceeding;  nor  is  the 
pendency  of  a  proceeding  to  revoke  the  probate  of  the  will  already 
granted.  In  effect,  the  executor,  in  the  last  case,  is  a  temporary 
administrator,  and  he  is  free  to  do  substantially  the  same  acts 
which  such  an  administrator  may  do,  his  functions  beyond  those 
acts  being  suspended,  unless  the  surrogate  expressly  authorizes 
them  to  be  used.*^^  But  this  statutory  provision  was  not  intended 
to  restrict  the  powers  of  the  surrogate,  in  respect  to  orders,  and, 
therefore,  a  surrogate  may  authorize  an  executor,  pending  a  pro- 
ceeding to  revoke  the  wall,  to  do  any  act  or  make  any  payment,  the 
performance  or  making  of  which  the  surrogate  is  authorized  to 
direct,  by  other  sections  of  the  Code.''^^ 

§  789.  Petition  and  proof. —  The  petition  and  proof  should  show 
the  petitioner's  station  in  life,  his  age,  the  state  of  his  health,  the 
stage  of  his  education,  if  a  minor,  etc.  Where  the  petitioner  is 
entitled  to  receive,  under  the  will,  the  interest  only  of  a  specified 
sum,  which  is  bequeathed  in  trust  for  his  benefit,  with  remainder 
over,  only  an  advance  of  such  interest  as  has  accrued  is  proper ;  a 
sum  to  be  paid  annually  cannot  be  ordered  as  an  advance,  but 
only  a  specific  amount  to  meet  present  needs.'^^  Whether  the  ad- 
vance is  necessary  for  the  support  or  education  of  the  petitioner 
must  depend  upon  the  facts  of  each  case  as  it  arises.  The  pe- 
titioner's actual  income,  if  any,  from  other  sources,  should  ap- 
pear, and  the  amount  thought  to  be  necessary  should  be  stated. 
If  the  papers  do  not  disclose  the  facts,  with  sufficient  fullness  to 
satisfv  the  court,  a  reference  mav  be  ordered.     A  widow,  to  whom 


6S  La    Ban    v.    Vandorbilt.    3    Redf.  ferred.   where  there   are   sufficient   as- 

3R4;    Riesrelman    v.    Rieselinan.    4    id.  sets  to  pay  it,  because  the  proponent 

492:   Riesrchnan  v.  ]\IcCov.   1   Deni.  86.  of  another  will  of  the  testatrix  intends 

P9  Co.  Civ.  Proc,   §  2650:   Matter  of  to   appeal    from   a    decree   denyinor   its 

Hoyt.  31  Hun.  176.     It  is  no  objection  probate.        (^Matter    of    O'Connor.     00 

that  the  petitioner  for  the  payment  of  Hun.  284:   3.5  X.  Y.  Supp.  770:   affd.. 

the    Iciracy    is    the    contestant    in    the  140  X.  Y.  573.) 

T>endino:   probate  proceedings,   if  he  is  TO  flatter  of  Hoyt.  supra. 

bcth   a   lesratee  and   next   of  kin.   and  '>'^  Lockwood    v.    Lockwood,    3    Redf. 

thus  entitled,  in  anv  event,  to  a  por-  330:  Matter  of  Skaats,  X.  Y.  Law  J., 

tion  of  the  estate.      (Rank  v.  Camp.  3  July  8.   1802:   Matter  of  Hitchler.  21 

Dem.    278.)      See   ^Tatter   of  Hitchler.  ^Misc.    417.      But   in   Kerriofan   v.   Ker- 

21    Miso.   417:    Matter   of   Pea-^lee.    81  ri^an    12  Redf.   517).   the  payment  of 

Hun.  507;  30  X.  Y.  Supu.  1028.    Pav-  an   annuity  was   ordered   in   advance, 
ment   of  a  le^racv  should  not  be  de- 


C57  Au.MixisTRATiox  OF  EsTATE,   Etc.      §§  790,  791. 

a  legacy  is  given  in  lieu  of  dower,  may  make  the  application  as 
well  as  any  otlier  legatee.'^ 

§  790.  Bond  on  granting  order. —  It  is  a  condition  of  granting 
the  })raycT  of  the  petition  that  a  bond  be  filed  in  the  office  of  the 
surr(jgate,  and  a{)proved  by  him,  conditioned  as  i)rescribed  by  law 
with  respect  to  a  bond  which  an  executor  may  require  from  a 
legatee,  upon  payment  of  a  legacy,  before  the  expiration  of  the 
year,  pursuant  to  a  direction  to  that  effect,  contained  in  the  will."^ 
It  is  essential,  to  confer  jurisdiction,  that  the  bond  should  con- 
form to  the  terms  of  the  statute.  Where  the  condition  was  for 
the  refunding  of  the  money  "  if  necessary,"  instead  of  ''  when- 
(>ver  required,"  for  the  payment  of  debts,  etc.,  the  order  was  held 
iuiprojierly  granted.'^ 

§  791.  Proceeding  against  testamentary  trustee. —  Besides  the 
remedy  for  the  recovery  of  debts  and  legacies,  as  against  the  per- 
sonal representative,  a  remedy  is  furnished,  by  which  a  person 
who  is  entitled,  under  a  will,  to  the  payment  of  money  or  the  de- 
livery of  personal  })roperty  by  a  testamentary  trustee,  may  pe- 
tition the  surrogate  for  the  payment  of  the  money  or  the  delivery 
of  the  iiroperty.'^^  This  remedy  is  available  at  any  time  after  the 
petitioner's  right  to  the  money  or  property  has  become  absolute, 
as  where  the  event,  upon  the  happening  of  which  a  legacy  was 
conditioned,  has  occurred.  A  citation  wull  issue,  as  upon  the  ap- 
plication of  a  general  legatee,  and,  upon  its  return,  the  trustee 

"2  Seymour  v.  Butler,  ,3  Bradf.  193;  ( Moorhouse    v.    Hutchinson.    4    Dem. 

Estate  of  Jones.  17  St.  Rep.  724.  3()2.)     A  prooeedinjj;  under  this  section 

"3  Co.  Civ.  Proc.,  §  2723,  as  amended  and  one  for  the  judicial  settlement  of 

1893     (former     §     2719);     Matter    of  the   trustee's   accounts    under   sections 

Austin.  19  St.  Rep.  211  ;  2  X.  Y.  Supp.  2807   and  2809.  are  sejiarate  and   dis- 

87.1.      For   the  form  of  the  condition,  tinct    proceedinfrs,   and   should   not  be 

see  Co.  Civ.  Proc.  §  2721,  as  amended  joined.       (Matter    of   Rogers,    2   Con- 

1893.      See    §    775,    ante;    Matter    of  iioly.    G39:     Ifi     X.    Y.     Supp.     197.) 

Sellinff.  .5   Dem.  225.  \\'heie  such  proceedings  arc  so  joined 

"•*  Barnes  v.  Barnes.  13  Hun,  234.  and  it  appears  that  the  petitioner  is 
The  Surrogate's  Court  has  no  power  to  not  entitled  to  maintain  the  proceed- 
direct  the  sale  of  real  estate  for  the  ing  for  payment,  he  may  be  permitted 
purpose  of  paying  lej^acies.  (Matter  to  continue  as  for  an  accounting, 
of  Connor.  1  Law  Bui.  8.)  (lb.)       An    action   at    law   by   one   of 

"5  Co.    Civ.    Proc,    §    2804.      Xo   dis-  several     beneficiaries     to     recover     for 

position  of   income  of  a    trust    can   be  himself  alone  from  a  trustee,  as  such, 

made,   in   tlie   proccedinjr.  until   it  has  a  share  of  a  trust  estate  bclonjrinj^  to 

accumulated.       (Matter    of    Fnster.    30  all,  cannot  be  maintained,  at  least  un- 

Misc  573;   03  X.  Y.  Supp.   1102.)      A  til  the  trust  has  been  closed  and  the 

proceeding  cannot  be  instituted  under  balance   ascertained.      If   the  trust    is 

tliis  section  to  compel  a   trustee,  who  still  open,  the  accounts  of  the  trustee 

has   been   removed   from   oHice,   either  unsettled,  and  the  amount  <roing  to  the 

alone  or  in  conjunction  with  his  sue-  particular     beneficiary    unknown,     re- 

cessor.  to  pay  to  ])etitioner  income  of  sort  nuist  be  had  to  a  court  of  equity. 

the     trust     received     before     removal.  (Hustcd  v.  Thomson,  158  X'.  Y.  328.) 

42 


§  792.  Admixistratiox  of  Estate,   Etc.  G58 

may  file  an  answer,  setting  forth  facts  which  show  that  it  is 
doubtful  whether  the  petitioner's  -claim  is  valid  and  legal,  or 
denying  its  validity  or  legality,  absolutely,  or  upon  information 
and  belief.  Where,  on  the  face  of  the  papers,  the  claim  appears 
to  be  doubtful,  the  petition  must  be  dismissed ;  otherwise  the  court 
may  hear  the  allegations  and  proofs  of  the  parties,  and  make  such 
a  decree  as  justice  requires.'**  The  powers  of  the  surrogate  are- 
substantially  the  same  as  upon  an  application  for  the  payment  of 
a  general  legacy  by  an  executor.  On  this  proceeding,  however^ 
the  court  may,  in  a  proper  case,  require  the  trustee,  where  he  is 
unable  to  deliver  the  specific  property,  to  pay  its  value  in  money ;" 
and  Avhere  it  appears,  upon  presenting  the  petition,  that  a  decree 
for  the  payment  or  delivery  might  affect  the  rights  of  other  per- 
sons, with  respect  to  the  estate  or  fund,  the  citation  must  also  be 
directed  to  such  persons,  and  if  it  afterward  appears,  upon  the 
hearing,  that  all  the  persons  whose  interests  may  be  affected  are 
not  parties,  they  must  be  brought  in  by  a  supplemental  citation, 
before  a  decree  in  favor  of  the  petitioner  can  be  made.'^ 

§  792.  Payment  and  investment  of  legacies  to  minors. —  At  com- 
mon law,  the  father,  as  guardian  by  nature  merely,  was  not  per- 
mitted to  receive  legacies  bequeathed  to  his  minor  children,  nor 
their  distributive  shares  in  the  surplus  of  an  intestate's  estate,'^ 
—  a  rule  which  was  not  changed  by  Revised  Statutes.  By 
the  Code  of  Civil  Procedure,^^  it  is  provided  that  "  when  a  legacy 

76  Co.  Civ.  Proc,  §  2805.  See  Mat-  cedure  whereby  a  beneficiary  under  a 
ter  of  Stevens,  20  Misc.  157;  45  N.  Y.  will  may  obtain  prompt  relief,  where 
Supp.  908 ;  Matter  of  Foster,  37  Misc.  it  is  plain  that  the  rights  of  other 
581;    75  X.  Y.  Supp.    1007.  persons  cannot  be  thereby  prejudiced; 

77  Co.  Civ.  Proc,  §  2805 ;  Peck  v.  while,  on  the  other  hand,  where  th& 
Sherwood.  5  Redf.  41G;  Steinele  v.  grant  of  such  relief  may  prove  preju- 
Oechsler,  id.  .312.  A  legatee  who  was  dicial  to  others,  the  latter  are  re- 
to  receive  the  income,  interest,  profits,  quired  to  be  allowed  an  opportunity 
and  earnings  of  a  specified  sum.  given  to  be  heard.  (Beekman  v.  Vander- 
by  the  will  in  trust,  is  not  entitled  to  veer,  3  Dem.  221.)  A  direction  to 
the  advance  in  the  value  of  bonds  in  "  apply  to  the  use  of  "'  is  equivalent  to 
which  the  sum  was  invested,  and  one  '"to  pay  over."'  ( Stoples  v. 
which  were  thereafter  sold,  though  she  Hawes,  39  App.  Div.  548.)  See  Gas- 
is  entitled  to  the  enhanced  income  quet  v.  Pollock,  1  App.  Div.  512:  affd., 
arising   from   such   advance.      (Duclos  158  X.  Y.   734. 

V.   Benner,  02    Hun,    428:     17    X.    Y.  "i>  See  Genet  v.  Tallmadge,  1  Johns^ 

Supp.  168;   revd.,  on  other  points.  130  Ch.    3:     Rieck    v.    Fish,    1    Dem.    75; 

X.  Y.  5G0.)  Whitlock   v.   Whitlock.   id.    160;    Ker- 

78  Co.  Civ.  Proc,  §  2806.     The  sec-  rigan  v.  Kerrigan,  2  Redf.  517. 

tion    relating    to    an    application    to  so  Co.  Civ.  Proc,  §  2746.  as  amended 

compel   an   executor  to   pay  a    legacy,  1000.     AVhere  an  infant,  entitled  to  an 

and  section  2806  containing  a  similar  expectant  estate  which  has  vested,  but 

provision  in  reference  to  a   testament-  the    time    of    possession    is    postponed 

«n/  trustee,  have  essentially  the  same  until   the  majority  of   such   infant,   is 

purpose.    They  establish  modes  of  pro-  destitute  of  other  sufficient  means  of 


659  Abmixistratio.n   of  Estatp:,  Etc.  §  702. 

or  distributive  share  is  payable  to  an  infant,  the  decree  may,  in 
the  discretion  of  the  Surrogate's  Court,  direct  it,  or  so  much  of 
it  as  may  be  necessary,  to  be  paid  to  his  general  guardian,  to  bo 
applied  to  his  support  and  education ;  or  when  it  does  not  exceed 
fifty  dollars,  the  decree  may  order  it  to  be  paid  to  his  father,  and 
if  his  father  be  dead,  then  to  his  mother,  for  the  use  and  benefit  of 
such  infant.  The  court  nuiy,  in  its  discretion,  by  its  decree,  direct 
any  legacy  or  distributive  share,  or  part  of  a  legacy  or  distributive 
share,  not  paid  or  applied  as  aforesaid,  which  is  payable  to  an 
infant,  to  be  paid  to  the  general  guardian  of  such  infant,  upon  liis 
executing  and  depositing  with  the  surrogate  in  his  office,  a  bond 
running  to  such  infant,  with  two  or  more  sufficient  sureties,  duly 
acknowledged  and  approved  by  the  surrogate,  in  double  the  amount 
of  such  legacy  or  distributive  share,  conditioned  that  such  general 
guardian  shall  faithfully  apply  such  legacy  or  distributive  share, 
and  render  a  true  and  just  account  of  the  application  thereof,  in 
all  respects,  to  any  court  having  cognizance  thereof,  when  there- 
unto required,  the  sureties  in  which  bond  shall  justify  as  required 
in  this  act,  unless  the  surrogate  shall  determine  that  the  general 
bond  given  by  the  guardian  is  ample  and  of  sufficient  amount  to 
cover  such  legacy  or  distributive  share.®^  Said  court  may,  in  its 
discretion,  from  time  to  time,  authorize  or  direct  such  general 
guardian  to  expend  such  part  of  such  legacy  or  distributive  share, 
in  the  support,  maintenance,  and  education  of  such  infant,  as  it 
deems  necessarv.®^ 


support,    the    Surrogate's    Court    has  ter  of  Hunt,  24  Civ.  Prop.  Rep.  239  •  34 

power  to  direct  the  trustee  to  pay  to  N.    Y.    Supp.    1088.)       In    Matter    of 

the   peneral   fiuardian   a    suitable   sum  Tucker   (28  Misc.  .595:   59  X.  Y.  Supp. 

out  of  the  rents  and  profits,  to  be  ap-  1022),  it  was  said  not  to  be  improper 

plied   to   the   maintenance   and   educa-  for  the  trustees  to  make  pa,vment>  to 

tion  of  the  infant.     (Matter  of  Fritts,  the  ireneral  guardian,  being  the  mother 

19   ^lisc.   402:    44    N.   Y.    Supp.    344.)  of  the  cestui  que  trust,  instead  of  ap- 

See   Matter   of   Lehman,   2   App.   Div.  plying  the  money  themselves,  although 

531 ;    37    X.  Y.   Supp.    1086.      As    to  the   general    guardian    had    not    given 

application  of  income,  directed  by  the  any  bond  under  Co.  Civ.  Proc.  §  2740, 

will  to  be  accumulated,  to  the  use  of  which  has  no  bearing  on  the  applica- 

a  destitute  minor,  see  L.  1897,  c.  417,  tion  of  income. 

§  .5.  ^2  But  no  order  can  be  made  direct- 
si  The  surrogate  may  order  a  legacy  ing  the  reiinbursement  of  the  guard- 
of  an  infant,  deposited  with  the  ian  for  past  maintenance.  (>ratter  of 
county  treasurer,  to  be  paid  to  a  Sherrer.  24  ^lisc.  351  :  53  N.  Y.  Supp. 
guardian  subsequently  appointed:  but  714.)  Where  executors  are  given  a 
not  before  the  guardian's  bond  is  fund,  the  income  of  which  they  are  to 
shown  to  be  sufficient.  (Matter  of  apply  to  the  maintenance  of  an  in- 
Moody.  2  Dem.  624.)  But  an  ancillary  fant  daughter,  and  proof  is  presented 
guardian,  who  is  also  the  general  of  lack  nf  good  faitli  on  the  part  of 
guardian  and  has  given  security  as  the  executors  in  exercising  their  dis- 
s\ieh.  cannot  be  required  to  give  an  cretion.  the  surroijate  may  direct  a 
additional  bond  to  entitle  him  to  pos-  suitable  payment  out  of  tlie  principal, 
session  of  the  ward's  property.     (Mat-  (Matter  of  Berry,  5  Dem.  458.)     See 


§  792.  Admiis^istratiox  of  Estate^  Etc,  600 

"  On  siicli  infant's  coming  twenty-one  years  of  age,  lie  shall  be 
entitled  to  receive,  and  his  general  guardian  shall  pay  or  deliver 
to  him,  under  the  direction  of  the  Surrogate's  Court,  the  securi- 
ties so  taken,  and  the  interest  or  other  moneys  that  may  have  been 
paid  to  or  received  by  such  general  guardian,  after  deducting 
therefrom  such  amounts  as  have  been  paid  or  expended  in  pur- 
suance of  the  orders  and  decrees  of  said  court,  so  made  as  afore- 
said, and  the  legal  commissions  of  such  guardian ;  and  the  said 
general  guardian  shall  be  liable  to  account,  in  and  under  the  di- 
rection of  the  Surrogate's  Court,  to  his  ward,  for  the  same ;  in 
case  of  the  death  of  said  infant,  before  coming  of  age,  the  said 
securities  and  moneys,  after  making  the  deductions  aforesaid, 
shall  go  to  his  executors  or  administrators,  to  be  applied  and 
distributed  according  to  law,  and  the  general  guardian  shall,  in 
like  manner,  be  liable  to  account  to  such  administrator  or  exec- 
utor. 

"  If  there  be  no  general  guardian,  or  if  the  Surrogate's  Court 
do  not  order  or  decree  the  payment  or  disposition  of  the  legacy  or 
distributive  share  in  some  of  the  ways  above  described,  then  the 
legacy  or  distributive  share,  or  part  of  the  same  not  disposed 
of  as  aforesaid,  whether  the  same  consists  of  money  or  securi- 
ties, shall,  by  the  order  or  decree  of  the  Surrogate's  Court,  be 
paid  arid  delivered  to  and  deposited  in  said  court,  by  paying 
and  delivering  the  same  to  and  depositing  it  with  the  county 
treasurer  of  the  county,  to  be  held,  managed,  invested,  collected, 
reinvested,  and  disposed  of  by  him,  as  prescribed  and  required  by 
section  two  thousand  five  hundred  and  thirty-seven  of  this  act. 
The  regulations  contained  in  the  general  rules  of  practice,  as 
specified  in  section  seven  hundred  and  forty-four  of  this  act,  and 
the  provisions  of  title  three  of  chapter  eight  of  this  act  apply  to 
money,  legacies,  and  distributive  shares  paid  to,  and  securities 
deposited  with,  the  county  treasurer,  as  prescribed  in  this  section ; 
except  that  the  Surrogate's  Court  exercises  with  respect  thereto, 
or  with  respect  to  a  security  in  which  any  of  the  money  has  been 
invested,  or  upon  which  it  has  been  loaned,  the  powder  and  au- 


§   793,  post,  note  84.     Where   the  di-  income   every   year    to    such    support, 

rection  in  the  will  was  to  "  apply  the  but    that    they    were    to    exercise    a 

net  income  of  each  child's  share  to  the  reasonable    discretion    in   view   of    the 

support,    maintenance,    and    education  age,    surroundings,    and    general    en- 

of  said  child  until  such  child  arrives  vironment   of   the   child.      (Matter   of 

at    the    age    of    twenty-one    years," —  McCormick,   22   Misc.    309 :    49   X.   Y. 

Held,   that   it   was   not   necessary   for  Supp.  1119;  aflfd.,  40  App,  Div.  73.) 
the   trustees   to   apply  all   of   the   net 


661  AoMi.xisTUATrox   of  Estatk,   Etc.      §§  7'.i-'5,  7!»4. 

tliority  conferred  uj)()ii  the  Suprcine  Court  by  section  seven  hun- 
dred and  fortv-seven  of  the  Code."  ^ 

§  793.  Applying  principal  of  fund. —  Where  a  will  lodges  in  the 
trustee  a  discretion  as  to  the  emergency  which  will  justify  the 
application  of  principal  to  the  support  of  minors,  or  as  to  the 
amount  so  to  be  applied,  the  court  will  never  interfere  in  its  exer- 
cise, unless  an  abuse  of  discretion  is  shown.^ 

TITLE  EIGHTH. 

THE    PAYMENT    OF  DISTRIBUTIVE    SHARES. 

ARTICLE  FIRST. 

DEVOLUTIOX    OF   PKOl'KHT Y    MADE    VACANT    BY    DEATH. 

§  794.  Object  of  statute.—  The  law  of  intestate  succession  and 
the  law  of  wills  are  both  civil  institutions,  established  from  con- 
siderations of  political  policy  and  general  expediency.  The  stat- 
ntes  which  regulate  intestate  succession  are  not  designed  or  in- 
tended  as  favors  bestowed  upon  a  man's  widow,  children,  or  other 
kindred,  for  their  own  benefit ;  but  like  all  other  laws  of  prop- 
erty, they  rest  upon  the  foundation  of  general  utility  and  the  com- 
mon advantage.  In  furtherance  of  this  subject,  and  to  prevent 
nncertainty  as  to  the  ownership  of  property  made  vacant  by 
death,  and  thus  avoid  strife  and  maintain  the  peace  and  harmony 
of  families,  the  law  arlntrarily  designates,  generically,  the  mem- 
bers of  the  present  owner's  family,  whether  naturally  or  arti- 
ficially composed,  who  shall  be  invested  with  rights  of  o^^^lership 
on  his  death.  Tlie  law  which  prescribes  the  course  of  succession 
of  real   property  of  an  intestate  is  the  Statute  of  Descents,   so 

83  Co.  Civ.  Proc.  §  274G.  as  amended  abuse  of  discretion.  The  answer  filed 
1900.  The  surrogate  has  no  power  to  l)v  the  executor  denies  information  as 
direct  the  investment  of  the  personal  to  many  of  the  matters  set  forth  in 
property  of  an  infant  in  real  estate  tlie  petition  wliich  miglit.  nnder  ordi- 
so  as  to  affect  the  descent  thereof  nary  circumstances,  warrant  the  prant- 
upon  the  death  of  the  infant  dnriuL;  injj  of  an  application  for  support.  He 
minority.  (Matter  of  Bolton.  loO  X.  allcfrcs  that  lie  is  ijrnorant  as  to  the 
Y.   12!).)  existence    of   the   emer;rencv    described 

84  lianninj:  v.  Gunn.  4  Dem.  .337 :  in  the  will.  The  estate  now  amounts 
Matter  of  Keinz.  88  Hun.  '208:  34  N.  to  .$3,3(11.  The  petitioner  wishes  the 
Y.  Supp.  330;  Matter  of  Dinkelspiel,  matter  summarily  disposed  of  and  de- 
N.  Y.  Surr.  Deeis.,  1801.  p.  1(»9;  Mat-  sires  to  avoid  the  expense  of  a  refer- 
ter  of  Kitson.  id.,  p.  178;  Matter  of  enee.  I  am  unable  to  decide  upon  the 
Ruge,  N.  Y.  Law  J..  June  23.  1802.  papers,  and.  therefore,  direct  a  refer- 
In  the  last  case,  the  court  said:  ence  to  an  assistant,  who  will  take 
"There  is  no  allegation  or  suggestion  the  testimony  of  the  parties  and  re- 
in the  petition  that  there  has  been  an  port  the  same.'' 


§795. 


Administration  of  Estate,  Etc. 


G62 


called,  and  that  wliicli  prescribes  the  succession  of  an  in^:2state's 
personal  property  is  known  as  the  Statute  of  Distributions. 

§  795.  What  law  governs  intestate  succession. —  The  law  is  well 
settled  in  England  and  this  country  that  in  all  matters  which  con- 
cern the  succession  of  personalty,  the  law  of  the  decedent's  last 
domicile  is  to  control,  without  regard  to  the  location  of  the  as- 
sets f^  while  in  all  matters  wdiich  concern  the  descent  and  heirship 
of  realty,  the  law  of  the  place  where  it  is  situated  is  absolute.*^ 
Hence,  where  an  intestate,  last  domiciled  in  another  State,  left 
assets  in  this  State  upon  which  administration  was  granted  here, 
our  courts,  in  directing  the  distribution  of  such  assets,  will  be 
governed  by  the  laws  of  such  foreign  State  and  not  by  our  own 
laws.  So,  where  by  the  laws  of  the  domicile  of  the  intestate  (who 
was  an  illegitimate),  his  relations  on  his  mother's  side  were  not 
entitled  to  share  in  his  estate,  they  will  not  be  allowed  to  share  in 
the  distribution  of  the  surplus  made  here,  although,  by  our  law, 
they  would  be  so  entitled. ^^     Contrariwise,  when  an  illegitimate 


85  In  Parsons  v.  Lyman  (20  N.  Y. 
103,  112),  Denio,  J.,  stated  the  doc- 
trine thus :  "  It  is  an  established 
doctrine,  not  only  of  international 
law,  but  of  the  municipal  law  of  this 
country,  that  personal  property  has 
no  locality.  It  is  subject  to  the  law 
which  governs  the  person  of  the 
owner,  as  well  in  respect  to  the  dis- 
position of  it  by  act  inter  vivos,  as  to 
its  transmission  by  last  will  and  testa- 
ment, and  by  succession  upon  the 
owner  dying  intestate.  The  principle, 
no  doubt,  has  its  foundation  in  inter- 
national comity;  but  it  is  equally  ob- 
ligatory, as  a  rule  of  decision  in  the 
courts,  as  a  legal  rule  of  purely 
domestic  origin.  It  does  not  belong 
to  the  judges  to  recognize  or  deny  the 
rights  which  individuals  may  claim 
under  it,  at  their  pleasure  or  caprice, 
but,  it  having  obtained  the  force  of 
law  by  user  and  acquiescence,  it  be- 
longs only  to  the  political  government 
of  the  State  to  change  it  whenever  a 
change  becomes  desirable.  But  the 
right  which  an  individual  may  claim 
to  personal  property  in  one  country, 
under  title  from  a  person  domiciled 
in  another,  can  only  be  asserted  by 
the  legal  instrumentalities  which  the 
institutions  of  the  country  where  the 
claim  is  made  have  provided.  The 
foreign  law  furnishes  the  rule  of  de- 
cision as  to  the  validity  of  the  title 
to  the   thing  claimed;   but  in  respect 


to  the  legal  assertion  of  that  title  it 
has  no  extra-territorial  force.  As  a 
result  of  this  doctrine  it  is  now  gen- 
erally held  everywhere,  and  it  is  well 
settled  in  this  State,  that  an  executor 
or  administrator  appointed  in  another 
State  has  not,  as  such,  any  authority 
beyond  the  sovereignty  by  virtue  of 
whose  laws  he  was  appointed."  To 
the  same  effect.  Palmer  v.  Palmer,  71 
Hun,  30;  24  N.  Y.  Supp.  613;  revd., 
on  other  points,  loO  X.  Y.  139:  Mat- 
ter of  Devoe,  66  App.  Div.  1 ;  72  X.  Y. 
Supp.  962;  affd.,  171  X\  Y.  281; 
Simonson  v.  Waller,  9  App.  Div.  .503 ; 
41  X.  Y.  Supp.  662;  Matter  of  Rup- 
paner,  15  Misc.  654;  37  X.  Y.  Supp. 
429  ;  affd.,  9  App.  Div.  422  ;  Xew  York 
Life,  etc.,  Co.  v.  Viele.  22  App.  Div. 
80:   affd..  161  X\  Y.   11. 

se  White  v.  Howard.  46  X.  Y.  144. 

s"  In  Public  Adm'r  v.  Hughes  ( 1 
Bradf.  125).  the  intestate  was  illegiti- 
mate and  domiciled  in  England,  by 
whose  laws  there  was  an  absolute  ob- 
struction of  succession,  she  having  no 
lineal  descendants  and  no  lawful  an- 
cestors or  collateral  relatives.  Held, 
therefore,  that  her  brother,  having  no 
interest  in  the  estate,  was  not  entit'ed 
to  administer  on  her  estate,  and  let- 
ters were  accordingly  granted  to  t'i3 
public  administrator  as  being  entitled 
to  the  custody  of  bona  vacantia.  In 
riraham  v.  Public  Adm'r  (4  Bradf. 
127).   the   intestate   having  died   here 


663 


Admixistratiox  of  Estate,  Etc, 


795. 


child  has,  ])\  the  subsequent  marriage  of  its  parents,  become  legiti- 
mate by  virtue  of  the  laws  of  the  State  or  country  where  such 
marriage  was  celebrated,**^  or  where  the  parents  were  domiciled  at 
the  time,*^  it  is  legitimate  everywhere.  Hence,  also,  where  the 
widow  of  a  person  dying  domiciled  in  Maryland  is,  by  its  law,  en- 
titled to  a  certain  sli^re  in  his  personal  estate  where  he  leaves  a 
will  in  which  she  is  unprovided  for,  she  is  entitled  to  such  share 
in  his  personal  property  situated  in  this  State,  notwithstanding 
a  will  executed  by  him  when  a  resident  of  this  State,  and  ad- 
mitted to  probate  here,  by  which  he  disposes  of  his  entire  estate 
to  others.^^ 

Where  the  whole  surplus  of  a  nonresident's  estate  is  brought 
within  the  jurisdiction  of  a  surrogate  here,  he  will  not  decline  to 
distribute  it,  according  to  the  law  of  the  intestate's  domicile;  yet 
it  is  evident  that  the  statute  does  not  contemplate  the  distribution 
of  a  part  or  portion  of  an  estate,  where  the  residue  is  subject  to 
the  control  of  tlie  tribunal  of  a  foreign  domicile,  and,  in  such  a 
case,  the  court  here,  after  satisfying  domestic  creditors,  will 
transmit  the  surplus  to  the  foreign  jurisdiction  for  distribution.^^ 


on  her  way  from  Scotland,  her  domi- 
cile of  origin,  to  Canada,  distribution 
of  her  estate  must  be  governed  by  tlie 
law  of  Scotland.  See  Cruger  v.  Phelps, 
21  ]\Iisc.  'l')!.  See.  generally.  Shultz 
Y.  Pulver.  3  Paige,  182:  affd..'ll  Wend. 
3G1 ;  Vroom  v.  Van  Home,  10  Paige. 
549 ;  Suarez  v.  The  Mayor,  2  Sandf. 
Ch.  173:  Holmes  v.  Remsen,  4  Johns. 
Ch.  4C0:  :\Iatter  of  Braithwaite,  1!) 
Abb.  X.  C.  113.  In  Burr  v.  Sherwood 
( 3  Bradf .  85 ) ,  a  married  woman, 
domiciled  in  Connecticut,  having  a 
vested  riglit  in  the  residuary  estate  of 
her  grandfather,  after  coverture,  re- 
ceived, in  satisfaction  of  such  jjortion, 
bank  stock  in  this  State,  and  her  hus- 
band drew  the  dividend  but  never 
reduced  the  stock  to  possession,  nor 
administered  on  her  estate,  though  he 
survived  her.  Held,  that,  as  by  the 
law  of  Connecticut,  the  property 
vested  in  the  husband  at  the  time  of 
the  transfer,  his  administrator  (ap- 
pointed lierc)  was  entitled  to  tlie  pro- 
ceeds for  distribution  among  his  next 
of  kin,  according  to  the  laws  of  Con- 
necticut. Whether  a  deceased  ])erson 
died  intestate  is  to  be  determined  by 
the  law  of  the  last  domicile  of  the  de- 
ceased. (Moultrie  v.  Hunt.  23  N.  Y. 
394.)  So  also  as  to  the  validity  of 
the  execution  nf  a  will  (Dupuv  v. 
VVurtz,  53  N.  Y.  556;  see  §  179,  an^e), 


and  the  validity  of  a  bequest  to  a  for- 
eign corporation.  (Chamberlain  v. 
Chamberlain.  43  X.  Y.  424;  Matter  of 
Huss.  12()  id.  537:  37  St.  Rep.  789: 
Hope  V.  Brewer,  130  X.  Y.  12G.)  The 
rights  of  a  wife  as  creditor  of  her  hus- 
band under  the  law  of  France,  where 
tlie  mairiage  was  contracted,  continue 
and  attach  to  the  property  of  the  hus- 
band, where  he  abandons  her  and  dies 
domiciled  abroad.  Accordingly,  where 
the  husband  had  appropriated  the  pro- 
ceeds of  real  estate  inherited  by  the 
wife  during  covertvire.  it  was  held 
that  as  by  the  French  law  she  was 
entitled  to  priority  out  of  his  estate 
as  against  legatees,  she  should  be  given 
such  priority  here,  notwithstanding 
that  tlie  property  bequeatlied  had  all 
been  acquired  by  the  husband  in  this 
State  subsequent  to  his  desertion  of 
his  wife.  ( Bonati  v.  Welscli.  24  X.  Y. 
157.) 

88  Miller  v.  Miller.  91  X.  Y.  315: 
Bates  V.  Virolet.  33  App.  Div.  436:  53 
X.  Y.  Supp.  893. 

89  Stack  V.  Stack.  0  Dem.  280:  s.  c. 
as  Estate  of  Stack.  10  St.  Rep.  (590: 
Bates  V.  Virolet.  ■tui)ra. 

9<1  Matter  of  Braithwaite.  19  Abb. 
X.  C.  113. 

91  Parsons  v.  Ljnnan.  20  X.  Y.  103. 
See  Hardenberg  v.  Manning.  4  Dem. 
437.     Compare  Simonson  v.  Waller,  9 


§796. 


Administration  of  Estate^  Etc. 


664r 


Nevertheless,  wliore  there  are  two  administrators  of  an  estate,  one 
in  the  place  of  domicile  and  the  other  in  a  foreign  jurisdiction^ 
the  question  whether  the  courts  of  the  latter  wnll  decree  distribu- 
tion of  the  assets,  or  remit  them  to  the  jurisdiction  of  the  domicile, 
is  a  question,  not  of  jurisdiction,  but  of  judicial  discretion,  de- 
pending upon  the  circumstances  of  the  particular  case.^^ 

SUBDIVISION  1. 


THE    STATUTE    OF   DESCENTS. 

§  796.  Order  of  descent.^^ — a  g  281.  The  real  property^^  of  a  per- 
son,**^ who  dies  without  devising  the  same,  shall  descend : 

"  1.   To  his  lineal  descendants ; 

"  2.   To  his  father ; 

"3.   To  his  mother;  and 

"  4.   To  his  collateral  relatives. 
"  as  prescribed  in  the  following  sections  of  this  article." 


App.  Div.  503.  By  Co.  Civ.  Proc, 
§  2700.  it  is  provided  that  the  person 
to  whom  ancillary  letters  are  issued 
must,  unless  otherwise  directed  by  an 
order  of  the  surrogate  or  by  the  judg- 
ment or  order  of  a  court  of  record, 
transmit  the  money  and  other  per- 
sonal property  of  the  decedent,  re- 
ceived by  him  after  the  letters  are 
issued,  or  then  in  his  hands  in  an- 
other capacity,  to  the  State,  or 
country,  where  the  principal  letters 
were  granted,  to  be  disposed  of  pur- 
suant to  the  laws  thereof.  Money,  or 
other  property  so  transmitted  by  him, 
at  any  time  before  he  is  so  directed 
to  retain  it,  must  be  allowed  to  him 
upon  an  accounting.     See  ante,  §  .317, 

!>2  Matter  of  Hughes,  9.5  N.  Y.  55 ; 
Despard  v.  Churchill,  53  id.  192. 

93  The  present  rule  of  descent  in 
this  State  was  first  prescribed  by  stat- 
ute passed  February  23,  17SG,  which 
was  afterward  adopted  by  the  Revised 
Statutes  in  1830.  ( 1  R.  S.  750.)  In 
1890  the  provisions  of  the  statute  were 
incorporated  into  the  Real  Property 
Law  (L.  1890,  c.  547)  without  sub- 
stantial alteration. 

9-1  The  term  "  real  property,"  as 
used  in  the  statute,  is  declared,  by 
section  280,  to  include  every  estate, 
interest,  and  right,  legal  and  equi- 
table, in  lands,  tenements,  and  heredit- 
aments,   except    such    as    are    deter- 


mined or  extinguished  by  the  death 
of  an  intestate  seized  or  possessed 
thereof,  or  in  any  manner  entitled 
thereto:  leases  for  years,  estates  for 
the  life  of  another  person,  and  real 
property  held  in  trust,  not  devised  by 
the  beneficiary.  The  term  "  inherit- 
ance "  is  to  be  understood  to  mean, 
real  property,  as  above  defined,  de- 
scended according  to  the  provisions  of 
the  statute.  Thus,  where  a  testator 
devised  lands  with  certain  limitations, 
by  which,  according  to  the  constrvic- 
tion  put  upon  the  devise,  M.  had  an 
equitable  life  estate  and  his  son  a  re- 
mainder in  fee,  it  was  held,  that,  upon 
the  death  of  the  son  without  lineal 
descendants,  this  remainder  in  fee 
passed  to  M..  his  father,  under  the 
Statute  of  Descents.  ( Vanderheyden 
V.  Crandall,  2  Dem.  9.)  Where  'land 
is  sold  in  a  partition  suit,  and  the 
money  paid  into  court,  or  otherwise 
disposed  of,  until  the  persons  entitled 
to  such  money  come  of  age,  and  they 
die  before  majority,  the  money  is  di- 
vided as  if  it  were  real  estate.  (Val- 
entine V.  VVetherill,  31  Barb.  655.) 
And  money  invested  in  land  for  the 
use  of  the  intestate  follows  the  same 
rule.  (Champlin  v.  Baldwin,  1  Paige, 
5G3.) 

95  The  property  of  an  insane  person 
descends  as  if  he  were  of  sound  mind. 
(2  R.  S.  55,   §  25.) 


665  Ai).Mi.Ms'ri;Ai'iox  of  E.staik,    Ktc.      §§  797-800. 

§  797.  Lineal  descendants  in  equal  degrees. — ''  g  2^2.  If  tlio  in- 
testate leave  descendants  in  the  direct  line  oi  lineal  descent,  all 
of  equal  deg:ree  of  consaiiiiuinity  to  him,  the  inheritance  shall 
descend  to  them  in  equal  parts,  however  remote  from  him,  the 
common  degree  of  consanguinity  may  be." 

§  798.  Lineal  descendants  of  unequal  degree. —  "  §  283.  If  anv 
of  the  descendants  of  such  intestate  be  living,  and  any  be  dead, 
the  inheritance  shall  descend  to  the  living,  and  the  descendants  of 
the  dead;  so  that  eacli  living  descendant  shall  iidierit  such  share 
as  would  have  descended  to  him,  had  all  the  descendants  in  the 
same  degree  of  consanguinity,  who  shall  have  died  leaving  issue, 
been  living;  and  so  that  issue  of  the  descendants,  who  shall  have 
died,  shall  respectively  take  the  shares  which  their  ancestors  would 
have  received." 

§  799.  When  father  to  inherit.—^'  §  284.  If  the  intestate  die 
without  lawful  descendants,  and  leave  a  father,  the  inheritance 
shall  go  to  such  father,  unless  the  inheritance  came  to  the  in- 
testate on  the  part  of  his  mother,''*^  and  she  be  living;^"  if  she  be 
dead,  the  inheritance  descending  on  her  part  shall  go  to  the  father 
for  life  and  the  reversion  to  the  brothers  and  sisters  of  the  in- 
testate and  their  descendants,  according  to  the  law  of  inheritance 
by  collateral  relatives  hereinafter  provided ;  if  there  be  no  such 
brothers  or  sisters  or  their  descendants  living,  such  inheritance 
shall  descend  to  the  father  in  fee." 

§  800.  When   mother   to   inherit   for   life,    and   when    in    fee. — 

"  §  285.  If  theintestate  die  without  descendants  and  leave  no  father, 
or  leave  a  father  not  entitled  to  take  the  inheritance  under  the  last 
section,  and  leave  a  mother,   and  a  brother  or  sister,   or  the  de- 


96  "  The  expressions,  '  where  the  in-  chased    real    estate,   part   of   the   price 

lieritance   sliall   have  come   to   tlie   in-  of    whicli    was    jH-ocured    by    niortfraj^e 

testate  on  the  part  of  the  father.'  or  on  real  estate  which  came  to  him  from 

'  mother,'  as  the  ease  may  be,  inchule  his    mother,    the    j)ro]ierty    jmrchased 

every  case  where  the  inheritance  shall  does  not  to  the  extent  of  the  amount 

have  come  to  the  intestate  by  devise,  of  the  mortgage,  on  that  account,  go 

gift,   or   descent   from    the   parent   re-  to   those  of   the   blood   of   the   mother 

ferred  to,  or  from  any  relative  of  the  exclusively,     but     descends     in     equal 

blood     of     such     parent."        (§     280.)  shares     to     the     descendants     of     the 

Where   one   who   inherited    real   estate  brothers  and  sisters  of  the  father  and 

from    his    fatlier    conveyed     it    for    a  the  mother.      (Adams  v.  Anderson,  23 

valuable    consideration   to    his    mother  Misc.  70.");   r)3  X.  V.  Supp.   141.) 
by    whom    it    was    devised    to    Itim, — •        ^'  ^Vhen    a    person    is    described    as 

Ileld.   that   under    the    Statute   of   De-  living,  it    means  living  at  the  time  of 

scents   the   property   must   be   deemed  the  death  of  the  intestate  from  whom 

to  have  come  to  him  upon  the  part  of  the    descent    came;     when    he    is    de- 

his  mother  and  to  descend  to  those  of  scribed   as  having  died,  it   means  that 

her   blood.      But   where   he   had    pur-  he  died  before  such  intestate.    (§280.) 


§§  801,  802.     Administration  of  Estate,  Etc.  666 

scendant  of  a  brother  or  sister,  tlio  inheritance  shall  descend  to 
the  mother  for  life,  and  the  reversion  to  such  brothers  and  sisters 
of  the  intestate  as  may  be  living,''*  and  the  descendants  of  such  as 
may  be  dead,  according  to  the  same  law  of  inheritance  hereinafter 
provided.  If  the  intestate  in  such  case  leave  no  brother  or  sister, 
or  descendant  thereof,  the  inheritance  shall  descend  to  the  mother 
in  fee."  °^ 

§  801.  Collateral  relatives. — "  §  286.  If  there  be  no  father  or 
mother,  capable  of  inheriting  the  estate,  it  shall  descend,  in  the 
<3ases  hereinafter  specified,  to  the  collateral  relatives  of  the  in- 
testate ;  and  if  there  be  several  such  relatives,  all  of  equal  de- 
gree of  consanguinity  to  the  intestate,  the  inheritance  shall  de- 
scend to  them  in  equal  parts,  however  remote  from  him  the  com- 
mon degree  of  consanguinity  may  be." 

§  802.  Brothers  and  sisters,  and  their  descendants. — '^  §  287.  If 
all  the  brothers  and  sisters  of  the  intestate  be  living,  the  inherit- 
ance shall  descend  to  them ;  if  any  of  them  be  living,  and  any  be 
dead,  to  the  brothers  and  sisters  living,  and  the  descendants,  in 
Avhatever  degree,  of  those  dead ;  so  that  each  living  brother  or 
sister,  shall  inherit  such  share  as  would  have  descended  to  him 
or  her,  if  all  the  brothers  and  sisters  of  the  intestate,  who  shall 
have  died  leaving  issue,  had  been  living;  and  so  that  such  de- 
scendants, in  whatever  degree,  shall  collectively  inherit  the  share, 
which  their  parent  would"  have  received,  if  living;^  and  the  same 


9S  Such       revision      vests      in      the  fers  only  to  the   case  of  rchatives   in- 

brothers  and  sisters  living  at  the  time  heriting    from    the    same    ancestor,    or 

of    the    intestate's    death,    and    is    not  from    each    otlier,    and    recognises    the 

suspended   by  the  outstanding  life  es-  distinction    between    relatives   of    the 

tate.      (Barber  V.  Brundage,  109  N.  Y.  full     blood     and    of    the     half    blood. 

3C8.)      See  L.  1890,  c.  547,  §  280.  (Wood    v.    Mitcham,    92    N.    Y.    375, 

93  Construing  this  section  in  connec-  379.)  The  statute  does  not  interfere 
tion  with  section  15  (now  section  with  the  right  of  a  remainderman  to 
290*,  "the  true  interpretation  is  that  dispose  of  his  vested  remainder, 
the  terms  "  brother  "  and  "  sister,"  as  (Embury  v.  Sheldon,  08  X.  Y.  227.) 
employed  here,  embrace  only  brothers  l  Under  the  Statute  of  Descent  cf 
and  sisters  of  the  whole  blcod,  and  1780  (1  R.  L.  of  1813,  p.  52),  no 
such  brotliers  and  sisters  of  the  half  representation  was  allowed  among  col- 
blood  as  are,  under  section  15,  entitled  laterals  beyond  brotliers'  and  sisters' 
to  inherit,  and  that  a  half  brother  or  children.  By  the  Eevised  Statutes, 
sister  excluded  from  taking  by  sec-  however,  the  principle  of  representa- 
tion 15  should  not  be  deemed  a  brother  tion  was  changed,  so  as  to  extend  to 
or  sister  of  the  intestate,  within  the  all  lineal  descendants  of  a  l)rother  or 
meaning  of  section  0  (now  section  sister,  however  rem;te.  (liannan  v. 
285),  the  distinction  between  the  Osborne,  4  Paige,  340.)  Before  the 
w;hole  blood  and  the  half  blood  being  Revised  Statutes,  all  lineal  d'^scend- 
retained  as  to  the  excluded  class."  ants,  of  equal  degrees  of  con-^anguinity, 
(Per  Rapallo,  J.  Wheeler  v.  Clutter-  took  equally,  however  remote  they  all 
buck,   52  N.   Y.   07.)      The  section  re-  might   be   from    the    intestate;    and   if 


UGT 


AmiIMSTUATION     OF    EsTATE,     EtC. 


§  803. 


rule  sLall  prevail,  as  to  all  direct  lineal  descendants  of  every 
brother  and  sister  of  the  intestate,  whenever  such  descendants  are 
•of  unequal  degrees." 

§  803.  Brothers   and  sisters  of  father,   and  their  descendants. — 
■*'  §  288.  If  there  be  no  heir  entitled  to  take  under  either  of  the 


any  of  that  class  had  died.  leavin<i^ 
issue,  such  issue  took  by  representa- 
tion. But,  in  regard  to  coUaterals, 
they  took  by  representation,  although 
they  ail  stood  in  equal  degree.  By  1 
R.  S.  752,  §§  8,  9,  10,  lineals  and  col- 
laterals were  placed  on  the  same  foot- 
ing, and  both  take  as  do  lineals. 
(Pond  V.  Bergh,  10  Paige,  140.)  The 
rule  now  among  both  lineals  and  col- 
laterals is  that  if  all  the  heirs  are  in 
the  same  degree  of  consanguinity  to 
the  intestate,  they  take  equally,  how- 
ever remote  they  may  be  from  him; 
Taut  if  some  of  the  class  of  relatives 
nearest  to  the  decedent  are  dead  and 
leave  issue,  the  survivors  of  the  class 
take  equally  among  themselves,  and 
the  representatives  of  those  who  are 
dead  take  the  share  which  their  an- 
cestors of  that  class  would  be  entitled 
to,  if  living.  (lb.)  Where  the  in- 
heritance descends  to  or  througli 
brothers  and  sisters,  or  both,  the  pri- 
mary division  is  to  be  made  between 
the  nearest  surviving  relative  and  the 
descendants  of  those  of  the  same  de- 
gree who  may  have  died,  so  that  the 
descendants  of  such  shall  collectively 
take  the  share  which  would  have 
fallen  to  their  ancestor  had  he  or  she 
been  living.  This  is  the  construction 
to  be  put  on  1  R.  S.  751,  §§  7,  8.  9, 
taken  together.  (Hvatt  v.  Pugslev, 
23  Barb.  285,  300.)  In  that  case,  the 
intestate's  nearest  surviving  relatives 
Avere  his  first  cousins,  and  if  all  of 
them  had  survived  him  they  would 
liave  inherited  equal  parts  of  what  de- 
scended to  them  respectively.  But  as 
several  of  theni  had  jireviously  died, 
the  question  arose  whether  the  cousins 
must  hot  be  assumed  as  the  stock,  and 
the  inheritance  be  divided  into  as 
many  equal  shares  as  tliere  were  first 
cousins  living,  or  who  had  died  leaving 
descendants.  Held,  that  such  was  the 
division  required  by  the  .statute.  In 
Kelly  V.  Kelly  (5  Lans.  443),  one  of 
testator's  children,  to  whom  a  fee  was 
devised,  survived  the  testator  and  died 
intestate.  Held,  that  a  daughter  of 
the    testator's    deceased    brother,    and 


the  two  sons  of  another  deceased 
brother,  took,  each  of  them,  as  heirs- 
at-law  of  the  intestate,  an  equal  one- 
third  share  of  the  estate  —  that  is,  the 
niece  and  nephews  took  per  capita, 
and  not  prr  stirpes.  In  all  cases  of  a 
newly  -  purchased  inheritance,  which 
can  arise  under  this  section,  all 
brothers  and  sisters,  and  their  de- 
.scendants  of  the  half  blood,  are  to 
take  as  relatives  of  the  whole  blood. 
The  common-law  rule,  which  gives  a 
preference  to  the  blood  of  the  father 
in  the  descent  of  a  newly-purchased 
inheritance,  applies  only  where  there 
are  relatives  on  the  side  of  both  father 
and  mother  —  not  where  the  descent  i  ■• 
to  brothers  and  sisters  and  their  de- 
scendants. In  respect  to  brothers  and 
sisters  of  the  father  and  mother  of  the 
half  blood,  and  their  descendants,  the 
connnon-law  rule  was  abolished  by 
section  13.  (Brown  v.  Burlingham, 
5  Sandf.  418.)  Not  only  do  the  class 
of  nearest  relatives  of  the  decedent 
take  equally  where  they  are  liis  only 
heirs-at-law,  but  all  the  original  men.- 
bers  of  that  class  take  equally  by 
themselves,  or  by  their  representa- 
tives, where  some  of  them  have  died 
leaving  issue,  in  the  same  manner  as 
if  they  had  survived  the  person  last 
.seized,  and  had  then  died  intestate. 
And  if  all  the  original  class  of  those 
who  would  have  been  his  heirs  die  be- 
fore the  testator,  there  is  no  repre- 
sentation of  any  in  that  class,  but  the 
next  class  become  his  heirs,  and  take 
with  the  representatives  of  any  de- 
ceased in  that  class.  Hence,  where 
the  only  heirs  are  a  son  of  a  deceased 
sister  of  the  intestate,  and  four  sons 
and  a  granddaughter  of  a  deceased 
brother  of  the  intestate,  the  first 
named  is  not  entitled  to  one-half  the 
lands  of  the  intestate  as  the  repre- 
sentative of  the  deceased  sister,  and 
the  sons  and  granddaughter  of  the 
deceased  brother  to  the  remaining  one- 
half,  but  each  is  entitled  to  an  equal 
share,  ;'.  r.,  one-sixth  of  the  inherit- 
ance. (Adams  v.  Smith,  20  Abb.  N. 
C.  GO.) 


§  S04.  Admiis'istkatiox  of  Estate^  Etc.  66S 

preceding  sections,  the  inheritance,  if  it  shall  have  come  to  the 
intestate  on  the  part  of  his  father,  shall  descend : 

"  1.  To  the  brothers  and  sisters  of  the  father  of  the  intestate 
in  equal  shares,  if  all  be  living; 

"  2.  If  any  be  living,  and  any  shall  have  died,  leaving  issue^ 
to  such  brothers  and  sisters  as  shall  be  living,  and  to  the  descend- 
ants of  such  as  shall  have  died ; 

''  3.  If  all  such  brothers  and  sisters  shall  have  died,  to  their 
descendants. 

'"  4.  If  there  be  no  such  brothers  or  sisters  of  such  father,  nor 
any  descendants  of  such  brothers  or  sisters,  to  the  brothers  and 
sisters  of  the  mother  of  the  intestate,  and  to  the  descendants  of 
such  as  shall  have  died,  or,  if  all  have  died,  to  their  descendants. 
But  if  the  inheritance  shall  have  come  to  the  intestate  on  the  part 
of  his  mother,  it  shall  descend  to  her  brothers  and  sisters  and  their 
descendants ;  and  if  there  be  none,  to  the  brothers  and  sisters  of 
the  father  and  their  descendants,  in  the  manner  aforesaid.^  If 
the  inheritance  has  not  come  to  the  intestate,  on  the  part  of  either 
father  or  mother,  it  shall  descend  to  the  brothers  and  sisters  both 
of  the  father  and  mother  of  the  intestate,  and  their  descendants, 
in  the  same  manner.  In  all  cases  mentioned  in  this  section  the 
inheritance  shall  descend  to  the  brothers  and  sisters  of  the  intes- 
tate's father  or  mother,  as  the  case  may  be,  or  to  their  descend- 
ants, in  like  manner  as  if  they  had  been  the  brothers  and  sisters, 
of  the  intestate." 

§  804.  Ule^timate  intestate. —  "  §  289.  If  an  intestate  ^vho  shall 
have  been  illegitimate  die  without  lawful  issue,  or  illegitimate 
issue  entitled  to  take,  under  this  section,  the  inheritance  shall  de- 
scend to  his  mother ;  if  she  be  dead,  it  shall  descend  to  his  rela- 
tives on  her  part,  as  if  he  had  been  legitimate.  If  a  woman  die 
without  lawful   issue,  leaving  an   illegitimate  child,   the   inherit- 


2  The     Revised     Statutes     abolished  could    be    entitled    to    take    ^vho    were 

the  rule  of  the  eommon  law  which  de-  able  to  trace  their  descent  from  a  com- 

clared    that,    when    the    intestate    was  mon  ancestor.     It  did  not  apply  as  be- 

the  first  purchaser  of  the  inheritance,  tween    brothers    and    sisters.        Thus, 

relatives    on    the    side    of    the    father  where  A.,  the  first  purchaser,  died  in- 

shculd  be  entitled  to  take  so  as  to  ex-  testate,   leaving  B..  a  niece,  and  C.  and 

elude  those  on  the  side  of  the  mother,  D.,  her  brother  and  sister  by  the  half 

until    the    blood    of    the    father    was  blood, —  Held,  that  B..  C.  and  D.  each 

wholly  exhaiisted.     (Brown  v.  Burling-  took    one-third    of    the    estate.       (lb.") 

ham,  5  Sandf.  418.)     This  rule,  at  any  As  to  the  meaning  of  the  expressions, 

rate,    was    only    applicable    when    the  "  where  the  estate  shall  have  come  to 

descent,   from   the   want  of  near   rela-  the     intestate     on     the     part     of     his. 

lives,   could   pass   to   collaterals   only,  father,"  or  "  mother,"'  see  §  799,  note 

and    when,    consequently,    those    only  96,  ante. 


<3G9 


Admixistratiox  of  Estate,  Etc.      §§  805-807 


aDce  shall  descend  to  him  as  if  he  were  legitimate.^  In  any  other 
case,  illegitimate  children  or  relatives  shall  not  inherit."  ■* 

§805.  Relatives  of  the  half  blood. —  "§  290.  Relatives  of  the 
half  blood  and  their  descendants  shall  inherit  equally  with  those 
of  the  whole  blood  and  their  descendants,  in  the  same  degree, 
unless  the  inheritance  came  to  the  intestate  by  descent,  devise,  or 
gift  from  an  ancestor ;  in  which  case,  all  those  who  are  not  of 
the  blood  of  such  ancestor,  shall  be  excluded  from  such  inherit- 
ance." ^ 

§  806.  Relatives  of  husband  or  wife. —  (§  200a.)  '*  When  the 
inheritance  shall  have  come  to  the  intestate  from  a  deceased  hus- 
hand  or  wife,  as  the  case  may  be,  and  there  be  no  person  entitled 
to  inherit  under  any  of  the  preceding  sections,  then  such  real 
property  of  such  intestate  shall  descend  to  the  heirs  of  such  de- 
ceased husband  or  wife,  as  the  case  may  be,  and  the  persons  en- 
titled thereto,  under  the  provisions  of  this  section,  to  inherit  such 
real  property,  shall  be  deemed  to  be  the  heirs  of  such  intestate. '^ 

^  807.  Common  law  to  prevail  in  cases  unprovided  for. — "  §  291. 
In  all  eases  not  provided  for  by  the  preceding  sections  of  this 
article,  the  inheritance  shall  descend  according  to  the  course  of  the 
common  law."  ' 


3  If  tlie  mother  be  living  at  the  ille- 
gitimate's death,  the  case  provided  for 
in  the  statute,  in  which  the  intestate's 
relatives  on  the  part  of  the  mother 
take,  does  not  arise,  and  the  common- 
law  rule  governs  ( St.  John  v.  Xorth- 
rup,  23  Barb.  25 )  ;  hence,  if  the 
mother  is  an  alien,  and  so  cannot  in- 
herit, the  brother  of  the  intestate 
does  not  acquire  a  right  to  inherit 
through  her.      (lb.) 

4  By  the  common  law,  an  illegiti- 
mate, not  having  inheritable  blood, 
could  neither  inherit  lands  himself, 
nor  transmit  them  by  descent  to  any 
other  person,  excepting  his  own  legiti- 
mate offspring,  or  persons  otlierwise 
capable  of  inheriting,  claiming  by  in- 
heritance from  or  tlirough  them.  But 
that  provision  is  now  modified  so  that 
now  the  widow  and  descendants  of  an 
illegiiimate  intestate  have  as  many 
rights  as  if  the  decedent  were  legiti- 
mate. By  L.  18.5.5,  c.  547  (repealed 
by  L.  189G,  c.  547).  ''Illegitimate 
cliildren.  in  default  of  lawful  issue, 
may  inherit  real  and  personal  prop- 
erty from  their  mothei',  as  if  legiti- 
mate; but  nothing  in  this  act  shall 
affect  any  risht  or  title  in  or  to  anv 


real  or  personal  property  already 
vested  in  the  lawful  heirs  of  any  per- 
son lieretofore  deceased."'  They  can- 
not inherit  from  the  ancestor  of  a 
deceased  mother.  (Matter  of  ^lericlo, 
63  How.  Pr.  G2.)  The  term  "  illegiti- 
mate" defined.  (Miller  v.  ^Miller,  91 
X.  Y.  315;  and  overruling  Bollermann 
V.  Blake,  24  Hun,  187.)  By  L.  1895, 
c.  531 :  L.  1899,  c.  725,  children  whose 
parents  have  intermarried,  or  who 
may  do  so,  are  made  legitimate,  but 
not  so  as  to  interfere  with  vested 
rights.  See  Davis  v.  Davis,  27  Misc. 
455;  59  X.  Y.  Supp.  223. 

5  Hence,  where  an  intestate  leaves 
as  his  nearest  relatives,  a  great-uncle, 
great-aiuits,  and  descendants  of  great- 
aunts,  the  great-uncle  will  inherit  to 
the  exclusion  of  the  females  of  tlie 
same  degree  and  their  descendants,  as 
at  common  law,  since  the  Statute  of 
Descents  includes  no  other  collateral 
relatives  of  an  intestate  than  brotliers, 
sisters,  uncles,  and  aunts,  and  their 
descendants.  (Hunt  v.  Kingston.  3 
Misc.  309:  23  X.  Y.  Sui)p.  .352.) 

c  Added  by  L.   1901,  c.  481. 

"This  section  refers  to  the  immedi- 
ate ancestor  from  whom  the  intestate 


§§  808-810.     Administration  of  Estate,  Etc. 


670 


§  808.  Posthumous  descendants  and  relatives. — "  §  292.  A  de- 
scendant or  a  relative  of  the  intestate,  begotten  before  his  death^ 
but  born  thereafter,  shall  inherit  in  the  same  manner,  as  if  be  had 
been  born  in  the  lifetime  of  the  intestate,  and  had  survived  him."  * 

§  809.  Shares  of  heirs. —  "  §  293.  When  there  is  but  one  per- 
son to  inherit,  he  shall  take  and  hold  the  inheritance  solely ;  when 
an  inheritance  or  a  share  of  an  inheritance  descends  to  several 
persons,  they  shall  take  as  tenants  in  common,  in  proportion  to 
their  respective  rights."  ^ 

§  810.  Alienism  of  ancestor. — "  §  294.  A  person  capable  of  in- 
heriting under  the  provisions  of  this  article,  shall  not  be  precluded 


received  the  inheritance,  not  a  remote 
ancestor  who  was  the  original  source 
of  title.  The  term  "  ancestor  "  em- 
braces collaterals  as  well  as  lineals, 
through  whom  an  inheritance  is  de- 
rived ( Wheeler  v.  Clutterbuck,  52 
X.  Y.  67 )  ;  so  that  a  half-brother  of 
the  deceased,  whose  estate  he  inherits, 
is  deemed  to  derive  the  inheritance 
from  an  ancestor,  as  the  term  refers 
to  antecessors  in  estates,  and  not 
necessarily  to  those  in  pedigree. 
(Adams  v.  Smith,  20  Abb.  X.  C.  GO.) 
The  term  "  the  blood  "'  of  the  ances- 
tor includes  his  relations  of  the  half 
blood.  ( Beebee  v.  Griffing,  14  X.  Y. 
235. )  See  Champlin  v.  Baldwin,  1 
Paige,  563;  Emanuel  v.  Ennis,  48 
X.  Y.  Super.  432.  The  provisions  of 
this  section  refer  to  the  immediate,  and 
not  the  remote,  source  of  the  intes- 
tate's title  —  that  is,  an  ascendant  of 
the  intestate  in  the  right  line,  as 
father,  etc.  The  statute  does  not  in- 
clude collateral  relatives,  as  brothers 
and  sisters.  Thus,  where  A.  died  in- 
testate, seized  of  land,  and  leav- 
ing children,  B.,  C,  and  D.,  and  a 
widow,  who  married  again,  and  had  a 
child,  E.,  and  afterward  the  widow 
died,  and  the  children  C.  and  D.  died, 
without  issue,  and  afterward  B.  died, 
without  issue,  it  was  held,  that,  on  her 
death,  B.  owned  the  whole  estate  — 
one-third  by  direct  descent  from  her 
father,  and  two-thirds  by  descent  from 
lier  sisters  C.  and  D.,  and  that,  as  to 
the  one-third  she  derived  directly  from 
lier  father,  it  went  to  his  brothers 
and  sisters,  to  the  exclusion  of  her 
half-sister  E.,  but  that  the  two-thirds 
which  she  derived  by  descent  from 
her  own  sisters  C.  and  D.  went  to  her 
half-sister  E.  (Valentine  v.  Wetherill, 
31  Barb.  655.) 


8  See  L.  1896,  c.  547,  §  46  ( 1  R.  S. 
725,  §§  30,  31).  After-born  children, 
unprovided  for  in  a  parent's  will,  are 
entitled  to  share  in  the  estate  (2  R. 
S.  05,  §  49,  as  amended  1869,  c.  22), 
the  same  as  if  the  parent  had  died  in- 
testate. The  statute  applies  to  an 
il'egitimate  child  unprovided  for  by 
the  mother's  will  made  before  her 
birth,  who  would  have  been  entitled 
under  L.  1855,  c.  547,  to  have  in- 
herited her  mother's  estate,  if  the 
mother  had  died  intestate.  ( Bunce  v. 
Bunce,  27  Abb.  X.  C.  61;  14  X.  Y. 
Supp.  659.)  The  birth  of  a  posthu- 
mous child  creates  an  intestacy  only 
as  to  its  share.  The  balance  of  the 
estate  passes,  under  the  will,  to  those 
entitled.  (Davis  v.  Davis,  27  Misc. 
455;  59  X.  Y.  Supp.  223;  Matter  of 
Murphy,  144  X.  Y.  557:  64  St.  Rep. 
249.)  Where  the  children  are  the 
devisees,  the  object  of  the  statute  can 
only  be  accomplished  by  requiring 
each  to  contribute,  in  proportion  to 
the  amount  of  his  devise,  to  make  up 
the  share  to  which  the  after-born  child 
would  have  been  entitled,  if  the  parent 
had  died  intestate.  (Rockwell  v. 
Gecrv,  4  Hun,  600.)  See  Co.  Civ. 
Proc^  §  1868.  As  to  the  method  of 
determining  the  share  of  post-testa- 
mentarv  children,  see  Sanford  v.  San- 
ford.  6"1  Barb.  296;  McCormack  v. 
:\rcCormack,  60  How.  Pr.  196;  Mitch- 
ell V.  Blain,  5  Paige,  588.  Gifts  causa 
mortis  should  contribute.  (Bloomer 
v.  Bloomer.  2  Bradf.  339;  House  v. 
Grant,  4  Lans.  296.)  A  child  en 
ventre  sa  mere  is  to  be  considered  in 
esse,  for  most  purposes  of  property. 
(Mason  v.  Jones,  2  Barb.  230.)  See 
Hone  V.  Van  Schaick,  3  Barb.  Ch.  488. 

9  See  Coe  v.  Irvine,  6  Hill.  634, 
where  this  section  is  construed  in  con- 
nection with   an   action   of  ejectment. 


671 


An.MIXISTRATIOX    OF    EsTATK.     EtC. 


§   811. 


from   sucli    iiilicritancc,  bv  reason  of  the  alienism  of  anv  ances- 
tor."' '" 

§  811.  When  advancement  to  be  set  off. —  "  g  995.   If  a  child  of 
nn   intestate  shall  have  b<'eii   advanced  by  him,  by  settlement  or 


K'  This  provision  is  prospective,  and 
has  no  application  to  Ciises  which  oc- 
curred previous  to  its  original  adop- 
tion, i.  ('.,  January  1,  18.30.  (.Jackson 
V.  Green  7  Wend.  '.VM];  Rcdpatli  v. 
Rich,  3  Sandf.  81.)  Compare  Hall  v. 
Hall,  81  N.  Y.  130:  Kilfov  v.  Powers, 
3  Dem.  198;  Maynard  v.  Maynard,  30 
Hun,  227.  This  section  does  not  en- 
able a  person  to  deduce  title  through 
an  alien  ancestor  still  living,  who 
would  himself  inherit  the  estate  if  he 
were  a  citizen.  (  I'eople  v.  Irvin,  21 
Wend. '128. )  Accordingly,  where  de- 
cedent left  a  sister  and  a  niece,  her 
daughter,  the  former  an  alien  and  the 
latter  a  citizen,  the  niece  does  not 
take  by  inheritance.  The  statute  en- 
ables those  only  to  inherit  who  would 
be  entitled  to  the  estate  by  the  ordi- 
nary law  of  descent,  on  the  death  of 
the  person  last  seized,  but  for  the 
alienism  of  some  person  through  whom 
title  is  derived.  (McLean  v.  Swan- 
ton,  13  N.  Y.  538.)  If  some  of  the 
persons  who  answer  the  description  of 
heirs  are  incapable  of  taking  by  rea- 
son of  alienage,  they  are  disregarded, 
and  the  whole  title  vests  in  those  heirs 
competent  to  take,  provided  they  are 
not  compelled  to  trace  the  inheritance 
through  an  alien.  (.Jackson  v.  Green, 
7  Wend.  334;  Orser  v.  Hoag.  3  Hill, 
70;  Luhrs  v.  Eimer,  80  X.  Y.  171.) 
The  provision  of  this  section,  however, 
protects  the  inheritance  whether  the 
claimant  derives  title  through  lineal 
or  collateral  ancestors,  or  through 
both.  CNIcCarthy  v.  Marsh,  5  N.  Y. 
203.)  An  alien  female  who  marries  a 
citizen  becomes  herself  a  citizen,  and 
is  capable  of  taking  title  by  descent. 
(Burton  v.  Burton,  1  Keyes,  350;  Hal- 
sey  V.  Beer,  52  Hun.  300. )  In  Luhrs 
v.  Eimer  (15  id.  300).  intestate's 
father,  at  the  death  of  his  son,  a  citi- 
zen, was  a  nonresident  alien,  and  in- 
capable of  taking  from  the  son;  but  a 
sister  of  intestate,  capable  of  taking, 
by  her  marriage  with  a  citizen,  was 
seized  of  the  land,  directly  from  the 
Intestate,  her  brother,  and  not  through 
her  nlien  father.  To  the  same  etTect. 
Smith  V.  Reilly.  31  Misc.  701  ;  00  X.  Y. 
Supp.  40.  The  wife  of  a  resident 
alien  is  entitled  to  dcwer.      (L.  1845, 


c.  115,  §  2;  L.  1890,  c.  547,  §  5.) 
A  woman  born  in  this  country,  or 
who  has  been  otherwise  a  citizen 
thereof,  notwithstanding  her  marriage 
with  an  alien,  and  residence  in  a  for- 
eign country,  by  dying  intestate  trans- 
mits real  property  by  descent  to  her 
lawful  children  of  such  marriage,  and 
their  descendants,  in  like  manner  as 
if  such  children  were  native-born,  or 
naturalized  citizens  of  the  United 
States  (L.  1872,  c.^  120;  L.  1890, 
c.  547,  §  0)  ;  nor  is  her  title  to  real 
estate  descending  to  her  impaired  by 
her  marriage  with  such  alien.  (lb. 
and  L.  of  1880,  c.  42.)  So.  too,  an 
alien  female  who  conies  to  the  United 
States  a  minor,  and  who,  before  ma- 
jority, marries  an  alien,  by  the 
marriage  becomes,  upon  the  subse- 
quent admission  of  the  husband  to  cit- 
izenship, at  once  a  citizen,  without 
any  declaration,  on  her  part,  of  her 
intention  to  become  such.  (Renner  v. 
Muller,  57  How.  Pr.  220.)  Xotwitli- 
standing  the  deceased  mother,  througn 
whom  the  estate  is  claimed,  was  an 
alien,  the  inheritance,  to  one  other- 
wise capable  of  taking,  is  not  barred, 
(lb.)  Collateral  descent  from  the 
brother  to  the  representatives  of  a 
deceased  sister,  the  alien  mother  sur- 
viving, is  immediate,  and  such  alien 
mother  cannot  impede  the  descent,  the 
pedigree  being  deduced  from  the 
brother  last  seized,  by  passing  over 
the  alien  mother,  she  not  being  a 
tncdiunt  hcrcditas.  This  section  only 
applies  to  ancestors,  and,  therefore,  the 
children  of  a  siirviviny  alien  sister, 
though  citizens,  are  barred.  (lb.) 
As  to  when  resident  aliens,  on  filing 
deposition,  etc.,  niav  take  and  hold 
lands,  see  1  R.  S.  720,  S§  10-20:  L. 
1845,  c.  115;  L.  1857,  c.  570;  L.  1808. 
c.  513;  L.  1872,  cc.  120.  141,  358; 
L.  1874,  c.  201;  L.  1875,  c.  336;  I* 
1877,  c.  Ill:  L.  1890.  c.  547,  §  5; 
Xolan  V.  Command,  11  Civ.  Proc.  Rep. 
295;  Wain  Wright  v.  Low,  132  X.  Y. 
313;  Mavnard  v.  :^L1vnard.  30  Hun. 
227;  Daly  v.  Beer.  32  St.  Rep.  1004. 
If  any  alien  resident  of  this  State,  or 
any  naturalized  or  native  citizen  of 
the  United  States,  who  has  purchased 
and  taken,  or  hereafter  shall  purchase 


§  811. 


Admixistratiox  of  Estate^  Etc. 


672 


portion,  real  or  personal  estate,  the  value  thereof  must  be  reck- 
oned, for  the  purposes  of  descent  and  distribution,  as  part  of 
the  real  and  personal  property  of  the  intestate  descendible  to  his 
heirs,  and  to  be  distributed  to  his  next  of  kin ;  and  if  such  ad- 
vancement be  equal  to  or  greater  than  the  amount  of  the  share, 
"which  such  child  would  be  entitled  to  receive,  of  the  estate  of 
the  deceased,  such  child  and  his  descendants  shall  not  share  in  the 
estate  of  the  intestate  ;^^  but  if  it  be  less  than  such  share,  such 
child  and  his  descendants  shall  receive  so  much,  only,  of  the  per- 
sonal property,  and  inherit  so  much  only,  of  the  real  property  of 
the  intestate,  as  shall  be  sufficient  to  make  all  the  shares  of  all 
the  children,  in  the  whole  property,  including  the  £.dvancement, 
equal. ^^  The  value  of  any  real  or  personal  property  so  advanced 
shall  be  deemed  to  be  that,  if  any,  which  was  acknowledged  by  the 
child  by  an  instrument  in  writing ;  otherwise  it  must  be  estimated 
according  to  the  worth  of  the  property  when  given. -^^  Maintaining 
er  educating  a  child,  or  giving  him  money  without  a  view  to  a 
portion  or  settlement  in  life,  is  not  an  advancement.^'*     An  estate 


and  take,  a  conveyance  of  real  estate 
Avithin  this  State,  has  died,  or  shall 
hereafter  die,  leaving  persons  who,  ac- 
cording to  the  statutes  of  this  State, 
would  answer  the  description  of  heirs 
of  such  deceased  person,  or  of  dev- 
isees, under  his  last  will,  and  being 
of  his  blood,  such  persons  so  answer- 
ing the  description  of  heirs,  or  of  such 
devisees  of  such  •  deceased  persons, 
whether  they  are  citizens  or  aliens, 
are  hereby  declared  and  made  capable 
of  taking  and  holding,  and  may  take 
and  hold,  as  heirs,  or  such  devisees 
of  such  deceased  person,  as  if  they 
Avere  citizens  of  the  United  States,  the 
lands  and  real  estate  owned  and  held 
by  such  deceased  alien  or  citizen  at 
the  time  of  his  decease.  ( L.  1845, 
c.  115,  §  4,  amended  by  L.  1875,  c.  38; 
repealed  and  re-enacted  in  L.  1896, 
c.  547,  §  5.)  See  Ettenheimer  v.  Hof- 
ferman,  66  Barb.  374:  Goodrich  v. 
Russell,  42  X.  Y.  177:  Brown  v. 
Sprague.  5  Den.  545 :  Smith  v.  Smith. 
70  App.  Div.  286 ;  74  N.  Y.  Supp.  967. 
"  The  right,  title,  or  interest  in  or  to 
real  property  in  this  State  of  any  per- 
son entitled  to  hold  the  same  cannot 
1)6  questioned  or  impeached  by  reason 
of  the  alienage  of  any  person  through 
whom  such  title  may  have  been  de- 
rived. Nothing  in  this  section  affects 
or  impairs  the  right  of  any  heir,  dev- 
isee, mortgagee,  or   creditor  by   judg- 


ment or  otherwise."  (L.  1896.  c.  547, 
§  7.)  The  State  alone  can  question 
the  right  of  an  alien  to  hold  land. 
(Belden  v.  Wilkinson,  33  Misc.  659: 
68  X.  Y.  Supp.  205.) 

11  This  section  applies  only  where 
the  decedent  left  no  will,  and  not  to  a 
case  where  a  testator  has  disposed  by 
will   of  onlv   a  portion  of   his  estate. 

(Kent  v.  Hopkins,  86  Hun,  611;  33 
X.  Y.  Supp.  767 :  Messman  v.  Egen- 
berger,  46  App.  Div.  46:  61  X.  Y. 
Supp.  556 ;  Thompson  v.  Carmichael, 
3  Sandf.  Ch.  120.)  For  the  statute 
as  to  advancements  being  reckoned  as 
a  part  of  surplus  of  the  personal  es- 
tate, see  Co.  Civ.  Proc,  §  2733,  as 
amended  18S3.  See  §  830,  post.  Un- 
der this  section,  grandchildren  are  en- 
titled to  insist  that  advancements, 
made  to  his  children  by  the  intestate, 
shall  be  brought  by  them  into  hotch- 
pot, and  that  the  grandchildren  shall 
be  entitled  to  share  therein.  ( Beebe 
V.  Estabrook.  79  ^s.  Y.  246.)  An  ad- 
vancement is  presumed  from  paying 
consideration  and  taking  title  in  the 
name  of  the  child.  'Piper  v.  Barse, 
2  Redf.  19;  Sanford  r.  Sanford.  61 
Barb.  299.) 

12  See  Hobart  v.  Hobart.  58  Barb. 
296:  Bell  v.  Champlain.  64  id.  396; 
Sanford  v.  Sanford.  61  id.  299. 

13  1  E.  S.  754.  §  25. 

14  1    R.    S.    754,    §    25;    2    R.    S.    98, 


673  Administkatiox  of  Estate,  Etc.      §§  812-815. 

or  interest  given  by  a  parent  to  a  descendant  by  virtue  of  a  l>ene- 
ficial  power,  or  of  a  power  in  trust,  with  a  right  of  selection,  is 
an  advancement." 

§  812.  How  adjusted. —  "  §  296.  When  an  advancement  to  be 
adjusted  consists  of  real  property,  the  adjustment  must  be  made 
out  of  the  real  property  descendible  to  the  heir^=.  When  it  con- 
sists of  personal  property,  the  adjustment  must  ]>('  jiiade  out  of 
the  surplus  of  the  personal  property  to  bo  distributed  to  the  next 
of  kin.  If  either  species  of  property  is  insufficient  to  enaldo  the 
adjustment  to  be  fully  made,  the  deficiency  must  be  adjusted  out 
of  the  other." 

§  813.  Certain  estates  not  to  be  affected. —  The  statute  declares 
that  the  estate  of  a  husband  as  tenant  by  the  curtesy,  or  of  a  widow 
as  tenant  in  dower,  shall  not  be  afPected  by  any  of  its  provisions ; 
nor  shall  the  same  affect  anv  limitation  of  an  estate  by  deed  or 
will."  1= 

§  814.  Additional  portion  to  widow. — The  provision  of  L.  1889, 
c.  4-OG,  §  1,  that,  "  if  the  intestate  shall  leave  a  widow  and 
a  descendant  or  descendants,  then  such  widow,  in  addition  to 
any  interest  to  which  she  may  be  entitled,  under  the  [foregoing] 
sections,  shall  be  entitled  to  the  use,  during  her  life,  of  an  addi- 
tional portion  of  the  estate,  not  exceeding  in  value  one  thousand 
dollars ;  and  in  case  the  intestate  shall  leave  a  widow  and  no  de- 
scendant or  descendants,  then  the  widow  shall  be  entitled  to  the 
absolute  ownership,  in  fee,  of  such  additional  portion  of  the  es- 
tate," was  repealed  by  L.  1890,  c.  173,  §  1. 

§  815.  Adopted  children. —  By  a  statute  passed  June  25,  1873,^® 
which  legalized  the  adoption  of  minor  children,  it  was  provided 
(§  10)  that  a  child,  when  adopted,  "  shall  take  the  name  of  the 

§   78.      But  otherwise  where  such   in-  16  L.  1873,  c.  830,  §  10.     Tlie  statute 

tention  is  shown.      ( McRae  v.  McRae,  does  not   apply  to  adoptions  lonsum- 

3  Bradf.   199;   Matter  of  Morgan   104  mated  before  its  passage   (Hill  v.  Xye, 

N.  Y.  74.)  17   Hun,   457),  except    those    author- 

15  L.    1896,   c.   547,   §   280    ( 1   R.   S.  ized  in  a  few  cases  by  special  statute. 

755,  §  20).     See  Graham  v.  Ludding-  (Carroll  v.  Collins,  ii  App.  Div.   lOli.) 

ton,  19  Hun,  246;  Leach  v.  Leach,  21  But  a  child  adopt^'d  in  lSS(i.  pursuant 

id.    381 ;    Zimmerman    v.    Schoenfeldt,  to  L.   1873.  c.  830.   §    10.  takes  as  an 

3  id.  092;  Arrowsmith  v.  Arrowsmith,  heir   of   the    person   adopting,   as    pro- 

8   id.   606;    Coit  v.   Grey,   25   id.   444;  vided  by  the  amendment  by  L.    1887. 

Kirk  V.  Richardson,  32*  id.  434;   Mat-  c.  703.     (Dodin  v.  Dodin,  16  App.  Div. 

ter  of  Winne,   2   Lans.   21;    Burke  v.  42;  44  N.  Y.  Supp.  800;  affd.,  162  X. 

Valentine.   52   Barb.    412;    Hatfield   v.  Y.  635.) 
Sneden.   54   N.   Y.   280.       Contra,   Bil- 
lings V.  Baker,  28  Barb.  343. 

43 


§  815.  Administkatiox  of  Estate,  Etc.  07-Jr 

person  adopting,  and  the  two  thenceforth  shall  sustain  toward 
each  other  the  legal  relation  of  parent  and  child,  and  have  all  the 
rights,  and  be  subject  to  all  the  duties,  of  that  relation,  excepting" 
the  right  of  inheritance,  except  that,  as  respects  the  passing  and 
limitations  over,  of  real  and  personal  property,  under  and  bv 
deeds,  conveyances,  wills,  devises,  and  trusts,  said  child  adopted 
shall  not  be  deemed  to  sustain  the  legal  relation  of  child  to  the 
persons  adopting."  By  an  act  passed  June  25,  1887,^^  this  sec- 
tion was  amended  in  several  important  particulars.  They  were 
(1)  to  substitute  "including,"  instead  of  ''excepting"  the  right 
of  inheritance;  and  (2)  to  interpose  the  declaration  that  "the 
[right  of  the]  heirs  and  next  of  kin  of  the  child  so  adopted  shall 
be  th.e  same  as  if  the  said  child  was  the  legitimate  child  of  the 
person  so  adopting,  except,"  ^^  etc. ;  and  (3)  changing  the  last 
exception  to  the  original  act,  under  w^hich  the  adopted  child  was 
prevented  from  taking  by  virtue  of  any  instrument,  unless  desig- 
nated therein ;  in  other  ^vords,  from  taking  by  the  description  of 
"  child,"  "  issue,"  "  descendant,"  etc.  But  the  amendment  gave 
the  right  to  take  by  inheritance,  as  a  child,  and  also  the  right  to 
take  as  a  child  by  a  testamentary  or  other  provision  in  favor  of  a 
"  child  "  or  "  children,"  etc.,  except  that,  as  respects  the  passing  or 
limitation  of  property,  "  dependent  upon  the  person  adopting 
dying  without  heirs/^  the  child  adopted  shall  not  be  deemed  to 
sustain  the  legal  relation  of  child  to  the  person  so  adopting,  so 
as  to  defeat  the  rights  of  remaindermen."  In  other  words,  the 
statute  allowed  the  use  of  the  general  term  "  child  "  or  "  children  " 
to  include  an  adopted  child,  for  the  purpose  of  cutting  off  the  heir ; 
but  not  for  the  purpose  of  cutting  off  a  devisee  or  remainder- 
man. If,  however,  the  will  or  other  instrument  is  so  expressed 
that  the  adopted  child  takes  by  name  and  not  under  the  general 
word  "  child  "  or  "  children,"  the  gift  would  be  good  in  either  case.^* 
The  Act  of  1887  was,  with  some  modification  in  phraseology,  car- 
ried into  the  Domestic  Relations  Law^^  in  the  following  lan- 
guage: "  The  [adopted]  child  takes  the  name  of  the  foster  parent. 
His  rights  of  inheritance  and  succession  from  his  natural  parents 

17  L.    1887,    c.    703.       See   Smith    v.        19  Tnchidinjr  next  of  kin.     (Keteltas 
Allen.  161  N.  Y.  478.  v.  Keteltas.  72  X.  Y.  312.)      See  ante, 

18  Under  this  amendment,  it  wotild    §  200.  notes. 

seem  that  the  giving  the  right  of  in-        20  See    remarks    on    the    statute    in 

heritance  to  an  adopted  child  includes  N.  Y.  Daily  Reg..  Oct.  21,   1887;   also 

the    right   to    take    by    representation,  note  in  29  Abb.  N.  C.  49. 

For  a  different  construction  given  to        21  L.  1896,  c.  272,  §  64,  as  amended 

a   similar   Massachusetts   statute,   see  L.   1897,  c.  408. 

Wyeth  V.  Stone,   144  Mass.  441;   4  N, 

Eng.  Rep,  462. 


675  AbMI.XIS  TKATK^X     OF    EsTATE,     EtC.  §  816. 

remain  unaffected  by  such  adoption.  The  foster  parent  or  parents, 
and  the  minor,  sustain  toward  each  other  the  legal  relation  of 
])arent  and  child,  and  have  all  the  rights,  and  are  subject  to  all 
the  duties  of  that  relation,  including  the  right  of  inheritance  from 
each  other,  *  *  *  and  such  right  of  inheritance  extends  to 
the  heirs  and  next  of •  kin  of  the  minor,  and  such  heirs  and  next 
of  kin  shall  In-  the  same  as  if  he  were  the  legitimate  child  <if  the 
])ers(>n  adopting,  but  as  respects  the  passing  and  limitation  over 
of  real  or  personal  property  dependent  under  the  provisions  of 
any  instrument  on  the  foster  parent  dying  without  heirs,  the 
minor  is  not  deemed  the  child  of  the  foster  parent  so  as  to  defeat 
the  rights  of  remaindermen."  ^^ 

SUBDIVISION  2. 

THE  STATUTE   OF  DISTRIBUTIONS. 

§  816.  Orlg^in  and  policy  of  the  statute. —  Our  statute  regulating 
the  distribution  of  the  surplus  of  the  personal  property  of  an  in- 
testate, is  taken  from  the  English  statute  of  22  &  23  Charles  II., 
c.  10,  which  was  borrowed  from  the  118th  novel  of  Justinian, 
and,  except  in  some  few  instances  mentioned  in  the  statute,  is 
governed  and  construed  by  the  rules  of  the  civil  law,  and  not,  as  is 
the  Statute  of  Descents,  by  the  common  law\'^  The  share  which 
comes  to  a  person  under  this  statute  is  designated  a  distributive 
share. 

The  kindred  of  every  one,  who  are  entitled  to  distributive 
shares,  are  naturally  divided  into  three  classes:  (1)  his  children 
and  their  descendants;  (2)  his  father  and  mother  and  their  de- 
scendants; (3)  his  collateral  relatives,  including  («)  his  brothers 
and  sisters  and  their  descendants,  and  (6)  his  uncles,  cousins,  and 
other  relatives  of  either  sex  who  have  not  descended  from  his 
brother  or  sister.  Ascendants  and  descendants  are  lineal  kindred ; 
other  relatives  are  collateral  kindred.  The  general  policy  of  the 
statute  is,  first,  to  provide  for  the  widow,  children,  father   and 


22  The    statute    also    provides    that  to  the  property  of  the  child  by  descent 

tipoij  the  adoption,  the  rights  of  the  or  snccession. 

parents    of    the   minor   by    descent   or  23  2    Blackst.    Comni.    504.    .51.');    2 

succession   cease:    and   further   that    a  Kent's  Comm.  422:   Sweezey  v.  Willis, 

subsequent  marriage  of  the  parent  or  1     Bradf.    495 :    Matter    of    Marsh,    5 

foster  parent  does  not  affect  his  right  Misc.  428. 


§  816a.  Administration  of  Estate,  Etc.  676 

mother  of  the  intestate,  that  is,  his  lineal  kindred,  and,  after 
them,  the  next  of  kin  of  equal  degree.  When  the  claimants  are 
of  an  unequal  degree,  the  nearest  of  kin  takes  the  whole,  unless 
the  remote  class  can  come  in  by  representation,  which,  by  the 
statute,  was,  until  recently,  prohibited  as  to  collaterals,  except  in 
the  solitary  case  of  brothers'  and  sisters'  children.^'* 

§  816a.  Order  of  distribution. —  The  Statute  of  Distributions,  so 
called,  was  transferred  by  L.  1893,  c.  686,  from  the  Kevised 
Statutes^^  to  the  Code  of  Civil  Procedure,  where  it  constitutes  sec- 
tion 2732.  The  eighth  paragraph  of  the  original  statute  is  sub- 
divided so  as  to  make  paragraphs  8  and  9  ;  the  other  changes  are 
merely  verbal.     It  provides  as  follows: 

''  If  the  deceased  died  intestate,  the  surplus  of  his  personal 
property  after  payment  of  debts;  and  if  he  left  a  will,  such  sur- 
plus, after  the  payment  of  debts  and  legacies,  if  not  bequeathed, 
must  be  distributed  to  his  widow,  children,  or  next  of  kin,  in 
manner  following: 

"  1.  One-third  part  to  the  widow,  and  the  residue  in  equal  por- 
tions among  the  children,  and  such  persons  as  legally  represent 
the  children  if  any  of  them  have  died  before  the  deceased. 

"  2.  If  there  be  no  children,  nor  any  legal  representatives  of 
them,  then  one-half  of  the  whole  surplus  shall  be  allotted  to  the 
widow,  and  the  other  half  distributed  to  the  next  of  kin  of  the 
deceased,  entitled  under  the  provisions  of  this  section. 

"  3.  If  the  deceased  leaves  a  widow,  and  no  descendant,  parent, 
brother  or  sister,  nephew  or  niece,  the  widow  shall  be  entitled  to 
the  whole  surplus ;  but  if  there  be  a  brother  or  sister,  nephew  or 
niece,  and  no  descendant  or  parent,  the  widow  shall  be  entitled 
to  one-half  of  the  surplus  as  above  provided,  and  to  the  whole  of 
the  residue  if  it  does  not  exceed  two  thousand  dollars ;  if  the 
residue  exceeds  that  sum,  she  shall  receive  in  addition  to  the  one- 
half,  two  thousand  dollars ;  and  the  remainder  shall  be  distributed 
to  the  brothers  and  sisters  and  their  representatives. 

"  4.  If  there  be  no  widow,  the  whole  surplus  shall  be  distrib- 
uted equally  to  and  among  the  children,  and  such  as  legally  repre- 
sent them. 

24  See  Doughty  v.  Stillwell.  1  Bradf.  relating  to  personalty,  only  embraces 

302;   Adee  v.  Campbell.  79  N.  Y.  .52;  persons  within  the  Statute  of  Distri- 

Hurtin  v.   Proal,   .3  Bradf.  414;   Mur-  butions.       (Gallagher    v.    Crooks,    132 

dock   V.    Ward,    67    N.    Y.    387.       The  N.  Y.  338:  44  St.  Rep.  436.) 

term  "  relatives,"  when  used  in  a  will  25  2  R.  S.  96,  §  75. 


677  Administration  of  Estate,  Etc.  §  816a. 

'^  5.  If  there  be  no  widow,  and  no  children,  and  no  representa- 
tives of  the  child,  the  whok'  surplus  shall  be  distributed  to  the 
next  of  kin,  in  equal  degree  to  the  deceased,  and  their  legal  repre- 
sentatives. 

''  6.  If  the  deceased  leave  no  children  and  no  representatives 
of  them,  and  no  father,  and  leave  a  widow  and  a  mother,  the 
half  not  distributed  to  the  widow  shall  be  distributed  in  equal 
shares  to  his  mother  and  brothers  and  sisters,  or  the  representa- 
tives of  such  brothers  and  sisters ;  and  if  there  be  no  widow,  the 
whole  surplus  shall  be  distributed  in  like  manner  to  the  mother, 
and  to  the  brothers  and  sisters,  or  the  representatives  of  such 
brothers  and  sisters. 

"  7.  If  the  deceased  leave  a  father  and  no  child  or  descendant, 
the  father  shall  take  one-half  if  there  be  a  widow,  and  the  whole, 
if  there  be  no  widow. 

''  8.  If  the  deceased  leave  a  mother  and  no  child,  descendant, 
father,  brother,  sister,  or  representative  of  a  brother  or  sister,  the 
mother,  if  there  be  a  widow,  shall  take  one-half;  and  the  whole, 
if  there  be  no  wndow, 

"  9.  If  the  deceased  w^as  illegitimate  and  leave  a  mother,  and 
no  child,  or  descendant,  or  widow,  such  mother  shall  take  the 
whole  and  shall  be  entitled  to  letters  of  administration  in  exclu- 
sion of  all  other  persons.  If  the  mother  of  such  deceased  be 
dead,  the  relatives  of  the  deceased  on  the  ])art  of  the  mother 
shall  take  in  the  same  manner  as  if  the  deceased  had  been 
legitimate,  and  be  entitled  to  letters  of  administration  in  the  same 
order. 

"  10.  Where  the  descendants,  or  next  of  kin  of  the  deceased, 
entitled  to  share  in  his  estate,  are  all  in  equal  degree  to  the  de- 
ceased, their  shares  shall  be  equal. 

"  11.  When  such  descendants  (»v  next  of  kin  are  of  unequal 
degrees  of  kindred,  the  surplus  shall  be  apportioned  among  those 
entitled  thereto,  according  to  their  respective  stocks ;  so  that  those 
wlio  take  in  their  own  right  shall  receive  equal  shares,  and  those 
who  take  by  representation  shall  receive  the  share  to  which  the 
parent  wliom  they  represent,  if  living,  would  have  been  en- 
titled. 

"  12.  Representation  shall  be  admitted  among  collaterals  in  the 
same  manner  as  allowed  bv  law  in  reference  to  real  estate.'** 


26  As  amended   by  L.    189S,   c.   .310;     u])on   this   subdivision   of   the   statute 
in  eflfeet   Sept,   1,   1898.       See  remarks    in  X.  Y.  Law  J..  May  9  and  19.  1898, 


§  817.  Administration  of  Estate,  Etc.  678 

''  13.  Eelatives  of  the  half  blood,  shall  take  equally  with  those 
of  the  whole  blood  in  the  same  degree;  and  the  representatives  of 
such  relatives  shall  take  in  the  same  manner  as  the  representatives 
of  the  whole  blood. 

"  14.  Descendants  and  next  of  kin  of  the  deceased,  begotten  be- 
fore his  death,  but  born  thereafter,  shall  take  in  the  same  manner 
a?  if  they  had  been  born  in  the  lifetime  of  the  deceased,  and  had 
survived  him. 

'^  15.  If  a  woman  die,  leaving  illegitimate  children,  and  no  law- 
ful issue,  such  children  inherit  her  personal  property  as  if  legiti- 
mate.^''' 

"  16.  If  there  be  no  husband  or  wife  surviving  and  no  children, 
and  no  representatives  of  a  child,  and  no  next  of  kin,  then  the  whole 
surplus  shall  be  distributed  equally  to  and  among  the  next  of  kin  of 
the  husband  or  wife  of  the  deceased,  as  the  case  may  be,  and  such 
next  of  kin  shall  be  deemed  next  of  kin  of  the  deceased  for  all  the 
purposes  specified  in  this  chapter ;  but  such  surplus  shall  not,  and 
shall  not  be  construed  to,  embrace  any  personal  property  except 
such  as  was  received  by  the  deceased  from  such  husband  or  wife, 
as  the  case  may  be,  by  will  or  by  virtue  of  the  laws  relating 
to  the  distribution  of  the  personal  property  of  the  deceased 
person."  ^* 

§  817.  Partial  intestacy. —  The  statute  applies  not  only  to  cases 
of  total,  but  also  to  cases  of  partial,  intestacy.^^  Whatever  per- 
sonal assets  are  not  effectually  disposed  of  by  the  will,  or  consumed 
in  the  administration  of  the  estate,  come  within  its  scope.  Thus, 
w^here  residuary  legatees  are,  by  the  terms  of  the  will,  tenants  in 
common,  and  not  joint  tenants,  and  one  dies  before  the  testator, 
the  share  of  such  a  one  constitutes  assets  not  disposed  of  by  the 
will,  and  must  be  distributed  according  to  the  statute.^*^  And 
where  a  testator  bequeathed  to  his  children  a  contingent  interest, 
for  life,  in  the  income  which  might  accrue  from  a  residuary  fund, 


2T  Added  by  L.  1897,  c.  37;  in  effect  Compare  Lefevre  v.  Lefevre   (.59  N.  Y. 

Mar.  9,  1897.  434),   in  which   case  the  testator,  by 

28  Added  by  L.  1901,  c.  410:  in  effect  his  will,  gave  to  his  wife  one-third  of 
Sept.  1,  1901.  his  estate,  but  it  was  not  stated  to  be 

29  Fry  V.  Smith,  10  Abb.  N.  C.  224;  in  lieu  of  dower  or  other  claim.  The 
Kearney  v.  Missionary  Soc,  id.  274;  residuary  bequest  was  declared  void. 
Finch  V.  Wilkes,  17' Misc.  428;  41  Held,  that  the  testator  died  intestate 
N.  Y.  Supp.  227  :  Doane  v.  Mercantile  as  to  that  portion  of  his  estate,  and 
Tr.  Co..  24  Misc.  .502:  53  N.  Y.  Supp.  it  was  to  be  distributed  under  the 
902;   affd.,  .39  App.  Div.  639.  statute. 

30  Hart    V.    Marks,    4    Bradf.     161. 


€79  Admimstratiox  of  Estate,  Etc.  §  818. 

after  the  happening  of  a  particular  event,  and  provided  for  tlio 
disposal  of  a  portion  only  of  the  income  previous  to  that  time, 
it  was  held  that  the  surplus  must  be  distributed  as  in  case  of  intes- 
tacy.^^ There  seems  to  be  some  uncertainty  whether,  a  trust  of 
personalty  being  declared  void  as  contrary  to  the  statute  against 
perpetuities,  the  unlawful  accumulation  is  to  be  distributed  ac- 
cording to  the  Statute  of  Distributions,  or  whether  it  goes  to  those 
entitled  ''  to  the  next  eventual  estate  "  under  the  will.^^ 

•§  818.  The  doctrine  of  representation. —  The  statute  provides 
that,  when  descendants  and  next  of  kin  are  of  unequal  degrees  of 
kindred,  the  surplus  is  to  be  apportioned  among  those  entitled 
thereto,  according  to  their  respective  stocks,  so  that  those  who  take 
in  their  owtl  right  shall  receive  equal  shares,  and  those  who  take 
by  representation  shall  receive  the  share  to  which  the  parent, 
whom  they  represent,  if  living,  would  have  been  entitled. ^''^  The 
words  "  legal  representative,"  as  used  in  this  statute,  do  not 
mean,  as  in  some  statutes,  executors  or  administrators,  but  issue, ^'^ 
who,  in  certain  cases,  are  allowed  to  represent,  or  take  in  place 
of,  a  deceased  parent  or  grand  parent.  If  a  son  or  daughter  died 
before  the  intestate,  but  left  children  or  grandchildren  who  sur- 
A'ivo  the  intestate,  the  law  preserves  to  these  grandchildren  or 
great-grandchildren,  the  distributive  share  which  their  parent,  his 
child,  would  have  taken  had  he  survived,  and  the  share  is  divided 
among  them  according  to  their  number.  This  is  not  regarded  as 
aflfecting  the  rules  which  govern  the  computation  of  degrees,  but 
the  children  of  the  second  or  third  generation  represent  their  de- 
ceased parent  for  the  purpose  of  distribution.  If,  however,  the 
intestate's  son  or  daughter  survives  him,  and  afterward,  but  before 
distribution,  dies,  leaving  issue,  the  doctrine  of  representation 
does  not  apply.  The  right  to  a  distributive  share  of  the  intestate's 
€state  is,  in  general,  vested  on  his  death ;  and  if  a  distributee,  hav- 
ing a  vested  right,  dies  before  distribution  is  made,  the  share  is  to 
be  paid  to  his  executors  or  administrators.^^  It  is  a  part  of  his 
estate,  to  be  distributed,  not  by  the  doctrine  of  representation,  but 
according  to  the  other  provisions  of  the  Statute  of  Distributions 


3lVa.il  V.  Vail,  4  Painre,  317.  33  Co.  Civ.  Pioc.  §  •27.'?-2.  as  amended 

32  See  Manioc  v.   Manice,   43   N.   Y.    1893,  subd.  11. 
385;    Van    Emburfrh    v.    Apkorman,    3        34  Greenwood  v.  Holbrook,  111  X.  Y. 
"Redf.    499 ;    Robinson    v.    Robinson,    5    4G.5. 

Lans.  165.     See  §  2G3,  ante.  33  Ro^e  v.  Clark.  S  Pai<,'e.  .■)74:  Will- 

cox  V.  Smith.  20  Barb.  310. 


§  819.  Administration  of  Estate,  Etc.  680- 

as  applied  to  his  family.  Prior  to  1898  the  doctrine  of  represen- 
tation, did  not  apply  to  collaterals  beyond  brothers'  and  sisters* 
ehildren,^*^  but  in  that  year  it  was  extended  to  collaterals  "  in  the 
same  manner  as  allowed  by  law  in  reference  to  real  estate."  Jnst 
what  that  means  is  not  at  all  clear.  If  the  intestate  left  both  real 
and  personal  estate,  then,  in  accordance  with  the  Statute  of  De- 
scents, those  entitled  to  succeed  to  a  share  of  the  real  property,  to- 
gether with  those  who  would  be  next  of  kin  under  the  Statute  of 
Distributions,  will  be  the  lawful  next  of  kin  of  the  decedent. 
But  if  personalty  only  is  involved,  the  problem  is  not  so  easy  of 
solution,  particularly  where  the  intestate  left  collateral  relatives 
beyond  the  degree  of  brothers  and  sisters  and  their  descendants. 
Space  will  not  permit  further  discussion  of  this  very  interesting^ 
subject,  but  if  an  opinion  may  be  hazarded,  it  would  seem  that,  in 
the  case  of  brothers  and  sisters  and  their  descendants,  representa- 
tion is  unlimited  ;  but  where  an  intestate  dies,  leaving  personal 
estate  only,  and  leaving  more  remote  collateral  relatives,  his  estate 
must  be  distributed  to  his  nearest  of  kin  in  equal  degree,  and 
the  doctrine  of  representation  will  not  apply  to  their  descend- 
ants."^^ 

§819.  Adopted  children. —  Reference  has  already  been  made  to 
the  statute  by  which  an  adopted  child  has  all  the  rights  and  is 
subject  to  all  the  duties  of  the  legal  relation  of  parent  and  child, 
including  the  right  of  inheritance ;  and  the  heirs  and  next  of  kin 
of  such  adopted  child  are  the  same  as  if  the  adopted  child  were 
the  legitimate  child  of  the  person  adopting,^^  thus  extending  the 
doctrine  of  representation  to  adopted  children. 


36  Before    the    amendment    of    subd.  wills  which,   by  their  terms,   were  ta 

12  it  had  been  held  that  the  limitation  be  executed  here.      (Simonson  v.  Wal- 

was  not  modified  by  subd.  5  of  the  sec-  ler,    14   Misc.   95 ;    revd.,   9   App.   Div. 

tion,  providing  that,   in  case  there  be  503.) 

no  widow  and  no  children,  and  no  rep-  37  See  Matter  of  Davenport,  G7  App. 

resentatives  of  a  child,  then  the  whole  Div.  191;  73  N.  Y.  Supp.  653.    In  that 

surplus   shall   be   distributed   "  to   the  case,  an  intestate  left  a  nephew,  niece, 

next  of  kin  in  equal  degree."      Hence,  uncles,  and  aunts,  and  descendants  of 

where  an  unmarried  intestate  left,  as  deceased  uncles  and  aunts ;  held,  that 

his  next  of  kin,  a  brother  and  sister,  his  estate  should  be  distributed  to  the 

and   four  grandchildren  of  a  deceased  nephew,    niece,    and   the   living   uncles 

half-brother,  it  was  held,  that  the  sur-  and  aunts,  as  next  of  kin  in  equal  de- 

viving    brother    and    sister    took    the  gree,    in    equal    proportion,    no    repre- 

whole ;    the   grandchildren    of    the   de-  .sentation    being    allowed    to    deceased 

ceased    brother    being    one    degree    be-  uncles  and  aunts. 

vond   the   statute.      (Matter   of   Suck-  38  L.  1896,  c.  272,  §  64,  as  amended 

ley.  11  Hun.  344.)      That  subdivision,  L.    1897,   c.    408    (former    statute,    L. 

however,    applied    only    to    domestic  1887,  c.  703),     See  ante,  §  815. 


681 


Ad.ministkatiox  OP'  Estate,   Etc. 


§820. 


§  820.  Computing  degrees  of  kindred. —  There  is  little  difficulty 
in  ck'ttTiuining  (iue^^tions  of  Jistributions,  except  where  there  are 
no  descendants  and  no  widow.  In  such  cases,  the  whole  surplus 
is  to  be  distributed  "  to  the  next  of  kin  in  e([ual  degree,  to  the  de- 
ceased and  the  legal  representatives ;"  and  it  frecpiently  becomes 
necessary  to  determine  who  are  of  an  equal  degree  of  consanguin- 
ity to  the  deceased,  and  how  far  the  distribution  may  be  made 
among  those  who  are  of  unequal  degrees  of  relationship  to  the 
decedent.  In  deterniining  the  persons  who  are  next  of  kin  of  a 
decedent  '"  in  equal  degree,"  the  rule  of  the  civil  and  common  law 
is  to  count  up,  from  either  of  the  persons  related  to  the  common, 
ancestor,  and  then  down  to  the  other  person  related,  reckoning  a 
degree  to  each  person  ascending  and  descending;  while  the  canon 
law  reckoned  by  counting  doAvu,  from  the  common  ancestor,  the 
number  of  removals  in  the  long-est  line,  thus : 

Grandfather. 


Father. 


Intestate. 


Son. 


Uncle. 


Brother. 


Cousin. 


Xephews  and  Nieces. 


In  other  words,  if  we  regard  the  lines  as  forming  a  triangle,  of 
which  the  common  ancestor  is  the  apex,  the  civil  law  counts  all  the 
spaces  in  both  legs  of  the  ti'iawgle ;  the  canon  law  counts  only 
the  spaces  in  the  longest  leg.  Thus,  by  the  canon  law,  the  son 
of  the  intestate  is  in  the  third  degi-ee,  alike  from  the  cousin  of  the 
intestate,  from  the  uncle  of  the  intestate,  and  from  the  grand- 
father of  the  intestate,  while,  by  the  civil  law,  the  son  of  the  in- 
testate is  in  the  third  degree  from  the  grandfather,  the  fourth 
degree  from  the  uncle,  and  the  fifth  from  the  cousin. ^^ 

It  will  not  be  expected  that  we  should  exhaust  the  subject  of 
the  Statute  of  Distributions.     It  will  suffice  if  we  dve  the  fore- 


39Bogertv.  Furman.  10  Paijre.  400.    Bradf.    49."):    Ilanin*;   v.    Coles.    2    id. 
and  cases  cited;   Sweezev  v.  Willis,   1    349:  Hiirtin  v.  Proal,  3  id.  414. 


820. 


Administration  of  Estate,  Etc. 


682 


going  paradigm,  showing  the  mode  of  computing  collateral  con- 
sanguinity, according  to  the  common  law,  in  force  in  this  State ; 


GreatGrcat 
Irtaidfidlier 


K 
Crcai 

Giandja:hcf 


JL 
GrciK^jailier 


(katCkitt 
Urxla 


Or  cat 
lliidc 


I 

^ 

3 

5 

Cred> 

lather 

W£h 

Undcs 
Soil/ 

3 

Brother, 

^ 

First 
Couslrv 

6 

Sccana, 
CmsLrir 

J 

5 

Tiist 

Ji^^air 

CousinS- 

Sorv 

Son  of 

KejJieur 


and  the  following  ready-reference  table  showing  the  mode  of  dis- 
tribution in  a  number  of  supposable  cases. 


€8; 


Admixistuatiux  of  E.STATK,    Ktc. 


§  820. 


TABLE  SHOWING  MODE  OF  DISTRIBUTION  OF  BEK- 
SONAL  PROPERTY  OF  INTESTATE. 

RESIDUE    OF    PUOPERTY    IS    DISTRIBUTABLE    AS    FOLLOWS  : 

A.  Husband  dying  survived  by  wife  and  a  descendant  or  descend- 
ants of  one  or  of  both. 


If  intestate  die  leaving 
(1)   Wife  and  child  or  chil- 
•dren. 


(2)  Wifo,  child,  or  children 
and  issue  of  predeceased  chil- 
dren. 


(3)     Wife     and     grandchil- 
dren. 


(4)    Wife  and  his  children 
by  two  or  more  marriages. 


(5)    Wife  and  her  children 
by  a  last  or  former  marriage. 


One-third  to  wife;  residue  to  child  or  chil- 
dren e(jually,  deducting  advancements  made  to 
sucii  child  or  children  by  intestate  in  his  life- 
time. 

One-third  to  wife;  residue  to  child  or  chil- 
dren, and  grandchildren,  the  former  taking  per 
capita,  the  latter  per  stirpes. 


One-third  to  wife;   residue  to  grandchildren 
equally. 


One-third    to    wife;     residue    to    intestate's 
children  equally. 

One-third    to    wife ;     residue    to    intestate's 
children  equally. 


3.  Husband  dying  survived  by  wife,  but  by  no  descendant  of  either 

or  of  both. 


(6)    Wife  only. 


I       One-half  to  wife;   residue  to  next  of  kin. 


C.  Husband  survived  by  wife  and  by  brother,  sister,  nephew,   or 
niece,  but  by  no  descendant  or  parent. 


(7)    Wife,  and  brother,  sis- 
ter, nephew,  or  niece. 


One-half  to  wife:  the  whole  to  her  when  it 
does  not  exceed  $2,000.  If  the  residue  exceeds 
that  sum.  wife  to  have,  in  addition  to  one-half. 
$2,000;  residue  to  brothers  and  sisters  and 
their  representatives.  (Doughty  v.  Stillwell, 
1  Bradf.  300.) 


D.  Husband  survived  by  wife  and  by  mother,  but  by  no  descend- 
ants or  father. 


(8)   Wife  and  mother. 


(9)  Wife  and  mother, 
brother,  sister,  nephew,  or 
niece. 


One-half  to  wife;  residue  to  mother. 


One-half  to  wife :  residue  to  mother,  brother, 
sister,  nephew,  and  niece  equally.  See  Doughty 
V.  Stillwell.   1   Bradf.   :500. 


E.  Husband  survived  by  wife  and  by  father,  but  by  no  descendant. 


(10)   Wife  and  father. 


One-half  to  wife;   residue  to  father. 


§820. 


Administration  of  Estate,  Etc. 


684r 


RESIDUE    OF    PROPERTY    IS    DISTRIBUTABLE    AS    FOLLOWS  : 

F.  Husband  survived  by  wife,  but  by  no  descendant,  nor  by  parent, 
brother,  sister,  nephew,  or  niece. 


If  intestate  die  leaving 
(11)   Wife  only. 


The  whole  to  the  wife. 


G.  Husband  dying-    after  wife,   survived   by  a   descendant   or   de- 
scendants of  one  or  of  both. 


(12)   Child  or  children. 

The  whole  to  the  children  equally. 

(13)    Children  and  issue  of 
predeceased  children. 

Whole  to  children  per  capita,  and  to  issue  of 
deceased  children   per  stirpes. 

(!•*)    Grandchildren. 

Equally  among  the  grandchildren. 

(15)    Children    by    two    or 
more  marriages  by  him. 

Equally  among  all  the  children. 

(16)   Children  by  wife's  last 
and  a  former  marriage. 

W^hole  to  intestate's  children  equally. 

H.  Husband  dying  after  wife,  survived  by  no  descendant;  or  a  man 

dying  unmarried. 


(17)    Father  only. 

Whole  to  father.  ( Harring  v.  Coles,  2  Bradf. 
349.) 

(18)   Mother  only. 

Whole  to  mother. 

(19)    Father  and  mother. 

Whole  to  father. 

(20)    Father,    mother,    and 
brothers  and  sisters. 

Whole  to  father. 

(21)    Father    and    brothers 
or  sisters. 

Whole  to  father.  See  ^Matter  of  Cruger,  34 
Js^  Y.  Supp.   191. 

(22)    Mother    and    brothers 
or  sisters. 

Whole  to  them  equally. 

(23)    Father,    mother, 
brothers  or   sisters   and   chil- 
dren  of  predeceased  brothers 
or  sisters. 

Whole  to  father. 

(24)    Father,    brothers     or 
sisters,   and  children   of  pre- 
deceased brothers  or  sisters. 

Whole  to  father. 

(25)    Mother,    brothers     or 
sisters,   and   children   of   pre- 
deceased brothers  or  sisters. 

Whole  to  mother  and  brothers  and  sisters^ 
per  capita,  and  to  the  children  per  stirpes. 

(23)    Father,    mother,    and 
children    of   predeceased 
brothers  or  sisters. 

Whole  to  father. 

asi 


Admim.stkatiox  of  Estate,  Etc. 


§820. 


IlESIDUF    OF    PROPERTY    IS    DISTRIBUTABLE    AS    FOLLOWS: 

B.  Husband  dying   after  wife,  survived  by  no  descendant;  or  a  man 

dying  unmarried. 


If  intestate  die  leaving 
(27)    Father    and    children 

of     predeceased     brothers    or 

sisters. 


(28)  Mother,  and  children 
of  predeceased  brothers  or 
sisters. 


(29)  Father,  mother,  chil- 
dren and  grandchildren  of 
predeceased  brothers  or  sis- 
ters. 


(30)  Father,  children  and 
jgrandchildren  of  predeceased 
brothers  or  sisters. 


(31)  Mother,  children  and 
;grandchildren  of  predeceased 
brothers  or  sisters. 


(32^     Brothers     or     sisters 
•only. 


(33)  Brothers  and  sisters, 
and  nephews  or  nieces,  chil; 
■dren  of  predeceased  brothers 
•or  sisters. 


(•34)  Brothers  or  sisters  and 
grandnephews  or  nieces,  chil- 
dren of  predeceased  brothers' 
or  sisters'  deceased  children. 


(35)  Brothers  or  sisters, 
nephews  or  nieces  and  grand- 
nephews  or  nieces,  children  of 
predeceased  brothers  or  sisters 
and  of  their  deceased  issue. 


(ST)  Nephews  or  nieces, 
children  of  predeceased 
brothers  or  sisters. 


(37)  Grandnephews  or 
nieces,  children  of  predeceased 
brothers'  or  sisters'  deceased 
children. 


(38)  Nephews  or  nieces, 
and  grandncpliows  or  nieces, 
children  of  predeceased 
brothers  or  sisters,  and  of 
their  deceased  issue. 


(39)  Brothers  or  sisters 
german,  and  brothers  or  sis- 
ters consanguinean. 


Whole  to  father. 


Whole  to  them  equally. 


Whole  to  father. 


Whole  to  father. 


Whole  to  mother  and  to  children  of  de- 
ceased brothers  and  sisters  equally;  the  shares 
of  the  latter  going  to  their  children  per  stirpes. 


Whole  to  them  equally. 


Whole  to  brothers  and  sisters  per  capita,  to 
children  of  predeceased  brothers  and  sisters 
per  stirpes. 


Whole   to   brothers   and    sisters   per   capita, 
and  to  gi'andnephews  or  nieces  per  stirpes. 


Whole  to  brothers  and  sisters  per  capita, 
and  to  nephews  and  nieces,  grandnephews  and 
nieces  per  stirpes. 


Whole  to  them  equally. 


Whole  to  them  equally. 


Whole  to  nephews  and  nieces  per  capita,  and 
to  grandnephews  and  nieces  per  stirpes. 


Whole  to  them  equally. 


§820. 


Administration  of  Estate,  Etc. 


68S 


RESIDUE    OF    PROPERTY    IS    DISTRIBUTABLE    AS    FOLLOWS! 

H.  Husband  dying  after  wife,  survived  by  no  descendant;  or  a  man. 

dying  unmarried. 


If   intestate  die  leaving 
(40)     Brothers     or     sisters 

consanguinean    and    brothers 

or  sisters  uterine. 


(41)  Brothers  or  sisters 
consanguinean  and  uncles  or 
aunts. 


(42)     Brothers    and    sisters 
uterine  and  uncles  or  aunts. 


(43)  Father  and  brothers 
or  sisters  consanguinean  and 
uterine. 


(44)  Mother  and  brothers 
or  sisters,  consanguinean  or 
uterine. 


(45)     Father,    mother,    and. 
uncles  or  aunts. 


(46)  Father  and  uncles  and 
aunts. 


(47)  Mother  and  uncles  and 
aunts. 


(48)  Mother,  uncles,  or 
aunts,  and  cousins  german, 
children  of  predeceased  uncles 
or  aunts. 


(49)     Father     and     cousins 
german. 


(50)    Mother     and     cousins 
german. 


(51)    Aunt    or    uncle    and 
cousins. 


(52)     Great-nephews     and 
nieces  and  cousins  german. 


(53)  Cousins  german  and 
children  and  grandchildren  of 
great-great-uncle. 


(54)  Brothers'  grandchil- 
dren and  brothers  or  sisters 
consanguinean. 

(55)  Cousins  german  and 
children  of  predeceased  cou- 
sins german. 


Whole  to  them  equally. 


Whole  to  brothers  and 

sisters. 

Whole  to  brothers  and 

sisters. 

Whole  to  father. 

Whole   to   mother   and 
equally. 

brothers   and   sisters 

Whole  to  father. 

W^hole  to  father. 


Whole  to  mother. 


Whole  to  mother. 


Whole  to  father. 

W^hole  to  mother. 

Whole  to  aunt  or 
berry,  52  How.  Pr. 

uncle. 
310.) 

(Matter,  of  Goose- 

Equally. 

Whole  to  cousins 
bell,  14  Hun,  551.) 

equally. 

(Adee  v.  Camp^ 

Whole  to  brothers  and  si 

sters  equally. 

Whole  to  cousins  german  equally.     (Adee  v. 
Campbell,  79  N.  Y.  52.) 


G87 


Admimstkaiiox  of  Estatk,  Etc. 


§820. 


RESIDUE    OF    I'KOPEKTV    IS    DISTRIBUTABLE    AS    FOLLOWS: 

H.  Husband  dying  after  wife   survived  by  no  descendant;  or  a  man 

dying  unmarried. 


If  intestate  die  leaving 
(56)     Paternal      uncles     or 

aunts  and  maternal  uncles  or 

aunts. 


(.57)  Nephews  or  nieces 
tfennan  and  nephews  or  nieces 
consan<j;uinean. 


(58)  Uncles  or  aunts  and 
children  of  great-uncles  or 
aunts. 


(59)    Uncles   or   aunts   and 
nieces  or  nephews. 


( 60 )  G  r  e  a  t-u  n  c  1  e  s'  or 
aunts'  children  and  children 
of  cousins  gernian. 


(61)    Grandfather   and   un- 
cles or  aunts. 


(62)    Grandfather   and   un- 
cles or-  aunts  consanguinean. 


(63)  Grandfather,  grand- 
mother, and  great-uncles  or 
aunts. 


(64)     Grandfather,    grand- 
mother, and  mother. 


(65)  Grandfather  or  grand- 
mother and  brothers  or  sis- 
ters. 


.  (66)  Great-grandfather  and 
great-uncles'  or  aunts"  chil- 
dren. 


( 67 )  Great  -  grandparents, 
nephews  or  nieces  and  uncles 
or  aunts. 


(68)  Great-grandfather, 
great-g  r  a  n  d  m  o  t  h  e  r.  and 
brothers'  or  sisters'  illegiti- 
mate children. 


(69)     Father's    father    and 
mother's  mother. 


(70)     Father's    father    and 
mother,  and  mother's  father. 


Whole  to  them  equally.      (Ilallett  v.  Hare,  '> 
Paige,  315.) 


Whole  to  them  equally.  (Matter  of  South- 
worth,  ()  Dcm.  210  [citing  Hallett  v.  Hare,  .5 
Paige,  314,  and  Matter  of  Suckley,  11  Hun, 
344].) 


Whole  to  uncles  and  aunts  equally. 


Whole  to  them  equally.    (Hurtin  v.  Proal,  3 
Bradf.  414.) 


The  whole  to  thorn  equally. 


The    whole    to    grandfather, 
Willis,  1  Bradf.  495.) 


( Sweezev    v. 


Whole  to  grandfather. 


Whole     to     grandfather     and     grandmother 
equally. 


Whole  to  mother. 


Whole  to  them  equally.  (Hurtin  v.  Proal, 
3  Bradf.  414.  But  see  contra,  Bogert  v.  Fur- 
man,  10  Paige  Ch.  496;  Matter  of  Marsh,  5 
Misc.  428.) 


Whole  to  great-grandfather. 


Whole  to  them  equally. 


Whole  to  great-grandfather  and  great-grand- 
mother equally. 


Whole  to  them  equally.  (  Bogert  v.  Furnian, 
10  Paige  Ch.  490;  Sweezey  v.  Willis,  1  Bradf. 
495;  Hurtin  v.  Proal,  3  id.  414:  Hill  v.  Nye, 
17  Hun,  457.) 


Whole  to  them   equally.       (Hill   v.   Nye.    17 
Hun,  457.) 


§  820. 


Administration  of  Estate,  Etc. 


688 


RESIDUE  OF  TROrEKTY  IS  DISTRIBUTABLE  AS   FOLLOWS: 

J.  Wife  dying,  survived  by  husband,  and  a  descendant  or  descend- 
ants of  one  or  of  both. 


If  intestate  die  leaving 
("1)    Husband  and  children 
of  maniaye. 


(72)  Husband,  children  of 
marriage,  and  issue  of  de- 
ceased children. 


("3)    Husband    and    grand- 
children. 


(74')  Husband  and  children 
by  the  wife's  last  and  a 
former  marriage. 


One-third   to    husband ;    residue   to   cliildicn. 
(Co.  Civ.  Proc,  §  2734.) 


One-third   to    husband ;    residue   to   children 
per  capita,   and  grandchildren  per  stirpes. 


One-third  to  husband ;    residue  to  grandchil- 
dren. 


One-third  to  husband ;  residue  to  children. 


K.  Wife  dying,  survived  by  husband,  but  by  no  descendants  of  either 

or  both. 


"5)    Husband. 


Whole   to    husband.       (Matter   of   Harvey,    3 
Redf.  214;  Robins  v.  McClure,  100  N.  Y.  328.) 


L.  Wife  dying  after  husband,  survived  by  a  descendant  or  descend- 
ants of  one  or  both. 


(76)  Children. 

Whole  to  children   equally. 

(77)    Children  and  issue  of 
predeceased  children. 

Whole  to  children  per  capita,  and  to  issue  of 
deceased  children  per  stirpes. 

(78)    Children  of  husband's 
last  and  a  former  marriage. 

Whole  to  wife's  children  equally. 

(79)    Children  of  husband's 
iormer  marriage  and  sisters. 

Whole  to  sisters  equally.  (Gazlav  v.  Corn- 
well,  2  Redf.  139.) 

(80)    Children    by    two    or 
more  marriages  of  wife. 

Whole  to  children  equally. 

M.  Wife  dying  after  husband,  survived  by  no  descendants  of  either 
or  both;  or  by  woman  dying  unmarried. 


(81)   Next  of  kin. 


Property  distributable  under  Statute  of  Dis- 
tributions, as  that  of  a  single  man. 


689 


Admixistkatiox  of  Estate,  Etc. 


§821. 


ARTICLE  SEC0:N'D. 

THE    RIGHTS    OF    IIUSBAXl)    AND    WIDOW. 

§  821.  Rights  of  widow. —  Affinity  or  relationship  by  marriage, 
■except  in  the  instance  oi  the  husband  or  wife  of  the  intestate,  gives 
no  titk'  to  a  share  of  the  estate.'*'^ 

In  any  and  every  event,  the  widow  is  entitled  to  have,  to  her 
own  use  absolutely,  one-third  of  the  surplus  of  the  personal  estate. 
She  takes  in  her  right  as  widow,  and  not  as  next  of  kin  to  her 
liusband.^^  Whether  she  is  entitled  to  receive  any  portion  of  the 
remaining  two-thirds  depends  upon  the  contingencies  mentioned 
in  the  statute : 

1.  If  there  be'*"  no  children  nor  any  legal  representatives  of 
them,  then  one-half  of  the  whole  surplus  shall  be  allotted  to  the 
widow,  and  the  other  half  distributed  to  the  next  of  kin  entitled 
imder  the  statute. 

2.  If  there  be  no  descendant,  parent,  brother  or  sister,  nephew 
or  niece,  she  is  entitled  to  the  whole  surplus. 

3.  But  if  there  be  a  brother  or  sister,  nephew  or  niece,  and  no 
descendant  or  parent,  she  is  entitled  to  one-half  of  the  surplus,  as 
above,  and  to  the  whole,  if  it  does  not  exceed  two  thousand  dol- 
lars;  if  it  exceeds  that  sum,  then  she  is  entitled  to  the  one-half 
plus  two  thousand  dollars.     In  other  words,  in  such  a  case,  she 


wOazlav  V.   Cornwell.  2  Redf.   139. 

•41  Murdock  V.  Ward.  07  X.  Y.  3S7. 
In  that  case  the  testator  directed  his 
executors  to  pay  the  rcniaindor  of  his 
estate  to  his  children,  in  equal  shares; 
and  in  case  the  whole  principal  should 
not  be  paid  to  them,  or  either  of  them, 
duriuff  their  lives,  then  the  residue  to 
be  '■  equally  divided  among  and  paid 
to  the  persons  entitled  thereto  as 
their,  or  either  of  their,  next  of  kin, 
according  to  the  laws  of  the  State  of 
New  York,  and  as  if  the  same  were 
personal  property,  and  they,  or  either 
of  them,  had  died  intestate."  By  an- 
other clause,  it  was  provided,  that  if 
any  of  the  children  should  die  without 
issue,  his  or  her  share  should  go  to 
the  sui'vivors.  One  of  the  sons  died 
before  his  share  had  been  fully  paid, 
leaving  a  widow  and  one  child.  In  an 
action  for  an  inter])retation  of  the 
will, —  Held,  that  the  widow  was  not 
entitled  to  any  portion  of  the  residue, 
but  that  the  whole  thereof  l)elonged 
to  the  child.  Husband  and  wife  are 
not   next    of   kin   lo   each   other,   and. 

44: 


to  extend  the  meaning  of  those  words, 
when  used  in  a  testamentary  gift  by 
either,  so  as  to  include  the  other,  such 
an  intention  must  definitely  apjiear 
from  the  context  of  other  portions  of 
the  will.  The  will  of  R.  created  a 
trust  in  one-fourth  part  of  lier  residu- 
ary estate  for  the  benefit  of  her  grand- 
son 15.  during  liis  life.  Ipon  his  death 
said  one-fourth  part  was  given  "to 
such  persons  as  shall  be  the  heirs- 
at-law  and  next  of  kin  "  of  R..  in  such 
parts  as  they  would  have  been  respec- 
tively entitled  to,  in  case  B.  liad 
owned  the  same  and  had  died  in- 
testate. In  an  action,  among  other 
things,  to  determine  who  woe  entitled 
to  sueh  part  upon  the  death  of  B.,  who 
died  leaving  a  widow  and  two  chil- 
dren, him  surviving, —  Held,  that  the 
widow  was  not  entitled  to  a  share 
therein,  but  that  it  went  to  the  chil- 
dren. (Piatt  V.  Mickle.  137  X.  Y. 
10(i.)      See  §§   04,  •2(\0.  n.  24. 

^2  The  words  "if  there  be."  in  the 
statute,  mean,  "  if  the  decedent  left." 
See  Rose  v.  Clark,  S  Paige,  574. 


§§  822,  823.     Administkatiox  of  Estate,  Etc.  690 

lias  one-half  and  two  thousand  dollars  hesides,  latlcss  the  surplus 
does  not  exceed  two  thousand  dollars ;  in  ^vhieh  event  she  takes 
the  whole. 

4.  If  there  be  no  children,  and  no  representatives  of  them,  and 
no  father,  but  the  mother  survives,  then  the  widow  is  entitled  ta 
her  moietj  —  one-half  —  and  the  mother,  and  brothers  and  sisters, 
or  nephews  and  nieces,  take  the  remainder  in  equal  shares. 

5.  If  there  be  no  child  or  descendant,  hut  the  father  survives, 
the  widow  is  entitled  to  one-half,  and  the  father  one-half. 

§  822.  Widow's  dower  does  not  bar  her  right  to  distributive  share. 

—  The  fact  that  the  widow  of  the  testator  has  taken  her  dower  in 
her  husband's  estate  does  not  prevent  her  takings  under  the  statute, 
her  distributive  share  of  lapsed  or  inoperative  legacies  which  are 
the  proceeds  of  real  estate  directed  to  be  converted  by  the  will.*^ 
So  a  widow"  to  whom  her  husband  devised  and  bequeathed  all  his 
property  for  life,  in  lieu  of  dower,  is  nevertheless  entitled  to  her 
distributive  share  in  the  remainder  of  the  personalty,  which  has 
failed  by  reason  of  the  incapacity  of  the  legatee.'*'*  Her  acceptance 
of  a  legacy  in  lieu  of  dower  will  not  at  all  affect  her  right  arising 
under  the  statute,  or  from  any  other  source,  to  the  personal  prop- 
erty, as  dower  can  only  be  had  of  real  property."*^  But  a  bequest 
to  a  widow  in  lieu  of  a  dower,  and  all  claims  against  the  estate 
as  widow,  will,  if  accepted,  prevent  her  taking  a  distributive  share 
in  lapsed  legacies.'*^ 

§  823.  Divorced  wife — A  divorced  wife,  whether  the  divorce 
was  granted  because  of  the  misconduct  of  herself  or  her  husband, 
is  not  entitled  on  his  death,  intestate,  to  administration,  nor  to  a 
distributive  share  of  his  personal  estate.  The  statutory  provision, 
that  if  the  divorce  was  granted  because  of  the  misconduct  of  the 
wife,  she  shall  not  be  entitled  ''  to  any  distrihutive  share  of  his 
personal  estate,"  "  is  needless  and  superfluous,  and  does  not  indi- 
cate an  intention  to  confer  such  right  in  a  case  where  the  miscon- 
duct was  that  of  the  husband.^^ 


43rarker   v.   Linden.   44   Hun.    518;  [Matter  of  Hodgman,    140  id.  421;    55 

Edsall   V.  Waterbury,  2  Redf.   4S.  X.   Y.  Supp.  800. 

44Canfield  v.  Craiidall,  4  Dem.   111.         4"  2  R.  S.  146.  §  48:  Co.  Civ.  Proc.,. 

The   fact   that   she   cannot   now   come  §    1760,    subd.    3.       See     §§     9.5,    347,' 

into     possession     of     her     distributive  ante.       As    to   effect   of    divorce    upon 

share  does  not  affect  her  risht  to  re-  dower,   see  L.    1896.  c.   .547,   §    176. 
ceive  it.     (Sweet  v.  Chase.  2  K  Y.  73.)         48  Matter  of  Ensign.  103  X.  Y.  284; 

45  Hatch   V.   Bassett.  .52  X.   Y.   359;  Wait  v.  Wait.  4  id.  95 ;  Kade  v.  Lau- 
Lefevre  v.  Lefevre.  59  id.  434.  ber,   16  Abb.   Pr.    (X.   S.)    288.      Com- 

46  Matter  of  Benson,  96  X.  Y.  499;  pare  Schiffer  v.  Pruden.  64  X.  Y.  47; 


691  Administhation   of  Estate,    Etc.  §  824. 

§  824.  Rights  of  widower. —  The  husband  of  a  woman  dying  in- 
testate, i\ud  leaving-  deseendants,  is  entitled  to  the  same  distributive 
share  in  the  ])ersonal  estate  to  whieli  a  widow  is  entitled  in  the 
jiersonal  estate  of  her  husltaiid.'''  The  estates  of  married  women, 
dyiuii'  intestate,  iviUiout  (caring  surviving  descendants,  are  not 
distributable  under  tlie  Statute  of  Distributions,  but  by  the  rule 
of  the  coiiinion  law."'''*  By  the  eoninion  law,  niai'riage  was  an  abso- 
lute g'ift  to  the  husband  of  the  goods  and  ehattels  and  personal 
property  of  which  the  wife  was  actually  possessed,  and  of  such  as 
came  to  her  during  coverture.  As  to  such  property,  the  title  was 
vested  in  the  husband,  and  u]ion  his  death,  it  went  to  his  repre- 
sentatives ;  if  the  wife  died  first,  it  was  his  property  after,  as  it 
was  before,  her  death,  and  as  to  it,  no  administration  was  or  is 
necessary.  These  common-law  rights  of  the  surviving  husband 
to  the  personal  property  of  his  wife  dying  intestate  without  de- 
scendants are  not  taken  away  or  impaired  by  the  various  acts  re- 
lating to  married  women  ;"''^  and  the  same  is  exempted  from  the 
operation  of  the  Statute  of  Distributions,  the  husband  being  en- 
titled in  ]U'oference  to  the  wife's  next  of  kin.^^  This  rule  of  the 
common  law  is  recog-nized  by  the  Revised  Statutes. ^^  The  hus- 
band's rights  cannot  be  affected  by  the  granting  of  administration 
to  another  person,^'*  nor  by  the  question  whether  the  property,  in- 
cluding ehoses  in  action  of  his  Avife,  were  reduced  to  possession 
or  not,^^  inasmuch  as  he  takes  in  virtue  of  his  marital  right,  and 
not  of  his  right  to  administration.  Hence,  in  the  case  of  a  married 
woman  who  had  died  leaving  no  descendants  and  by  her  will  di- 
vided her  personal  property  between  her  husband  and  her  collateral 

Schiffor  V.  Dietz.  83  id.  .300;  Ronwick  255;    Matter   of   Klinp;pnsinith.   58   id. 

V.   Ronwifk.    10  Va\ge,  420.      Adult(M-y  375;     Fry    v.    Smitli.    10    Abb.    X.    C. 

of  wife  which  has  been  condoned  does  224;    Oilman  v.   McArdle,    12   id.   414, 

not    bar    her   dower.      (Pitts   v.    Pitts,  and     cases     infra.        See     Foehner     v. 

13    Abb.    Pr.    [X.    S.]    272;    04    Barb.  Hnber,    42    App.    Div.    430;    afTd..    166 

482;  affd.,  52  N.  Y.  593;    14  Abb.  Pr.  N.     Y.    619.        Of    course,    the    intes- 

[X.  S.l   07.)  tacy  of  the  wife  must  be  durinjj  the 

•fo  Co.  Civ.  Proc,  §  2734,  as  amended  husband's  life.  In  case  a  portion  of 
1893,  substantially  adoptinor  o  R.  S.  her  estate  is  not  disposed  of  by  opera- 
OS,  §  79,  as  amended  L.  1867,  c.  782,  tion  of  her  will,  at  her  husband's 
§    11.     See  §   .346,  ante.  death,  that  portion,  on  the  husband's 

•'■'•1  Watson  V.  Bonnev,  2  Sandf.  405;  death,  goes  to  her  next  of  kin.     (Kear- 

McCosker  v.  Colden,  l"  P.radf.  64;  Val-  nev  v.  :\Iiss.  Soc,  10  Abb.  X.  C.  274.) 

lance    v.    Bausch.    28    Barb.    G35 ;    L.  M  2  R.  S.  75.  §  29. 

1867,  c.  782,  §   12,  and  cases  infra.  54  Ransom  v.  Xiehols,  22  X.  Y.  Ill; 

51  L.  1848,  c.  200;  L.  1849,  c.  375;  Robins  v.  McClure.  100  id.  328,  336. 
L.    18(10.    c.    90;    L.    1862,    c.    172;    L.  See  Foehner  v.  Huber,  fiupra. 

1867.  c.  782.  K  Ryder    v.    Hulse.    24    X.    Y.    372; 

52  Barnes   v.   Underwood.   47    X.   Y.  Oilman    v.    ]\IcArdle.    12    Abb.    X.    C. 
351:    Ransom   v.   Xiehols,   22   id.    110;  414;   Olmsted  v.  Keyes,  85  X.  Y.  602. 
Rvder  v.  Hulse.  24  id.  372;  Matter  of  See  Wcstcrvelt  v.  Gregg,  12  id.  210. 
McLeod,  32  Misc.  229 ;  G6  X.  Y.  Supp. 


§§  825,  826.       Admixistkatio.n   of  Estate,  Etc.  692 

relatives,  her  surviving  husband  is  entitled  to  the  whole  of  a 
legacy  which  had  lapsed  by  the  death  of  a  legatee  before  the  testa- 
trix ;  and  letters  of  administration  are  not  necessary  to  protect 
his  interest.^^ 

§  825.  Next  of  kin  of  husband  or  wife. —  Under  certain  circum- 
t^tances,  the  next  of  kin  of  the  husband  or  wife  of  an  intestate  are 
deemed  the  next  of  kin  of  the  decedent.  If  there  be  no  husband 
or  wife  surviving  and  no  children,  representatives  of  a  child,  or 
next  of  kin,  then  such  personal  property  as  may  have  been  re- 
ceived by  the  deceased  from  his  or  her  husband  or  wife,  as  the 
case  may  be,  by  will  or  intestacy,  shall  be  distributed  equally  to 
the  next  of  kin  of  such  husband  or  wife.^^ 

AKTICLE  THIRD. 

eights  of  lineal  kixdred. 

§  826.  Distributive  shares  of  children. —  The  descendants  of  an 
intestate  take  the  whole  of  the  surplus  of  his  personal  estate,  less 
the  wddow's  share,  to  the  exclusion  of  all  other  persons,  whether 
belonging  to  the  ascending  line  of  lineals,  or  to  the  collateral  line 
of  relations.  If  there  be  no  widow,  they  take  the  whole,  absolutely, 
in  equal  shares.  Relatives,  including  descendants  and  next  of  kin, 
begotten  before  the  intestate's  death,  but  born  thereafter,  take  in 
the  same  manner  as  if  they  had  been  born  in  the  intestate's  life- 
time, and  had  survived  him.^^  Children  of  the  half  blood,  that  is, 
children  of  the  intestate  by  a  diiferent  father  or  mother,  take 
equally  with  those  of  the  whole  blood,  that  is,  those  born  of  the 
same  parents  ;  and  the  representatives  of  children  of  the  half  blood 
take  in  the  same  manner  as  representatives  of  the  whole  blood. ^^ 
If  anv  of  the  intestate's  descendants  or  next  of  kin  died  before 


56  Robins    V.    McChire,    100    N.    Y,  in   supplementary  proceedings  on   the 

328;    distinguishing  Barnes  v.  Under-  judgment)   is  entitled  to  intervene,  yet 

wood,    47    id.    351.      It    seems,    that  such    judgment    creditor    or    receiver 

where   the  husband,   as  executor,   has  can  receive  nothing  from  the  adminis- 

control    over   the    property   of   his   de-  trator  as  such,  because  all  that  he  has 

ceased  wife,  for  all  purposes  of  admin-  is    his   own   in   his    right   as   husband, 

istration    he    occupies    the    same    posi-  (Matter  of  Gilligan,  IS  St.  Rep.  812; 

tion  as  if  he  were  administrator,  and  1   Connoly.   137.) 

he    acquires    the    same    rights.       (lb.)  57  Co.   Civ.    Proc,    §    2732,   subd.    16 

Where    the    husband    so    entitled    has  (IflOl). 

taken  possession  of  his  deceased  wife's  58  Co.  Civ.  Proc,  §  2732,  as  amended 

assets,  the  fact  that  he  has  taken  out  1893,  subd.   14. 

letters  does  not  change  the  nature  or  59  Co.  Civ.  Proc.,  §  2732,  as  amended 

source  of  his  title:  and  although,  upon  1893,  subd.  13.      See  Matter  of  Suck-" 

his  accounting,  a  judgment  creditor  of  ley,  11  Hun,  344,  and  ante,  §  805, 
the  husband    (or  a  receiver  appointed 


693  AD.MiNisTitATlox  OF  EsTATE,  Etc.      §§  S27-S29. 

liim,  the  equal  share  of  the  child  so  dying  goes  to  the  legal  re])re- 
sentative  of  such  child.  Those  who  take  in  their  own  right  re- 
ceive equal  shares,  and  those  who  take  by  representation  receive 
the  share  to  which  the  ])arent  whom  they  represent,  if  living,  would 
have  been  entitled.''"  A  child  ex^^ressly  disinherited  by  his  father's 
will,  as  to  realty,  is  not  prevented  from  sharing  the  personalty 
under  the  Statute  of  Distributions.*^^ 

§  827.  Shares  of  illegitimate  children. —  By  the  Revised  Stat- 
utes,''^ illegitimate  children  were  not  entitled  to  inherit  from 
either  the  father  or  the  mother ;  but  this  rule  is  now  modified,'^ 
so  that,  in  the  case  of  a  mother  dying  intestate,  without  lawful 
issue,  her  illegitimate  children  are  entitled  to  inherit  from  her, 
as  if  they  were  legitimate. 

§  828.  Shares  of  parents. —  The  parents  of  an  intestate  are  not 
entitled  to  share  in  the  surplus,  if  there  are  descendants.  (1)  If 
there  are  no  descendants,  then  the  share  of  the  parents  depends 
upon  whether  there  is  a  widow.  If  there  are  no  descendants  and 
no  widow,  the  father  takes  the  whole;  but  the  mother  takes  the 
whole  only  in  case  there  are  not  only  no  descendants,  widow  and 
father,  but  no  brother,  sister,  or  representative  of  brother  or  sis- 
ter. If  there  are  brothers  and  sisters,  the  widow  takes  one-half, 
and  the  other  half  goes  to  the  mother  and  the  brothers  and  sisters, 
or  their  representatives.  (2)  If  there  be  a  widow,  but  no  child 
or  descendant,  the  father  takes  one-half  and  the  widow  the  other 
half;  and  the  mother  takes  the  same  share  where  the  father  is 
dead. 

§  829.  Mother  of  illegitimate. —  If  the  intestate  is  an  illegiti- 
mate, his  mother  will  take  the  Avhole  surplus  in  case  there  is  no 
child  or  descendant  or  widow.  Such  mother  is  entitled  to  letters 
of  administration,  in  exclusion  of  all  other  persons.  If  the  mother 
do  not  survive  the  intestate,  then  his  relatives  on  the  part  of  the 
mother  take  in  the  same  manner  as  if  he  had  been  legitimate,  and 
thcv  are  entitled  to  letters  of  administration,  in  the  same  order.''^ 


60  Co.  Civ.  Proc,  §  2732.  as  amended  Hubbard.  29  App.  Div.  166:  51   X.  Y. 

1803.  subd.    11.  Siipp.  526. 

01  Raucbfuss   V.   Raucbfuss,   2   Dem.  62  1   R.   S.  754.  §   10. 

271.     See  Lynes  V.  Tnwnsend.  33  N.  Y.  63  Co.   Civ.    Proc..   §   2732.   subd.    1.5 

561:    Henriquos    v.    Sterlinc:.    26    App.  (1807)  :  L.  18.55,  c.  547.  §  1.    See  §  816rt, 

Div.    30;    40   N.   Y.    Supp.    1071;    Hen-  ante.       Tbe    illefritiniacy    of    a    person 

riques    v.    Yale    University.    28    App.  will    not    be    presumed    but     must    be 

"Div.     3.54;      51      N.     Y.     Supp.     284;  proved  by  tbose  eontestinsr  liis  ripbts. 

Sebwencke   v.    HofTner,    18    Ann.    Div.  ( Matter  of  Matthews.  153  X.  Y.  443.) 

182;    45   N.   Y.    Supp.    937;    Wood  v.  «<  Co.  Civ.  Prop..  §  2732.  as  amended 

1893,  subd.  0.    See  ante,  §  804. 


§  830.  Administration  of  Estate,  Etc.  694r 

§  830.  Advancements  to  children. —  ''  If  any  child  of  such  de- 
ceased person  have  been  advanced  by  the  deceased,  by  settlement 
or  portion  of  real  or  personal  property,  the  value  thereof  shall  be 
reckoned  with  that  part  of  the  surplus  of  the  personal  property, 
which  remains  to  be  distributed  among  the  children ;  and  if  such 
advancement  be  equal  or  superior  to  the  amount,  which,  according 
to  the  preceding  section,  would  be  distributed  to  such  child,  as 
his  share  of  such  sur^^lus  and  advancement,  such  child  and  his 
descendants  shall  be  excluded  from  any  share  in  the  distribution 
of  such  surplus.  If  such  advancement  be  not  equal  to  such  amount, 
such  child,  or  his  descendants,  shall  be  entitled  to  receive  so  much 
only,  as  is  sufficient  to  make  all  the  shares  of  all  the  children,  in 
such  surplus  and  advancement,  to  be  equal,  as  near  as  can  be  esti- 
mated. The  maintaining  or  educating,  or  the  giving  of  money 
to  a  child,  without  a  view  to  a  portion  or  settlement  in  life,  shall 
not  be  deemed  an  advancement,  within  the  meaning  of  this  sec- 
tion, nor  shall  the  foregoing  provisions  of  this  section  apply  in 
any  case  where  there  is  any  real  property  of  the  intestate  to  descend 
to  his  heirs.  Where  there  is  a  surplus  of  personal  property  to  be 
distributed,  and  the  advancement  consisted  of  personal  property, 
or  where  a  deficiency  in  the  adjustment  of  an  advancement  of 
real  property  is  chargeable  on  personal  property,  the  decree  for 
distribution,  in  the  Surrogate's  Court,  must  adjust  all  the  ad- 
vancements which  have  not  been  previously  adjusted  by  the  judg- 
ment of  a  court  of  competent  jurisdiction.  For  that  purpose,  if 
any  person  to  be  aifected  by  the  decree  is  not  a  party  to  the  pro- 
ceeding, the  surrogate  must  cause  him  to  be  brought  in  by  a  sup- 
plemental citation."  ^^  The  term  "  advancement,"  used  in  the  stat- 
ute, is  of  much  narrower  signification  than  the  general  word  ''  ad- 
vances," which,  includes  any  gift  or  loan.^®    IvTot  only  a  child,  but 

65  Co.  Civ.  Proc,  §  2733,  as  amended  varices  for  maintaining  and  educating 

1893;   adopting  2  R.  S.  97,  §§   76,  77,  child,   see  Vail   v.   Vail.    10   Barb.   69; 

78,  as  amended  by  L.  1867,  c.  782,  ex-  McRae   v.    McRae,   3    Bradf.    199,   and 

cept  the  last  two  sentences,  which  are  ante,  §  811.     As  to  distinction  between 

new.     For  the  provisions  of  the  Stat-  an  advancement  and  a  loan,  see  Bruce 

ute    of    Descents    in    reference    to    ad-  v.  Griscom,  9  Hun.  280;   affd.,   70  N. 

vancements,  see  §  811,  ante.    The  pro-  Y.  612.     Payment  by  a  parent  of  the 

visions  of  the  original   statute,  above,  purchase  price  of  a  farm,  the  deed  of 

were   held   to  apply   in  cases  of  total  which  is  taken  in  the  name  of  a  child, 

intestacy.      (Thompson  v.   Carmichael,  is  presumptively  an  advancement,  and 

3   Sandf.  Ch.    127.)      But  see  Hays  v.  the   burden    is    on    the    child   to    show 

Hibbard,  3  Redf.  28 ;  Matter  of  Quinn,  that  it  was  a  gift  and  not  an  advance- 

2  L.    Bui.    59.       For   the    rule   where  ment.      (Sweet  v.  Northrup,  12  Week, 
there  is  real  estate,  see  Hicks  v.  Gil-  Dig.    377.) 

dersleeve.  4  Abb.  Pr.  3:  Terry  v.  Day-        66  Chase    v.    E\ving,    51    Barb.    597, 
ton,  31  Barb.  524;  Parker  v.  McCluer,    C12. 

3  Abb.  Ct.  App.  Dec.  454.     As  to  ad- 


695  Admimstkatiox  of  Estate,  Etc.  §  831. 

the  descendants  of  a  child  of  an  intestate,  who  died  before  him, 
are  entitled,  on  the  final  distribution,  when  it  consists  exclusively 
of  personal  propepty,  to  the  benefit  of  advancements  made  by  him 
in  his  lifetime  to  his  other  children;  and  such  advancements  are 
to  be  taken  into  consideration,  in  determining  the  distributive 
shares.  The  word  "'  children,"  as  used  in  the  statute,  includes  all 
the.  descendants  of  the  intestate  entitled  to  share  in  his  estate." 

ARTICLE  FOURTH. 

rights  of  collateral  kindred. 

§  831.  When  collaterals  take. —  The  next  of  kin,  referred  to  in 
the  statute,  are  to  be  ascertaineil  by  the  rules  before  mentioned, 
which  are  the  same  as  those  which  determine  who  are  entitled  to 
letters  of  administration.  It  has  been  doubted  whether  a  decree 
adjudging  a  person  entitled,  as  of  next  of  kin,  to  letters  of  ad- 
ministration, Avould  not  be  final  and  conclusive,  as  to  his  rights, 
on  the  distribution  of  the  estate.^  We  have  already  incidentally 
stated  the  cases  in  which  the  collateral  kindred  take  any  share  in  an 
intestate's  personal  estate.  The  cases  in  which  brothers  and  sis- 
ters and  their  representatives  take  less  than  the  whole  surplus  are 
stated  in  the  statute  as  follows : 

"  3.  If  the  deceased  leaves  a  widow,  and  no  descendant,  parent, 
brother  or  sister,  nephew  or  niece,  the  wadow  shall  be  entitled  to 
the  whole  surplus ;  but  if  there  be  a  brother  or  sister,  nephew  or 
niece,  and  no  descendant  or  parent,  the  widow  shall  be  entitled 
to  one-half  of  the  surplus  as  above  provided,  and  to  the  whole  of 
the  residue  if  it  does  not  exceed  two  thousand  dollars ;  if  the 
residue  exceeds  that  sum,  she  shall  receive,  in  addition  to  the  one- 
half,  two  thousand  dollars,  and  the  remainder  shall  be  distributed 
to  the  brothers  and  sisters,  and  their  representatives. 

"  6.  If  the  deceased  leave  no  children,  and  no  representatives 
of  them,  and  no  father,  and  leaves  a  widow  and  a  mother,  the  one- 
half  not  distributed  to  the  widow  shall  be  distributed  in  equal 
shares  to  his  mother  and  brothers  and  sisters,  or  the  representatives 
of  such  brothers  and  sisters ;  and  if  there  be  no  widow,  the  whole 
fiurplus  shall  be  distributed  in  like  manner  to  the  mother,  and  to 


<'"  Beebe  v.  Estabrook.  79  N.  Y.  246,  and    construed    together,    as    the    two 

where  it  was  said  that  tlie  provisions  statutes  are  in  pari  materia. 

of  the  Statute  of  Distributions  and  of  •'»  Ferrie  v.   Public  Adm'r,  3  Bradf. 

the   Statute  of    Descents,   on   the   sub-  151,  171. 
ject  of  advancements,  are  to  be  taken 


§§  832,  833.     Administration  of  Estate,  Etc.  69& 

the  brothers  and  sisters,   or  the  representatives  of  such  brothers 
and  sisters." 

The  brothers  and  sisters,  nephews  and  nieces,  therefore,  share,. 
in  certain  cases,  "vvith  the  widow,  or  with  the  widow  and  mother. 
If  there  be  no  lineal  kindred  they  take  the  whole  surplus.  Where 
the  intestate  left  no  descendant,  parent,  brother,  sister,  descendant 
of  any  brother  or  sister,  uncle,  or  aunt,  but  left  first  cousins,  and 
the  children  of  deceased  first  cousins,  the  first  cousins  are  entitled 
to  take,  to  the  exclusion  of  said  children. ^^ 

ARTICLE  FIETH. 

PROCEEDINGS   TO   COMPEL  PAYMENT   OF  DISTRIBUTIVE   SHARES. 

§  832.  Distributing  surplus. —  The  last  duty  of  an  administrator 
in  the  administration  of  an  intestate's  estate,  is  to  distribute  the 
surplus  to  and  among  the  husband  or  widows  and  the  next  of  kin. 
The  sum  of  money  which  is  so  to  be  distributed,  and  the  resj^ective 
shares  of  the  distributees,  cannot  usually  be  exactly  determined, 
except  upon  a  final  judicial  settlement  of-  the  account.  If  upon 
such  accounting,  "  any  part  of  the  estate  remains,  and  is  •  ready 
to  be  distributed,  ^  ^  ^  the  decree  must  direct  the  payment 
and  distribution  thereof  to  the  persons  so  entitled,  according  to 
their  respective  rights."  '^  Such  a  decree,  and  a  distribution  made 
thereunder,  will  not,  of  course,  discharge  the  accounting  party 
from  personal  liability  for  the  claims  of  parties  who  were  not  made 
parties  to  the  proceedings,  or  whose  claim  the  administrator  had 
knowledge,  or  ought  to  have  had  knowledge,  of,  before  making 
the  distribution.  He  is  bound  to  ascertain,  before  making  distri- 
bution, that  there  are  no  unpaid  taxes  on  the  general  estate,'^  or 
transfer  tax  payable  upon  the  individual  shares  of  the  next  of 
km. 

§  833.  Payment  in  advance  of  final  accounting. —  The  statute 
contemplates,  however,  the  likelihood  that,  within  one  year  after 
the  grant  of  letters,  the  reduction  of  the  estate  to  possession,  and 
the  ascertaining  and  payment  of  claims  will  have  been  so  far  ad- 
vanced that  the  court  may  determine,  with  some  degree  of  cer- 
tainty, whether  there  will  be  a  surplus,  and,  if  so,  the  amount 
"which  may  be  distributed  in  advance  of  the  final  decree.    It,  there- 


69Adee  v.    Campbell,   79   N.   Y.    52.  71  McMahon  v.  Jones,  14  Abb.  N.  C. 

See  Matter  of  Davenport,  67  App.  Div.  40C. 

191.  72  See  ante,  §  714. 

70  Co.  Civ.  Proc.,  §  2743. 


697  Adminlstkatiox  of  Estate,  Etc.  §  833. 

fore,  provides  that  a  person  Avho  is  entitled  to  a  distributive  share 
may,  at  any  time  after  one  year  from  the  grant  of  letters,  insti- 
tute a  proceeding  to  compel  the  payment  of  his  share,  or  of  its  just 
proportional  part.'^  As  in  the  case  of  legacies,  so  a  distributive 
share,  or  some  part  of  it,  may  be  ordered  paid,  although  a  year  has 
not  expired,  where  it  is  necessary  for  the  support  or  education 
of  the  distributee,  upon  the  filing  of  a  bond,'^  etc.  The  statutory 
remedies,  by  action"^  and  by  special  proceeding,  for  the  recovery 
of  disiributive  irhares  are  so  nearly  identical  with  those  for  the 
recovery  of  legacies,  which  we  have  already  fully  detailed,  that  it 
will  be  unnecessary  to  say  more  here  than  to  refer  to  a  previous- 
2)age.  The  subject  will  also  be  necessarily  adverted  to  when  we 
come  to  consider  the  proceedings  on  accounting. 

It  should  be  observed,  however,  that  in  proceedings  by  persons 
claiming  to  be  entitled  as  widow,  or  as  next  of  kin,  for  the  pay- 
ment of  their  shares,  the  scope  for  controversy,  as  to  the  rights  of 
the  petitioner,  is  much  larger  than  in  cases  of  application  for  the 
payment  of  legacies.  Questions  as  to  the  validity  of  the  intestate's 
marriage  M'ith  the  person  claiming  to  be  his  Avidow,  and  as  to  the 
legitimacy  and  identity  of  persons  claiming  to  be  children  of,  or 
next  of  kin  to,  the  intestate,  frequently  arise,  involving  the  rights 
of  all  the  persons  interested  in  the  estate.  As  notice  of  the  appli- 
cation for  the  advance  payment  of  a  share  is  not  required  to  be 
given  to  the  other  next  of  kin,  the  statute  wisely  provides  that 
where  the  administrator,  by  lii>  answer,  denies  the  validity  or 
legality  of  the  claim,  even  upon  information  or  belief,  the  peti- 

"3  Co.  Civ.  Proc.  §  2722.  as  amended  ruled.       (Matter    of    Dunham.    1    Con- 

1893.     See  §   781,  ante.     Pending  pro-  noly.  .323.)      See  ante.   §   787. 
oeedings   for    an    accounting    and    dis-        "5  An  action  at  law  is   not  sustain- 

tribntion,    no    other    independent    ])ro-  able  for  a  distributive  share  of  an  in- 

ceeding    should    be   allowed    to   compel  testate's    property,    to   Avhich    plaintiff 

even   a    partial    distribution   or   settle-  is  entitled  as  one  of  the  next  of  kin. 

raent  of  the  estate  or  the  payment  of  unless  there  he  evidence  that  he  holds 

a  distributive  share.     ( Bruen's  Estate,  the    money,    not    as   executor,    but    in 

3  L.  Bui.  88.)  his  individual  character.      (Fischer  v. 

74  Co.  Civ.  Proc.  8  2723.  as  amended  Fischer.  oO  X.  Y.  Super.  [-T.  &S.1  74.) 
1893  (former  S  2719).  In  Clock  v.  A  foreign  administrator,  to  be  liable 
Chadeagne  (10  Hun,  97),  it  was  de-  here  for  a  distributive  share,  nnist  be 
cided  that  tlie  proceeding  to  compel  shown  to  be  in  possession  of  assets 
the  payment  of  a  distributive  share  within  this  State.  ( Vermilya  v. 
must  be  commenced  within  the  time  Beatty,  G  Barb.  429.)  An  action  can- 
that  an  action  may  be  brought.  Wood  not  be  maintained  by  one  of  the  next 
V.  Pusco  (4  Redf.  ooO),  so  far  as  it  of  kin  of  an  intestate  against  the 
holds  that  the  time  begins  to  run  only  others  to  recover  his  distributive  share 
from  the  time  the  claimant  first  of  the  personal  estate  in  their  hands, 
learns  of  the  appointment  of  the  ad-  t>nt  an  administrator  should  be  ap- 
ministrator.  under  the  principle  of  pointed  to  make  distribution.  ( Pal- 
Co.  Civ.  Proc,  §  410,  subd.  1,  is  over-  nier   v.   Green,   63   Hun,   6;    17   X.  Y. 

Supp.  441.) 


§  833.  i\DMINISTRATION    OF    EsTATE,    EtC.  698 

tion  must  be  dismissed  without  further  hearing/^  It  is  a  general 
principle  that  there  can  be  no  legal  distribution  without  adminis- 
tration. The  share  of  a  deceased  distributee  cannot  be  paid  to 
his  next  of  kin,  but  only  to  his  personal  representative.'^  Without 
the  direction  of  the  surrogate,  the  share  of  a  minor  cannot  be  paid, 
even  to  his  general  guardian."^^ 

T6  Co.  Civ.  Proc.  §  2722,  as  amended  Proc,  §  274.3.)  See  Clock  v.  Cha- 
1893.     See  ante,  §  784.  dcagne,  10  Hiin.  97. 

77  Matter  of  Black,  1  Tuck.  14.5.  It  7S  Willcnx  v.  Smith,  20  Barb.  316; 
mav  be  paid  to  an  assignee.      (Co.  Civ.    Rose  v.  Clark,  8  Paige,  .574.     See  Co. 

Civ.  Proc,  §  2746 ;  ante,  §  792. 


CHAPTER  XVIII. 

DISPOSITION     OF     REAL     ESTATE     TO    PAY     DECE- 
DENT'S  DEBTS. 


TITLE  FIRST. 

NATURE    AND    JURISDICTION    OF    THE    PROCEEDING. 

§  834.  Liability  of  real  estate  for  debts. —  The  primary  fund  for 
the  payment  of  debts  and  legacies  is  the  personal  estate,  and  the 
land  cannot  be  resorted  to  for  that  purpose,  until  the  personalty 
is  exhausted  in  the  ordinary  course  of  administration,  and  under 
iiuthority  of  the  statute.^  Besides  the  remedy  given  to  creditors 
of  a  decedent  against  his  heirs  and  devisees  for  the  recovery  of 
the  debts,  to  the  extent  of  the  lands  descended  or  devised,  pro- 
vided the  personal  estate  is  insufficient  or  has  been  exhausted,^ 

1  Kingsland   v.   Murray,    133    N.    Y.  could   not   be   enforced    by   sale    with- 

170;    44    8t.    Rep.    515.      In    Hogan   v.  out  tlie  presence  of  the  administrator 

Kavanaugh    (138   N.   Y.   417),   it  was  of  the  deceased. 

held,  that  an  action  to  have  a  legacy  2  See  Co.  Civ.  Proc.,  §  1843;  Par- 
declared  to  be  a  charge  upon  the  tes-  sons  v.  Bovvne,  7  Paige.  354;  Wam- 
tator's  real  estate  was  not  a  suitable  baugh  v.  Gates,  1  How.  App.  Cas.  247 ; 
and  appropriate  proceeding  for  ascer-  1 1  Paige,  505 ;  Schernierhorn  v.  Dar- 
taining  who  were  creditors,  and  the  hydt,  9  id.  28;  Whitaker  v.  Young,  2 
amounts  of  their  claims,  or  to  close  up  Cow.  5G9;  Jewett  v.  Keenholts,  Ifi 
the  estate,  without  administration  or  Barb.  193;  Ferguson  v.  Broome,  1 
a  resort  to  the  procedure  prescribed  Bradf.  11;  Herkimer  v.  Rice,  27  N.  Y. 
by  statute  for  the  proof  of  debts  and  1(53;  Lockwood  v.  Fawcett.  17  Hun, 
payment  thereof  from  the  personalty,  146;  Rogers  v.  Patterson,' 79  id.  483; 
or,  if  insullicient,  the  sale  of  the  realty  Adams  v.  Fassett,  149  N.  Y.  Gl ; 
for  that  purpose.  It  appearing  in  Biater  v.  Hopper,  77  id.  244;  De 
such  an  action  that  no  executois  wore  Crano  v.  iloore,  50  App.  Div.  361 
appointed,  and  no  administration,  ("unningham  v.  Parker,  146  N.  Y.  29 
with  the  will  annexed  or  otherwise,  Matteson  v.  Palser,  56  App.  Div.  91 
had  been  api)lied  for,  and  that  the  Deyo  v.  Morss,  30  id.  56.  Prior  to 
judgment  therein,  after  adjudging  the  the  Code  the  heirs  took,  subject  to  the 
legacies  to  be  a  charge,  provided  for  j)ayment  of  the  debt  of  their  ancestor, 
the  sale  of  the  land  for  the  payment  to  the  extent  of  any  deficiency  of  his 
■out  of  the  proceeds,  first,  of  the  debts  jiersonalty  applicable  thereto.  The 
of  the  testator,  and  tlien  of  the  lega-  right  of  creditors  to  assert  and  estab- 
cies  if  the  surplus  was  sunici(>nt:  if  lish  tlieir  claiins  against  the  heirs  was 
not,  to  apply  it  pro  rnta. —  Held,  tliat  not  created  by  the  Revised  Statutes; 
so  much  of  the  judgment  as  provided  their  provisions  relating  thereto  (2  R. 
for  a  sale  for  the  payment  of  the  debts  S.  452,  §§  32,  33)  simply  changed 
Avas    error;     also,    that    tive    legacies  somewhat    the    manner    of    enforcing 

[699] 


§  835.  Disposition   of  I^kal  Estate  TOO 

the  statute  furnishes  a  remedy  hy  a  special  proceeding,  in  a  Sur- 
rogate's Court,  for  the  sale  of  the  real  estate  and  the  application, 
of  the  proceeds  to  pay  the  decedent's  debts  and  funeral  expenses^ 
if  the  personalty  is  not  sufficient  for  that  purpose,^  at  the  instance 
either  of  a  creditor  or  of  the  executor  or  administrator. 

§  835.  Object  and  constniction  of  the  statute. —  As  the  title  to 
real  jiropei'ty  vests  instantly  in  the  heir  or  devisee  upon  the 
death  of  the  owner,  the  proceedings  by  creditors,  or  by  the  ex- 
ecutor or  administrator,  to  reach  it  are,  in  their  nature,  an  at- 
tack upon  a  vested  title,  for  the  purpose  of  diverting  the  property 
from  its  apparent  owner,  to  satisfy  demands  which,  perhaps,  were 
previously  unliquidated  or  undisclosed.  The  statute  which  au- 
thorizes these  proceedings  and  regulates  the  method  of  procedure 
is,  therefore,  framed  with  many  safeguards,  which  are  intended 
chiefly  to  secure  the  following  objects:  1.  A  convenient  remedy 
for  the  satisfaction  of  creditors  pro  rata}  2.  A  just  protection 
to  the  title  of  the  heir  or  devisee,  or  those  claiming  under  them, 
and  a  reasonable  limit  to  the  period  during  which  that  title  may 
be  thus  attacked.  The  complexity  of  the  statutory  provisions, 
which  were  framed  with  a  view  to  these  purposes,  made  it  difii- 
cult  to  conduct  such  proceedings  without  leaving  ground  after- 
ward to  question  their  precise  conformity  to  those  provisions. 
In  consequence  of  the  doubt  cast  upon  many  titles  thereby,  an 
act  was  passed  in  1850,^  which  was  subsequently  amended  and 
extended,  declaring  that  all  sales  made  by  virtue  of  these  pro- 
ceedings should  1)0  deemed  as  valid  as  if  made  by  a  court  of  orig- 
inal general  jurisdiction,  thus  authoritatively  recognizing  a  third 
element  to  be  considered  in  the  construction  of  the  statute, 
namely,  the  certainty  of  titles  and  the  protection  of  purchasers- 
at  such  sales. ^ 

As  the  statutory  authority  given  by  this  statute  is  in  derogation 
of  the  common  law,^  it  must  be  strictly  pursued;  every  requisite 
of  the  statute  having  the  semblance  of  benefit  to  the  owner  must 
be  strictly  complied  with.^ 

that  right.      (Read  v.  Patterson.    134  Bennett    v.    Grain.    4    St.    Rep.     158; 

N.  Y.  128.)     See  Allen  v.  Sandford.  28  Rowing  v.  Moran.  .5  Dem.  .56. 

St.  Rep.  510;   8  N.  Y.  Supp.  182.  5  L.  1850.  c.  82;  L.  1857,  c.  82,  §  3; 

3  See   Kingsland  v.   Murray,   supra:  L.   1809,  c.  260. 

Hogan  V.  Kavanaiigh.  sitpra.     An  ac-  "^  For  a  history  of  this  remedy,  sefr 

tion  should  not  be  brought  in  the  Su-  Ferguson    v.    Broome.     1     Bradf.     10; 

prenie  Court  for  the  purpose  of  selling  Moore  v.  Moore,  14  Barb.  28. 

a  decedent's  real  estate  to  pay  debts.  "  See   Matter   of   Bellesheim.    17    St^ 

(Letson   v.   Evans,    33   Misc.    437;    68  Rep.  10:   1  N.  Y.  Supp.  276. 

N.  Y.  Supp.  421.)  SCorwin    v.    Merritt.    3    Barb.    .341; 

4  See  Matter  of  Fo.x,  92   N.  Y.   96:  Ackiev  v.   Dygert.   33  id.   176;    Bloom 


701  To   Pay    Dkcedkxt's  Debts.  §§  83G,  837. 

§  836.  History  of  the  statute. —  In  tlio  original  statute,"  the  ex- 
ecutor or  ad^lini^trator  was  authorized,  on  discovering  or  sus- 
pecting that  the  personal  assets  would  be  insufficient  to  pay  the 
debts,  to  present,  as  soon  as  conveniently  might  be,  a  just  and 
true  account  to  the  judge  of  probate,  and  to  request  his  aid  in 
the  premises. ^*^  The  statute,  prior  to  the  revision  of  1830,  con- 
tained no  express  limit  of  the  time  within  which  such  application 
should  be  made;  but  it  was  liold  that  the  application  must  be 
made  with  due  diligence  and  in  a  reasonable  time  (one  year  being 
considered  as  a  proper  limit  in  ordinary  cases);  and  that,  if  the 
application  was  not  so  made,  the  judge  or  surrogate  had,  from 
the  nature  of  his  judicial  trust,  a  discretion  to  reject  the  appli- 
cation, for  such  a  secret  and  hidden  lien  ought  not  to  be  encour- 
aged.^^ In  the  revision  of  1830,  the  right  to  ajiply  was  limited 
to  three  years  after  the  granting  of  letters.  In  harmony  with 
this  limitation,  creditors  were  restrained  during  the  same  period 
from  bringing  suits  against  the  heirs  or  devisees  to  recover,  from 
them,  debts  of  the  decedent,  by  reason  of  their  having  shared  in 
his  property.  By  the  original  statute,  also,  creditors  were  not 
allowed  to  proceed  in  this  way,  but  the  statute  simply  gave  au- 
thority to  the  executor  or  administrator  to  do  so.  The  Revised 
Statutes  authorized  the  creditors  to  initiate  the  proceedings,  if, 
after  the  executor  or  administrator  had  rendered  an  account,  it 
appeared  that  there  were  not  sufficient  assets.^"  With  this  gen- 
eral view  of  the  principal  changes  that  have  been  made,  we  pass 
to  the  consideration  of  the  matters  upon  which  the  jurisdiction 
of  the  court  depends,  and  the  method  of  procedure. 

§  837.  Nature  of  proceedings.-  This  remedy,  under  the  present 
Code,  is  clearly  a  special  2)roceeding  as  distinguished  from  an 
action ;^^  but  it  is  not  a  proceeding  in  rem,  within  the  rule  which 
would  make  the  adjudication  therein  conclusive  u])on  all  the 
world. ^"*  Xeither  is  it  a  suit  against  the  heirs  or  devisees,  within 
the  meaning  of  the  statute, ^^  which  requires  that  such  a  suit,  to 

V.    Burdick.  1    Hill.    131,    and    cases    amended  by  L.   184.3,  o.   172;   L.   1847, 

iw/ro.  c.  '2!)8:  L.  1809,  c.  84.5;  L.  1873.  c.  211. 

9  1  Greenl.  Laws,  237;  Act  of  April  13  And  tlie  same  rule  formerly  ob- 
4,   178G.  tained.      See   Skidmore   v.    Koniaine,   2 

10  See  the   substance  of  the   statute    Bradf.  122. 

stated    in   Mooers   v:   White,   6   Johns.  i^  Schneider  v.  McFarland.  2  X.  Y. 

Ch.   376.  450. 

11  See  Mooers  v.  White,  supra.  i-'' 2  R.  S.  109,  §  53;  Co.  Civ.  Proc, 

12  2    R.    S.    108.    §    48;     superseded  §  1844. 
afterward  by  L.  1837,  c.  400.  §  72,  as 


§§  838,  839.  DisrosiTioN  of  Real  Estate  702 

charge  the  defendants  with  the  debts  of  the  decedent,  must  be- 
brought  Avithin  three  years  from  the  time  of  granting  letters.^**^ 

§  838.  Jurisdictional  facts. —  The  existence  of  the  jurisdictional 
facts  specitied  by  the  statute  have  always  been  treated  by  the 
courts  as  essential  to  the  validity  of  the  sale.^^  If,  however,  the 
surrogate  once  acquires  jurisdiction,  irregularity  or  error  in  the 
subsequent  proceedings  does  not,  in  general,  render  his  decree- 
void,  nor  afford  ground  for  impeaching  it  collaterally;  the  rem- 
edy is  an  appeal.^*  In  the  application  of  these  principles  under 
the  existing  statute,  some  conflict  has  arisen  in  determining  what 
matters  are  jurisdictional,  and  what  are  not;  and,  on  the  whole, 
the  courts  have,  with  great  strictness,  applied,  to  titles  derived 
under  these  sales,  the  familiar  rule,  that  to  divest  a  person  of  his 
property  by  a  special  statutory  proceeding,  every  direction  of 
the  statute  must  be  strictly  complied  with.  Numerous  cases  in 
the  books  indicate  the  inconvenience  and  hardship,  and  the  un- 
certainty of  titles,  which  have  necessarily  resulted,  to  an  extent 
far  beyond  the  substantial  protection  of  the  interests  of  heirs 
and  devisees,  which  it  is  the  only  object  of  that  rule  to  maintain.^* 

§  839.  What  surrogate  has  jurisdiction. —  The  application  for  a 
sale,  etc.,  of  the  pi'operty  must  be  made  to  the  Surrogate's  Court 
from  which  letters  were  issued  ;^*^  and,  as  has  already  appeared, 
the  mere  existence  of  property  of  a  nonresident  decedent,  liable 
to  be  so  disposed  of,  situated  in  the  surrogate's  county,  confers 
jurisdiction  to  grant  letters."^  Such  Surrogate's  Court  has  juris- 
diction to  decree  the  disposition  of  the  property  wherever  the 
same  may  be  situated,  within  the  limits  of  the  State,  and  is  not 
confined  to  that  found  within  its  own  countv.^^ 


16  Mead  v.  Jenkins,  4  Redf.  369.  proceedings,     and      the     retrospective 

1"  Ackley  v.   Dygert,  33  Barb.   177 ;  effect  of  the  acts  confirming  titles,  see 

Rigney    v.    Coles,    6    Bosw.    479;    Van  Fox  v.   Lipe,  24  Wend.    104;    Jackson 

Deusen  v.  Sweet,  51  X.  Y.  378.  v.   Irwin,    10   Wend.    441:    Chandler  v. 

IS  Atkins  V.  Kinnan,  20  Wend.  241;  Xorthrop,    24    Barb.     129;     Forbes    v. 

Farrington  v.  King,  1  Bradf.   182,  and  Halsey.  20  N.  Y.  53. 

cases  cited  infra.  20  Co.  Civ.  Proc,   §   2750.     The   Su- 

19  The  Act  of  1850   (c.  82),  and  its  prenie    Court    has    no    jurisdiction    to 

amendments   (L.  1869,  c.  200;  L.  1872,  entertain    this    proceeding.       ( Hoey  v.. 

c.  92;   L.   1878,  c.   129).  now  replaced  Kinney.    ^0    Abb.    Pr.    400:    Letson   v. 

by  Co.  Civ.  Proc,  §§  2784,  2785.  were  Evans',  33  :Misc.  437;   68  X.  Y.  Supp. 

intended    to    obviate    these    inconveni-  421.)      See  Little  Falls  Nat.   Bank  v. 

ences,   by    declaring   that    sales    made  King,    53    App.    Div.    541 ;    65    X.    Y. 

under  the  statute  should  be  as  effect-  Supp.  1010. 

Uiil    as   if   made   by   order    of   a    court  21  See  Co.  Civ.  Proc.   §   2470:   ante, 

having    original    general    jurisdiction.  §   144.     The  rule  was  otherwise  undei- 

But  none  of  these  statutes  cure  juris-  the  Revised  Statutes.     See  Hollister  v. 

dictional  defects.    (Stilwell  v.  Swarth-  Hollister,    lO   How.   Pr.   532;    Hart  v. 

out,  81   X.  Y.   109.)      As  to  the  effect  Coltrain,  19  Wend.  378. 

of  changes  in  the  statutes  on  pending  22  Long  v.  Olmsted,  3  Dem.  581. 


703 


'Jo  1'av  Deckuknt's  Dkuts. 


§§  840,  841. 


§  840.  What  property  liable  to  be  applied. —  The  property  which 
is  suhjeet  to  such  a  dispositiuii  is  cither  (1)  real  property,  of  which 
a  decedent  died  seized,^^  or  (2)  the  interest  of  a  decedent  in  real 
property,  held  by  him  under  a  contract  for  the  purchase  thereof, 
made  either  witli  him,  or  witli  a  person  from  whom  he  derived 
his  interest;  but  this  does  not  iii(lu(h;  either  (a)  property  which 
is  devised,  expressly  charged  with  the  payment  of  del)ts  or  funeral 
expenses,^^  or  (h)  which  is  exempted  from  levy  and  sale  by  virtue 
of  an  execution,^^  or  (c)  which  is,  by  the  terms  of  decedent's  will. 
"  subject  to  a  valid  power  of  sale  "  for  the  payment  of  debts  or 
funeral  expenses.^*''  Real  property  not  so  expressly  charged,  or 
which  is  not  made  subject  to  a  valid  power  of  sale  for  that  pur- 
pose, or  is  not  exempt  as  aforesaid,  is  subject  to  the  operation  of 
the  statute. 

§  841.  Decedent's  interest. —  Under  the  Statute  of  1786,  only 
legal  estates  could  be  sold;^^  an  equitable  interest  not  being  within 
that,  as  it  is  within  the  present,  statute.  A  vendee's  interest  in 
a  contract  for  purchase,  even  in  a  parol  contract,  if  taken  out  of 
the  operation  of  the  Statute  of  Frauds  by  part  performance,  is, 
therefore,  subject  to  sale  under  the  statute.^^  Where,  however, 
the  contract  was  rescinded  after  the  purchaser's  death,  for  failure 
to  pay  the  purchase  money,  and  the  purchaser's  heir,  who  was 


23  If  the  decedent  was  seized  at  the 
time  of  his  death,  it  is  immaterial 
that  a  contest  was  pending  as  to  his 
title.  (Hewitt  v.  Hewitt,  3  Bradf. 
2iu). ) 

'~i  While  a  specific  creditor  whose 
claim  is,  by  the  will,  charged  upon 
land,  cannot  maintain  the  proceeding, 
other  unsecured  creditors  may  do  so. 
(Little  Falls  Nat.  Bank  v.  King,  53 
App.  Div.  041:  (io  N.  Y.  Supp.  1010; 
Matter  of  Richmond,   168  X.  Y.  385.) 

25  Co.  Civ.  Proc,  §  2749. 

2.5  Co.  Civ.  Proc.,  §  2759,  subd.  4. 

2"  Livingston  v.  Livingston,  3  Johns. 
Ch.    14S. 

2H  Richmond  v.  P'oote,  3  Lans.  244. 
In  Matter  of  Chipman  (26  St.  Rep. 
797;  7  N.  Y.  Supp.  372;  aflfg.  s.  c., 
sub  nom.  Matter  of  Rider,  6  Dem. 
473),  testator  agreed  that,  if  con- 
testants would  go  on  his  farm  and 
take  care  of  him  for  life,  they  should 
have  all  hrs  ])roperty.  They  per- 
formed the  condition  and  he  devised 
the  property  to  them.  In  a  proceed- 
ing to  sell  the  farm  to  pay  debts. 
Held,  on  appeal,  that  a  finding  of  tlie 
jury   that   he   died   i-eized   of  the   title 


to  his  farm  was  not  erroneous.  But 
it  seems  that  such  fact  is  not  material 
in  determining  the  contestant's  rights, 
as  the  agreement  gave  them  equitable 
interests  in  the  farm,  which  they  were 
entitled  to  have  protected.  (lb.)  In 
Matter  of  Williams  (1  Misc.  35:  22 
N.  Y.  Supp.  906 ) ,  a  lessor  agreed  to 
l)ay  his  lessee  for  building  a  barn  on 
the  leased  premises,  and  that  if  he 
died,  during  the  term,  the  lessee 
"  shall  have  a  legal  claim  against  my 
estate  for  the  reasonable  value  of  said 
barn."  At  the  time  of  making  the 
agreement  the  lessor  had  no  person- 
alty, and  he  died  during  the  term 
without  paying  for  tlie  barn.  Held, 
that  the  coutract  was  not  an  equitable 
mortgage  on  the  land,  but  an  admis- 
sion of  an  indebtedness  which  the 
lessee  could  enforce  by  a  proceeding 
to  sell  the  deceased  lessor's  land  for 
pajnnent  of  debts.  A  husband's  right 
of  curtesy,  which  still  exists  (Arrow- 
smith  v.  Arrowsmith,  S  Hun,  606),. 
does  not  prevent  the  sale,  etc.,  of  his 
intestate  wife's  lands:  hut  he  will  ac- 
quire tlie  same  interest  in  the  surplus 
as  he  had  in  the  land  itself.      (lb.) 


■^  842. 


Disposition  of  Real  Estate 


"04 


in  possession,  was  ousted  under  a  judgment  in  ejectment,  the  land 
cannot  be  reached  by  these  proceedings  to  pay  the  deceased  pur- 
chaser's debts,  although  the  heir  had  acquired  complete  title  by 
a  deed  from  the  seller."^ 

§  842.  Where  there  is  a  power  of  sale. —  The  question  which  most 
frequently  arises,  under  tlic  clause  of  the  section  referred  to,  is 
as  to  whether  the  will  contains  a  valid  power  of  sale  of  the  dece- 
dent's real  property  for  the  payment  of  his  debts,  etc.  The 
principle  which  governs  this  class  of  cases  is  this :  That  "  when- 
ever a  power  or  authority  to  sell  is  given  by  will  to  the  executor 
without  limitation,  and  not  in  temis  made  discretionary,  and  its 
«xercise  is  rendered  necessary  by  the  scope  of  the  will  and  its 
■declared  purposes,  the  authority  is  to  be  deemed  imperative,  and 
a.  direction  to  sell  will  be  implied,  provided  the  design  and  pur- 
pose of  the  testator  is  unequivocal,  and  the  implication  so  strong 
as  to  leave  no  substantial  doubt,  and  his  intention  cannot  other- 
wise be  carried  out."  ^^  In  such  a  case,  the  remedy  of  this  pro- 
•ceeding  cannot  be  resorted  to.'^^     But  where  the  power  of  sale  is 


29  Goodwin  v.  Nelin,  2  Abb.  Ct.  App. 
Dec.  258. 

30  Matter  of  Gantert,  136  X.  Y.  106; 
48  St.  Rep.  889.  In  that  case,  tes- 
tator gave  all  his  property,  real  and 
personal,  to  executors  and  trustees, 
upon  certain  specified  trusts  with 
"  full  power  and  authority  to  sell  and 
convey  any  and  all  '"  the  real  estate. 
Held,  that  the  power  to  sell  was  im- 
perative, and  the  exercise  of  it  might 
be  compelled  by  the  creditor;  and 
that,  as  the  debtor  had  thus  provided 
another  remedy  equally  prompt  and 
effective  in  its  operation,  the  statu- 
tory remedy  could  not  be  resorted  to. 
The  court  said :  "  We  are  referred  to 
many  other  cases  where  it  has  been 
held  that  a  power  of  sale  is  not  avail- 
able for  the  paj-ment  of  debts,  but 
they  are  all  cases  where  the  power 
■was  either  discretionary,  or  limited  to 
some  other  specific  purpose,  or  where 
it  could  not  be  exercised  without 
breaking  up  and  destroying"  the  scheme 
of  the  will  and  frustrating  the  inten- 
tion of  the  testator:"  citing  Kinnier 
V.  Rogers,  42  X.  Y.  ,5.31:  Scholle  v. 
t=?cho!le.  113  id.  261:  Matter  of  Mc- 
Comb,  117  id.  378;  Matter  of  Bing- 
ham, 127  id.  296.  See  also  Chamber- 
lain V.  Tavlor,  105  id.  194:  Hobson 
V.  Hale,  9.5  id.  598.  In  O'Flvnn  v. 
Powers  (136  X.  Y.  412).  the  will  de- 
vised the  residuary  estate  to  the  execu- 


tor in  trust  and  authorized  him  '"  at 
any  time  before  the  final  division  and 
settlement"  of  the  estate,  for  any  pur- 
pose "  which,  in  his  discretion,  may 
render  it  advisable  so  to  do,"  to  sell 
any  part  cr  portion  of  the  real  estate. 
Held,  that  the  power  of  sale  given  the 
executor  could  be  lawfully  exercised 
for  the  pa_^^nent  of  an  honest  debt,  in 
no  way  invalid  or  outlawed,  owing  to 
himself. 

31  An  implied  power  of  sale,  if  actual 
and  valid,  is  sufficient  to  prevent  this 
proceeding.  ( Coogan  v.  Ockershausen, 
55  X.  Y.  Super.  [J.  &  S.]  286;  s.  c,  11 
Civ.  Proc.  Rep.- 315;  afli'd.,  18  St.  Rep. 
366.)  To  the  same  effect.  Matter  of 
Hesdra  (2  Connoly.  514;  20  X.  Y. 
Supp.  79),  where  the  will,  after  di- 
recting that  testator's  lawful  debts  be 
paid,  and  giving  certain  legacies,  pro- 
vided that  "  the  real  and  personal  es- 
tate, wherever  found,  shall  be  disposed 
of  as  deemed  best  by  mj'  executor." 
Held,  that  this  latter  provision  gave 
the  executor  a  valid  power  of  sale  to 
pay  debts,  which  defeated  the  proceed- 
ing. A  will  which.  "  after  my  lawful 
debts  and  those  of  my  brother  are 
paid,"  gave  the  estate  to  executors 
and  directed  them  to  convert  it  and 
distribute  the  proceeds  in  a  manner 
prescribed, —  Held,  not  to  confer  a 
power  to  sell  real  estate  to  pay  debts, 
and  that  the  proceeding  was  maintain- 


T<j  Pay   Dkcedknt's  Debts. 


843. 


not  imperative,  but  rests  in  the  discretion  of  the  executor  whether 
he  will  exercise  it  or  not,  a  sale  may  be  forced  by  creditors  by 
this  ))i-oceeding.''~ 

i;  843.  Where  lands  are  charg^ed  with  payment  of  debts. —  An 
intention  to  charg-e  the  payment  of  debts  upon  a  devise  of  real 
estate  will  not  be  cojistrued  from  the  nse  by  testator  of  formal 
words,  or  commonly  em])loy(Ml  ])hrases.  Thus,  the  opening  words 
of  the  will  — "  after  all  my  lawful  and  just  debts  are  paid,  I  give," 
etc. —  do  not  amount  to  an  ex])ression  or  declaration  of  the  mode 
in  wliich  the  testator  intended  his  debts  to  be  paid;  and  they  do 
not  (diarge  the  real  estate  with  their  payment  ;^^  they  merely  pro- 
ride  for  what  the  law  required,  if  there  had  been  no  such  clause, 
to  wit,  that  the  debts  should  be  a  charge  on  the  property  of  the 
testator.^'*  To  justify  a  finding  of  an  intent  on  the  testator's 
part  to  make  the  debts  a  charge  on  his  real  estate,  such  intent 


able.  (Matter  of  Karge,  4o  St.  Hep. 
it  Hi;  18  N.  Y.  Supp.  724.)  So,  too, 
where  property  was  given  to  executors 
to  "  dispose  of  the  same  as  though  I 
died  intestate,"  accompanied  with  a 
])o\ver  of  sale.  (Parker  v.  Beer,  65 
App.  Div.  598:  72  N.  Y.  Supp.  955.) 
In  Matter  of  Davids  (5  Dem.  14).  the 
estate  c;  nsisted  wholly  of  real  prop- 
trty.  The  will,  after  certain  heo^uests, 
directed  the  payment  of  testator's 
debts  and  funei'al  expenses,  and  pro- 
vided that  his  entire  estate  should  be 
sold  and  turned  into  cash  as  soon  after 
his  death  as  should  be  deemed  advisa- 
"ble.  Held,  that  the  real  property  was 
"  subject  to  a  valid  power  of  sale  for 
the  payment  of  debts."  Russell  v. 
Russell"  (.3(5  N.  Y.  581)  was  distin- 
guished on  the  ground  that  in  that 
ease  the  i)o\ver  of  sale  was  for  the  sole 
benefit  of  legatees,  and  not  generally. 
See  Dennis  v.  Jones,  1  Dem.  80;  Mat- 
ter of  Rosenfield.  10  Civ.  Proc.  Rep. 
201 ;  5  St.  Rep.  .339;  o  Dem.  251 ;  Mat- 
ter of  Coutant,  24  Misc.  350;  53  X.  Y. 
Supp.   713. 

32Matter  of  Johnson,  18  App.  Div. 
371:  4(i  X.  Y.  Supp.  53;  Matter  of 
Herov.  07  Hun,  13;  sub  nom.  Matter 
rf  Campbell,  21  N.  Y.  Supp.  685.  In 
that  case,  testator,  whose  will  con- 
tained no  mention  of  his  debts  nor  di- 
rection for  their  pajnnent.  after  giv- 
ing certain  legacies,  devised  the  resi- 
due of  his  estate  to  his  executors,  in 
trust,  t'^  receive  the  rents  and  profits 
during  the  lif.^time  of  his  wife,  and 
.apply  tham  to  the  support  of  his  fam- 

45 


ily,  and  after  her  death  he  devised  the 
remainder  to  his  children.  liy  a  sub- 
sequent clause  he  empowered  his  ex- 
ecutors, if  they  should  deem  it  to  be 
for  the  best  interests  of  his  estate,  to 
sell  any  of  his  real  estate.  Held,  on 
appeal  from  an  ord-n-  of  the  suVrogate 
denying  the  application  of  certain 
creditors  for  a  sale  of  his  r.>al  estate, 
that  the  application  should  not  have 
been  refused;  that  the  real  estate  of 
the  decedent  was  not  exprensb/  charged 
with  the  paj'ment  of  his  debts,  and, 
therefore,  the  creditors  were  entitled 
to  take  proceedings  for  its  sale,  and 
that  the  power  of  sale  given  to  the 
executors  was  discri'tionary  and  not 
imperative,  and,  unless  imperative,  the 
creditors  could  maintain  the  proceed- 
ings. 

33:Matter  of  City  of  Rochester.  110 
X.  Y.  159;  s.  c.  as  Citv  of  Rochester  v. 
Smith,  17  St.  Rep.  146;  Cunningham 
V.  Parker,  146  X.  Y.  29;  65  St.  Rep. 
774;  Matter  of  Van  Vleck.  32  Misc. 
419;  Matter  of  O'Brien,  39  App.  Div. 
321:  56  X.  Y.  Supp.  925:  Matter  of 
McKav.  24  Mis<>  255;  53  X.  Y.  Supp. 
563:  Matter  of  Crotrian,  30  Misc.  23; 
63  X.  Y.  Supp.  996.  The  mere  inade- 
q»iacy  of  the  personal  property  to  pay 
the  debts  is  not  a  circumstance  from 
which  an  intention  to  charge  the  real 
I)ropertv  therewith  can  be  inferred, 
(lb.)  To  the  same  effect,  see  Clift  v. 
Moses.  116  X.  Y.  144;  Matter  of  Bing- 
ham,  127  id.  296. 

34  Smith  v.   Soper,  32  Hun,  46. 


§§  844,  845.  Disposition  of  Kkal  Estate  70(> 

must  appear  from  express  direction  or  be  clearly  gathered  from 
the  provisions  of  the  Avill.'^''  "  Debts  and  legacies  stand  upon  a 
different  basis,  and,  consequently,  words  that  would  indicate  an 
intention  to  charge  one  on  real  estate  might  not  convey  any  such 
intention  as  to  the  other."  ^° 

§  844.  Lands  exempt. —  The  statute  exempts,  from  its  operation, 
property  which  is  exempted  from  levy  and  sale  by  virtue  of  an 
execution.  Thus  a  seat  or  pew  occupied  in  a  place  of  public 
worship  ;^'^  and  land  set  ajDart  as  a  family  or  private  burying- 
ground,  properly  designated  by  recording,  etc.,  and  not  exceeding 
in  extent  one-fourth  of  an  acre,  etc.,  are  exempt  ;^^  and  so  are 
cemeteries. ^^  A  lot  of  land  with  one  or  more  buildings,  not  ex- 
ceeding $1,000  in  value,  owned  and  occujoied  by  a  householder 
having  a  family,  as  a  residence,  properly  designated,  is  exempt 
from  execution,  and  consequently  from  disposition  under  this 
proceeding  to  pay  debts. '*^ 

§  845.  For  what  purpose  a  sale,  etc.,  may  be  had. —  The  statute 
permits  the  proceeding  to  be  taken  only  for  the  payment  of  the 
decedent's  debts  or  funeral  expenses.^^  The  latter  are  not  strictly 
debts  due  from  the  decedent,  though  they  are  a  charge  against 
the  estate;  and  they  were  not,  until  recently,  within  the  statute. 
But  the  statute  does  not  authorize  the  proceeding  where  there  are 
no  debts  except  those  incurred  in  the  administration  of  the  es- 
tate,^"  but   the   proceeding   is   authorized    though    there    are    no 


35Clift   V.    Moses,    116    N.    Y.    144.  37  Co.  Civ.  Proc,  §  1390. 

Compare  Matter  of   Fox,  52   id.   530;  3.S  Co.  Civ.  Proc,  §§  1395,  1396. 

White  V.  Kane  (51  N.  \.  Super.  [J.  &  39  L.   1877,  c.   31. 

S.]  295;  7  Civ.  Proc.  Rep.  267),  where  40  Co.  Civ.  Proc.  §§  1397,  1398.     See 

it  was  held,  that  a  devise  to  testator's  also  as  to  homesteads,  §§   1399.  1400- 

wife,  "  after   all   my   lawful    debts  are  1404.       Real    estate    bought    with    the 

paid  and  discharged,"  charged  the  debts  pension  money  of  the  decedent  may  be 

upon  the  devise.       In   Smith   v.    Coup  sold   in   a   proceeding   for  the  purpose 

(6  Dem.  45),  the  disposing  clause  of  of  the  payment  of  his   debts,   the   ex- 

the    will    commenced    with    the    words  emption  from  debts  not  extending  be- 

"  after  all  my  just  debts  are  paid,"  and  yond    the    decease    of    the    pensioner, 

then  gave  specific  devises.     Held,  that  (Matter   of  Liddle,   35    Misc.    173;    71 

this  brought  the  case  within  the  excep-  X.  Y.  Supp.  474. ) 

tions,  and  the  court  had  no  jurisdic-  41  Co.  Civ.  Proc,  §  2750;  not  lega- 
tion to  dispose  of  the  property.  Where  cies.  (Matter  of  Connor.  1  L.  Bui.  8.) 
there  is  a  general  direction  to  satisfy  *'  Funeral  expenses "  will  include  a 
mortgages  on  real  estate  out  of  inconis,  reasonable  charge  for  a  suitable  head- 
without  specifying  the  method  by  stone.  But  an  expenditure  of  .$500 
which  such  purpose  is  to  be  effectu-  for  a  headstone  will  not  be  allowed 
ated,  query,  whether  the  court  has  when  the  estate  does  not  exceed  .$8,000. 
power  to  carry  out  the  same  by  a  sale  (Owens  v.  Bloomer,  14  Hun,  296.) 
for  a  term  of  vears?  (Matter  of  See  ante,  §  549. 
Fisher,  4  Misc  46.)  42  Matter  of  Cornwall.  1  Tuck.  250; 

36  Per  Haight,  J.,  in  Clift  v.  Moses,  Smith   v.   Meakim.   2   Dem.    129;    s.  c 

supra.  as    Matter    of    Meakim,    5    Civ.    Proc. 


TUT 


To   Pay    Deckdent's  Debts. 


§845. 


claims  against  the  estate  except  expenses  of  the  dececknit's 
funeral."*'  Claims  against  the  estate  which  were  not  debts  of 
the  decedent  cannot  Ik-  made  the  basis  of  these  proceedings,  such 
as  costs  awarded  against  the  estate  since  decedent's  death;''''  nor 
costs  in  an  action  against  the  surviving  y)artner  <^»f  dec(Mlent  u])on 
a  firm  •Icbt;'*''^'  nor  can  the  claim  id'  the  widow,  and  administratrix, 
against  her  husband's  estate  for  maintaining  tlieir  infant  chil- 
dren;^" nor  the  claim  of  the  hus])and  and  executor  for  medical 
attendance  paid  for  bv  him,  since  he  is  primarily  liable  therefor ;^^ 
nor  can  the  claim  of  the  re])resentative  to.  be  reimbursed  for 
debts  paid,  and  for  his  disbursements  and  commissions. ''^  But 
claims  incurred  in  legal  ]u*oceedings  instituted  l)y  tlie  committee 
of  a  decedent  who  Avas  a  lunatic,  and  allowed  In'  the  Supreme 
Court  and  adjudged  valid  claims  against  the  legal  representa- 
tives in  the  same  manner  as  if  they  had  been  debts  contracted 
by  the  lunatic  in  his  lifetime,  are  valid  claims  which  may  be 
allowed  by  the  surrogate.^^  So  taxes  accruing  subsequent  to  the 
date  of  decedent's  death  are  chargeable  upon*  the  land,  and  an 
administrator  who  has  redeemed  the  property  sold  for  unpaid 
taxes,  is  subrogated  to  the  right  of  the  State  against  the  property, 
and  may  institute  this  proceeding;*'*'^  but  where  the  executor  is 
also  the  life  tenant,  he  cannot  be  allowed  for  taxes,  or  for  the 
[)rincipal  and  interest  of  mortgages  paid  by  him.^^ 


Rep.  421;  Matter  of  Qiiatlander,  -29 
Misc.  5G(i;  01  N.  Y.  Supp.  1()()4.  But 
see  Shiite  v.  Shute,  5  Deni.  1.  Dur- 
ing peiuioncy  of  an  action  against  an 
executor  for  misappropriation,  he  died, 
and  liis  executor  was  substituted; 
judgment  was  recovered  with  costs, 
botii  of  whicli  defendant  was  directed 
to  i)ay  out  of  tlie  estate, —  Held,  that 
the  judgment  creditor  was  not  enti- 
tled to  a  jtrcference,  but  only  to  a  pro 
rata  share,  and  that  the  costs  were 
properly  disallowed  as  a  claim  payable 
out  of  the  proceeds  of  a.  sale  of  the 
real  estate.  (Matter  of  Fox,  92  X.  Y. 
93.) 

43  Matter    of    King.    10    Civ.    Troc. 
Rep.  17"). 

44  Matter    of    Folev.    ."^H     App.    Div. 
248;  .-)7  X.  Y.  Supp.  "l.-n. 

45:\Iatter  of  Stowell,   15  Misc.   533; 
37  N.  Y.  Supp.   1127. 

40  Woodruff  V.  Cook,  2  Edw.  250. 

47  Matter  of  Very,  24  Misc.  130;  53 
N.  Y.  Supp.  380. 

48  Ball  v.  Miller.  17  How.  Pr.   300: 
Gilchrist   v.    Rea,    9    Paige,    60.       See 


Fitch  V.  Witbeck,  2  Barb.  Ch.  101. 
In  Shute  v.  Shute  (5  Dem.  1),  a  bal- 
ance found  due  the  administrator  on 
liis  prior  accounting  was  directed  to 
be  paid  out  of  the  proceeds  of  sale, 
although  it  represented  sums  paid  by 
the  administrator  fcr  expenses  of  ad- 
ministration, and  not  upon  a  debt  of 
the  intestate. 

■ly  Rowing  v.  ^loran,  5  Dem.  50. 
]?ut  a  claim  of  counsel  for  services 
rendered  to  such  committee  in  excess 
of  the  amount  allowed  by  the  court 
is  against  the  committee  personally, 
and  cannot  be  allowed  as  a  debt  of 
the  decedent.  (lb.)  In  Skidmore  v.  ■ 
Romaine  (2  Bradf.  122),  a  debt  in- 
curred for  necessaries  furnished  to  a 
person  of  weak  and  impaired  mind 
was  allowed  as  a  debt  against  his 
estate. 

50  Jones  V.  LeBaron.  3  Dem.  37. 
Compare  Ball  v.  Miller.  17  How.  Pr. 
300;  Livingston  v.  Xewkirk.  3  Johns. 
Ch.  312. 

r.i  Matter  of  Very,  24  Misc.  130;  53 
X.  Y.  Supp.  389. 


§  846.  Disposition   of  Heal  Estate  708 

Under  the  statute,  debts  of  a  testator,  for  which,  after  the 
lapse  of  three  years,  the  sole  devisee  is  liable,  may  be  allowed,  in 
proceedings  to  sell  the  latter's  real  property.^^ 

TITLE  SECOXD. 

PROCUREMENT    OF    DECREE. 

§  846.  When  application  to  be  made. —  In  order  to  fix  a  certain 
period  after  which  hojia  fide  purchasers'"^  will  be  protected,  and 
actions  may  be  maintained  against  heirs  and  devisees  personally,^* 
the  statute  prescribes^''  that  the  application  may  be  made  to  the 
proper  surrogate  at  any  time  within  three  years  after  letters 
were  first  duly  granted  in  this  State ;  that  is,  three  years  from  the 
date  of  the  original  grant  of  letters,  and  7wt  (in  case  of  a  change 
of  administration)  from  the  time  letters  were  granted  to  the 
administrator  who  made  the  sale.^"  As  the  law  stood  prior  to 
the  Repealing  Act  of  1880,  a  creditor  cauld  not  commence  the 
proceeding  until  after  the  representative  had  rendered  his  ac- 
count, and,  consequently,  the  proceeding  was  stayed  by  a  ''  statu- 
tory prohibition"  within  the  meaning  of  that  term  as  used  in 
section  406  of  the  Code,  providing  that  the  time  of  the  continu- 
ance of  such  a  stay  is  not  to  be  taken  as  a  part  of  the  time  limited 
for  the  commencement  of  an  action.'^     But  under  the  present 

52  Matter  of  Fielding,  30  Misc.  700;  years  prior  to  September  1.  1880, 
04  X.  Y.  Supp.  569.  when    the    eighteenth    chapter    of    the 

53  See  ]Mead  v.  Jenkins,  95  l-T.  Y.  31.    Code  went  into  effect,  were  not  cut  off 
Si  Slocum  V.  English,  62  X.  Y.  494;    by  the  three  years'  limitation  of  this 

Parkinson  v.  Jacobson,   18  Hun.  353 ;  section,  but,   as   they  existed   at   that 

Smith  V.   Soper,  32  id.  46;   Jewett  v.  time,    were    saved    by    the    provision 

Keenholts,  16  Barb.   193.  (§    3352)    which   enacts   that  nothing 

55  Co.  Civ.  Proc,  §  2750.  contained  in    any    provision    of    that 

56  Slocum  V.  English,  supra.  See  portion  of  the  Code  (save  as  excepted) 
Fonda  v.  Chapman,  23  Hun.  119;  U.  renders  ineffectual  or  impairs  any 
S.  L.  Ins.  Co.  V.  Jordan,  5  Redf.  20''.  right  accrued  or  established  before  the 
If  the  petition  is  filed  and  the  citations  provision  takes  effect,  and  that,  for 
issued  within  three  years  after  the  the  purpose  of  enforcing  such  a  right, 
granting  of  letters,  the  proceeding  is  the  statutes  in  force  on  the  day  before 
timely,  although  the  citation  is  re-  the  provision  takes  effect,  are  deemed 
turnable  after  the  expiration  of  that  to  remain  in  force.  (O'FljTin  v.  Pow- 
period.  (Matter  of  Topping,  18  Civ.  ers,  136  N.  \.  412.)  This,  in  effect, 
Proc.  Rep.  115;  29  St.  Rep.  211;  Oly-  overrules  U.  S.  Trust  Co.  v.  Jordan 
phant  v.  Phvfe.  48  App.  Div.  1;  62  (5  Redf.  207),  where  it  was  held, 
N.  Y.  Supp.  688:  affd..  166  N.  Y.  6.30.  that  section  2750  applied  to  a  case 
So,  too,  where  the  petition  was  filed  where  letters  were  issued  more  than 
within  the  three  years,  but  the  cita-  three  years  before  September  1.  1880; 
tion  not  issued  lor  four  years  there-  and  also  Carman  v.  Brown  (4  Dcm.. 
after.  ( Matter  of  Van  Vleck,  32  Misc.  96).  In  the  last-named  case,  the  de- 
419.)  cedent  died  October   1,   1868,  indebted 

5TMead    v.    Jenkins,    95    X.    Y.    31.  to   C.   on    simple  contract   for   a   sum 

The    rights    of    creditors    of    decedents  which    had    become    due    on    April     1, 

who  died,  and  upon  whose  estates  let-  1868.    lea\-ing    a    will    which    was    ad- 

ters  had  been  granted  more  than  three  mitted   to   probate   and   letters   issued 


■09 


To  Pay  Decedent's  Debts. 


§846. 


Code,  a  creditor  may  institute  the  jiroceeding  at  any  time  after 
letters  granted,  and  no  previous  accounting  is  recjuired.  It  is 
the  intention  of  tlie  present  statute  to  restrict  tlie  right  of  the 
creditor  or  representative  to  the  three  years,  and  not  to  extend 
the  })eriod  of  limitation  indefinitely,  so  as  to  give  a  creditor  three 
years  after  the  grant  of  letters,  regardless  of  the  term  or  period 
which  may  have  ela])sed  before  such  letters  were  issued.''® 

During  this  period  of  three  years,  the  creditors  have  a  kind 
of  statutory  lien  upon  the  deceased  debtor's  real  estate;'^'''  after 
the  expiration  of  three  years,  the  debts  may  be  enforced  against 
the  heirs  and  devisees,  and  they  then  cease  to  be  a  lien  or  charge 
"upon  the  real  estate, ^^  except  as  against  the  heirs  or  devisees.**^ 
During  this  period  of  three  years,  the  heirs  and  devisees  may  sell 
and  convey,  but  purchasers  take  title  at  their  peril,  and  the  land 
in  their  hands  is  sul)ject  to  the  same  liabilit}'  to  be  thus  reached, 
in  case  tlie  assets  prove  deficient,  as  it  would  have  been  in  the 
hands  of  the  heir  or  devisee;^'  and,  on  the  same  grounds,  a  sale 
in  partition  between  the  heirs  will  not  preclude  a  subsequent 
sale  for  payment  of  debts.^""^     Where  more  than  three  years  have 


on  Octobor  19,  1808.  In  June,  1871, 
a  judgnu'nt  for  the  amount  of  the 
claim  was  recovered  against  the  ex- 
ecutors, who,  in  July,  1880,  volunta- 
rily rendered  their  account,  showing 
insullicient  assets  to  pay  debts.  On 
May  17.  1886.  C.  instituted  a  special 
proceeding  for  the  sale  of  the  real 
projierty  of  decedent  for  the  payment 
of  liis  debts.  Held,  that  as  C.'s  claim 
was  barred  by  tlie  Statute  of  Limita- 
tions, tlie  application  should  be  denied. 

rxs  Church  v.  Olendorf,  49  Hun,  439. 

M  Piatt  V.  Piatt,  105  X.  Y.  488; 
Fonda  v.  Chapman.  23  Hun.  119; 
Hyde  v.  Tanner,  1  Barb.  7;") ;  Wilson  v. 
Wilson.  13  id.  252;  Waring  v.  War- 
intr,  3  Abb.  Pr.  240. 

CO  Piatt  V.  Piatt,  supra:  White  v. 
Kane.  51  N.  Y.  Super.  (J.  &  S.)  295; 
1  How.  Pr.  (is:.  S.)  382;  7  Civ.  Proc. 
R«-p.  207. 

<ii  Hence,  when  there  is  a  deficiency 
in  the  personal  estate,  decedent's 
debts  and  funeral  expenses  are  enti- 
tled to  be  paid  out  of  surplus  moneys 
arising  from  foreclosure  sales  of  his 
real  estate,  paid  into  the  Surrogate's 
Court  under  section  2798  of  the  Code, 
althoiigh  the  three  years  from  the  date 
nf  issuance  of  the  original  letters  upon 
the  decedent's  estate,  within  which, 
by  force  of  section  2750,  creditors 
(•:ni  apply  to  the  Surrogate's  Court 
for  the  sale  of  the  decedent's  real  es- 


tate to  pay  debts,  may  have  expired. 
Section  2750  does  not  discharge  the 
land  from  liability  for  debts  after  the 
expiration  of  such  time,  so  long  as  it 
remains  in  the  legatees  or  heirs-at- 
law,  since  such  limitation  is  intended 
only  for  the  protection  of  bona  fide 
purchasers  after  the  lapse  of  such 
time,  (flatter  of  Callaghan,  09  Hun, 
101  :   23  N.  Y.  Supp.  378.) 

c>2  Where,  after  the  proceeding  has 
been  dismissed,  but  before  the  time 
to  appeal  has  expired,  one  takes  a 
mortgage  on  the  property,  he  does  so 
at  the  risk  of  a  reversal  of  the  de- 
cree. (Oh'phant  v.  Phvfe.  48  App. 
Div.  1;  62  N".  Y.  Supp.  688:  afTd.. 
106  X.  Y.  630.  See  Cunningham 
V.  Whitford,  74  Hun,  273;  20  N. 
Y.  Supp.  575.  In  Hyde  v.  Tanner. 
(1  Pari).  75),  whei-e  the  mortgagee  of 
the  decedent  relinquished  his  mort- 
gage, without  payment,  and  took  a 
new  one  from  the  heir,  it  was  held, 
that  it  should  be  deemed  to  have  been 
done  under  mistake  of  fact  as  to  the 
existence  or  amount  of  debts,  and  as 
to  insufficiency  of  personal  assets, 
and  that  the  mortgagee  must  be  pro- 
tected. 

«3Hall  V.  Partridge.  10  How.  Pr. 
188;  :\read  v.  Jenkins.  29  Hun.  253; 
95  N.  Y.  31.  See  Matter  of  Dusen- 
burv,  34  Misc.  066;  70  N.  Y.  Supp. 
725! 


§  848.  Disposition   of  Real  Estate  710 

elapsed  after  the  granting  of  letters,  the  premises  are  iKjt  liable 
to  a  sale  in  such  proceedings,  where  they  have  once  vested  in  a 
purchaser  for  value  and  in  good  faith,  although  subsequently, 
and  at  the  time  of  the  commencement  of  the  proceedings,  they 
have  re-vested  in  the  devisee  under  the  decedent's  will.^ 

§  848.  Creditor's  time  extended,  if  claim  in  litigation. —  The  time 
during  which  an  action  is  pending  in  a  court  of  record,  between 
a  creditor  and  an  executor  or  administrator  of  the  estate,  is  not 
a  part  of  the  time  limited  "  for  presenting  a  petition,  founded 
upon  a  debt,  which  was  in  controversy  in  the  action;  if  the  cred- 
itor has,  before  the  expiration  of  the  time  so  limited,  filed,  in 
the  clerk's  office  of  the  county  where  the  real  property  is  situated, 
a  notice  of  the  pendency  of  the  action;  specifying  the  names  of 
the  parties,  the  object  of  the  action,  and,  if  the  creditor's  debt 
is  made  the  foundation  of  a  counterclaim,  the  nature  of  the 
counterclaim;  containing  a  description  of  the  property  in  that 
county  to  be  affected  thereby;  and  stating  that  it  will  be  held  a.i 
security  for  any  judgment  obtained  in  the  action."  '^^  "Where  no 
evidence  is  given  that  the  cause  of  action  alleged  was  contested, 
except  proof  of  the  bringing  of  the  action,  and  that  it  had  been 
pending  six  months  at  the  time  of  filing  the  petition,  it  will  be 
presumed  that  the  claim  was  disputed  and  that  the  alleged  debt 
was  in  controversy  in  the  action.^^ 

The  statute  also  provides  that  "  whenever  an  executor,  admin- 
istrator, or  creditor  of  a  deceased  person  shall  have  commenced, 
or  shall  hereafter  commence,  an  action  in  any  court  of  compe- 
tent jurisdiction  of  this  State,  for  the  purpose  of  setting  aside 
any  fraudulent  conveyance  of,  or  incumbrance  upon,  any  real 
estate  of  such  deceased  person,  and  such  action  shall  have  been 
decided  in  favor  of  such  executor,  administrator,  or  creditor,  such 
executor,  administrator,  or  creditor,  may,  at  any  time  within  three 
years  after  the  final  determination  of  such  action,  have  and  main- 
tain an  action  or  proceeding  against  the  proper  parties,  in  any 
court  of  competent  jurisdiction  of  this  State,  for  a  sale  of  such 


64  Matter  of  Dodge,   105  X.  Y.  58.5.  celed    in    like   manner,    or    a   specified 

65  Co.  Civ.  Proc,  §  2751.  The  orig-  portion  of  the  property  affected 
inal  statute  did  not  extend  to  a  case  thereby  may  be  discharged  from  the 
where  the  creditor  had  interposed  a  lien  thereof,  by  the  order  of  the  court 
counterclaim.  (L.  1873.  c.  21 1.)  A  in  which  the  action  is  pending,  made 
notice  so  filed  must  be  recorded  and  upon  the  application  of  a  person  hav- 
indexed.  and  may  be  canceled,  as  pre-  ing  an  interest  in  the  leal  property, 
scribed  in  the  Code  (§§  1670-1674),  upon  notice  to  the  creditor,  and  upon 
with  respect  to  the  notice  of  pendency  such  terms  as  justice  requires."  fib.) 
rf  an  action  affecting  the  title  to  real  6'^  Matter  of  Bingham.  127  X.  Y. 
property;    and  "it  may  also  be  can-  296;  38  St.  Rep.  765. 


Til  To  Pay  Decedent's  Debts.  §  849. 

real  estate,  and  for  a  (listri])nti<»ii  of  the  proceeds  of  such  real 
estate  among  the  creditors  of  such  deceased  person,  and  other 
persons  entitled  to  the  same,  as  may  be  directed  by  the  judgment 
in  such  action."  ^^ 

§  849.  Who  may  make  the  application. —  The  application^"*  may 
be  made  by  **  an  executor  or  administrator,  whether  sole  or 
joined  in  the  letters  ■with  another,*"'  other  than  a  temporary  ad- 
ministrator;" ™  or  it  may  be  made  by  any  person  "holding  a 
judgment  lien  u]>on  decedent's  real  property  at  the  time  of  his 
death,  or  any  other  creditor  of  the  decedent,  other  than  a  creditor 
by  a  mortgage,  which  is  a  lien  upon  the  decedent's  real  property." 
Doubtless  it  can  be  made  by  one  having  a  claim  for  funeral  ex- 
penses, as  he  is  now  deemed  a  creditor  of  the  decedent."^^  The  words 
■*'  executor  or  administrator "  do  not  include  an  ancillary  execu- 
tor or  administrator.^^  A  creditor  whose  original  claim  is  barred, 
■cannot  maintain  this  proceeding.  It  does  not  alter  the  case  that 
he  ol)tained  a  judgment  on  the  claim,  against  the  executor,  before 
it  was  barred,  as  the  judgment  is  not  conclusive  evidence  of  the 
indebtedness,  which  must  be  established  in  this  proceeding."  A 
creditor  who  has  assigned  his  debt  to  another  cannot  present  the 
petition,  but  the  assignee,  as  the  real  creditor,  may  do  so.^*  It 
is  sufficient  if  the  creditor  states  in  the  petition  any  one  item  of 
indebtedness,  the  amount,  and  to  whom  it  is  owing,'"  even  though 


67  Co.  Civ.  Proc,  §  2751,  as  amended  (rranger.   12   Barb.   392:   Wood  v.   Mc- 
1887.     It  seems  tnat,  for  the  purpose  Chesney,  40  id.  417. 

of  preserving  a  claim  from  the  three        '0  As    to    a    temporary    administra- 

years'    limitation,   a   lis  pendens   may  tor's  power,  see  Co.  Civ.  Proc,  §  2()7."): 

be    filed   in    proceedings   upon   a    refer-  §    412.   ante.      As   to   an   ancillary  ex- 

€nce   of    the   claim   against   the   execu-  editor  or   administrator,   see   Co.   Civ. 

tors    under    the   statute.       (Matter   of  Proc.  §  2702:   §  .318,  ante. 
Bingham,   127  N,  Y.  296;   38  St.  Rep.        71  See  Co.  Civ.   Proc,  §  2514,  subd. 

765.)  3,  as  amended  1900.     Previous  to  that 

68  Co.  Civ.  Proc,  §  2750,  as  amended  amendment    it    was     held     otherwise. 
1894    (L.   1894,  c.  735).  (Matter  of  Corwin,   10  Misc.   19();   31 

60  Where   the   widow   and   executrix  X.  Y.  Supp.  420.) 
paid   out  of  her   individual   estate  the         ">-  ^Matter  of  Ladd.  5  Civ.  Proc.  Rep. 

debts  and  funeral  expenses,  which  the  50.     See  Co.   Civ.    Proc,   §   2702.       As 

personal    property   was    insufficient    to  to  a   proceeding  by   an   administrator 

meet. — ^  Held,  that  she  was  entitled  to  dr    bonis    non,    where   it    appears    that 

be    subrogated    to    the    rights    of    such  the  ))ersonal  property  in  the  hands  of 

creditors  and  to  institute  proceedings  a  former  administrator   was  sufficient 

for   the   sale   of   real   estate.      (Matter  to  pav  debts,  see  flatter  of  Kingsland, 

of  O'Brien,  39  App.  Div.  321  :  56  X.  Y.  60  Hun,   116:    38   St.   Rep,  590:    affd., 

Supp.     925.)      The     provision,     as     to  133  X.  Y.   170;   44  St.  Rep,  515. 
the  joinder  of  representatives,  settles        73  Raynor   v.   Gordon.  2.3   Hun,   264. 

a   qiiestion   left    in   doubt    bv    Fitch   v.  See  post,  S§  856,  861. 
Witbeck.  2  Barb.  Ch.   161:   Jackson  v.         74  Butler  v.   Kmmctt,  8  Paige,   12, 
Robinson,    4    Wend.    436;    Sanford    v.        75  M;xtter  of  Gernuin  Bank,  39  Hun, 

181. 


§  850.  Disposition  of  Real  Estate  712: 

it  appears  that  the  devisees  have  released  their  interests  to  the 
j)etitioner. '*' 

§  850.  Requisites  of  the  petition. — The  petition,  which  must  be 
verified,"  must  set  forth  the  following  matters,  as  nearly  as  the 
petitioner  can,  upon  diligent  inquiry,  ascertain  them:^^ 

1.  The  unpaid  debts  of  the  decedent,  and  the  name  of  each 
creditor,  or  person  claiming  to  be  a  creditor;™  and  the  name  of 
each  person  holding,  or  claiming  to  hold,  a  lien  by  judgment 
docketed  against  decedent  before  his  decease,  and  also  the  several 
dates  of  docket  of  all  or  any  of  such  judgment  liens,  and  whether 
such  judgment  lien  or  liens  affect  the  whole  or  part  of  the  dece- 
dent's real  property;  and  the  amount  of  the  unpaid  funeral  ex- 
penses of  the  decedent,  if  any,  and  the  name  of  each  person  to 
whom  any  sum  is  due  by  reason  thereof. 

2.  A  general  description  of  all  the  decedent's  real  property, 
and  interest  in  real  property,  within  the  State,  which  may  be 
disposed  of  by  the  proceeding  ;*°  a  statement  of  the  value  of  each 
distinct  parcel ;^^  whether  it  is  improved  or  not;  whether  it  is 
occupied  or  not;  and,  if  occupied,  the  name  of  each  occupant; 
whether  it  is  iucumliered  by  a  mortgage  lien  or  liens,  together 
with  a  statement  of  the  amount  due  or  claimed  to  be  due  thereon. 
Where  the  petition  describes  an  interest  in  a  contract  for  the 
purchase  of  real  property,  the  value  of  the  interest  must  be  stated, 
and  also  the  value  of,  and  the  other  particulars,  specified  in  this 
subdivision,  relating  to,  the  real  property  to  which  the  interest 
attaches. 

'<5  Matter  of  Howard,  11  Misc.  224.  which  the  decedent  died  seized.     Held, 

""Co.  Civ.  Proc,  §  842.      See  Eich-  that    the    allegation    was     sufficient; 

mond  V.  Foot,  3  Lans.  244;  Matter  of  that    it    was    not    necessary    that    it 

Hotchkiss,  17  Misc.  070.  should  be  made  positively  and  in  un- 

'8  Co.  Civ.  Proc,  §  2752,  as  amended  qualified   terms.       The    omission    from 

1894.  the  petition  of  a  parcel  of  real  estate 

"9  Dennis  v.  Jones,  1  Dem.  81.  owned    by    the    decedent,    and    which 

80  As  to  the  necessity  of  such  a  de-  might  have  been  ascertained  by  dili- 
scrjption.  see  IMead  v.  Sherwood.  4  gent  inquiry,  will  not  invalidate  the 
Redf.  352.  In  Matter  of  Igglesden  proceeding,  but  will  entitle  a  party 
(3  Redf.  375),  it  was  held,  that  the  interested  in  another  parcel  -which  is 
petition  should  give  all  the  land  of  included,  to  an  abatement  of  the  pro- 
which    the   decedent   died   seized.  ])ortionate  amount  wliich   would  have 

81  "A  distinct  parcel  of  real  prop-  been  chargeable  against  the  omitted 
ertj"-  is  a  part  of  the  property  which  parctl.  (Matter  of  Bingham,  127  N. 
is  or  may  be  set  off  by  boundary  lines,  Y.  29(5 ;  38  St.  Rep.  765.)  It  is  not 
as  distinguished  from  an  undivided  a  violation  of  the  section  that  one 
share  or  interest  therein."'  (Co.  Civ.  valuation  is  given  of  several  lots, 
Proc,  §  3343,  subd.  16.)  In  Matter  which  lie  together  and  form  but  a. 
of  German  Bank  (39  Hun,  181).  the  single  parcel.  (Matter  of  McGee.  5 
petition  described  fully  several  parcels  App.  Div.  527;  38  X.  Y.  Supp.  1062; 
of  real  estate,  and  alleged,  upon  infor-  ^Matter  of  Georgi,  35  Misc.  685;  72. 
mation  and  belief,  that  they  were  all  X.  Y.   Supp.  431.) 

the    real   estate   within   this    State   of 


713 


To  Pay  Decedent's  Debts. 


§850. 


3.  The  names  of  the  husband  or  wife,  and  of  all  tlio  heirs  and 
<levisees  of  the  decedent,  and  also  of  every  other  ])erson  (daini- 
in<>'  under  them,  or  eitlier  of  thorn,  statina'  who,  if  any,  are  in- 
fants; the  age  of  each  infant,  and  the  name  of  his  p:eneral  guard- 
ian, if  any;  and  also,  if  the  petition  is  presented  by  a  creditor,  or 
a  judgment  lienor,  the  name  of  each  executor  or  administrator. 

4.  If  the  petition  is  presented  by  an  executor  or  administrator^ 
the  amount  of  personal  property  \vhi(di  has  come  to  his  hands, 
and  those  of  his  co-executors  or  co-administrators,  if  any;  the 
application  thereof,  and  the  amount  which  may  yet  be  realized 
therefrom. ^^ 

These  allegations  are  of  jurisdictional  facts;  if  the  petition 
omits  to  set  forth  any  one  of  such  facts,  the  court  does  not  ac- 
(juire  jurisdiction,  and  no  valid  decree  for  a  sale  can  be  entered. 
A  jx'tition  which  fails  to  state  a  material  jurisdictional  fact  can- 
not afterward,  in  the  course  of  the  proceedings,  be  amended  so 
as  to  supply  the  omission.^'^  But  the  petition  need  not  contain 
negative  averments,  such  as,  that  there  are  no  unpaid  funeral 
expenses,^'*  or  that  the  property  is  "  not  subject  to  a  valid  power 
of  sale  for  the  payment  of  debts,"  etc.^^     But  a  petition  which 


^-  Under  thp  original  statutes  the 
]nesentalion  of  an  aeoount,  or  infor- 
mation substantially  equivalent  to  an 
account  of  the  personal  estate  and 
debts,  was  held  essential  to  the  surro- 
gate's jurisdiction,  where  the  applica- 
tion was  made  by  the  personal  repre- 
sentatives. (C'orwin  v.  ^Icrritt,  3 
Barb.  341 ;  Jackson  v.  Robinson,  4 
W'ciid.  430;  .Tackson  v.  ("lawfoids.  12 
id.  533.)  P.ut  if  the  application  was 
made  at  about  tlie  time  of  tiling  the 
inventory,  the  hitter,  if  it  gave  all  the 
information  required,  was  a  sufficient 
account  for  the  purpose  of  the  stat- 
ute. (Bloom  V.  Burdick.  1  Hill,  130.) 
lu  other  words,  the  statement  of  the 
assets  and  debts  which  was  required 
l)y  tlie  statute  was  not  an  account  in 
the  technical  sense.  A  specifu-ation  of 
the  names  of  creditors  and  the  con- 
sideration of  the  debts  was  not  requi- 
site. (Forbes  v.  Halsey,  20  N.  Y.  53.) 
But  a  statement  of  the  total  of  the 
inventorj-  and  the  total  of  the  debts 
was  held  insufficient.  (Van  Nostrand 
V.  Wright,  Hill  &  D.  Supp.  2(10.  And 
see  Atkins  v.  Kinnan.  20  Wend.  241.) 
The  fact  that  the  accotint  presented  to 
tlie  surrogate  was  false  did  not  affect 
his  jurisdiction.      (Woodruff  v.   Cook, 


2  Edw.  259.)  .See  Richmond  v.  Foote' 
(3  Lans.  244)  ;  Matter  of  Williams  (1 
]*lisc.  35),  for  what  is  a  sufficient 
statement  of  "  the  amount  of  personal 
property  ""  which  has  come  to  the 
repiesentative's  hands,  and  of  '"  the 
application  thereof." 

>i'-i  Dennis  v.  .Jones,  1  Dem.  80 :  Mead 
v.  -Jenkins,  4  Redf.  309;  Acklev  v. 
Dygert,  33  Barb.  170.  The  jurisdic- 
tion of  the  court  depends  U|)on  the 
petition  and  not  upon  extrinsic  facts. 
(Wood  v.  McChesney,  40  Barb.  417.) 
Compare  Matter  of  Jjaird,  42  Hun, 
130;  Forbes  v.  Jfalsey.  20  y.  Y.  53. 
In  other  respects,  an  amendment  will 
bo  allowed,  e.  r/.,  so  as  to  add  the 
name  of  an  omitted  mortgagee  (  Mat- 
ter of  Ibert,  48  App.  Div.  510;  ()2  X. 
Y.  Supp.  1051),  or  to  correct  errors- 
in  names  of  parties  cited  and  insert 
the  value  of  different  parcels.  (Mat- 
ter of  Georgi.  35  Misc.  085.)  .<=:ee 
Matter  of  Miller.  2  Aj.p.  Div.  (il5;  37 
X.  Y.  Supp.   447. 

S4  Matter  of  German  liank,  39  Ilun, 
181.  If  no  reference  is  made  to 
funeral  expenses,  it  will  be  presumed 
thai    iKiiu'  existed.      (  lb.) 

>-"' Matter  of  Haig,  0  Dem.  454;  17 
St.  Rep.  827;   13  X.  Y.  Supp.  285. 


§  851.  Disposition  of  Real  Estate  Y14 

fails  to  mention  the  name  of  the  heir,**''  or  to  state  the  nature 
of  the  land  and  the  names  of  the  occupants,  or  of  "  a  person 
-claiming  an  interest,"  *^  or  the  ages  of  the  heirs, **  is  fatally  de- 
fective. A  creditor's  petition  need  not  give  the  date  of  the  grant 
of  letters,  if  it  avers  such  grant  generally  and  states  facts  show- 
ing that  the  proceeding  was  commenced  within  three  years  there- 
after;*^ and  in  a  proceeding  not  commenced  within  three  years 
after  the  issue  of  letters,  though  maintainable  by  reason  of  the 
debt  having  been  in  controversy,  and  a  lis  'pendens  duly  filed,  it 
is  not  necessary  for  the  petition  to  state  that  the  debt  was 
""  founded  upon  a  debt  which  was  in  controversy  in  the  action," 
as  that  requirement  may  be  effectually  supplied  by  proof. ^*^  The 
petition  may  refer  to  a  former  petition  filed  in  the  same  matter 
for  a  statement  of  the  necessary  facts,  and  two  or  more  petitions 
may  be  taken  together  as  part  of  the  same,  proceeding ;^^  and 
under  the  Revised  Statutes,  it  was  held  that  papers  on  file  in  the 
surrogate's  office  taken  in  conjunction  with  the  petition,  although 
not  referred  to  therein,  might  be  sufficient  to  confer  jurisdic- 
tion.^" If  upon  the  "  diligent  inquiry  "  mentioned  in  the  section, 
any  of  the  material  facts  required  to  be  set  forth  cannot  be  ascer- 
tained, such  inability  must  be  shown  to  the  court's  satisfaction; 
and  the  surrogate  must  thereupon  inquire  into  the  matter,  as 
prescribed  in  a  case  where  a  petitioner  cannot  ascertain  the  name 
of  a  person  to  be  cited.^^ 

§  851.  The  prayer  of  the  petition. —  The  petition  must  pray  for 
a  decree  directing  the  disposition  of  the  decedent's  real  property, 
or  interest  in  a  contract  for  the  purchase  of  real  property,  or  so 
much  thereof  as  is  necessary,  for  the  payment  of  his  debts  or 
funeral  expenses;  and  that  the  necessary  parties  may  be  cited  to 

86  Jenkins  v.  Young,  35  Hun,  569,  affidavit  that  certain  persons,  not 
and  ca--es  cited:  Matter  of  Slater,  17  including  such  mortgagee,  had  or 
Misc.  474:  41  N.  Y.  Supp.  534.  A  claimed  an  interest,  was  filed,  and  cita- 
statement  in  the  petition  that  certain  tions  were  issued  to  them  and  to  such 
persons  named  are  the  heirs,  is  equiv-  mortgagee,  whereupon  the  latter  ap- 
alent  to  ai  statement  that  such  persons  peared,  filed  an  answer  and  entered 
are  all  the  heirs.  (Greenblatt  v.  Her-  upon  a  trial  of  the  merits,  thus  sub- 
mar.n,  144  N.  Y.  13;  62  St.  Rep.  859.)  jecting   himself  to  the   jurisdiction  of 

87  Kammerrer    v.    Ziegler,     1     Dem.  the  court  in  the  proceedings. 

177.     See  Matter  of  Bingham,  infra.  91  Richmond  v.  Foote.  3  Lans.  244. 

88  Mead  v.  Sherwood,  4  Redf.  352.  02  p^orbes  v.  Halsey,  26  N.  Y.  53.  It 
^  Matter  of  Haig.  supra.  is  extremely  doubtful  whether  this 
00  Matter    of    Bingham,    127    N.    Y.  would   suffice  under  the   present  stat- 

296;    38    St.    Rep.    765.      It    was    also  ut«. 

held,   in  that  case,   that  the  omission  93  Co.   Civ.   Proc.,   §   2753.      For  the 

to  name  a  mortgagee  in  the  original  proceedings  upon  the  inquiry  referred 

petition  or  citation  did  not  invalidate  to,   see  Co.   Civ.   Proc,   §   2518;    ante, 

the    proceeding   where    afterward    an  §   75. 


715  To  Pay  Decedent's  Debts.  §§  852,  853. 

show  cause  why  such  a  decree  should  not  be  made,^'*  "Where  the 
petition  states  facts  showing  that  an  attempt  to  mortgage  or 
lease  woukl  be  idle  because  of  heavy  incumbrances  on  the  prop- 
erty, and  the  inadequate  income  derived  therefrom,  it  is  proper 
to  pray  simply  for  a  sale.^'* 

^  852.  Accounting  by  representative  may  be  required. —  Under 

the  Revised  Statutes,  on  the  representative's  ])etiti()n,  it  was 
■essential  to  jurisdiction  that  an  account  of  the  ])ersonal  estate 
should  accompany  the  jietition;"''  and  the  proceeding  couhl  not 
be  instituted  by  a  creditor  until  after  the  representative  had  ac- 
counted, which  could  not  be  compelled  until  after  eighteen 
months  from  the  grant  of  letters.^^  But  under  the  present  Code, 
a  settlement  of  the  representative's  accounts  is  not  a  prerequisite 
to  granting  a  citation  on  the  petition.^*  If  the  condition  of  the 
personal  estate  is  unknown  to  the  petitioning  creditor,  that  i- 
one  of  the  matters  for  inquiry,  above  referred  to.  For  the  pur- 
pose of  such  inquiry,  ''  if  the  petition  is  presented  by  a  creditor, 
or  judgment  lienor,  the  surrogate  may,  by  order,  require  the 
executor  or  administrator  to  render  such  an  account  or  other 
statement  as  he  deems  necessary."  ^^ 

^  853.  Jurisdiction  of  the  person  of  parties. —  As  this  proceeding 
is  hostile  to  the  heirs,  devisees,  and  others  interested  in  the  real 
property,  the  surrogate  must  acquire  jurisdiction  of  their  per- 
sons, or  the  sale  will  be  void.^  Although  the  statute  does  not 
-expressly  require  the  representative  to  be  cited,  it  is  the  obvious 

94  Co.  Civ.  Proc,  §  2750.  The  Code  9C  Bloom  v.  Burdick.  1  Hill.  1.31: 
says,  '•  and  that  the  necessary  parties.  Van  Nostrand  v.  Wriplit.  Hill  &  D. 
«s  prescribed  in  the  subsequent  sec-  Supp.  260.  See  ante,  %  S50,  n.  82.  By 
lions  of  this  title,  may  be  cited,''  etc.  L.  1896.  c.  093.  it  was  provided  that  no 
It  is  not  very  clear  who  must  be  sale  made  under  any  of  tlie  piovisions 
named;  but  it  seems  that  the  neces-  of  2  R.  S.,  tit. .4.  c.  6,  should  be  in- 
sary  parties  are  (1)  those  named  in  validated  for  the  failure  of  the  repre- 
the  petition,  and  (2)  those  whom  the  sentative  to  file  an  inventory  before 
surrogate  may  add,  under  Co.  Civ.  presenting  the  petition  for  the  sale, 
Proc,  §  2754.  See  Kammerrer  v.  if  such  petition  substantially  showed 
Ziegler.  1   Dem.  177.  that   he   had   not   been    able   to  obtain 

95  Matter  of  Dolan.  88  N.  Y.  .309:  possession  of  any  personal  estate  of 
revg.    26    Hun,    46.    and    affg.    2    Dem.  the  de-edent. 

f»ll.      In    Siblev   v.    Waffle    (16    N.    Y.  !>T  8kidnu)re    v.    Romaine.    2    Bradf. 

180).   it   was   held   competent   for   the  122:  Sanford  v.  Granger.  12  Barb.  392. 

applicant   to    petition    for   the    sale   of  '■»*  Shute  v.  Shute.  5  Dem.  1  :   Matter 

real  property,  without  asking  for  au-  of   Plopper,    15    Misc.    202;    37    X.    Y. 

tliority  to  mortgage  or  lease,  and   for  Sujiji.  33. 

the  surrogate  to  act  on  such  petition.  !•!' Co.  Civ.  Proc.  §  2753,  as  amended 

and  order  a  sale,  if  it  appeared  by  the  1894. 

order  that  he  inquired   wliether  a  sale  l  Schneider   v.    McFarland.   2    X.   Y. 

would  be  more  beneficial  than  a  mort-  459;    Matter    of    .John.    21    Civ.    Proc. 

gage  or  lease,  and  determined  that  it  Kep.  326;    18  N.  Y.  Supp.  172. 

would. 


§854. 


Disposition  of  Real  Estate 


Tia 


intention  that  he  should  be  made  a  party  to  a  creditor's  proceed- 
ing." A  remainderman,  Avhether  his  interest  in  the  decedent's 
property  is  vested  or  contingent,  is  a  necessary  party.^  Holders- 
of  mortgage  are  not  necessary  parties,  since  any  disposition  made 
of  the  property  under  the  decree  will  be  subject  to  snch  liens  j"*^ 
nor  were  judgment  lienors  required  to  be  served,  prior  to  the 
amendment  of  1894. 

§  854.  Infant  parties. — If  any  of  the  parties  are  infants,  they 
should  be  represented  by  a  duly  appointed  guardian  ad  litem;- 
othei*wise  the  whole  proceeding  will  be  void,  the  court  being- 
without  jurisdiction.^  If  the  infant  is  regularly  served  with  the 
citation,  an  appointment  of  a  guardian  at  a  later  stage  of  the 
proceeding  may,  it  seems,  cure  the  omission  to  appoint  one  at  the 
outset.*' 


2Kammerrer  v.  Ziegler,  1  Dem.  177; 
Turner  v.  Amsdell,  3  id.   19. 

3  Wilson  V.  White.  109  N.  Y.  59.  In 
that  case,  testator  devised  the  land  to 
his  son  for  life,  remainder  to  the  son's 
children  "  shoud  he  leave  any,  but 
should  there  be  no  issue  or  descend- 
ants, him  surviving,  then  to  be  equally 
divided  among  my  brothers"  and  sis- 
ters' cliildren,  or  issue."'  Held,  that 
although  the  son  had  living  children, 
the  children  of  testator's  brothers  and 
sisters  had  a  contingent  remainder  in 
the  property  and  were  necessary  par- 
ties to  the  proceeding. 

4  Matter  of  Haig,  6  Dem.  454.  As 
to  necessity  of  serving  legatees  and 
devisees,  see  Matter  of  Dolan,  88  X.  Y. 
309. 

5  Bloom  V.  Burdick.  1  Hill,  131; 
Schneider  v.  McFarland,  2  N.  Y.  459; 
Corwin  v.   Merritt,  3   Barb.  341. 

6  Dennis  v.  Jones,  1  Dem.  81.  See 
Ackley  v.  Dygert,  33  Barb.  170; 
Pinckney  v.  Smith,  26  Hun,  524.  In 
Price  v.  Fenn  (.3  Dem.  341 ;  s.  c.  as 
Estate  of  Fenn,  8  Civ.  Proc.  Rep.  206) . 
the  citation  having  been  duly  served 
upon  certain  infants,  interested  in  the 
estate,  and  a  special  guardian  having 
been,  before  the  hearing,  appointed  for 
each,  upon  his  parent's  application, 
witliout  the  notice  to  the  infant  re- 
quired by  section  2531,  the  purchasers 
at  the  sale  under  the  surrogate's  de- 
cree objected  to  the  title  upon  the 
ground  of  the  omissipn  of  such  notice. 
Held,  under  section  2784,  subdivision  1, 
that  the  omission  in  question  was  not 
of  such  a  character  as  that  it  "■  would 
affect  the  title  of  a   purchaser   at   a 


sale  made  pursuant  to  the  directions, 
contained  in  a  judgment  rendered  by 
the  Supreme  Court  in  an  action."'  and 
the  objection  taken  was  overruled.  In 
Matter  of  Mahoney  (34  Hun,  501),  on 
appeal  from  an  order  directing  a  pur- 
cliaser  to  complete,  it  was  objected 
that  the  guardian  of  certain  infant 
heirs  had  not  been  appointee'  in  ac- 
cordance with  the  provisions  of  the 
Code  and  that  there  was  no  publica- 
tion of  the  citation.  The  surrogate, 
after  the  sale,  issued  a  supplemental 
citation,  and  made  a  supplemental 
decree  amending  the  defects  nunc  pro 
tunc,  and  thereupon  made  an  order 
requiring  the  appellant  to  complete 
his  purchase.  Held,  that  the  defects 
were  substantial,  and,  therefore,  not 
amendable,  the  steps  in  question  being 
absolute  prerequisites  to  the  sale. 
The  purchaser  had  a  right  to  a  title 
beyond  reasonable  doul)t,  and  free- 
from  dangerous  uncertainties.  In 
Jenkins  v.  Young  (43  Hun.  194),  the 
citation  was  personally  served  upon 
an  infant  over  fourteen,  as  required, 
by  the  act.  Held,  that  the  failure  of 
the  surrogate  to  appoint  a  special 
guardian  to  care  for  such  infant"s  in- 
terests upon  the  return  of  the  order, 
(lid  not  deprive  the  Surrogate"s  Court 
of  jurisdiction  of  the  proceedings  or 
render  the  sale  made  thereunder  liable- 
to  be  attacked,  in  a  subsequent  action 
of  ejectment  brought  bv  such  infant"s. 
heir.  In  Stilwell  v.  Swarthout  (81  N. 
Y.  109).  a  guardian  ad  litem  was  ap- 
jiointed,  but  it  did  not  appear  that  he 
had  consented  to  become  such,  or  that 
he  acted  as  such,  or  was  notified  of  his 


717  To  Pay   Okcedext'js   Dkbts.  §§  855, 85G. 

§855.  Citation,  when  to  issue;  its  contents. —  "When  the  surro- 
gate is  satistied  that  all  the  facts  reciuired  to  he  set  forth  in  the 
petition  "  have  been  ascertained,  as  far  as  they  can  be,  upon  dili- 
gent inquiry,  and  it  appears  to  him  that  the  debts,  judgment  liens, 
^nd  funeral  expenses,  or  either,  cannot  be  paid,  without  resort- 
ing to  the  real  property,  or  interest  in  real  property,  he  must 
issue  a  citation  according  to  the  prayer  of  the  petition.  If,  upon 
the  inquiry,  it  appears  to  the  surrogate  that  any  heir  or  devisee, 
or  person  claiming  an  interest  in  the  property  under  an  heir  or 
devisee,  is  not  named  in  the  petition,  the  citation  must  also  be 
directed  to  him.^  Unless  the  executor  or  administrator  has 
•caused  to  be  published,  as  prescribed  by  law,  a  notice  requiring 
creditors  to  present  their  claims,^  and  the  time  for  the  presenta- 
tion thereof,  pursuant  to  the  notice,  has  elapsed,  the  citation  must 
be  directed,  generally,  to  all  other  creditors  of  the  decedent,  as 
well  as  to  the  creditors  named."  ^  Like  every  other  citation  it 
must  be  made  returnable  on  a  day  certain,  designated  therein, 
not  more  than  four  months  from  the  date  thereof.^"  Under  the 
former  statute,  the  citation  (order  to  show  cause)  was  required  to 
l)e  returnable  not  less  than  six  weeks  from  the  time  of  making  it ; 
hence,  when  made  returnable  in  less  than  that  time,  the  surrogate 
acquired  no  jurisdiction,  and  all  proceedings  founded  thereon 
were  void.^^ 

§856.  Hearing  upon  return  of  citation. —  ''Upon  the  return  of 
the  citation,  the  surrogate  must  proceed  to  hear  the  allegations 
^nd  proofs  of  the  parties.  A  creditor  of  the  decedent,  or  a  judg- 
ment lienor,  or  a  person  having  a  claim  for  unpaid  funeral  ex- 
penses,  although   not  named  in   the  citation,   may   present   and 

appointment,  but  it  appeared  afTirma-  heirs,    on    appeal,    see    Patterson     v. 

tively  that  he  acted  as  counsel  for  the  Hamilton,  id.  6G5. 

claimant.     Held,  that  even  if  his  ap-  8  §  6.36,  ante. 

pearance  for  the  infant  was  a  waiver  9  Co.  Civ.  Proc.  §  2754.  Tlie  man- 
of  a  jurisdictional  defect  in  the  cita-  ner  and  proof  of  service  of  the  cita- 
tion, his  consent  at  least  was  essential,  tion  are  f^overned  by  the  general 
As  to  irregularities  in  appointing;  a  rewiUations  detailed  in  c.  III.  ante. 
special  guardian  which  arc  not  fatal  Where  no  advertisement  for  creditors 
to  procecilings,  see  Matter  of  Luce,  17  has  been  publislied,  a  citatiim  directed 
Week.  Dig.  3.5.  to  the  creditors  therein  named  and  to 
7  In  a  creditor's  proceeding,  one  who  all  other  creditors,  nuist  be  jjublished 
has  purchased  the  property  at  a  ref-  in  accordance  with  Code  Civ.  Proc. 
■eree's  sale  in  partition  among  the  §  2523.  (Matter  of  Georgi.  44  App. 
heirs,  is  a  "person  claiming  an  in-  Div.  ISO:  (iO  X.  Y.  Supp.  772:  affd., 
terest "  in  the  property  under  an  heir,  without  opinion,  in  KVi  X.  Y.  (J60: 
and  a  necessary  party,  and  so  is  the  ^fatter  of  Shitcr.  17  Misc.  474:  41  X. 
«xecutor    or    administrator    {Kammer-  Y.  Supp.  534.) 

rer  v.  Ziegler.   1   Dem.   177).  and  also  lOCo.  Civ.  Proc.  §  2510,:  ante.  §  74. 

legatees  where  the  legacies  are  charged  n  Stilwell    v.    Swarthout.    v!l    X.    Y. 

upon  real  estate.      {Matter  of  Dolan,  109;  Havens  v.  Sherman,  42  Barb.  636. 
26  Hun,  46.)     As  to  bringing  in  the 


§  S5T.  Disposition  of  Eeal  Estate  71S 

prove  his  debt  or  lien  and  thus  make  himself  a  party  to  the 
special  proceeding,  A  creditor  of  the  decedent,  whose  claim  is 
not  yet  due,  may  present  and  prove  his  debt  and  have  the  same- 
established,  upon  a  rebate  of  legal  interest,  and  thus  make  him- 
self a  ])arty  to  the  special  proceeding.  An  heir  or  devisee,  or  a 
person  claiiiiing  under  an  heir  or  devisee,  of  the  property  in 
question,  although  not  named  in  the  citation,  may  contest  the^ 
necessity  of  applying  the  property  to  the  payment  of  debts, 
judgment  liens,  or  funeral  expenses,  or  the  validity  of  a  debt 
due  or  un])aid,  or  of  any  judgment  lien,  represented  as  existing- 
against  the  decedent,  or  the  reasonableness  of  the  funeral  ex- 
penses ;^^  may  interpose  any  defense  to  the  whole  or  any  part 
thereof;  and  for  that  purpose  may  make  himself  a  party  to  the 
special  proceeding."  ^^ 

§  857.  Who  may  oppose  application —  It  has  always  been  held,, 
under  each  successive  change  in  the  statute,  that  the  heirs  and 
devisees  might  oppose  claims  of  creditors,  and  make  the  same 
defense  thereto  before  the  surrogate  as  there  could  be  made  by 
them  in  any  other  tribunal  ;^^  and  so  may  a  purchaser,^^  or  an- 
other creditor,^*^  or  a  judgment  creditor  of  a  devisee. -^^  But  an 
administrator  will  not  be  allowed  to  set  up,  in  objection  to  a 
creditor's  petition,  that  the  property  in  question  has  been  sold  in 
partition  proceedings,  as  he  does  not  represent  either  the  heirs 


12  The  subject  of  the  reasonableness  the  widow  is  entitled  to  the  entire  in- 
of  funeral  expenses,  including  the  out-  come  of  the  estate  during  her  life,  the 
lay  for  burial  plot  and  monument,  has  rights  of  legatees  cannot  be  deter- 
been  considered,  and  the  cases  bearing  mined,  they  not  becoming  due  until 
on  it  given,  ante,  §  546  et  seq.  her   death.      (Matter    of   Grotrian,    35 

13  Co.  Civ.  Proc,  §  2755,  as  amended  Misc.  257;    71   N.  Y.   Supp.  842.) 
1894.     Reopening  proceedings  for   the  15  Mooers    v.    White,    0    Johns.    Ch. 
admission  of  new  evidence  before  the  3fi0. 

surrogate,  without  notice  to  the  devi-  16  They  are  not  permitted  to  inter- 
sees, —  Held,  error,  as  impairing  their  pose  an  answer  for  the  purpose  of 
rights  under  this  section.  (Matter  of  contesting  the  necessity  of  the  proceed- 
Hearman,  34  St.  Rep.  231;  20  Civ.  ing  or  making  a  defense  to  them. 
Proc.  Rep.  8.)  A  sale  cannot  be  de-  (Matter  of  Campbell,  66  App.  Div. 
creed  without  proof  of  the  statutory  478;  73  X.  Y.  Supp.  290.)  And  a 
facts,  although  the  application  is  not  creditor  whose  claim  is.  by  stipulation, 
opposed.  (]\Iatter  of  Lichtenstein,  10  to  be  paid  in  full,  cannot  even  contest 
Misc.  667;  39  X.  Y.  Supp.  174.)  But  the  claims  of  other  creditors.  (  Mat- 
the  mere  fact  that  improper  evidence  ter  of  Logan,  19  \Yeek.  Dig.  148.) 
has  been  admitted  is  not  fatal  to  the  Where  the  claim  of  a  creditor  against 
proceeding  where  other  competent  evi-  the  estate  is  submitted  to  arbitration 
dence  is  given  which  sustains  the  de-  with  the  consent  of  the  administrator 
cree.  ( Matter  of  McGee.  5  App.  Div.  and  heirs-at-law,  the  award  is  final 
527;   38  X.  Y.  Supp.   1062.)  and  precludes  them  from  further  liti- 

i4  0"Fl;vTin    V.    Powers.    136    X.    Y.  gating  the  claim.     (lb.) 
412:  Ferguson  v.  Broome,  1  Bradf.  11;  l"  Raynor  v.   Gordon.   23    Hun,   264. 

Bennett  v.  Crain.  4  St.  Rep.  158;  But-  See  Adams  v.  Westbrook,  61  How.  Pr. 

ler  V.  Johnson,  4  id.  151.     But  where  138. 


719  To  Pay  Decedent's  Debts.  §§  858,  859. 

or  the  purchaser  of  the  property.^**  The  heirs  are  not  restricted 
to  legal  defenses.*^  If  only  one  of  the  heirs  ohjects  to  the 
allowance  of  a  claim,  and  his  olijcctioii  is  sustained,  the  claim 
is  rejected  as  to  all  .the  heirs. -'^  Where  decedent's  discharge  in 
Laidsruj)tcy  is  set  \\\)  in  opposition  to  a  proceeding  instituted  l»y 
a  creditor,  it  niay  be  attacked  and  de(dar(Ml  void  as  against  the 
creditor  as  to  whom  it  was  fraudulently  procured."^ 

§  858.  Determining  disputed  claims. —  With  the  exception  of 
certain  cases  upon  an  accounting,  this  is  the  only  proceeding  in 
Avhich  Surrogates'  Courts  have  jurisdiction  to  pass  upon  a  dis- 
puted claim  of  a  creditor  against  an  estate.^^  It  is  here  made 
the  duty  of  the  surrogate,  upon  the  return  of  the  citation,  to 
take  proof  of  the  claims  of  all  who  appear  as  creditors  of  the 
decedent,  including  those  which  have  been  presented  to  the  ex- 
ecutor or  administrator,  and  rejected,  or  not  allowed,  by  him. 
.Actual  creditors  and  those  claiming  to  be  such,  have  the  same 
right  to  appear  and  establish  their  demands.^^  Before  the 
amendment  of  section  1822,^'*  the  surrogate  had  jurisdiction  to 
determine  the  validity  of  the  petitioner's  claim,  although  it  had 
been  presented  to  and  rejected  by  the  executor  or  administrator, 
and  although  no  action  upon  it  had  been  commenced  within  six 
months  after  such  rejection,  where  no  notice  to  creditors  had 
been  published.'^  But  since  that  amendment,  the  Short  Statute 
of  Limitations  applies  to  claims  presented  either  before  or  after 
publication  of  the  notice  to  creditors,  unless  the  parties  consent- 
that  the  surrogate  may  determine  the  same  upon  the  accounting."*' 

§  859.  Determining  insufficiency  of  assets The  insufRciencv  of 

the  personal  property  to  pay  the  debts  is  a  jurisdictional  fact  of 
the  first  importance.  Tn  determining  that  question,  only  the  per- 
sonal property  which  has  actually  come  into  the  hands  of  the 
representative  is  to  be  considered.  Uncollected  and  litigated 
demands  in  favor  of  the  estate,  which  may  or  may  not  be  real- 
ized on,  are  not  to  be  regarded.^"     Before  the  surrogate  can  make 

18  Richardson  v.  Judah,  2  Bradf.  Hun.  3.  All  these  cases  were  decided 
157.     See  Olmsted  v.  Lonjr,  4  Dem.  44.  previous  to  the  amendment  of  section 

19  Campbell  v.  Renwick,  2  Bradf.  2743  of  the  Code,  permitting  the  sur- 
80.     See  Jennin<rs  v.  Jones,  2  Redf.  9.5.  roErate,  with  the  consent  of  the  parties, 

20  Ronwick  v.  Renwick.  1  Bradf.  234.  to  determine  the  claim  np^n  the  repre- 

21  Jones  V.  Le  Baron.  3   Dem.   37.  sentative"s  accountinp.     See  ante.  §  49. 

22  See  Matter  of  Leslie.  3  Redf.  280 ;  23  Turner  v.  Amsdell,  3  Dem.  19. 
Garvey    v.    McCue.    id.    313;    Leviness  24  See  ante,  §  040. 

V.  Cassebeer,  id.  491:  Cooper  v.  Felter,  25  Matt^-r  of  Haxtun.  102  X.  Y.  lo7. 

0    Lans.    485:    Tucker    v.    Tucker.    4  2G  Co.  Civ.  Proc.  §  1822.  as  amended 

Keves.  130:   Bevan  v.  Cooper.  72  N.  Y.  1S9.'>    (L.    189.'i.  c.  59.iK 

317:  Shakespeare  V.  :Markham.  id.  400:  27  Bridge    v.     Swain.    3  .  Redf.     4S7. 

Hopkins     v.     Van     Valkenburgh.     10  Compare  Moore  v.  Moore.  14  Barb.  27. 


•§  860.  Disposition  of  Real  Estate  720 

a  decree  in  this  proceeding,  the  petitioner  must  establish  that  all 
the  personal  property  which  could  have  been  applied  to  the  pay- 
ment of  debts  and  funeral  expenses  has  been  so  applied,  or  that 
the  personal  representatives  have  proceeded. with  reasonable  dili- 
gence in  converting  the  personal  pro]K'rty  into  money  and  so  ap- 
plying it,  and  that  it  is  insufficient,  though  it  has  not  all  yet  been 
so  applied.^*^  Having  taken  evidence  on  the  question  of  the  suffi- 
ciency of  assets,  the  surrogate's  decision  thereon,  and  his  order 
giving  leave  to  sell,  are  conclusive  upon  the  parties  on  that  ques- 
tion; and  where  the  representative,  by  virtue  of  such  order,  mort- 
gaged the  estate,  and  subsequently  became  purchaser  of  the  mort- 
gage, the  heir  cannot  resist  foreclosure  by  proving  that  the  repre- 
sentative concealed  assets  and  purchased  the  mortgage  with 
them.^^ 

§  860.  Admissions  of  representative  as  against  heirs,  etc. —  The 

rule  formerly  was  that  the  admissions  of  the  representative  would 
in  no  way  bind  the  heir  or  devisee  nor  benefit  the  creditor.  The 
heir  might  contest  the  validity  of  the  admitted  claim,^*^ —  the 
only  effect  of  the  admission  being,  it  would  seem,  that  the  burden 
of  disproving  the  claim  is  put  on  the  party  making  objection 
thereto.^^  It  is  now  provided,  however,  that  '^  the  admission  or  al- 
lowance by  the  executor  or  administrator  of  a  claim  or  debt  of 
any  creditor,  against  the  decedent,  shall,  for  the  purpose  of  such 
proceeding,  be  deemed  an  establishment  thereof,  unless  objection 
be  made  thereto  by  a  party  to  the  special  proceeding.''  ^'     But 

ssKinpsland  v.  Murray,  133  N.  Y.  Supp.  389.)  See  Mover  v.  Moyer,  17 
170:  44  St.  Rep.  .51.5;  affg.  Matter  of  Misc.  648;  40  X.  Y.  Supp.  772.'  Com- 
Xingsland,  60  Hun,  116;  38  St.  Eep.  pare  Matter  of  Bingham  (127  N.  Y. 
590;  s.  c.  as  Matter  of  Topping,  20  296),  where  it  was  held  that  the  fact 
Civ.  Proc.  Rep.  357 ;  14  N.  Y.  Supp.  that  a  large  amount  of  personal  es- 
495.  If  the  decedent  left  sufficient  tate  which  could  have  been  applied  to 
personal  property  which  could  have  the  payment  of  the  debts  had  been 
lieen  applied  to  the  payment  of  his  squandered  and  misappropriated  by 
debts  and  funeral  expenses,  in  the  ex-  the  executor  would  not  defeat  the  pro- 
ercise  of  reasonable  diligence  on  the  ceeding,  by  a  creditor  who  had  not 
part  of  his  executors  or  administra-  been  guilty  of  laches.  It  seems  that 
tors,  then  resort  cannot  be  had  to  the  it  .  is  no  answer  to  the  application 
statute  for  the  sale  of  his  real  estate  that  some  of  the  personal  assets  have 
for  the  payment  of  his  debts.  If  the  been  misappropriated,  if.  independent- 
personal  representative  had  wasted  or  ly  of  this,  a  deficiency  of  assets  exists, 
squandered  the  personal  property  so  (Corwin  v.  Merritt,  3  Barb.  341.) 
that  it  becomes  insufficient  for  the  29  Graham  v.  Linden,  50  N.  Y.  547. 
payment  of  the  debts,  the  only  resort  30  Matter  of  Haxtun.  102  X.  Y.  157. 
of  the  creditors  is  to  sue  such  repre-  "l  .Tones  v.  LeBaron.  3  Dem.  37. 
sentntives  to  enforce  their  personal  32  Co.  Civ.  Proc.,  §  2755,  as  amended 
responsibilitv.  (lb.;  Matter  of  Meag-  1893.  Compare  Matter  of  Pfohl.  20 
lev.  39  App."  Div.  83;  56  X.  Y.  Supp.  Misc.  627;  46  X.  Y.  Supp.  1086.  The 
503:  Matter  of  Georgi.  21  Misc.  419:  validity  and  existence  of  the  debts  are 
Matter  of  Very,  24  id.  139;  53  X.  Y.  open  to  contest  in  the  proceeding,  by 


7l>1  To    Pay   ])i:cedi:.nt"s    Dkhts.  §861. 

though  the  c'hiiia  is  admitted  by  the  representative,  and  is  not 
objected  to  by  the  heir,  devisee,  or  other  creditor,  the  vouchers 
presented  in  support  of  each  debt  must  be  *'  tiled  and  remain  in 
the  surrogate's  office."  ^^  Express  provision  is  also  made  that 
"  where  a  defense  arises  under  the  Statute  of  Limitations,  an  act 
or  admission  by  an  executor  or  administrator  does  not  prevent 
the  running  of  the  statute,  or  revive  the  debt  so  as  to  aflFoct  in  any 
manner  the  real  property,  or  interest  in  real  jiropcrty,  in  (pies- 
tion."  ^* 

^  861.  Effect  of  a  judgment  as  evidence  of  debt. —  The  validity 
of  a  judgment  obtained  against  the  representative  for  a  debt  of 
the  decedent  may  be  contested  like  any  other  claim.^''  Such  a 
judgment  is  "  deemed  a  debt  of  the  decedent  to  the  same  extent, 
juid  to  be  established  in  the  same  manner,  and  subject  to  the  same 
defenses,  as  if  an  action  had  been  brought  thereon ;"  ^^'  provided, 
however,  that  (1)  "  the  debt,  for  which  the  judgment  was  rendered, 
cannot  Ix?  allowed,  as  against  the  property  in  question,  at  any 
greater  sum  than  the  amount  recovered,  exclusive  of  costs ;"  ^'  and 
])rovided  that  (2)  ''an  heir  or  devisee  of  any  of  the  property  in 
([uestion,  or  a  party  claiming  under  an  heir  or  devisee,  may  inter- 
])it<v  in  reduction  of  the  amount  claimed  to  be  due  upon  a  judg- 
ment or  decree  against  the  decedent,  or  against  the  executor  or 
administrator,  any  payment  or  counterclaim  which  might  be  al- 
lowed to  him,  or  to  the  person  under  whom  he  claims,  in  an  ac- 
tion founded  upon  the  debt.''  ^*  A  judgment  must  be  proved  by 
the  record,^^  and  must  have  been  a  lien  on  the  land  at  the  time  the 
proceeding  was  taken  •*'^  it  must  have  been  rendered  upon  "  a 
trial  upon  the  merits."  A  judginent  entered  upon  an  offer  is 
not  such  a  judgnnent  ;'*^  but  an  inquest  is  a  trial  upon  the  merits.'*^ 

tlip  hoirs  or  devisees,  and  the  decree  of  judcjinent  or  decree  rendered  upon  the 
the  snrrosiate  on  the  aooountiiifr  of  the  trial  upon  the  merits  is  presumptive 
executor  or  administrator  does  not  cvidonoe  of  the  debt  iipon  the  hearing 
conclude  them.  (O'Flynn  v.  Powers,  before  the  surrofjate."  (lb.) 
136  N.  Y.  412.)  The  declarations  of  3"  Referee's  fees  and  disbursements 
one  who  afterward  became  executor  cannot  be  included,  (ifatter  of  Sum- 
are  not  admissible  ^s  admissions  in  mers.  37  ]Misc.  o75 :  75  N.  Y.  Supp. 
support  of  a  claim  against  the  estate.  10.10.) 

(Xiskern    v.    Ilavdock.    1:1    App.    Div.  3S.Co.    Civ.   Proc.    §    2757.      It    was 

175;   48  N.  Y.   Supp.  895.)  otherwise  before  the  Code.     See  Cleve- 

"3  Co.   Civ.  Proc.   §  275S.  land  v.  Whiton.   31   Barb.  544. 

34  Co.  Civ.  Proc,  §  2755,  last  clause.  3t>  Sanford     v.     Granger.     12     Barb. 

35Colson  V.  Brainard,   1    Redf.   324;  .302:    Turner  v.    Amsdell.    3   Dem.    10; 

Ravnor  v.  Gordon,  23  llun.  2(54;  ]\rat-  Matter  of  Gardner.  5  Redf.   14. 

ter"  of  Rosenfield.    10   Civ.    Proc.   Rep.  ■I'l  Matter    of    McGee.    05    App.    Div. 

201;   5  Dem.   251;    Maver  v.   Gilligan.  400. 

2  St.  Rep.  702.                 "  ■»!  Kavnnngh   v.  Wilson,  5   Redf.   43. 

36  Co.  Civ.   Proc.    §   2756.     "But  a  42  Matter  of  Rosenfield,  supra. 

46 


§§  862-865.  DisrosiTiox  of  Real  Estate  722 

§  862.  Costs  excluded. — It  will  sometimes  be  difficult,  as  in  the 
case  of  a  jiulginent  for  a  deficiency  on  a  foreclosure  and  sale,  to 
determine  Low  much  of  the  amount  of  the  judgment  consists  of 
costs,  which  are  not  allowed  to  be  proved  in  this  proceeding.'*^  The 
2u-esumption  is  that,  if  the  proceeds  of  sale  were  sufficient  to  pay 
the  costs  and  expenses  of  the  foreclosure  proceedings,  they  were 
a])plied  to  that  purpose,  and  that  the  judgment  for  deficiency 
does  not  include  any  costs,  but  only  the  amount  remaining  due  on 
the  bond  and  mortgage ;  such  a  claim,  therefore,  is  a  debt  due 
from  the  deceased  in  his  lifetime. ■*■* 

§  863.  Trial  of  controverted  question  of  fact. —  In  this,  as  in 
other  special  proceedings,  excejjt  probate  proceedings,  the  court 
may  refer  it  to  a  referee  to  take  and  report  the  testimony,  the  re- 
port being  subject  to  the  surrogate's  confirmation  or  modification  ;'*^ 
or  the  surrogate  may,  in  his  discretion,  make  an  order,  directing 
the  trial  by  a  jury,  at  a  Trial  Term  of  the  Supreme  Court,  to  be 
held  within  the  county,  or  in  the  County  Court  of  the  county,  of 
any  controverted  question  of  fact,  arising  in  such  a  special  pro- 
ceeding.*^ The  order  must  state,  distinctly  and  plainly,  each 
question  of  fact  to  be  tried ;  and  it  is  the  only  authority  neces- 
sary for  the  trial. *^ 

§  864.  Motion  for  new  jury  trial —  A  trial  by  a  jury,  pursuant 
to  such  an  order,  can  be  reviewed,  in  the  first  instance,  only  upon 
a  motion  for  a  new  trial.  '*A  new  trial  may  be  granted  by  the 
surrogate,  or  the  court  in  which  the  trial  took  place,  or,  if  it  took 
place  at  a  Trial  Term  of  the  Supreme  Court,  by  the  Supreme 
Court,  in  a  case  where  a  new  trial  of  specific  questions  of  fact, 
tried  by  a  jury,  pursuant  to  an  order  for  such  trial,  made  in  an 
action,  would  be  granted.  The  verdict  of  the  jury  must  be  certi- 
fied to  the  Surrogate's  Court  by  the  clerk  of  the  court  in  which 
the  trial  took  place."  *^ 

§  865.  Appeal  from  order  for  new  jury  trial. —  An  appeal  mav  be 
taken  from  an  order,  made  upon  a  motion  for  a  new  trial,  by  a 

43  See  Wood  v.  Byington,  2  Barb.  -ic  Co.  Civ.  Proc.  §  2.547,  a.s  amended 
Ch.  .387:  Sanford  v.  Granger.  12  Barb.  1895;  see  ante,  §  121.  The  power  to 
392:  Smith  v.  Meakim,  2  Dem.  129;  direct  a  jury  trial  being  discretion- 
Biirnham  v.  Harrison.  3  Redf .  345 ;  ary.  the  order  will  be  denied  where  it 
Matter  of  Wilcox,  11  Civ.  Proc.  Rep.  would  entail  needless  delay  and  ex- 
115.  pense.        (Mead    v.    Jenkins,    4   Redf. 

44  East  River  Bank  v.  McCaffrev.  3  309.) 

Redf.  97.     See  Hurd  v.  Callahan,  .5  id.  47  Co.   Civ.   Proc,  §   2547. 

393:   Kavanagh  v.  Wilson,  id.  43.  48  Co.   Civ.   Proc,  §  2548.  as  amended 

4'T  Co.     Civ.    Proc,     §     2546;     ante,  1895.      For    the    recrulations    as    to    a 

§   117.  motion  for  a  new  trial  of  specific  ques- 


723  To  Pay   Dkckokxt's   Dkhts.  §§  80<;,  867. 

jury,  as  if  the  order  had  bccu  made  in  an  action,  and  with  like 
effect.  Costs  of  such  an  appeal  may  be  awarded  by  the  apix-llate 
court,  as  if  the  appeal  was  from  an  order  or  decree  of  the  Surro- 
gate's Court.'''^ 

§  866.  Suspending  proceeding  and  staying  sale. —  If ,  in  answer 
to  a  crcditdr's  pi'titi/m,  an  in^^uHicicncy  of  assets  is  denied,  the 
proceeding  should  be  delayed  until  the  termination  of  a  pending 
accounting  in  which  that  fact  may  be  ascertained.^^  So,  where 
it  appears  that  the  property  has  already  been  sold  on  a  judgment 
in  foreclosure  of  an  alleged  invalid  mortgage,  the  creditor's  pe- 
tition need  not  be  dismissed,  but  the  proceeding  may  be  suspended 
until  the  petitioner  has  had  a  reasonable  opportunity  to  attack  the 
foreclosure  and  sale  in  another  coiirt.^^  Express  provision  is  made 
that  "  where  it  appears  that* any  of  the  real  property,  of  which  the 
decedent  died  seized,  cannot  be  sold,  without  manifest  prejudice 
to  the  persons  interested  therein,  by  reason  of  a  controversy  re- 
specting the  decedent's  title  thereto,  or  interest  therein,  the  decree 
may  direct  that  the  execution  thereof,  with  respect  to  that  prop- 
erty, be  postponed,  until  the  special  direction  of  the  surrogate. 
In  that  case,  a  party  may  apply  at  any  time  afterward,  upon 
notice  to  the  others  who  appeared,  for  an  order  directing  the  execu- 
tion of  the  decree,  with  respect  to  the  property  so  reserved."  ^^ 

^  867.  Discontinuing  proceeding. —  The  proceeding  having  been 
instituted,  and  jurisdiction  of  the  parties  obtained,  it  is  to  be 
treated  as  an  action  in  which  the  parties  have  been  served  with 
process ;  it  cannot  be  abandoned  or  dismissed  without  an  order  on 
uotice.^^  The  creditors  have  the  right  to  insist  that  a  proceeding 
instituted  by  the  representative  shall  be  prosecuted,  and  may  move 
for  reviving  or  expediting  it.*'''*  Where  the  claims  of  creditors 
established  in  the  proceeding  are  paid,  together  with  the  costs  of 
the  proceeding,  the  heir  or  owner  of  the  land  is  entitled  to  an  order 
of  discontinuance  or  dismissal.^^ 

tions  of  fact  in  nn  aftion.  see  Co.  Civ.  premises    had    been   had.   and   existed 

Proe.,  §   100.3.     As  to  costs,  see  §  2558.  in     force,     was     perpetually     enjoined 

40  Co.   Civ.  Proc,  §  2549.  from    continuimj    tlie    proceedinjx.      In 

r.o Matter     of     Rosenfield.     10     Civ.  Matter  of  Braker   (48  App.  Div.  443; 

Proc.    Rep.    201:    5    St.    Rep.    .339;    5  02  N.  Y.  Supp.  859) .  where  the  prose- 

Dem.  251.  ciition  was  delayed  for  ten  years,  the 

f>i  Knickerbocker  v.  Decker,  4  Dem.  premises    havinjr.    in     the    meantime. 

128.  been    sold    in    partition,    and   the   piir- 

52  Co.  Civ.  Proc.  §  27r)2.     See  Hew-  chaser  refused    to   take  title,  the  pro- 

itt  V.  Hewitt,  3  Bradf.  205.     In  Bree-  ceedinp  was  dismissed. 

vort    V.   ISIMimsey    (1    Fdw.    551),   an  r.r?  Farrinpton  v.  Kins:.   1  Bradf.  182. 

administrator     applyinsr   for    leave     to  ■'i-»  Raven  v.  Norton.  2  Dem.   110. 

Foll   real   property,   where  a   decree  of  fis  Kowing  v.  Moran.  5  Dem.  56. 
foreclosure     and     sale     of     the     same 


§§  868,  869.  Disposition  of  Eeal  Estate  724 

§  868.  Proof  necessary  for  decree. — "A  decree,  directing  the  dis- 
positiun  of  real  property,  or  of  an  interest  in  real  property,  can 
be  made  only  where,  after  due  examination,  the  following  facts 
have  been  established  to  the  satisfaction  of  the  surrogate : 

"  1.  That  the  proceedings  have'  been  in  conformity  to  [title 
five  of  chapter  eighteen  of  the  Code] . 

"  2.  That  the  debts,  or  liens,  or  both,  for  the  payment  of  which 
the  decree  is  made,  are  the  debts  of  the  decedent,  or  are  just  and 
reasonable  charges  for  his  funeral  expenses,  or  are  liens  by  judg- 
ment existing  at  his  death  upon  his  real  property,  or  upon  some 
portion  thereof ;  and  are  justly  due. 

"  3.  That  they  are  not  secured  by  a  mortgage,  or  expressly 
charged  by  the  will  upon  the  decedent's  real  property,  or  interest 
in  real  property ;  or,  if  a  debt  is  so  secured  or  charged  upon  a 
portion  of  the  real  property,  or  interest  in  real  property,  that  the 
remedies  of  the  creditor,  by  virtue  of  that  charge  or  security,  have 
been  exhausted. 

"  4.  That  the  property  directed  to  be  disposed  of,  was  not  ef- 
fectually devised,  expressly  charged  with  the  payment  of  debts 
or  funeral  expenses,  and  is  not  subject  to  a  valid  power  of  sale 
for  the  payment  thereof;  or,  if  so  devised  or  subject,  that  it  is  not 
practicable  to  enforce  the  charge,  or  to  execute  the  power,  and 
that  the  creditor  has  effectually  relinquished  the  same. 

"  5.  That  all  the  personal  property  of  the  decedent,  which  could 
have  been  applied  to  payment  of  the  decedent's  debts  and  funeral 
expenses,  has  been  so  applied ;  or  that  the  executors  or  adminis- 
trators have  proceeded  with  reasonable  diligence,  in  converting 
the  personal  property  into  money,  and  applying  it  to  the  pay- 
ment of  those  debts  and  funeral  expenses ;  and  that  it  is  insufficient 
for  the  payment  of  the  same,  as  established  by  the  decree."  ^^ 

§869.  General  requisites  of  decree;  filing  vouchers. — ''The  de- 
cree must  determine  and  specify  the  amount  of  each  debt  estab- 
lished before  the  surrogate  as  a  valid  and  subsisting  debt  against 
the  decedent's  estate,  ana  must  determine  and  specify  the  amount 
of  each  judgment  lien  established  before  the  surrogate  as  a  valid 
and  subsisting  lien  existing  upon  the  decedent's  land,  or  some  part 
thereof,  at  the  time  of  his  death.  And  the  decree  may  also  deter- 
mine the  amount  due  or  remaining  unpaid  upon  any  mortgage 
or  mortgages,  existing  at  decedent's  death  upon  his  real  property, 
or  any  portion  thereof,  or  as  a  just  and  reasonable  charge  for 


56  Co.  Civ.  Proc,  §  2759,  as  amended  1894. 


725  To  Pay  Decedent's  Debts.  §  870. 

funeral  expenses;  ami  iln'  decree  must,  in  like  manner,  specify 
what  demands  presented  have  been  rejected.  The  vouchers  pre- 
sented before  the  £urr<»j2,ate,  in  support  of  each  debt  or  lien  es- 
tablished, must  111'  tiled  and  renuun  in  the  surrogate's  office." '^^ 
Where  the  decree  directs  that  real  property  be  mortgaged,  leased, 
or  sold,  or  that  an  .interest  in  real  property  be  sold,  it  ''  must 
describe  it  with  common  certainty;  and  must  direct  that  a  mort- 
gage, lease,  or  sale  thereof,  for  the  purpose  of  paying  the  debts, 
judgment  liens  ordered  to  be  paid,  or  funeral  expenses,  cstaldished 
by  the  deei'ce,  !>(>  made  by  the  executor  or  administrator,  upon  his 
giving  the  ])on(l  ju-escribed  by  law;  or,  in  case  of  his  failure  so  to 
do,  bv  a  freeholder,  to  be  appointed  by  the  surrogate,  as  prescribed 
by  law."  ^« 

§  870.  Disposition  to  be  by  mortgage  or  lease,  if  feasible. —  Tf  the 

facts  necessary  for  a  decree  "  are  satisfactorily  established,  the 
surrogate  must  inquire  whether  sufficient  money  can  be  raised,  ad- 
vantageously to  the  persons  interested  in  the  real  property,  by  a 
mortgage  or  lease  of  the  real  property  of  which  the  decedent  died 
seized,  or  of  a  part  thereof."  To  that  end,  he  shall  appoint  three 
competent  disinterested  persons  to  examine  and  ajipraise  each 
parcel  of  such  real  projierty,  and  its  rental  value  at  its  just  and 
fair  market  value;  they  shall  forthwith  appraise  the  same,  make 
a  report  thereof,  signed  and  verified  by  at  least  two  of  them,  de- 
scribing each  parcel,  and  stating  its  value  and  rental  value,  and 
file  the  same  in  the  surrogate's  office.  "  If  he  ascertains  that  the 
money  can  be  so  raised,  the  decree  must  direct  the  execution  of 
one  or  more  mortgages  or  leases  accordingly."  "  But  a  lease  shall 
not  be  made  for  a  longer  time  than  until  the  youngest  person 
interested  in  tlie  property  leased  attains  full  age.     A  mortgage  or 

57  Co.  Civ.  Proc,  §  2758,  as  amended  is    sufficient.       (Jackson    v.    Trwin.    10 

1804.  Wend.  441.)     Lands  omitted  in  a  first 

nsCo.  Civ.  Troc,  §  2705.  as  amended  order,  by   reason  of  a   mistake  in  tho 

1894.      Althousli   the   order  must   spe-  boundaries,   may  be  sold  by  virtue  of 

cify  the  land  to  be  sold,   it  need  not  a   second  order,  made  on   the  petition 

describe  it  by  metes  and  bounds;   and  of  the  administrator  showinur  the  mis- 

an   order   specifyinfr  the  land   as  that  take,  Avithout   any  new  orcUn-  to  show 

of   whif'h    the    decedent   was    seized. —  cause.      (Sheldon   v.    Wri^dit,    7    TSarb. 

beimi     ninetv-one     acres     out     nf     the  39.)       But    Avhere    the    proceedinj.'s    in 

snulhwcst  corner  of  lot  Xo.  11,  in  the  regard    to    the    first   order   have   been 

town  of.  etc.. —  has  been  held  to  suffi-  conducted    without    any    irrejruhirity, 

cientlv  describe  t1ie  premises.     (Bloom  the  surrogate  should  leave  the  admin- 

V.    P.urdi'k.    1    Hill.    130.)      And    so   a  istrator    free   to   act    according    to    it 

descripliim    of    the    property    as    "so  nnd  should  not  attempt  to  control  his 

rruch   of  the   100  acres  on  lot  ISTo.   4,  discretion   by  a  second   order.      (Mat- 

ps  is  known  nnd  distiniruished  by  th--  ter   of   Lawrence,   G   N.   Y.    Leg.    Obs. 

town    plot   called    the    village    of   J.."  247.) 


§§  871,  872.  Disposition  of  Real  Estate  726 

lease,  executed  pursuant  to  such  decree,  has  the  same  effect  as 
if  it  had  been  made  by  the  decedent  immediately  before  his 
death."  '^ 

§  871.  Decree  for  sale,  where  mortgage  or  lease  is  disadvantageous. 
—  Where  it  appears  to  the  surrogate,  upon  such  inquiry,  that  suffi- 
cient money  cannot  be  raised,  advantageously  to  the  jxirsons  in- 
terested in  the  real  property,  by  mortgage  or  lease,  the  decree  must 
direct  a  sale  of  the  real  property,  or  interest  in  real  property,  or 
of  so  much  thereof  as  is  necessary,  in  order  to  pay  the  debts,  judg- 
ment liens  thereon,  and  funeral  expenses  of  the  decedent,  as  es- 
tablished in  the  decree,  at  public  or  private  sale.  Such  decree, 
however,  may  provide,  if  it  appear  to  be  for  the  best  interest  of 
all  persons  interested,  that  the  said  sale  be  made  subject  to  all 
or  any  specified  liens  by  judgment  existing  at  decedent's  death  on 
said  real  property  or  any  portion  thereof,  which  shall  have  been 
established,  and  the  amount  thereof  determined  by  the  said  decree. 
Where  a  sale  of  all  the  real  property,  or  interest  in  real  property, 
is  not  necessary  for  that  purpose,  but  enough  of  either  cannot  be 
sold  without  manifest  prejudice  to  the  persons  interested,  the  de- 
cree may  direct  a  sale  of  all  the  real  property,  or  all  the  interest 
in  real  property,  or  both,  or  of  such  a  part  of  either  as  the  sui'ro- 
gate  thinks  proper,  at  public  or  private  sale.^*^ 

§  872.  Impeaching  decree —  Only  the  heirs  and  devisees,  and 
those  claiming  under  them,  can  question  the  regularity  of  an  order 
of  sale,  and  this  only  by  appeal. ^^  The  recitals  in  the  order  are 
no  more  than  a  statement  by  the  surrogate  that  he  had  acquired 
jurisdiction,  and  are  of  no  effect  if  they  do  not  show  an  adjudica- 
tion that  he  found  from  evidence  the  facts  upon  which  his  juris- 
diction depended. ^^  Ordinarily  the  decree  cannot  be  impeached 
collaterally,  even  for  fraud.  The  court's  adjudication  of  insuffi- 
ciency of  personal   assets   is   conclusive,   and   can   be   questioned 

59  Co.  Civ.  Proc.  §  2700.  as  amended  estopped  themselves  from  objectinfr  by 

1885.     The  jurisdiction  of  a  surrogate  such    consent.        (Duryea    v.    ]\Iackey, 

to  order  a  mortgage  of  the  real  estate  1.51  N".  Y.  204;  45  N.  E.  Rep.  458.) 

of  the  decedent  can  only  be  exercised  60  Co.  Civ.  Proc,  §  2761,  as  amended 

in   the   manner   and  bv  the  procedure  1894.  As    to    power    of    the    court    to 

prescribed   in  the   statute.     An   order,  nmend  the  decree  which  omitted  men- 

therefore.  made  in  probate  proceedimrs,  tion  of  a  portion  of  the  land,  see  Shel- 

on  consent  of  the  attorneys,  authoriz-  don  v.  Wright.  5  X.  Y.  407.     As  to  the 

ing  the    temporary   administrator    to  effect  of  the  decree  as  a  lien,  see  'S]ai- 

mortgage    the    real    property    for    the  ter  of  Wilcox.  11   Civ.  Proc.  Rep.   115. 

nurnose    of   paving   the   costs    allowed  61  Matter   of   Dolan,    88   N".    Y.    309, 

in  the  proceeding,  is  without  jurisdic-  319. 

tion,  and  such  mortsasre  is  not  effecf-  G2  Sibley  v.  Waffle,  16  X.  Y.  180. 
ual  as  against  parties  who  have  not 


727  To  Pav  Deckdk.vt's  Dkuts.  §§  873,  874. 

en  appeal  only.^"^    An  heir-at-law  may  appeal  from  the  order  allow- 
ing a  (lis})UteJ  creditor's  claim. *^ 

§  873.  Defects  and  irregularities  not  affecting  title. —  The  title 
of  a  purchaser  in  good  faith,  at  a  sale  pursuant  to  a  decree  made 
as  heretofore  described,  is  not,  nor  is  the  validity  of  a  mortgage 
or  lease  made  as  so  de;scribed,  in  any  way  aifected  by  any  of  the 
following  omissions,  errors,  defects,  or  irregularities,  except  so 
far  as  the  same  would  affect  the  title  of  a  purchaser  at  a  sale,  made 
pursuant  to  the  directions  contained  in  a  judgment  rendered  by 
the  Supreme  Court  in  an  action : 

1.  Where  a  petition  was  presented,  and  the  proper  persons  were 
duly  cited,  and  a  decree  directing  a  mortgage  or  lease,  or  a  decree 
for  sale,  and  an  order  directing  the  execution  thereof,  were  made 
as  her:?tofore  described ;  and  the  decree,  and  the  order,  if  any, 
were  duly  recorded,  as  prescribed  in  the  eighteenth  chapter  of  the 
Code  ;^  "  by  any  omission,  error,  defect,  or  irregularity,  occur- 
ring between  the  return  of  the  citation  and  the  making  of  the  de- 
cree, or  the  order  directing  the  execution  of  the  decree." 

"  2.  Where  an  order,  confirming  a  sale  and  directing  a  convey- 
ance, has  been  made,  upon  proof,  satisfactory  to  the  surrogate, 
that  all  the  acts  have  been  done,  which  are  required  by  law  to  be 
■done,  after  the  order  directing  the  execution  of  the  decree,  to  au- 
thorize the  surrogate  to  make  such  an  order  of  confirmation  by 
the  actual  omission  to  do  such  an  act,  or  by  any  error,  defect,  or 
irregularity  in  the  same,  or  by  any  omission  in  the  recitals  of  the 
conveyance."  ^ 

TITLE  THIED. 

EXECUTION  OF  DECREE  FOR  SALE. 

§  874.  By  whom  decree  to  be  executed. —  ''A  decree  directing  that 
real  property  be  mortgaged,  leased,  or  sold,  or  that  an  interest  in 
real  property  be  sold,  as  prescribed  in  this  title,  must  describe 
it  with  common  certainty;  and  must  direct  that  a  mortgage,  lease 
or  sale  thereof,  for  the  purpose  of  paying  the  debts,  judirment 
liens  ordered  to  be  paid,  or  funeral  expenses,  established  by  the 

fi3  Graham  v.  Linden.  .50  N.  Y.  .547;  id..   §§   247.'5.   2474:    nyitr,    §    A?>.      Spe 
Atkins    V.    Kinnan,    20    Wend.    241;  Wilson  v.   White.  109  N.  Y.  59.     The 
Jackson  v.  Robinson,  4  id.  4.36;  .Tack-  sunojinto  may  disrosard  errors  or  de- 
son  V.  Crawfords.  12  id.  5.33;  Farring-  feets  that  po   to  the  form  and  not  to 
ton  V.  Kinjj.  1  Bradf.   1S2.  the  substance,  bnt  lie  has  nn  nuthoritv 
fi4  Owens  V.   Bloomer.   14   Him,   206.  to    dispense     with     any    absolute   pre- 
^•"'Art.    1.  tit.   1.  tlu>reof.  requi-ito.       (Matter     of     Mahoney,    34: 
CO  Co.  Civ.  Proc.,  §  2784.     And  see  Hun.  501.)     See  §  838.  intc. 


§§  875,  876.  Disi'osiTiox  of  Iif:AL  Estate  728 

decree,  be  made  by  the  executor  or  administrator,  upon  his  giving 
the  bond  prescribed  by  law,  or  in  case  of  his  failure  so  to  do,  by  a 
freeholder,  to  be  appointed  by  the  surrogate  as  prescribed  by  law ; 
and  in  case  a  sale  thereof  be  directed,  may  authorize  the  same 
to  be  made  at  private  sale,  at  a  price  not  less  than  the  value  thereof, 
as  appraised  pursuant  to  the  provisions  of  section  2760."  ^^ 

§  875.  In  case  of  death  of  representative  or  freeholder "  The 

death,  removal,  or  disqualification,  before  the  complete  execution 
of  a  decree,  of  all  the  executors  or  administrators,  who  have  been 
directed  to  execute  it,  or  of  a  freeholder  appointed  for  the  pur- 
pose, does  not  suspend  or  affect  the  execution  thereof;  but  the 
successor  of  the  person  who  has  died,  been  removed,  or  become 
disqualified,  must  proceed  to  complete  all  unfinished  matters,  as 
his  predecessor  might  have  completed  the  same;  and  he  must  give 
such  security  for  the  due  performance  of  his  duties  as  the  surro- 
gate prescribes."  ^^ 

§  876.  Bond  of  representative  on  selling. — "  Before  an  executor 
or  adininistrator  can  execute  a  decree  directing  that  property  be 
mortgaged,  leased,  or  sold,  he  must  execute,  and  file  with  the  sur- 
rogate, his  bond,  with  two  or  more  sureties,  to  the  people  of  the 
State,  in  a  penalty,  fixed  by  the  surrogate,  not  less  than  twice  the 
sum  to  be  raised,  if  the  decree  directs  a  mortgage ;  or,  if  it  directs 
a  lease,  in  such  a  penalty  as  the  surrogate  thinks  proper ;  or,  if 
it  directs  a  sale,  in  a  penalty  not  less  than  twice  the  value  of  the 
real  property,  or  interest  in  real  property,  directed  to  be  sold. 
The  bond  must  be  conditioned  for  the  faithful  performance  of  the 
duties  imposed  upon  the  principal  by  the  decree ;  for  the  payment 
into  the  Surrogate's  Court,  within  twenty  days  after  the  receipt 
thereof,  by  the  principal,  of  all  money  arising  from  the  mortgage, 
lease,  or  sale ;  for  the  delivery  to  the  surrogate,  within  the  same 
time,  of  all  the  securities  taken  thereupon ;  and  for  the  account- 
ing by  the  principal,  for  all  money  received  by  hiin,  whenever 
he  is  required  so  to  do  by  a  court  of  com.petent  jurisdiction."  ^^ 

6"  Co.   Civ.   Proc,    §    27 G5.      Having  provided  he  gives  the  necessary  bond, 

ordered  the  sale,  the  surrogate  should  (Matter  of  Georgi,  21  Misc.  419.) 

leave    the    representative    free    to    act  t'S.  Co.   Civ.    Proc,    §    2770.      See   id., 

under  it,  and  not  attempt  to  limit  his  §§  760,  1828. 

discretion  by  a  second  order.     (Matter  •>■>  Co.    Civ.   Proc,    §   2760:    Jackson 

of  Lawrence,  6  N.  Y.  Leg.  Obs.  274.)  v.  Holladav,   3   Redf.   37.     Under   the 

See  Sheldon  v.  Wright.   5  N.  Y.  497.  Act   of    1813,   filing   the   bond    several 

An    administrator,    admittedly    insol-  days  after  the   date   of  the  mortgage 

vent,  may,  nevertheless,  make  the  sale,  was  held  sufficient.      (Fo.x  v.  Lipe,  24 

Wend.   164.) 


720  To  I'av    Decedent's  Dehts.  §§  877-^7'.>. 

^  877.  Appointment  of  freeholder. —  But  if  a  sole  executor  or  aJ- 
ininislratur,  ur  all  the  executors  or  aduiiiiistrator?,  so  fail,  the 
surrogate  must  make  an  order  appointinii'  a  (lisinten<tc(l  freeliolder 
to  execute  the  decree.  lie  may  vacate  such  an  appoiutnient,  and 
make  a  new  appointment,  from  time  to  time,  as  the  case  requires, 
A  person  so  appointed  must  give  a  bond,  in  all  respects  like  that  re- 
quired from  an  executor  or  administrator.  ''  In  making  such  an 
appointment,  "the  surrogate  must  give  a  preference  to  a  competent 
person  nominated  by  the  creditors,  whose  debts  have  been  estab- 
lished, or  a  majority  of  them  in  number  and  amount."  '" 

§  878.  Order  directing  execution  of  decree. —  Where  an  execu- 
tor or  administrator,  or  a  freeh<ildcr  so  api)ointed,  has  given  the 
requisite  bond,  an  order  must  be  made,  reciting  the  fact,  and  di- 
recting him  to  proceed  to  execute  the  decree.  The  order  may  direct 
the  execution  of  the  decree,  with  respect  to  all  or  any  part  of  the 
real  property,  or  any  of  the  interests  in  real  property,  specified 
in  the  decree.  Where  it  directs  the  execution  of  the  decree  with 
respect  to  part  only,  an  order  to  execute  it,  with  respect  to  any 
other  part  or  parts,  may  be  made  from  time  to  time,  as  the  case 
requires.^^ 

§  879.  Order  of  sale  of  parcels,  where  heir,  etc.,  has  aliened. — 

"  Where  the  decree  directs  the  sale  of  two  or  more  distinct  parcels 
of  real  property,  of  which  the  decedent  died  seized ;  or  his  interest 
under  two  or  more  contracts  for  the  purchase  of  distinct  parcels 
of  real  property ;  the  decree  may  direct  the  sale  to  be  made  in 
the  order  which  the  surrogate  deems  just,  unless  it  appears  that 
one  or  more  distinct  parcels,  of  which  the  decedent  died  seized, 
have  been  devised  by  him,  or  sold  by  his  heirs ;  in  which  case,  the- 
several  distinct  parcels  must  be  sold  in  the  following  order: 

'^  1.  Property  which  d-scended  to  the  decedent's  heirs,  and  has 
not  been  sold  by  them. 

"  2.   Property  so  descended,  which  has  been  sold  by  them. 

"  3.  Property  which  has  been  devised,  and  has  not  been  sokF' 
hy  the  devisee. 

"oCo.  Civ.  Proc.  §  27(i7.  ronoo.  70   Ilnn.    17t«:    20   X.   Y.    Suppl. 

71  Co.   ("iv.   Proc,   §   27ns.  72fi.)     Where  the  debt  arose  from  the 

72  Soe  Kddy  v.  Traver.  G  Pai.sro.  .521.  rehition  of  the  testator  as  aceonimo- 
The  property  referred  to.  is  that  re-  dation  indorser  for  one  of  the  dev- 
maininfj  unsold  of  the  partieular  dev-  isees.  the  property  devised  to  sueh 
isee,  who  may  have  eonveyed  only  a  devisee  should  be  primarily  eharjxed 
portion  of  the  estate  devised  to  him,  with  the  debt,  in  a  proeeedinp:  to  sell 
and  not  that  of  the  other  devisees  real  estate  for  the  payment  tlieroof. 
who   have   not  conveyed    tlie    property  (lb.) 

devised    to    them.      QIatter    of    Law- 


|§  SSO,  881.  Disposition  of  Kkai.  Estate  730 

"  4.  Property  so  devised,  which  has  been  sold  by  the  devisee,"  '^ 
Where  one  of  several  devisees  of  undivided  interests  in  two 
pieces  of  property  has  mortgaged  his  interest  in  one,  which  interest 
was  afterward  sold  under  foreclosure,  the  property  in  which  his 
interest  remains  should  first  be  sold  for  the  payment  of  the  debts 
of  the  estate,  and  the  interest  of  all  the  devisees  therein  should 
be  sold  in  order  (the  property  not  being  of  sufficient  value  to  pay 
the  debts)  to  prevent  a  disproportionate  part  of  the  debts  from 
falling  upon  the  interest  of  the  purchaser  at  the  foreclosure  sale.'^* 

§  880.  Sale  where  undivided  share  or  precedent  estate  devised  or 
aliened —  "  Where  the  decedent's  will  devises  an  undivided  inter- 
est in  real  property,  but  not  the  Vv'hole  of  his  estate  therein ;  or 
creates  a  precedent  estate  in  real  property;  or  where  an  heir  of 
the  decedent  has  sold  an  undivided  interest,  or  created  a  precedent 
estate,  in  real  property  which  descended  to  him,  the  entire  prop- 
erty, to  which  the  undivided  interest  or  precedent  estate  attaches, 
must  be  sold.  But,  in  applying  the  proceeds  to  the  payment  of 
debts  and  funeral  expenses,  the  application  of  the  proportion  of 
the  proceeds,  belonging  to  the  devisee  or  grantee  of  the  undivided 
interest,  or  of  the  precedent  estate,  must  be  postponed  to  the  ap- 
plication of  the  residue,  in  the  order  prescribed  in  the  last  section, 
in  like  manner  as  if  that  undivided  interest  or  precedent  estate 
was  a  distinct  parcel  of  the  property."  '^ 

!:;  881.  Sale  of  part  of  distinct  parcels,  pending  appeal  relating  to 
debt. —  "  Where  the  only  question,  upon  an  appeal  taken  from  a 
decree  directing  a  sale  of  real  property,  or  of  an  interest  in  real 
property,  or  both,  relates  to  the  validity  or  amount  of  a  debt  or 
judgment  lien  established  by  the  decree ;  and  the  real  property  di- 


"•5  Co.  Civ.  Proc,  *j  2763.     Under  the  fore  resorting  to  those  so  mort 

-corresponding    provisions    of    the   Re-  (^Matter   of    Clark.   .3  Redf.    225.) 

vised   Statutes  —  which   required   that  '*  flatter   of   Clark,   stipra. 

if  any  lands  devised  or  descended  had  75  Co.    Civ.   Proc,    §    2764.       Before 

been    sold   by   the   heirs   or     devisees,  this  section  of  the  Code  took  effect,  it 

then    the    lands    remaining    in    their  was   held   that,   in   directing   the   sale, 

hands   unsold   should   be   first   sold   to  the  surrogate  was  bound  to  decree  the 

satisfy  the  debts  of  the  decedent's  es-  sale  of  the  entire  title  to  so  much  as 

tate  —  it  was  not   a    sufficient  answer  was  sold  at  all:    and  that  he  liad  no 

to  a  petition  by  a  mortgagee  of  a  dev-  authority  to  protect  a  life  estate  cre- 

isee  for  the  prior  sale  of  lands  of  the  ;itod   by  the    will    of   the    decedent   by 

estate  in  which  the  devisee  had  an  in-  soiling     ihe   remainder    first,   however 

terest.    other    than    those    mortgaged,  equitable  such  an  arrangement  might 

and    in    which    his    interest    remained  be:    nor  could   he  set   apart  from  the 

unsold,  that  the  lands  so  unsold  would  proceeds    of    the    sale    the    estimated 

not  prohahJji  bring  enough  to  pay  the  value  of  such  life  estate,  before  apnly- 

debt^.    though    the    opinion    that    they  ine    them    to    the    payment    of    debts. 

Tould  not  was  founded  upon  innuiry:  fPelletreau  v.   Smith,  30  Barb.   494.) 
but   an  actual  sale  must  be  made  be- 


731  To  r.vv   Dkckuext'.s   Dkbts.  §§882,883. 

rected  to  be  sold,  or  to  which  the  interest  directed  to  be  sold  at- 
taches, consists  of  two  or  more  distinct  parcels,  the  sale  of,  or 
with  respect  to,  one  or  more  of  which  will  suffice  to  pay  all  the 
other  del)ts  aiul  liens  so  established  and  directed  to  be  paid,  leav- 
ing enough  real  property,  or  interest  in  real  property,  unsold,  to 
satisfy  the  claim  drawn  in  question  upon  the  appeal ;  the  appel- 
late C(jurt  may,  upon  the  motion  of  any  party  to  the  special  pro- 
■ceeding  in  the  Surrogate's  Court,  made  upon  notice  to  all  parties 
to  the  appeal,  direct  the  Surrogate's  Court  to  cause  the  decree  to 
be  executed,  with  respect  ta  the  distinct  parcels  of  real  property, 
which  will  suffice  to  pay  the  debts  and  judgment  liens  ordered 
paid,  not  in  controversy ;  and  the  proceeds  of  a  sale,  made  pursu- 
ant thereto,  to  be  distributed,  in  like  manner,  as  if  the  decree  re- 
lated only  to  those  parcels  and  those  debts  or  liens;  except  that 
.any  surplus,  which  may  remain  for  distribution  after  payment 
of  those  debts  or  liens,  or  so  much  thereof  as  will  suffice  to  pay 
the  demand  in  controversy,  must  be  paid  into  the  Surrogate's 
Court  and  retained  by  the  county  treasurer,  subject  to  the  order  of 
the  surrogate,  to  abide  the  event  of  the  appeal."  '^ 

§  882.  Terms  of  credit  allowed  on  sale. — ''  The  surrogate  may,  in 
the  order  directing  the  execution  of  the  decree,  or  in  a  separate 
order  made  before  the  sale,  allow  a  sale  to  be  made  upon  a  credit, 
not  exceeding  three  years,  for  not  more  than  three-fourths  of  the 
purchase  money,  to  be  secured  l)y  the  purchaser's  bond,  and  his 
mortgage  on  the  property  sold,  except  where  the  sale  is  that  of 
iin  interest  under  a  contract;  in  which  case  the  order  may  pre- 
scribe the  security  to  be  given."  ^^  The  representatives  are  not 
obliged  to  sell  on  credit,  and  in  the  absence  of  any  direction  by 
the  surrogate,  or  any  assent  on  the  ])art  of  the  creditors,  may 
•decline  to  do  so.^* 

§  883.  Manner  and  notice  of  public  sale —  Where  the  property 
is  to  be  sold  at  public  sale,  and  it  consists  of  one  or  more  distinct 
parcels,  each  parcel  must  be  separately  exposed  for  sale,  unless 
otherwise  directed  in  the  decree,  or  in  the  order  to  execute  the 
same,  or  in  an  order  subsequently  made  by  the  surrogate. ''^    Each 

"<5  Co.  Civ.  Pror.,  §  2769,  as  amended  tains  no  provisions  conoorninfr  the  sale 
1894.  This  section  also  contains  the  of  distinct  parcels.  It  may  be.  con- 
following,  as  the  concluding  sentence:  jectnied  that  the  intent  was  to  refer 
■**  But  this  section  does  not  authorize  to  sections  •iTO.'J.  2704. 
■a  sale  of  any  distinct  parcel,  other-  ""Co.  Civ.  Proc.  §  2771. 
Avise  than  in  the  order  prescribed  for  "''Maples  v.  Howe.  .S  Barb.  Ch.  fill, 
-that  purpose,  in  sections  27ti4  and  T!>  Co.  Civ.  Proc.  §  2773.  which  con- 
27(55  of  this  act."  The  reference  is  not  firms  Delaplaine  v.  Lawrence.  :?  X.  V. 
very  clear,  as  the  latter  section  con-  301,  where  it  was  held,  that  the  exec- 


§§  884,  885.  DisposiTiox  of  Keai.  Estate  732: 

distinct  parcel  must  be  sold  in  the  county  where  it,  or  a  part  of 
it,  is  situated. ^"^  The  Code  further  provides  in  effect,  that  the 
sale,  if  at  public  auction,  must  be  between  nine  o'clock  in  the 
morning  and  sunset;  that  six  weeks'  notice  must  be  given,  hy 
posting  and  publication;  that  the  property  must  be  described,  in 
such  notice,  with  common  certainty;  that  disturbing  a  posted 
notice,  or  selling  without  notice,  etc.,  subjects  the  offender  to  a 
forfeiture;  and  that  the  validity  of  a  sale  is  not  affected  by  an 
official  omission,  or  by  the  fact  that  all  the  property  advertised  i? 
not  sold.^^ 

^  884.  Private  sale — By  an  amendment  made  in  1885,  the  sale 
may  be  made  at  public  or  at  private  sale.^^  ''  A  private  sale  of 
real  property,  or  of  an  interest  in  real  property,  must  be  made 
by  contract  in  writing,  subject  to  the  approval  of  the  surro- 
gate." An  administrator's  agreement,  previous  to  obtaining  the 
order,  and  in  anticipation  of  sale,  to  convey  the  property  is  void, 
because  the  administrator  has  no  interest.*^'" 

§  885.  Purchase  by  certain  persons  forbidden  or  restricted. — "  An 
executor  or  administrator  upon  the  estate,  a  freeholder  appointed 
to  execute  a  decree,  or  a  general  or  special  guardian  of  an  infant, 
who  has  an  interest  in  any  of  the  real  property  to  be  sold,  shall 
not,  directly  or  indirectly,  purchase,  or  be,  or  at  any  time  before 
confirmation,  become  interested  in  a  purchase  at  the  sale,  except 
that  a  guardian  may,  when  authorized  so  to  do  by  the  order  of 
the  surrogate,  purchase,  in  his  name  of  office,  for  the  benefit  of 
his  Avard.  A  violation  of  this  section  renders  the  purchase 
void."^^  AVhere  the  statute  is  violated,  or  there  has  been  fraud 
in  the  sale,  the  relief  is  not  confined  to  an  application  to  the  sur- 

utor  or  administrator,  or  other  person  prescribed  in  this  title.  In  makings 
making  the  sale,  might,  if  he  deemed  the  application,  each  provision  relat- 
it  beneficial  to  the  estate,  sell  in  sepa-  ing  to  the  sheriff  is  deemed  to  apply 
rate  lots,  although  the  order  of  sale  to  the  person  making  the  sale,  pur- 
described  the  property  as  a  single  suant  to  the  decree,  and  the  order  di- 
parcel :  that  the  statute  contemplated  recting  the  execution  thereof."  As  to- 
proceedings  similar  to  tliose  which  take  posting  notice  of  sale,  see  Jennings  v. 
place  on  other  judicial  sales,  and  in  .Tones.  2  Redf.  9.5;  Matter  of  McFeeley, 
all  such  sales  it  was  the  duty  of  the  id.  .541. 

officer    conducting    them    to    sell    the  ^2  Co.  Civ.  Proc,  §  2772.     This  was 

property  in  such  parcels  as  would  be  the     rule     under    the    Act     of     1801.. 

best  calculated  to  secure  the  greatest  (.Jackson  v.  Irwin,  10  Wend.  441.) 

aegregate  amount.  f^3  Bolt    v.     Rogers,    .3     Paige,     1.54; 

"  80  Co.  Civ.  Proc,  S  2772.  P.ridgewater  v.  Brookfield,  3  Cow.  299. 

81  lb.     The  following  are  the  words  As  to  penalty  for  making  a  fraudulent 

of  the  Code,  to  the  above  effect:    "The  sale,  see  2  R.  S.   110.  §  .58. 

provisions  of  sections  1384,  138.5.  138(5,  84  Co.  Civ.  Proc,  §  2774.     Under  the 

1434,  1435,  and  143{),  of  this  act,  ap-  corresponding  provision  of  the  Revised 

ply  to  a  public  sale  of  real  property.  Statutes,  a  purchase  by  one  acting  aa 
or  of  an  interest  in  real  property,  as 


733  To  Tav   Decedent's  Debts.  §  886. 

rogatc,  to  set  the  sale  aside,  Init  it  may  be  attacked  l)y  a  direct 
proc('('(lin(»-  in  the  Sii]iroiiio  Court. ^■' 

§886.  Order  to  vacate  sale;  resale. — "  The  person  making  the 
>i\\e  must  with  all  convenient  speed  file  with  the  surrogate  a  re- 
j)()rt  oi'  the  sale.  The  surrogate  must  upon  notice,  given  in  such 
manner  and  for  such-  a  length  of  time  as  he  thinks  proper,  to 
(•;i(  li  party  who  has  appeared,  iiuiiiire  into  the  proceedings;  and 
lie  may  take  oral  testimony  respecting  the  same.  If  he  is  of 
opinion  that  the  proceedings  were  unfair;  or  that  the  sum  bid 
for  the  whole,  or  for  a  distinct  ])arcel  of  real  property  separately 
sold,  or  in  case  of  a  private  sale  of  the  same,  that  the  sum  at 
Avhich  it  is  agreed  to  be  sold  was  less  than  the  value  thereof  at  the 
time  of  sale,  and  that  a  sum  exceeding  that  bid,  or  in  case  of  a 
private  sale,  exceeding  that  at  which  it  is  agreed  to  be  sold  at 
least  ten  per  centum,  exclusive  of  the  expenses  of  a  new  sale, 
]nay  be  obtained  upon  a  resale, —  he  must  make  an  order  vacating 
the  sale,  either  wholly  or  with  respect  to  the  distinct  parcel 
affected,  and  directing  another  sale,  and  whether  it  shall  be  at 
public  or  private  sale,  notice  of  which,  in  case  of  a  puldic  sale 
thereof,  must  be  given,  and  the  sale  must  be  conducted  as  in  this 
title  prescribed  for  a  pul)lic  or  private  sale  as  may  be  applica- 
l^lp  V  86     rpj^p   £g^^   ^1^^^   several   lots   were    sold   together,   being 

the  agent,  or  for  the  benefit,  of  the  ad-  86  Co.  Civ.  Proc,  §  2775.  If  tlie  sak 
ministrator,  etc.,  was  void.  (Forbes  was  not  illeo-ally  made  or  unfairly 
V.  Halsey,  26  X.  Y.  .53.)  And  if  the  conducted,  the  surrofrate  is  iiupora- 
-administrator,  etc.,  after  the  property  tively  required  to  confirm  it.  unk'ss  a 
was  struck  off.  but  before  con-  sum  exceeding  the  bid  by  10  jicr  cent., 
firmation  of  the  sale,  became  himself  exclusive  of  expenses,  can  1>e  obtained, 
interested  in  a  purchase  made  by  one  (Horton  v.  Horton,  2  Bradf.  200.) 
employed  by  him  to  act  as  auctioneer,  But  it  was  formerly  held,  that  he 
tlie  sale  was  void  (Terwilliger  v.  could  not  vacate  it  and  order  a  resak 
]?rown,  59  Barb.  9^  affd.,  44  X.  Y.  merely  because  such  new  bid  could  be 
2:57)  ; — -a  principle  now  expressly  em-  obtained.  Even  if  a  larger  bid  could 
bodied  in  the  statute.  The  facts  that  be  obtained,  yet  if  the  sum  bid  was,  at 
tlie  fair  value  of  the  premises  was  tlie  time,  an  adequate  price,  the  sale 
bidden,  and  the  sale  was  afterward  should  not  be  disturbed,  unless  the 
confirmed  ex  parte,  would  not  give  it  proceedings  were  unfair.  ( Kain  v. 
validity;  nor  was  it  material  that  the  Masterton,  16  N.  Y.  174.)  The  pro- 
-agreement  by  which  the  executor  be-  vision,  as  to  partial  vacation,  con- 
<'ame  interested  might  be  void  under  forms  to  Delaplaine  v.  LawTence  (.3X. 
the  Statute  of  Frauds.  (lb.)  And  a  Y.  301 ).  holding  tliat  where  any  parcel 
residuary  devisee  might  come  into  a  has  been  fairly  sold,  and  for  an  ade- 
court  of  equity,  and  have  the  sale  set  (juate  price,  the  sale  should  be  eon- 
aside,  and  the  property  resold.  (lb.)  firmed,  but  that  if  another  parcel  has 
A  purcliase  In'  the  testamentary  true-  been  <old  for  an  in;id(()uate  price,  and 
tee  of  an  infant  devisee  is  not  void,  the  surrogate  is  satisfied  that,  upon  a 
but  is  voidable  at  the  election  of  the  resale,  10  per  cent,  more  can  be 
ward.  (Bostwick  v.  Atkins.  3  X.  Y.  realized,  it  is  his  duty  to  vacate  the 
^3.)  sale  of  such  parcel,  whatever  else  may 
S5  Woodruff  V.  Cook,  2  Edw.  250.  ))e  done  in  respect  to  the  other  prop- 
And  see  Terwilliger  v.  Brown,  supra,  erty  sold. 


§§  837,  888.  Disposition  of  Heal  Estate  734r 

described  together  in  the  petition  and  order  of  sale,  is  not  ground 
for  vacating  the  sale,  unless  it  appears  that  thej  would  have 
brought  more  if  sold  separately.''*"  The  surrogate  has  authority 
to  entertain  a  proceeding  for  the  repayment  of  moneys  deposited 
by  a  purchaser  at  the  sale,  and,  in  a  proper  case,  to  grant  the 
relief  prayed  for.** 

§  887.  Confirming  sale;  executing  conveyances. —  "Where  a  sale 
is  not  vacated,  the  surrogate  must  make  an  order  confirming  it; 
and  where  it  is  vacated  as  to  a  part  only  of  the  property  sold,  he 
must  make  an  order  confirming  it  as  to  the  residue.  An  order,, 
confirming  a  sale,  must  direct  the  person  making  the  sale  to  exe- 
cute tlie  proper  conveyances,  upon  compliance,  on  the  part  of  thft 
purchaser  or  purchasers,  with  the  terms  of  the  sale.  The  nec- 
essary conveyances  must  be  executed  by  that  person  accordingly,, 
and  must  briefly  refer  to  the  decree,  the  order  to  execute  it,  and 
the  order  of  confirmation."  *^  He  should  not  confirm  a  sale,  if 
the  petition  on  which  it  was  ordered  is  defective  in  any  of  the 
statute  requirements  going  to  the  jurisdiction.^*^ 

§  888.  Compelling  purchaser  to  take. —  The  power  to  confirm  the 
sale,  which  is  conferred  on  the  surrogate,  does  not  include  the 
power  to  compel  payment  of  the  bid  and  the  taking  of  a  con- 
veyance, and  the  surrogate  cannot  exercise  that  power  over  a 


8T  Horton  v.   Horton,   2   Bradf.  200.  defective  recitals,  the  defects  might  be 

See  Olmstead  v.  Long,  4  Dem.  44.  healed  by   a    second   deed,   which   may 

88  Matter   of   Lynch,   33    Hun,   309 ;  be  treated  as  relating  back.     { Sheldon 

Matter  of  Campbell,  1  Tuck.  240.  v.  Wright,  7   Barb.  39.)      By  L.   1895, 

8!)  Co.  Civ.  Proc,  §  2776.     This  sec-  c.   .52.5,   all   titles  of  purchasers  under 

tion  revises  2  R.  S.   105.  §  30;   which  deeds   theretofore    made,    which    failed 

was  amended  by  L.   1880,  c.  231;   but  to  set  forth  at  large  the  decree  direct- 

the  amendment  was  short-lived,  owing  ing  the   sale,  were  cured.     Lender  the 

to  L.   1880,  c.  245    (§§   2,  4,  and  5),  Act  of  1819,  a  sale  was  void  as  against 

which  repealed  the  section  of  the  Re-  the  heirs,  unless  an  order  of  confirma- 

vised   Statutes,   with   its   amendments,  tion    was    obtained    previously    to    the- 

down    to    September    1,    1880.      Under  conveyance  to  the  purchaser,  although 

the    former    statute,    the    conveyances,  the  sale   was   bona   fide,   and   the   pro- 

instead  of  containing  a  brief  reference  ceeds  were  applied  to  the  debts  of  the 

to    the   proceedings,    were   required    to  intestate.        (Rea     v.     McEachron,     13 

set   them   forth   at  large:    and  it   was  Wend.  405.)      See  Fox  v.  Lipe.  24  id. 

held,  that  a  conveyance  which  omitted  104;    Stilvrell  v.  Swarthout.   81   X.  Y. 

to  recite  at  large  the  order  of  sale  was  109. 

void  at  law.  though  it  might  be  con-         ""  Matter   of   Kelley,    1    Abb.    X.    C. 

firmed   bv  the   Supreme   Court.      (At-  102.     The  Act  of  1850.  and  its  amend- 

kins  V.  kinnan.  20  Wend.  241.)      But  mcnts, —  curing  defects  in  titles  under 

an  error  in  the  recital  of  the  order  of  such  sales  (see  §  835,  ante). —  applied 

sale  might  be  disregarded,  where  the  only   where   the   sale   was    collaterally 

discrepancy   appeared    on    the    face   of  questioned,  not   in  the   proceedings  to 

the  deed.  "  (Sheldon   v.   Wright.   5   X.  confirm    the    sale    in   the    Surrogate's 

Y.    407:    affg.    7    Barb.    39.)       And    if  Court.      (lb.) 
the  deed  were  inoperative  by  reason  of 


•35 


To  i*AV  Deckdent's  Debts. 


§889. 


piirchasor  for  the  reason  that  he  is  in  nowise  a  party  to  the  pro- 
ceeding-."^ 

§  889.  Limited  effect  of  conveyance. —  Such  a  conveyance  "  does 
not  affect,  in  any  way,  the  title  of  a  ])urchaser  or  mortgagee,  in 
good  faith  and  for  vahie,  from  an  heir  or  devisee  of  the  dece- 
dent, unless  letters  testamentary  or  letters  of  administration, 
njjon  the  estate  of  the  decedent,  were  granted,  hy  a  Surrogate's 
Court  having  jurisdiction  to  grant  them,  upon  a  jietition  there- 
for, presented  within  four  years  after  his  death  ;'"'^  l)ut,  wdth 
this  exception,  the  conveyance  ''  vests  in  the  grantee  all  the  es- 
tate, right,  and  interest  of  the  decedent  in  the  real  property  so 
conveyed,  at  the  time  of  his  death,  free  from  any  claim  of  his 
■widow  for  dow-cr,  which  has  not  been  assigned  to  her;  hut  sub- 
ject to  all  subsisting  charges  thereon  by  judgment,  mortgage,  or 
otherwise,  which  existed  at  the  time  of  his  death,  unless  the  said 
real  property  is  decreed  to  be  sold  free  and  clear  from  the  lien 
of  any  judgment  or  judgments  established  by  the  decree  and 
ordered  to  be  paid  as  far  as  possible  from  the  proceeds  of  such 
sale,  as  provided  for  in  sections  2791  and  2793  of  tbis  act,  in 
which  event  such  lien  or  liens  shall  be  transferred  by  such  sale 
from  the  land  sold  to  the  proceeds  thereof.  AVliere  the  dower 
has  been  assigned  to  the  widow,  the  grantee  takes  the  part  of  the 
property  to  which  her  estate  in  dower  attaches,  subject  thereto."  ^* 
The  conveyance  has  priority,  under  the  Recording  Acts,  over  one 
executed  before,  but  not  recorded   until   afterward."'*      The  pur- 


91  Cromwell  v.  Phipps,  G  Dem.  61; 
Matter  of  Bellesheim,  1  N.  Y.  Svipp. 
276.  In  both  of  these  cases  Wolfe  v. 
Lynch  (2  Deni.  610)  was  followed,  the 
decision  of  the  General  Term  revers- 
ing it  ( Matter  of  Lynch,  33  Ilun.  30!) : 
07  How.  Pr.  436),  being  distinguished. 
In  that  case,  tlie  purchaser  applied  to 
the  surrogate  by  petition  on  discover- 
ing a  defect  of  title,  for  an  order  to  be 
relieved  from  the  purchase,  and  a  di- 
rection that  the  portion  of  the  pur- 
chase money  already  paid  be  returned. 
Held,  that  power  to  grant  the  relief 
asked  for  is  given  to  the  surrogate 
under  Co.  Civ.  Proc.  §  2472,  subd. 
;"),  and  §  2481.  Xor  has  the  surrogate 
express  or  implied  authority  to  put 
a  purchaser  in  possession.  (Matter 
of  Georgi,  37  Misc.  242;  75  N.  Y. 
Supp.  256.) 

92  Co.  Civ.  Proc.  §  2777.  See  Hall 
v.  Partridge,  10  How.  Pr.  188:  Hyde 
V.  Tanner,  1  Barb.  75;  Sears  v.  Mack, 


2  Bradf.  394;  Barto  v.  Tompkins 
County  Bank.  i5  Hun,  11. 

••3  Co.  Civ.  Proc,  §  2778,  as  amended 
1894.  It  was  held  in  Maples  v.  Howe 
(3  Barb.  Ch.  611),  that  where  the 
land  in  which  the  widow's  dower  has 
been  assigned  to  her  is  ordered  to  be 
sold  for  the  payment  of  the  decedent's 
debts,  and  the  whole  is  probably  in- 
suflicient  to  pay  them,  the  third  as- 
signed to  the  widow  may  be  sold, 
subject  to  her  life  estate.  And  see 
Lawrence  v.  stiller,  2  X.  Y.  245; 
Lawrence  v.   Brown,  5  id.   394. 

"•1  Barto  V.  Tompkins  County  Nat. 
Bank,  15  Hun,  11.  In  that  case,  it 
ap])carcd  that,  in  1855,  X.  executed  a 
deed  of  conveyance  of  a  lot  to  W.,  the 
deed  being  left  with  a  third  person,  to 
be  delivered  on  payment  of  the  price; 
the  price  was  paid  and  the  deed  de- 
livered in  January,  1865,  and  the  deed 
was  recorded  May  3.  1876.  In  Sep- 
tember, 1873,  a  judgment  was  docketed 


^§  «yO,  891.  Disposition  of  Heal  Estate  Y36 

chaser  of  land  at  a  sale  under  the  statute  takes  the  growing  crops. 
A  tenant  occupying  under  the  heir  or  devisee,  within  the  three 
years,  sows  his  crops  at  the  risk  of  losing  them,  in  case  of  a  sale 
before  he  can  remove  them.*^^ 

§  890.  Sale  of  interest  in  land  contract,  subject  to  payments. — 
^'  Where  any  of  the  property  to  be  sold  consists  of  an  interest, 
under  a  contract  for  the  purchase  of  reaLproperty,  and  any  pay- 
ment is  yet  to  be  made  upon  the  contract,  the  sale  must  be  made 
subject  to  all  payments  thereafter  to  become  due  thereupon ;  and 
it  may,  also,  if  the  decree,  or  the  order  to  execute  the  decree,  so 
directs,  be  made  subject  to  all  payments,  previously  due  there- 
ujDon.  If  the  sale  is  subject  to  any  payment,  the  terms  of  sale 
must  specify  the  penalty  and  the  number  of  sureties,  required 
in  the  bond  to  be  given  by  the  purchaser,"  and  must  state  to  what 
payments  the  sale  is  subject.^^  The  bond  is  for  the  benefit  and 
indemnity  of  the  obligee  and  his  successors,  and,  also,  the  per- 
sons entitled  to  the  interest  of  the  decedent  in  the  lands  con- 
tracted for,  and  must  be  in  a  penalty  at  least  twice  the  amount 
of  all  the  payments,  subject  to  which  the  sale  is  madc.^^  But 
where  the  decree  or  the  order  directs  a  sale  of  the  decedent's  in- 
terest in  a  part  only  of  the  property,  if,  in  the  opinion  of  the 
surrogate,  a  sale  can  be  made  advantageously  to  the  estate,  and 
so  that  the  purchase  money  of  the  part  sold  will  satisfy  and  dis- 
charge all  the  payments,  to  be  made  for  all  the  property  contracted 
for,  according  to  the  contract,  the  purchaser  is  not  required  to 
execute  a  bond.^^ 

§  891.  Effect  of  conveyance  of  entire  contract  interest. — "  A  con- 
Teyance  of  the  decedent's  interest  in  all  the  real  property,  held 
Ijy  him  under  a  contract  for  the  purchase  thereof,  operates  as  an 
assignment  of  the  contract  to  the  purchaser ;  and  vests  in  him, 
his  heirs  and  assigns,  all  the  right,  title,  and  interest  of  all  the 

against  W.,  under  whicli  an  execii-  surrogate's  sale,  and  paid  the  whole 
tion  was  issued  in  September,  1876,  purchase  price  into  the  Surrogate's 
and  the  lot  sold  in  December,  1876.  a  Court,  receiving  a  deed  which  was  re- 
deed  being  delivered  in  April,  1878,  corded  in  November,  1875.  Held  that 
In  November,  1875,  the  lot  was  sold  tlie  title  acquired  by  him  was  superior 
luider  proceedings  had  in  the  Surro-  to  that  acquired  by  the  purchaser  at 
gate's  Court   for   the   sale  of  the  real  the  sheriff's  sale. 

estate   of   N..   to   pay  debts.   W.,   who  ''5  Jewett    v.    Keenholts,     16     Barb, 

was  one  of  the  executors,  joining  with  10.3. 

the   others    in    the   petition.      T..   who  '''(^  Co.  Civ.  Proc,  §  2779. 

held  a  note   against  the  estate  of   N.  "7  Co.  Civ.  Proc,  §  2780. 

for  .$30,000,  purchased  the  lot  at  the  »8  Co.  Civ.  Proc,  §  2781. 


737  To  Pay  Dkceuent's  Debts.  §§  802,  893. 

persons  entitled,  at  the  time  of  the  sale,  in  and  to  the  decedent's 
interest  in  the  rea]  j)roperty."  ^ 

§892.  Same;  conveyance  of  partial  contract  interest. — "A  con- 
veyance of  the  decedent's  interest  in  a  part  only  oi  the  real  i)r(jp- 
€rty,  held  under  such  a  contract,  transfers  to  the  purchaser  all  the 
decedent's  right,  title,-  and  interest  in  and  to  the  part  so  sold; 
and  all  rights  which  would  be  acquired  thereto,  by  the  executor 
or  administrator,  or  by  any  person  entitled,  at  the  time  of  the 
sale,  to  the  interest  of  the  decedent  therein,  by  perfecting  the  title 
to  the  property  contracted  for,  pursuant  to  the  contract.  Upon 
fully  complying  with  the  contract,  the  purchaser  has  the  same 
right  to  enforce  performance  thereof,  with  respect  to  the  part 
conveyed  to  him ;  and  the  executor  or  administrator,  or  his  as- 
signee, has  the  same  right  to  enforce  performance,  with  respect 
to  the  residue,  as  the  decedent  would  have  had,  if  he  was  living. 
Any  title  acquired  by  the  executor  or  administrator,  or  his  as- 
signee, with  respect  to  the  part  not  sold,  must  be  held  in  trust  for 
the  use  of  the  person  entitled  to  the  decedent's  interest ;  subject 
to  the  dower  of  the  widow,  if  any."  ^ 

TITLE  FOUKTH. 

DISTRIBUTION    OF   PROCEEDS. 

§  893.  Payment  of  proceeds  into  court. —  The  proceeds  arising 
from  the  mortgage,  lease,  or  sale  must  be  paid  into  the  Surro- 
gate's Court  by  the  executor,  administrator,  or  freeholder  receiv- 
ing the  same.  For  that  purpose,  he  must  pay  them  to  the  county 
treasurer,  to  the  credit  of  the  special  proceeding,  to  be  retained 
by  him  as  prescribed  in  the  Code  with  resjiect  to  other  moneys  paid 
into  that  court. ^  Upon  payment  being  so  made,  the  heirs  and  de- 
visees of  the  decedent,  and  their  assigns,  and  all  the  decedent's  re- 
maining real  property,  and  interest  in  real  property,  held  under  a 
contract,  for  the  purchase  thereof,  are  exonerated  from  the  debts 
and  liens  established  by  the  decree  and  ordered  to  be  paid,  or  estab- 
lished and  ordered  to  be  paid  subsequently,^  as  far  as  the  pro- 
ceeds so  paid  over  are  sufficient,  after  deducting  the  costs  and  ex- 
penses allowed  by  the  surrogate,  to  satisfy  those  debts  or  liens.* 
Immediately  after  the  payment  into  court  of  the  proceeds  of  a 

9!)  Co.  Civ.  Proc.  §  27S2.  3  See  Co.  Civ.  Proc.  §  2788:  Kenyon 

1  Co.  Civ.  Proc,  §  2783.  v.  Talbot.  2  Dem.  548. 

2  Co.    Civ.    Proc.    §    2786.  See    id..'      •*  Co.  Civ.  Proc,  §  2786. 
§  2537:   §  66.  ante. 

47 


§§  894,  895.  Dibi'oteiTiox  of  Heal  Estate  738- 

mortgage,  lease,  or  sale,  "  the  surrogate  must  cause  notice  of  the 
time  and  place  of  makiug  the  distribution  to  be  published  at  least 
once  in  each  of  the  six  weeks  immediately  preceding  the  same,  in 
a  newspaper  published  in  the  county  of  the  surrogate,"  ^ 

^  894.  New  hearing  as  to  debts,  etc.,  on  return  of  notice  of  distri- 
bution.—  At  the  time  and  place  designated  in  the  notice,  or  at 
the  time  and  place  to  which  the  hearing  is  adjourned,  the  surro- 
gate must  hear  the  allegations  and  proofs  of  the  creditors  or  lien- 
ors, and  of  the  persons  interested  in  the  estate,  or  in  the  application 
of  the  proceeds,  respecting  any  demands  against  the  decedent,  or 
for  his  funeral  expenses,  then  presented,  which  had  not  been  estab- 
lished or  rejected  before  making  the  decree.  The  provisions  above 
recited,  relating  to  contesting  and  establishing  debts,  or  judgment 
liens,  and  as  to  payment  of  judgment  liens,  and  preserving  the  evi- 
dence thereof,  before  making  the  decree,  apply  to  the  proceedings 
respecting  any  demand  so  presented.  A  debt  or  judgment  lien 
which  was  established  by  the  decree  may  be  again  controverted, 
upon  the  discovery  of  new  evidence  impeaching  the  same,  and 
upon  notice  to  the  claimant  as  the  surrogate  directs,  but  not  other- 
wise.^ 

§  895.  When  further  sale  to  be  had. —  Where  the  decree  was 
executed  with  respect  to  a  part  only  of  the  real  property,  or  inter- 
ests in  real  property,  specified  therein,  and  the  proceeds  of  the 
sale  are  insufficient,  after  paying  the  costs  and  expenses  thereof,  to 
satisfy  all  the  debts  established  by  the  decree,  and  all  judgment 
liens  established  and  decreed  to  be  paid  therefrom,  together  with 
the  demands  subsequently  established,  and  all  other  sums  payable 
out  of  the  same,  the  surrogate  must  make  an  order,'^  directing  the 
execution  of  the  decree,  with  respect  to  the  remainder,  or  so  much 
thereof  as  is  necessary.®  The  proceedings  thereupon  and  subse- 
quent thereto  are  the  same,  as  upon  and  subsequent  to  the  first 
order  for  the  execution  of  the  decree.^    Upon  the  further  hearing 


5  Co.   Civ.   Proc.    §   2787.     And   see  s  Co.  Civ.  Proc.  §  2789.  as  amended 
id..    §    3.'?40.      In    the    county   of   Xew  1894. 

York  publication  of  notice  of  the  time  9  lb.  This  section  supersedes  Ack- 
and  place  of  distribution  in  the  Xrio  ley  v.  Dygert  (.3.3  Barb.  176).  which 
York  Lair  -Jovrnal  alone,  without  a  held,  that  the  statute  did  not  author- 
publication  in  an  additional  journal,  ize  an  order  directing  the  sale  of  the 
to  be  designated  by  the  surrogate,  is  intestate's  property  on  the  ground 
insufficient.  (Matter  of  Lesourd.  27  merely  that,  after  the  distribution  of 
Misc.   414:    .50  X.  Y.  Supp.  371.)  the  proceeds  of  the  former  sale,  there 

6  Co.  Civ.  Proc,  §  2788,  as  amended  was  a  deficiency  in  the  sum  remaining 
1894.  ^or  the  payment  of  debts:  but  that  in 

7  As    prescribed    in    Co.    Civ.    Proc,  such  a  case,  new  proceedings  must  be 
§  2768;  ante,  §  878.  instituted. 


739  To  J*AY  IJkckdkxt's  Debts.  §§  ,s;m;-S08. 

above  mentioned,  or  npon  the  liearing  after  the  further  execution 
of  the  decree,  "  the  surrogate  must  also  hear  the  allegations  and 
proofs  of  any  person  who  claims  a  right  to  the  surplus  money,  or 
any  part  thereof.  A  claim  so  made  may  be  contested  by  any 
other  ])er?f>n  making  a  like  claim. ^^ 

§896.  Supplementary  decree  awarding  proceeds;  appeal. —  The 
surrogate  must,  by  a  su])j)lemcntary  decree,  determine  the  rights 
of  the  creditors,  judgment  lienors,  and  other  persons  interested, 
to  share  in  the  ]u-oceeds,  and  direct  distribution  accordingly. 
Where  the  rights  of  creditors,  or  judgment  lienors  are  established 
and  their  claims  decreed  to  be  paid,  and  there  is  a  surplus,  respect- 
ing the  distribution  of  which  a  contest  arises,  he  may  make  a 
supplementary  decree  providing  for  the  payment  of  the  creditors 
and  judgment  lienors  only,  and  reserving  all  questions,  as  to  the 
distrilmtion  of  the  surplus,  to  be  settled  by  a  second  supplementary 
decree.  "An  appeal  may  be  taken  from  either  of  the  supplemen- 
tary decrees,  by  any  person  aggrieved  thereby,  as  from  the  first 
decree ;  except  that  it  is  not  necessary  or  proper  to  make  any 
creditor  or  judgment  lienor  a  party  to  an  appeal  from  the  second 
pujiplementiiry  decree."  " 

§  897.  Fixing  payments  and  investments. —  Each  supplementary 
decree  must  fix  the  sums  to  be  paid  or  invested,  as  hereafter  men- 
tioned, as  far  as  they  can  be  then  fixed.  If  any  sum  cannot  be 
then  fixed,  it  may  be  fixed  by  the  order  of  the  surrogate  subse- 
quently made.  The  surrogate  must  cause  a  certified  copy  of  each 
sujiplementary  decree,  and  of  each  order,  to  be  delivered  to  the 
county  treasurer,  who  must  distribute,  pay  over,  or  invest  the 
proceeds  in  his  hands  ns  directed.^" 

ij  898.  Securities  to  be  in  county  treasurer's  name. —  Excejit  as 
otherwise  specially  prescribed  in  the  Code,^^  "  a  security  taken  or 
an  investment  made,  pursuant  to  any  provision  mentioned  in  this 
chapter,  must  be  taken  or  made  in  the  name  of  the  county  treas- 
urer, adding  his  official  title,  and  his  successors  in  ofiice.  Each 
security  so  taken,  and  all  the  papers  connected  therewith,  or  with 
such  an  investment,  and  each  lease  so  taken,  must  be  immediately 
delivered  to  the  surrogate  for  his  approval;  and,  when  a]i]iroved 
by  him,  must  be  delivered   to  the   county  treasurer,   who  must, 

10  Co.  Civ.  Proc.  §  2790.  See  Davis  1894:  Hifrbie  v.  Wcstlako.  14  N.  Y. 
V.  Davis.  4  Redf.  35.5.  281. 

11  Co.  Civ.  Proc,  §  2791,  as  amended         12  Co.  Civ.  Proc.  §  2792. 

13  In  tit.  5  of  c.  18. 


■§§  899,  900.  Disposition  of  Real  Estate  740 

from  time  to  time,  collect  the  money  due  thereupon,  and  apply  it, 
under  the  direction  of  the  surrogate,  as  prescribed  by  law  for  that 
purpose,  or  for  the  application  of  the  money  represented  by  the 
security."  ^* 

§  899.  Investment  of  dower  fund. —  The  surrogate  must  cause  a 
sum  so  set  apart  for  a  widow's  dower,  "to  be  invested  by  the 
county  treasurer,  under  the  direction  of  the  surrogate,  in  the 
public  securities  of  the  State,  or  of  the  United  States,  or  in  per- 
manent mortgage  securities,  bearing  interest  payable  annually, 
or  oftener.  The  interest,  or  other  income,  must  be  paid  by  the 
county  treasurer  to  the  widow,  during  her  life.  After  her  death, 
the  county  treasurer,  under  the  direction  of  the  Surrogate's 
Court,  manifested  in  an  order  duly  entered,  must  sell  the  public 
securities,  or  collect  the  sums  loaned  upon  mortgage,  and  distribute 
the  proceeds,  less  the  costs  and  expenses,"  as  aboA^e  described  in 
respect  to  the  distribution  of  the  remainder  of  the  money,  after 
satisfying  the  claim  for  dower. -^^ 

§  900.  Investment  or  deposit  of  infant's  surplus. — "  Where  sur- 
plus money  is  distributable  to  an  infant;  or  where  the  interest  in 
the  property,  represented  by  it,  consisted  of  a  precedent  estate, 
and  a  remainder  or  reversion;  the  decree  must  provide,  as  the 
judgment  of  the  Supreme  Court  would  provide,  in  an  analogous 
case,  for  the  investment  of  the  money  in  the  public  securities  of 
the  State,  or  of  the  United  States;  or  for  the  loan  thereof,  secured 
by  bond,  and  by  mortgage  upon  unincumbered  real  property 
within  the  State,  worth  at  least,  exclusive  of  buildings  thereupon, 
twice  the  sum  lent;  and  for  the  payment  of  the  income,  until  the 
majority  of  the  infant  or  the  determination  of  the  temporarv 
interest;  and  then,  for  the  payment  of  the  principal,  to  the  per- 
son or  persons  entitled  thereto.  Or  where  surplus  money  is  dis- 
tributable to  an  infant,  the  decree  may,  in  the  discretion  of  the 
surrogate,  direct  that  the  same  be  paid  to  his  general  guardian 
upon  the  latter  giving  such  additional  security,  if  any,  as  the  surro- 
gate directs,  or  if  it  is  one  hundred  dollars  or  less,  that  it  be  de- 
posited by  the  county  treasurer  in  a  savings  bank  or  trust  company, 

14  Co.  Civ.  Proc,  §  2800.  has  no  power  to  direct  that  such  prop- 

15  Co.  Civ.  Proc.,  §  279.5.  Although  ertj'  be  applied  in  payment  of  the 
the  surrogate  has  power  to  direct  the  debts  of  the  husband.  He  can  pass 
investment  of  surplus,  upon  the  appli-  upon  the  claims  of  creditors  of  the  in- 
cation  of  a  deceased  married  woman's  testate,  but  not  upon  those  of  creditors 
property  to  paxiuent  of  her  debts,  on  of  the  husband.  (Arrowsmith  v.  Ar- 
the  ground  that  the  husband  is  enti-  rowsmith.  8  Hun,  606.)  Compare 
tied  to  an  estate  for  life  thevein,,  he  Zahrt  v.  Zahrt,  1  Dem.  444. 


741  To   Pay    DECEDE^'T's  Debts.  §  l.«Ul. 


designated   by   the   surrogate,   and   that   the    interest    or    income 
thereof  be  applied  to  the  iir^e  of  the  infant  untU  its  majority."  '" 

g  901.  Order  and  mode  of  distribution. —  The  Code  provides^' 
that  the  money/"^  having  been  paid  into  court,  must  be  distributed 
by  the  supplementary  decree  in  the  following  order : 

"  1.  The  charges  and  exjx'nses  of  the  mortgage,  lease,  or  sale, 
and  of  the  publication  oi  the  notice  of  distribution,  and  the  other 
actual  disbursements  attending  the  distribution,  must  first  be  paid. 

"  -2.  Where  an  interest  under  a  contract  for  the  purchase  of 
real  property  was  sold,  all  sums  of  money,  which  were  due  at  the 
time  of  the  sale,  pursuant  to  the  contract,  and  were  not  assumed 
by  the  purchaser,  must  next  be  paid  out  of  the  proceeds  of  the 
sale  of  that  interest. 

"  3.  Out  of  the  remainder  of  the  money,  arising  upon  a  sale, 
the  claim  of  dower,  of  the  decedent's  wife,  if  any,  which  has  not 
been  assigned  to  her,  must  be  satisfied,  by  setting  apart  for  invest- 
ment one-third  of  the  gross  proceeds  of  the  property,  to  which 
her  right  of  dower  attaches;  unless,  wdthin  such  time,  and  upon 
such  notice  to  her,  as  the  surrogate  deems  reasonable,  she  presents 
an  instrument  under  seal,  acknowledged  or  proved,  and  certified, 
in  like  manner  as  a  deed  to  be  recorded  in  the  county,  whereby 
she  consents  to  accept,  in  lieu  of  her  dower,  a  sum,  to  be  ascer- 
tained by  the  surrogate,  equal  to  the  value  of  her  right  of  dow^r 
in  the  gross  proceeds,  according  to  the  principles  applicable  to  life 
annuities ;  and,  if  she  presents  such  an  instrument,  by  paying  to 
her  such  a  sum.  If  it  shall  appear  to  the  surrogate  that  the  de- 
cedent's widoAv  is  an  infant,  lunatic,  or  otherwise  incompetent, 
and  that  a  general  guardian  or  committee  has  been  ap]">ointed, 
upon  proof  that  it  will  be  for  the  best  interest  and  advantage  of  the 
es*"ate  of  such  infant,  hinatic.  or  incompetent  widow,  the  surrogate 
must  authorize  and  direct  such  guardian  or  committee,  in  the  name 
of  such  infant,  lunatic,  or  incompetent  widow,  having  such  dower 
riidit,  to  execute  an  instrument  under  seal,  acknowledged  or  proved 
and  certified  in  like  manner  as  a  deed  to  he  recorded  in  the 
county,  whereby  such  guardian  or  committee  shall  consent  to  accept 
in  lieu  of  dower  a  sum  to  be  ascertained  by  the  surrogate  as  above 

16  Co.  Civ.  Proc.  §  2796.  as  amended  18  Where,  pendin?  the  prooeedin^r, 
1882:  revisiiifr  L.  IS.TO.  c.  150,  §§  1.2.  the  premises  wore  dortroved  by  fire, 
The  first  seetinn  of  tlie  Act  of  IS.'iO  liold.  that  the  prm^eods  of  a  fire  insur- 
was  amendod  by  L.  1S70.  o.  3<90.  wliich  ance  policy  upon  said  promises  made 
has  not  boon  expressly  repealed.  payable  to  the  estate  should  bo  applied 

17  Co.  Civ.  Proc,  §  2793,  as  amended  to'the  pavniont  of  the  debts,  (flatter 
1894.  of  O'Connell,,  1  Misc.  50.) 


§  001.  Disposition  of  Real  Estate  742 

provided,  according  to  the  principles  applicable  to  life  annuities ; 
and  upon  presentation  of  such  an  instrument  to  the  surrogate, 
the  value  of  the  right  of  dower  so  ascertained  by  him  shall  be  paid 
to  such  guardian  or  committee.  Such  instrument  shall  have  the 
same  force  and  effect  as  a  deed  or  instrument  executea  and  ac- 
knowledged by  a  competent  person. ^^ 

''  4.  Out  of  the  remainder  of  the  money,  arising  upon  a  mort- 
gage, lease,  or  sale,  must  be  paid  the  costs  of  the  special  proceed- 
ing, awarded  to  the  petitioner  in  the  decree. 

"  5.  Out  of  the  remainder  of  the  money  must  be  paid  in  full 
or  to  such  extent  as  the  money  applicable  thereto  wall  pay  the 
same,  and  according  to  their  respective  priorities,  all  judgTuent 
liens  established  and  ordered  paid  by  the  decree,  upon  either  the 
first  or  second  hearing,  and  which  were  not  disallowed  or  held 
invalid  by  either  of  such  decrees.  But  no  part  of  such  moneys 
arising  from  the  disposition  of  any  real  property  of  decedent,  or 
any  portion  thereof,  shall  be  applied  tow^ard  the  payment  of  any 
judgment  lien  established  by  the  decree,  except  where  such  pro- 
ceeds have  arisen  from  the  disposition  of  such  real  property,  or  a 
portion  thereof,  upon  which  said  judgment  lien  is  established  by 
decree  as  existing  at  the  decedent's  death. 

''  6.  Out  of  the  remainder  of  the  money,  must  be  paid  the  sum, 
if  any,  which  has  been  found  to  be  due  to  the  executor  or  admin- 
istrator, upon  a  judicial  settlement  of  his  account,  after  applying 
thereupon  the  proceeds  of  the  personal  property.  But  this  subdi- 
vision does  not  authorize  the  repayment^  to  an  executor  or  admin- 
istrator, of  any  sum  paid  by  him  to  a  creditor  of  the  decedent,  ex- 
ceeding the  proportion  which  that  creditor  would  be  entitled  to 
receive  from  the  estate  of  the  decedent,  upon  the  distribution  of  all 
the  assets  of  the  decedent,  and  the  proceeds  of  property  disposed 
of  "  as  above  described.^'' 

"  7.  Out  of  the  remainder  of  the  money,  must  be  paid,  in  full, 
the  reasonable  funeral  expenses  of  the  decedent,  to  the  persons 

w  Co.  Civ.  Proc.  §  2703.     The  claim  §    2794.)       See    Hawley    v.    James.    5 

of  dower  of  the  decedent's  wife,  in  real  Paige,  318;  Hicks  v.  Stebbins,  3  Lans. 

property  held  by  the  decedent,  under  30. 

a   contract   for   the   purchase   thereof,  20  See    Shute   v.    Shnte,    5    Dem.    1. 

which  must  be  satisfied  as  prescribed  Undev     this     subdivision,     the     repre- 

in  this  subdivision,  "  extends  only  to  sentative   is   not   entitled   to   be    paid 

the   annual    interest,    during:   her   life,  fees  and  legal  expenses  which  he  con- 

upon  one-third  of  the  balance  remain-  tracted  in  regard  to  the  estate,  as  the 

insr.   after  deducting  from   the  money  fund  is  applicable  only  to  the  amount 

arising   upon   the   sale,   all   sums   due  diie    him    for    payment    of    debts    and 

from  the  decedent,  at  the  time  of  the  funoral      expenses     of     the     decedent, 

sale,    for    the    real    propertv    so    con-  f Matter   of    Summers.    37    Misc.    575; 

tracted   and   sold."      (Co,    Civ.    Proc,  75  X.  Y.  Supp.  1050.) 


743  To  Pay  Decedext's  Debts.  §  t>01. 

Avhose  claims  therefor  -were  established  and  recited  as  debts,  in  the 
lirst  decree,  and  were  not  rejected  upon  the  second  hearing. 

''  8.  Out  of  the  remainder  of  the  money,  must  be  paid,  in  full, 
the  other  debts,  Avhich  were  established  and  recited  in  the  tirst 
decree,  and  were  not  rejected  upon  the  second  hearing;  or,  if 
there  is  not  enough  fjor  that  purpose,  they,  or  so  much  thereof  as 
the  money  applicable  thereto  will  pay,  must  be  paid  in  the  order 
prescribed  by  law  for  payment  of  a  decedent's  debts  by  an  executor 
or  administrator  out  of  the  personal  assets,  without  giving  ])refer- 
ence  to  rent,  or  to  a  specialty,  or  to  any  demand  on  account  of  an 
action  pending  thereupon ;  and  paying  debts  not  yet  due,  upon  a 
rebate  of  legal  interest. ^^ 

"  9.  Out  of  the  remainder  of  the  money,  must  be  paid,  in  like 
manner,  the  debts  first  established  by  the  supplementary  decree, 
or  so  much  thereof  as  the  remainder  will  pay." 

''  10.  If  any  surplus  remains,  it  must  1)e  distributed  among  the 
heirs  and  devisees  of  the  decedent,  or  the  persons  claiming  under 
tliem,  and  among  those  persons  who  have  presented  and  proved 
liens  upon  the  interests  of  those  heirs  or  devisees,  or  persons 
claiming  under  them,  which  were  cut  off  by  the  sale;  according 
to  their  respective  rights  and  priorities,  as  established  in  the  sup- 
plementary decree.  But  if  the  proceeds  of  any  of  the  property 
sold  have  been,  or  were  to  be,  converted  into  personal  property, 
pursuant  to  a  direction  contained  in  the  decedent's  will,  the  sur- 
plus proceeds  of  that  part  of  the  property  must  be  paid  to  the 
person  entitled  thereto,  by  the  terms  of  the  will.  Any  person 
having  a  right  of  tenancy  by  the  ctirtesy  in  such  surplus  may,  if  he 
so  elects,  receive  therefrom  a  gross  sum  in  satisfaction  of  such 
right."  -^ 

21  For  the  interpretation  of  this  sub-  lien  on  the  h\nd  ajjainst  the  heirs,  as 
division,  see  Cook  v.  Woodard,  5  Deni.  a  valid  charjie  against  their  interest 
97;  s.  c.  as  Matter  of  Wilcox,  11  Civ.  in  the  surplus.  (Sears  v.  ilaek,  2 
Proc.  Rep.  115;  s.  c.  as  Matter  of  Bradf.  304.)  Thus,  where  the  heir 
Woodard,  13  St.  Rep.  161.  In  the  conveys  a  part  of  the  inheritance 
disposition  of  the  proceeds,  regard  witli  warranty,  and  the  land  was  sub- 
may  be  had  to  the  fact  that  some  of  sequently  sold  by  order  of  the  surro- 
those  debts  are  also  entitled  to  be  par-  gate,  for  the  decedent's  debts,  it  was 
tially  or  fully  paid  out  of  funds  aris-  held,  that  though  the  grantor  was  a 
ing  from  the  sale  of  other  real  estate  married  woman,  the  grantee  had  an 
in  another  State.  (Lawrence  v.  El-  equitable  lien  upon  the  residue  of  the 
mendorf,  o  Barb.  73.)  As  to  the  rights  inheritance,  to  the  extent  of  her 
of  the  assignee  or  receiver  of  a  cred-  proportion  of  the  proceeds  of  the 
itor  to  receive  the  lattor's  share,  see  sale.  (Eddy  v.  Traver.  6  Paige,  .521.) 
Swartout  V.  Schwerter.  o  Redf.  407.  Where,  after  the   sale  of  a  decedent's 

22  .See  Kenyon  v.  Talbot,  2  Deni.  .548.  real   estate  and  conveyance  thereof  to 

23  The  last  sentence  of  this  subdivi-  the  purchaser,  the  sheriff,  on  the  day 
sion  was  added  by  amendment  of  1S03.  of  distribution  of  the  proceeds  of  the 
The   surrogate   niav   admit   claims   bv  sale,  exhibited  to  the  surrogate  an  ex- 


§§  902,  903.  Di^i-osiTiox  of  Heal  Estate  744 

§  902.  Proceedings,  how  affected  by  others,  taken  against  the 
property. —  Tixe  cummeiicement  or  peudeucy  of  an  action  or  spe- 
cial proceeding,  having  for  its  object  the  sale,  either  absolutely  or 
contingently,  of  property  liable  to  be  disposed  of  as  heretofore 
described ;  or  the  foreclosure  by  advertisement,  of  a  mortgage 
thereupon ;  or  any  proceeding  to  sell  such  property,  taken  pur- 
suant to  a  judgment,  or  by  virtue  of  an  execution,  does  not  aifect 
any  of  the  proceedings  taken  as  heretofore  described,  unless  the 
surrogate  so  directs.  "After  making  a  decree  directing  a  mortgage,, 
lease,  or  sale,  the  surrogate  may,  and,  in  a  proper  case,  he  must, 
stay  the  order  to  execute  the  decree,  with  respect  to  the  property 
affected  by  the  action,  or  special  proceeding,  or  by  the  proceedings 
then  pending,  until  the  determination  thereof,  or  the  further  order 
of  the  surrogate  with  respect  thereto.  If,  in  the  course  thereof,, 
a  sale  of  any  of  the  property  has  been  made,  before  making  the 
decree  in  the  Surrogate's  Court,  the  decree  must  provide  for 
the  application  of  the  surplus  proceeds  belonging  to  the  dece- 
dent's estate.  If  such  a  sale  is  made  afterward,  the  directions 
contained  in  the  decree,  relating  to  the  property  sold,  are  deemed 
to  relate  to  those  proceeds."  ^^ 

§  903.  Surplus  in  other  proceedings  payable  to  surrogate. — 
Where  real  property,  or  an  interest  in  real  property,  liable  to  be 
disposed  of  as  heretofore  described,  is  sold,  in  an  action  or  a 
special  proceeding,  specified  in  the  last  paragraph,  "  to  satisfy  a 
mortgage  or  other  lien  thereupon,  which  accrued  during  the  dece- 
dent's lifetime ;  and  letters  testamentarv  or  letters  of  administra- 


ecution  against  one  who  was  entitled  and  the   entry   of   an  order   for   their 

to  a  share  of  such  proceeds,  and  asked  payment   and   for   the   distribution   of 

that  such  share  be  applied  on  the  exe-  the   surplus,   and  after   such   payment 

cution,  the  judgment  not  ha\ing  been  and    a    partial    distribution    had    been 

docketed   in   the  county  of  the   surro-  made  thereunder,  a  judgment  constru- 

gate,    until    the    day    of    distribution,  ing    decedent's    will    was    rendered    by 

and.  upon  the  refusal  of  the  surrogate,  the  Supreme  Court,  in  an  action  pre- 

an  order  was  obtained  from  the  county  viously  brought  for  the   purpose,   and 

judge  for  the  examination  of  the  sur-  thereupon  an  order  was  granted  by  a 

rogate.  and  forbidding  him  to  make  any  judge  of  that  court,  directing  the  sur- 

disposition   of   the    fund, —  Held,    that  rogate  to   pay  out  of  the  surplus  an 

while    the    county    judge   could    order  allowance   and   costs   to   the   attorney 

such  examination,  he  had  no  power  to  who  conducted  the  action  in   the   Su- 

restrain  the  disposal  of  the  fund ;  that  preme    Court. —  Held,    that   the   attor- 

the  judgment  not  being  a  lien  at  the  ney  should  have  applied  to  the  surro- 

time  of  the  sale  of  the  premises,  pay-  gate  at  the  time  the  order  for  distri- 

ment  of  the  share  must  be  made  to  the  bution  was  made,  and  that  the  judge 

heir,   or   to   such    person   as   might  be  of  the  Supreme  Court  had  no  jurisdic- 

appointed    in    supplementary    proceed-  tion  to  make  the  order  directing  such 

ings  to  receive  it.      (Davis  v.  Davis.  4  payment  from  the  surplus.     (Clocke  v. 

Redf.  35.5.)      After  the  sale  of  some  of  Igglesden.  3  Redf.  339.) 
decedent's   real   estate  to   pay  certain        24  Co.  Civ.  Prnc.  §  2707.      See  Har- 

debts,  upon  an  order  of  the  surrogate,  vey  v.  McDonnell.  1  X.  Y.  Supp.  86. 


745  To  Pay  I»i:cedem's   Dkhts.  §003. 

tion,  upon  tlio  decedent's  estate,  were,  within  four  years  before 
the  sale,  issued  from  a  Surrogate's  Court  of  the  State  having  juris- 
diction to  grant  them;  the  surphis  money  must  be  paid  into  the 
Surrogate's  Court  from  which  the  letters  issued,  pursuant  to  the 
provisions  of  section  2537,  and  the  receipt  of  the  county  treasurer 
shall  be  a  sufficient  dis^'harge  to  the  person  paying  such  money.  If 
ihe  sale  was  made  pursuant  to  the  directions  contained  in  a  judg- 
ment or  order,  the  surplus  remaining  after  payment  oi  all  the 
liens  upon  the  property,  chargeable  upon  the  proceeds,  which  ex- 
isted at  the  time  of  the  decedent's  death,  must  be  so  paid.  If  the 
sale  was  made  in  any  other  manner,  the  surplus,  exceeding  the 
lien  to  satisfy  which  the  property  was  sold,  and  the  costs  and  ex- 
penses must,  within  thirty  days  after  the  receipt  of  the  money 
from  which  it  accrues,  be  so  paid  over  by  the  person  receiving 
that  money."  ^^  Where  surplus  money  is  so  paid  into  a  Surrogate's 
Court,  and  a  petition  for  the  disposition  of  property,  as  heretofore 
described,  ^'  is  pending  before  him ;  or  is  presented  at  any  time 
before  the  distribution  of  the  money ;  the  money  must  be  dis- 
tributed as  if  it  was  the  proceeds  of  the  decedent's  real  property, 
sold  pursuant  to  the  decree.  If  such  a  petition  is  not.  pending  or 
presented,  or  if  a  decree  for  the  disposition  of  the  decedent's  prop- 
erty is  not  made  thereupon,  a  verified  petition,  praying;  for  a  de- 
cree directing  the  distribution  of  the  money  among  the  persons 
entitled  thereto,  may  be  presented  by  any  of  those  persons.  Each, 
person,  who  would  be  entitled  to  share  in  the  distribution  of  the 
proceeds  of  a  sale,  must  be  cited  to  show  cause,  why  such  a  decree 
should  not  be  made.  Service  of  the  citation  may  be  made  upon 
all  the  persons  desig:nated  therein,  by  publishing  the  same  in  two 
newspapers  designated  "  as  prescribed  in  the  Code,^°  at  least  once 
in  each  of  the  four  successive  weeks  immediately  preceding  the 
return  day  thereof,  except  that  personal  service  must  be  made  upon 
the  husband,  wife,  heirs,  and  devisees  of  the  decedent,  an<l  also 
upon  every  other  person  claiming  under  them,  or  either  of  them, 
who  resides  in  this  State.  Upon  the  return  of  the  citation,  the 
rights  and  priorities  of  the  persons  interested  must  be  established, 
and  a  decree  for  distribution  must  be  made,  as  if  it  was  the  pro- 
ceeds of  real  propertv  sold."^ 

25  Co.  Civ.  Proc,  §  2798.  as  amended  27  Co.   Civ.    Pioe..    §    27f)9  ;    German 

189.3.     See  §  6G.  fl»ifr.-    Matter  of  Ged-  Sav.    Bank    v.    Sharer,    ^o    Hun.    409. 

ney,  30  Misc.  18;  62  N.  Y.  Supp.  1023;  Creditor."?     are     "interested     persons." 

IMatter   of    Dusenbury,    33    "Mise.    IfiO;  and  are  entitled  to  participate   in  the 

08  N.  Y.  Snpp.  372.  siirplns,  tlioii<:h    no    application    for    a 

20  In  art.  1,  tit.  2,  c.  IS.     See  §  79,  sale   of   lands   had   been    made   within 

ante.  the    three    vears.       (Matter    of   Calla- 

ghan,  23  N.' Y.  Supp.  378.) 


§  904.  Disposition  of  Real  Estate  T46 

TITLE  FIFTH. 

:miscellaxeous  provisioxs. 

§  904.  Costs  and  expenses  of  the  proceeding. —  The  executor,  ad- 
ministrator, or  freeholder,  disposing  of  the  property,  will  be  al- 
lowed his  expenses  out  of  the  proceeds  of  the  sale  brought  into 
court ;  and  a  reasonable  sum  for  his  oa\ti  services,  not  exceeding 
five  dollars  for  each  day,  actually  and  necessarily  occupied  by 
him  in  disposing  of  the  property,  and  such  a  further  sum  as  the 
surrogate  thinks  reasonable,  for  the  necessary  services  of  his  at- 
torney and  counsel  therein. ^'^  An  allowance  which  exhausts  the 
fund  is  not  "  reasonable."  ^^ 

The  costs  and  allowances  of  the  parties  can  only  be  fixed  and 
adjusted  at  the  time  of  the  entry  of  the  supplementary  decree, 
after  the  deposit  of  the  proceeds  of  the  sale  with  the  county  treas- 
urer.^'' Under  section  2 5 03,  costs  or  allowances  cannot  be  gi'anted 
to  a  petitioning  creditor,  the  right  to  an  award  thereof  being  con- 
fined, by  that  section,  to  the  executor  or  administrator,  and  a  free- 


28  Co.  Ciw  Proc,  §  25G3,  -which  sale  of  the  real  estate,  there  was  not 
changes  the  limit  of  the  fee  from  two  only  no  lien,  but  no  right  to  priority 
to  five  dollars  per  day,  and  abrogates  of  payment,  such  priority  being  con- 
the  former  fee  for  a  deed.  The  pres-  fined  to  the  "  charges  and  expenses  of 
ent  provision  conforms  to  Higbie  v.  the  sale."  And  apart  from  the  stat- 
AVestlake,  14  X.  Y.  281.  and  flatter  of  ute,  in  anj-  case  where  moneys  are 
Lamberson.  63  Barb.  207.  The  former  realized  or  received  under  the  orders 
case  held,  that  a  reasonable  allowance  of  a  court  competent  to  deal  equitably 
for  professional  advice  and  assistance  with  the  fund,  there  can  be  no  lien 
was  a  necessary  expense,  but  that  upon  the  same  for  any  services  ren- 
where  there  was  no  contest,  charges  dered ;  but  such  services  must  be  paid 
such  as  allowed  by  the  chancery  fee-  for,  if  it  be  sought  to  charge  the  fund, 
bill,  for  ser^^ces  in  litigated  cases,  by  the  order  of  the  covirt  where  the 
would  be  excessive:  also  that  the  per  matter  is  pending.  (lb.)  See  Rose  v. 
diem  allowance  Could  only  be  granted  Rose  Assn.,  28  N.  Y.  184.  A  free- 
for  the  time  necessarily  and  actually  holder  appointed  to  sell  the  real  estate 
occupied  in  the  business,  and  that  the  of  a  decedent  may,  under  sections  2.563 
statute  did  not  warrant  an  allowance  and  2786  of  the  Code  of  Civil  Pro- 
as a  salary  during  the  conduct  of  the  cedure,  be  allowed  his  expenses,  coun- 
business.  In  the  latter,  it  was  held,  sel  fees,  etc.,  by  the  surrogate  upon 
that  there  could  be  no  lien  upon  such  rendering  his  account  of  the  sale,  and 
money,  even  for  the  fees  and  disburse-  is  not  obliged  to  pay  OA^er  to  the 
ments  upon  the  application  for  the  county  treasurer  the  gross  proceeds  of 
sale:  that  the  entire  fund  must  be  the  sale  and  wait  for  such  payment 
brought  intact  into  the  office  of  the  until  the  final  distribution  under  sec- 
surrogate,  and  the  attorney  could  then  tion  2793  of  the  Code  of  Civil  Pro- 
apply  to  that  officer,  whose  duty  it  cedure.  (Matter  of  McGee,  65  App. 
would  be,   before   making   the  general    Div.  460.) 

distribution,  to  award  and  pay  him  a  2:t  ]\Iatter  of  Matthewson,  1  Connoly, 
reasonable  fee  for  his  ser\ices  in  the   2.54. 

matter  of  the  sale,  together  with  his  30  Long  v.  Olmsted.  3  Dem.  581 ; 
necessary  outlay  thereon:  also  that.  ^Matter  of  Laird.  42  Hun,  136;  Matter 
for  services  rendered  to  the  adminis-  of  Lamberson,  63  Barb.  297;  Matter 
tratrix,  apart  from  the  matter  of  the   of  Mace.  4  Redf.  325. 


747  To  Pay  Decedent's  Deuts.  §§  OO.'j-'JOT. 

holder  appointed  to  execute  the  decree.^^  Under  section  2750, 
the  surrogate  may,  in  his  discretion,  give  costs  to  a  petitioning 
■creditor.  These  costs  are  governed  by  section  2501,  and  tlie 
creditor  is  not  entitled  to  a  per  diem  allowance.^^  But  a  creditor 
■other  than  the  petitioner,  whose  claim  has  been  contested  and 
allowed,  cannot  be  awarded  costs  under  section  25G1,  notwith- 
standing the  general  character  of  that  section,  inasmuch  as  no 
provision  for  the  payment  of  such  an  award  is  made  by  section 
2793;  after  compliance  with  the  directions  of  which  section,  the 
entire  proceeds  of  the  disposition  will  have  been  exhausted.^^- 

§  905.  Compelling  account  by  executor,  etc.—  The  surrogate  may 
compel  the  judicial  settlement  of  the  account  of  an  executor  or 
administrator,  where  a  decree  for  the  disposition  of  real  property, 
•or  of  an  interest  in  real  property,  has  been  made  as  mentioned 
in  this  chapter,  and  the  property,  or  a  part  thereof,  has  been  dis- 
posed of  by  him  pursuant  to  the  decree.^'* 

§  906.  Evidence  of  appointment  of  special  guardians. — "  Where 
the  records  of  the  Surrogate's  Court  have  been  heretofore,  or  are 
hereafter,  removed  from  one  place  to  another,  in  either  the  same 
or  another  county,  and  twenty-five  years  have  elapsed  after  a  sale 
or  other  disposition  of  real  property,  or  of  an  interest  in  real 
property  [as  heretofore  described],  the  due  appointment  of  a 
guardian  for  each  infant  party  to  the  special  proceeding  must  be 
presumed,  and  can  be  disproved  only  by  affirmative  record  evi- 
dence to  the  contrary."  ^^ 

§  907.  Reimbursement  of  heir,  etc. —  Where  a  decree  has  been 
made  for  the  application  of  the  proceeds  of  real  property  to  the 
])aymcnt  of  the  decedent's  debts  or  funeral  expenses,  or  judgment 
liens  established  and  ordered  paid,  as  heretofore  described,  "  and 
assets,  which  should  have  been  applied  thereto,  are  afterward  dis- 

31  Long  V.  Olmsted,  .3  Dem.  .581.  were  held  respon?^ible  to  the  surrogate, 

32  Matter  of  Matthewson,  1  Connoly,  as  trustees,  and  the  proceeds  were 
157;  19  St.  Kep.  208.  Under  section  equitable  and  not  legal  assets.  (Tap- 
2501,  the  allowance  which  the  surro-  pen  v.  Kain.  12  Johns.  120.)  And 
gate  is  authorized  to  niake  to  a  spe-  see  Willoughby  v.  McCluer.  2  Wend, 
cial  guardian  of  an  infant  devisee  in  G08 ;  Peek  v.  Mead.  id.  470. 

this     proceeding     is     limited     to    .$70.        35  Co.   Civ.   Proc.   §   2785.     The   for- 

( Matter  of  Dodge.  40  Hun,  44.3;  revd.,  mer  method  of  serving  minors  and  ap- 

on  other  points.  105  X.  V.  585).  pointing   guardians    in    these    proceed- 

33  Long  V.  Olmsted.  .3  Dem.  581;  ings.  which  the  reader  who  is  eon- 
Cook  v.  Woodard,  5  id.  07.  cerned  in  the  validity  of  past  proceed- 

34  Co.  Civ.  Proc.  §  2726,  suhd.  3.  ings  shou'd  refer  to,  will  he  found  in 
A  freeholder  appointed  to  sell,  et<  ,  1  R.  S.  100.  §§  3,  4:  L.  1837,  c.  400. 
must  also  account.  (§  2726.)  Under  §§  .38.  30;  Sheldon  v.  Wright,  7  Barb. 
1  R.  L.  of  1813.  §  452,  the  executors  39;  5  N.  Y.  Supp.  497. 


§  907.  Disposition    of  Real  Estate.  74S 

covered ;  or,  for  any  other  reason,  money  or  other  personal  prop- 
erty of  the  decedent,  which  should  have  been  applied  thereto,  after- 
ward conies  to  the  hands  of  the  executor,  administrator,  legatee, 
or  next  of  kin ;  the  heir,  devisee,  or  other  person  aggrieved,  may 
maintain  an  action  to  procure  reimbursement  therefrom."  ^^  Al- 
though ordinarily  where  accrued  taxes  have  been  paid  out  of  the 
proceeds  of  a  sale  of  the  land  on  foreclosure,  and  a  surplus  is  real- 
ized for  the  executor,  as  trustee  of  the  land,  it  is  his  duty  to  reim- 
burse the  trust  fund  to  the  amount  of  such  taxes  out  of  the  per- 
sonal estate,  yet  where  there  are  unsecured  creditors  of  the  estate 
whose  claims  exceed  the  amount  of  the  personal  property,  such 
reimbursement  will  not  be  directed,  as  its  omission  will  avoid 
circuitv  of  action,  the  trust  fund  being  ultimately  liable  for  the 
debts.^^ ' 

36  Co.  Civ.  Proc,  §  2801,  as  amended  entitled  to  be  reimbursed  out  of  such 

1894;    conforming   to    Couch    v.    Dela-  subsequently    discovered    assets.       See 

plaine    (2    N.    Y.    397),   holding   that  also  Graham  v.  Dickinson,  3  Barb.  Ch. 

where  the  personal  estate  was  insuflfi-  169. 

cient,  and   the  land  was   sold  for   the  37  Smith  v.  Cornell,   113  N.  Y.  320; 

payment  of  the  debts  under  a  surro-  distinguishing   Smith   v.    Cornell,    111 

gate's   order,   and    assets   were    subse-  id.  554. 
quently  discovered,  the  devisees  were 


CHAPTER  XIX. 

ACCOUNTINGS. 


TITLE  FIRST. 

ACTIOIv     FOR    AX    ACCOUNTING. 

§  908.  Jurisdiction  of  the  Supreme  Court. —  The  Supreme  Court, 
by  virtue  of  its  powers  as  a  court  of  equity,  and  as  the  successor 
of  the  late  Court  of  Chancery,  has  a  general  jurisdiction  over 
trusts  and  trustees.^  As  a  court  of  equity,  in  the  exercise  of  this 
power,  it  regards  executors  and  administrators  as  trustees  —  which, 
indeed,  is  now  their  character  at  law  —  and  will  accordingly 
-compel  them  to  render  an  account  of  their  proceedings,  disclosing 
the  assets  and  the  manner  of  the  application  thereof,  and  will 
require  the  due  performance  of  their  duty.  Such  a  court  may 
thus,  upon  a  bill  filed  by  a  party  in  interest,  direct  a  general  ac- 
count of  the  estate  and  debts,  and  decree  payment  and  distribu- 
tion in  the  regular  course  of  administration.  But  a  court  of 
equity  will  not  take  cognizance  of  an  action,  for  the  settlement 
of  an  estate,  disconnected  with  the  enforcement  of  a  special  and 
express  trust,  unless  special  reasons  are  assigned,  and  facts  stated, 
to  show  that  complete  justice  cannot  be  done  in  the  Surrogate's 
Court. ^     There  are,  however,  many  cases  in  which,  by  reason  of 

1  As  to  the  powers  of  superior  city  was  no  reason  for  resortin,":  to  another 

■courts,   in  this   regard,   prior   to  their  forum    than    that    established    by    tlie 

abolition,  see  Christy  v.  Libby,  5  Abb.  statute  for  the  final   settlement   of  an 

Pr.  (N.  S. )    192;  2  Daly,  418;  Landers  executor's  accounts.      Xo  objection  ap- 

V.  Staten  Island  R.  Co.,  o,3  N.  Y.  450;  pears  to  have  been  taken  on  the  rec- 

Skidmore  v.   Collier,  8   Hun,  50;   Van  ord.     If  it  had  been,  a  grave  jurisdic- 

Sinderen     v.     Lawrence,    50     id.    272:  tional   question  would   liave  been  pre- 

§  02.  ante,  and  cases  infra.  sented.     We  do  not  wish  to  be  under- 

2('liipman  v.  Montgomery,  02  N.  Y.  stood,  however,  as  assenting  to  thi.s 
221.  Hard  v.  Ashley  (117  id.  000;  procedure.  These  proceedings  belong, 
28  St.  Rep.  001)  was  an  action  by  law,  to  Surrogates'  (\iurts.  which 
brought  in  the  Supreme  Court  to  ob-  were  constituted  to  take  jurisdiction 
tain  an  accounting  by  the  executor  of  them,  and  the  powers  of  which  are 
and  a  distriI)ution  of  the  estate  in  his  appropriate  and  adequate  for  that 
"hands,  and  incidentally  to  obtain  a  purpose."  To  the  same  effect.  West- 
construction  of  the  will.  The  court,  erfield  v.  Rogers,  O.*^  -^PP-  Div.  IS:  71 
on   appeal,    Gray,    J.,    said:      ''There  X.  Y.  S^ipj).   401:    Borrowe  v.  Corbin, 

[7491 


^  i)08. 


AcCOL'^s'TlA'US. 


750 


the  necessity  of  comprehensive  relief  by  injunction,  or  in  conse- 
quence of  a  dissension  between  co-executors,'*  or  because  questions 
of  individual  right,*  or  questions  which  the  surrogate  is  not  au- 
thorized to  determine,^  are  inseparably  connected  with  and  in- 
volved in  the  controversy,  or  because  the  estate  or  executor  is 
foreign,^  a  clear  case  of  necessity  for  the  interposition  of  a  court 
of  equity  is  presented.^  The  surrogate,  however,  so  far  as  he 
has  jurisdiction,  has  a  jurisdiction  concurrent  with  that  of  a 
court  of  equity ;  and  a  court  of  equity  will  not,  without  some 
special  ground,  interfere  to  supersede  the  exercise  of  the  surro- 
gate's powers.^  The  power  given  to  a  surrogate  to  compel  an  ac- 
counting by  an  executor  or  administrator  is  not  exclusive,  but 
concurrent  with  that  of  the  Supreme  Court,  and  an  action  for 
that  purpose,  and  to  prevent  the  wasting  of  the  trust  estate  on  be- 


31  App.  Div.  172;  52  X.  Y.  Supp.  741; 
affd.,  105  N.  Y.  634;  Arkenburgh  v. 
Wiggins,  13  App.  Div.  90;  43  N.  Y. 
Supp.  294;  affd.,  102  X.  Y.  590;  Mat- 
thews V.  Stiidley,  17  App.  Div.  203; 
45  X^.  Y.  Supp.  201 ;  Delabarre  v.  Mc- 
Alpin,  71  App.  Div.  591.  Compare 
Ludwig  V.  Bungart,  48  App.  Div.  013: 
Meeks  v.  Meeks,  34  Misc.  405  (Second 
Dept. ),  where  it  is  said  that  the  Su- 
preme Court  should  refuse  to  take  ju- 
risdiction only  wliere  that  of  the  Sur- 
rogate's Court  has  already  been  in- 
voked. 

3  Simpson  v.  Simpson,  44  App.  Div. 
492.  See  Wood  v.  Brown,  34  N.  Y. 
337  ;  Stevens  v.  Stevens,  09  Hun,  332 ; 
Smith  v.  Lawrence.  11  Paige,  200; 
Decker  v.  Miller,  2  id.  149;  Wurtz  v. 
Jenkins,  11  Barb.  540:    §  525,  ante. 

4  Simpson  v.  Simpson,  supra.  See 
Day  V.  Stone,  15  Abb.  Pr.  (X.  S.) 
137. 

fi  Forman  v.  Lawrence,  6  Sup.  Ct. 
(T.  &  C.)  640;  Steinway  v.  Von  Ber- 
Tiuth,  59  App.  Div.  261;  69  X^.  Y. 
Supp.  1146;  appeal  dismissed,  107  N. 
Y.  498.  It  is  not  enough  to  allege 
the  special  facts  which  would  oust  the 
surrogate  of  jurisdiction,  but  they 
piust  be  true,  and  must  be  established 
bv  sufficient  evidence.  (Blake  v. 
Barnes,  28  Abb.  X.  C.  401;  45  St. 
Hep.  130.)  In  that  case,  the  evidence 
showed  that  by  reason  of  an  adjust- 
ment between  the  partnership  and  the 
estate  of  a  deceased  partner,  to  which 
the  legatees  had  assented,  the  estate 
hiul  no  claim  as^ainst  the  firm,  and  the 
firm  liad  no  claim  against  the  estate, 


— ■  Held,  that  a  legatee  could  not  sup- 
port an  action  for  an  accounting 
against  the  executors  and  surviving 
partners  of  the  testator  in  the  Su- 
preme Court  on  the  ground  that  it 
could  not  be  left  to  the  executors  to 
compel  tlie  partnership  to  account,  by 
leason  of  the  fact  that  they  were 
themselves  surviving  partners ;  and 
that  tlie  legatee  was  not  entitled  tO' 
pass  over  the  Surrogate's  Court  and 
ask  for  settlement  of  tlie  executor's 
aecoimt  in  the  Supreme  Court. 

6  See  McXamara  v.  Dwyer,  7  Paige, 
239 ;  Lawrence  v.  Ehnendorf ,  5  Barb. 
73:  Montalvan  v.  Clover,  32  id.  190;' 
(Julick  V.  Gulick,  33  id.  92.  A  foreign 
administrator  bringing  assets  into  this 
State  may  be  sued  here  for  an  ac- 
counting. (Marshall  v.  Bresler,  1 
How.  Pr.  [X.  S.]  217.)  To  sustain 
an  action  against  a  foreign  executor, 
there  must  be  an  allegation  of  such 
facts  and  circumstances  as  constitute 
the  action  one  in  equity,  as  distin- 
guished from  an  action  at  law  simply 
for  the  recovery  of  money.  (Metcalf 
V.  Clark,  41  Barb.  45,  and  cases  cited.) 
See  ante,  §  518. 

"So  also,  bv  c.  054,  L.  1881,  provi- 
sion is  made  for  the  relief  of  sureties 
of  any  trustee,  committee,  or  guardian 
appninted  by,  or  Accountable  to,  the- 
Supreme  Court  or  a  County  Court,  on 
jietition  of  the  suretv.  See  Co.  Civ. 
Proc.   §  812,  amended   1892. 

s  Sevmour  v.  Seymour,  4  Johns.  Ch: 
409:  Moffat  v.  Moffat,  3  How.  Pr. 
(X.  S.)    156. 


ACCOUNTIXOS, 


§  008. 


lialf  of  those  interested  therein,  is  maintainable.^  Such  a  case  is 
where,  besides  calling  upon  the  executor,  administrator,  or  trustee 
to  render  an  account  of  his  acts  and  proceedings,  a  devastavit  is 
alleged,  and  the  fund  or  property  is  sought  to  be  reclaimed  from 
a  third  party.  It  is  a  familiar  principle  of  equity  jurisprudence 
that  "  as  between  the  cestui  que  ln(s(  and  trustee,  and  all  parties 
claiming  under  the  trustee,  otherwise  than  by  purchase  for  valu- 
able consideration  without  notice,  all  property  belonging  to  a 
trust,  however  much  it  may  be  changed  or  altered  in  its  nature, 
or  character,  and  all  the  fruit  of  such  property,  whether  in  its 
original  or  altered  state,  continues  to  be  subject  to  or  affected 
l)y  the  trust."  ^^  The  plaintiff  has  an  election  in  such  a  case  to  pro- 
ceed against  the  trustee  alone,  or  to  join  a  third  person  who  is 
claimed  to  have  fraudulently  acquired  from  the  trustee  any  part 
of  the  trust  estate."  The  latter  is  regarded  as  constructively  a 
trustee  with  the  former,  and  the  liability  of  the  one  is  not  differ- 
ent or  distinct  from  that  of  the  other.^^     It  is  well  settled  that  a 


'■>lIaddo\v  V.  Lnndy,  aO  N.  Y.  320. 
If  the  reprosontativc  colhidos  witli  the 
decedont's  fraudulent  vendee,  or  after 
reasonable  leqiiest,  refuses  to  take 
proeeedings  to  impeach  his  title  and 
reach  the  property  in  his  hands,  a 
creditor  may  maintain  an  action 
against  the  representative  and  the 
veiulee,  for  that  purpose.  (Bate  v. 
Graham.  11  X.  Y.  2.37.)  See  §  ,543. 
ante.  In  an  action  in  the  Court  of 
Common  Pleas,  by  the  heirs,  to  set 
aside  an  agreement  relinquishing 
jdaintilf's  share  in  the  estate,  upon 
the  ground  of  fraud  and  mistake, 
where  the  complaint  asked  that  de- 
fendant "  be  held  to  account  and  to 
pay  "  to  one  of  the  plaintiffs  *'  his  dis- 
tributive share  of  the  estate." —  Held, 
that  the  accounting  should  be  taken 
in  that  court,  it  having  jurisdiction, 
instead  of  requiring  defendant  to  ac- 
count, as  administratrix,  before  the 
surrogate.  ( Busch  v.  Busch,  12  Daly, 
47(5.)  An  heir  or  next  of  kin  may 
maintain  an  action  against  the  execu- 
tor to  establish  his  right  to  property 
not  accounted  for  before  the  surrogate. 
<Cuibcrt  V.  Saunders.  10  St.  Rep.  43.) 
See  Foote  v.  Bruggerhof.  (iO  Ilun.  400; 
21  X.  Y.  Supp.  ;")(')!). 

loPennell  v.  Duffell.  4  De  Gex.  :\r. 
&  G.  372;  Cooper  v.  Weston.  l(i  St. 
l\ep.  037.  citing  \Veetjen  v.  Vibbard, 
."i  Hun.  205;  Brinckerhoff  v.  Bostwick, 
88  N.  Y.  .52.  56. 

11  Bailey  v.  Inglee,  2  Paige,  278. 


12  Brown  v.  Ilouck,  41  Hun,  10; 
Randel  v.  Dvett.  38  id.  347;  Zimmer- 
man v.  Kinkle.  108  X.  Y.  282.  "If 
a  trustee  fraudulently  alienates  trust 
property  so  that  the  alienation  is 
ipso  facto  void  by  reason  of  fraud; 
and  a  third  party  is  implicated  in 
that  fraudulent  and  void  transaction, 
thereby  acquiring  for  his  own  benefit 
the  possession  of  the  trust  property 
under  circumstances  which  can  give 
neither  right  nor  title  to  it.  a  party 
so  circmnstanced  cannot  rccpiire  that 
the  crsfid  que  trust  who  is  defrauded 
shall  treat  the  liability  of  the  stranger 
as  distinct  from  that  of  the  trustee. 
The  fraud  by  the  supposition  is  one 
and  indivisible:  in  ccjuity  the  transac- 
tion is  null  and  void,  and  the  party 
claiming  the  benefit  of  it  is  a  mere 
claimant."  (Lund  v.  Blanshard,  4 
Hare,  20. )  See  Perry  on  Trusts. 
S  877.  The  doctrine  is  stated  by  Lord 
Chancellor  Sclborne  as  follows:  "The 
res])onsibilities  of  a  trustee  may  no 
doubt  I)e  extended  in  equity  to  others 
who  are  not  pio])erly  trustees,  if  they 
are  found  either  making  themselves 
trustees  dc  son  tort,  or  actually  par- 
ticipating in  any  fraudulent  conduct 
of  the  trustee  to  the  injury  of  the 
cestui  que  trust.  But.  on  the  other 
hand,  strangers  are  not  to  be  made 
constructive  trustees  merely  because 
they  act  as  agents  of  trustees  in  trans- 
actions within  their  legal  powers, 
transactions,   perhaps,   which   a   court 


^g  900,  910.  Accountings.  Y52 

person  wlio  takes  title  from  an  executor  in  payment  of  the  execu- 
tor's jiersonal  debt  is  not  a  purchaser  in  good  faith,  and  acquires 
no  rights  over  the  prior  title  or  equities  of  other  persons.^^ 

TITLE  SECOND. 

ACCOUNTING  IN  THE  SUKKOGATe's  COUKT. 

AKTICLE  FIRST. 

surrogate's    JURISDICTION. 

§  909.  Concurrent  jurisdiction. —  The  Surrogates'  Courts  have  a 
power  to  compel  an  accounting,  which  is,  to  a  great  extent,  concur- 
rent with  that  of  courts  of  equity,  and  is  less  formal  and  ex- 
pensive; and  hence,  in  ordinary  cases  of  domestic  administration, 
and  where  the  powers  of  the  surrogate  are  adequate  to  the  settle- 
ment of  the  estate,  a  court  of  equity  may  well  decline  to  interfere. 
Although  surrogates  have  not  the  power  of  a  court  of  equity,  they 
have  a  more  summary  and  convenient  power  of  examining  and 
passing  on  the  accounts,  of  marshaling  the  assets,  and  directing 
the  manner  of  their  application.  But  it  is  not  in  every  case  that 
this  jurisdiction  w'ill  be  entertained,  and  where  an  action  or  pro- 
ceeding is  pending  in  a  court  of  equity  for  the  accounting  of  the 
representative,  and  a  distribution  of  the  estate,  the  Surrogate's 
Court  mav  properlv  refuse  to  pass  upon  an  application  for  similar 
relief.^^ 

?  910.  Locality  of  the  jurisdiction. —  The  Surrogate's  Court,  to 
v.'hieh  application  should  be  made  for  an  accounting  on  the  part 
of  an  executor  or  administrator,  is  the  one  from  which  the  letters 


of  equity  may  disapprove,  unless  those  chaser,  the  latter  is  bound  to  ascertain 

agents  receive  and  become  chargeable  that  the  trustee  is  not  thereby  misap- 

with  some  part  of  the  trust  property,  plying    the     fund    and     violating    his 

or  unless  thev  assist  with   knowledge  duty,    especially   when   the   trustee   is 

of  a   dishonest  and  fraudulent  design  insolvent." 

on  the  part  of  trustees."      (Barnes  v.  i-i  Matter    of    De    Pierris,    79    Hun, 

Addv,  L.  R.,  9  Ch.  244.)  279;    29   X.  Y.   Supp.   .300:   Matter  of 

1"  White,  V.  Price,  39  Hun,  394.     In  Ayrault.  81  Hun,  107;  30  N.  Y.  Supp. 

Pendleton    v.     Fay    (2     Paige,    20.5),  0.54.      Where  the  Supreme  Court  has 

where   an   executor   assigned    a   mort-  obtained  jurisdiction   of  an   action   in 

gage  showing  on  its  face  that  he  was  which  a  part  of  the  relief  sought  is  an 

acting     as     executor,     the     chancellor  accounting  by  executors,  and  the  judg- 

said:        "This    was    sufficient    to    put  ment  finally  entered  in  the  action  pro- 

them    (the  assignees)    on  inquiry,  and  vided   that  the   accounting  of  the   ex- 

they  ought  not  to  have  taken  the  as-  ecutors  be  made  therein,  precludes  the 

signment   and    paid    the    money   until  surrogate     proceeding    with     the     ac- 

they  had  ascertained  that  he  was  not  counting    in    his    court.       (Matter    of 

<>ommitting  a   fraud   upon  the   estate.  Bruce,  N.  Y.  Law  J.,  June  19,  1893.) 

If  a  trustee  applies  the  trust  property  See  §  931,  post. 
to   pay   his   private   debt  to   the   pur- 


753  Accountings.  §911. 

of  the  representative  issued. ^^  And  the  same  rule,  doubtless,  pre- 
vails with  respect  to  a  testamentary  trustee  acting  under  letters 
issuing  from  such  a  court.  The  surrogate  who  appointed  a  de- 
ceased executor  has  jurisdiction  over  the  latter's  representative, 
although  ai)pointed  by  the  surrogate  of  another  county,  hut  so 
far  only  as  the  estate-  of  the  testator  of  such  deceased  executor  is 
concerned.^^ 

ARTICLE  SECOXD. 

THE    DIFFERENT    KINDS    OF    ACCOUNTING. 

^911.  Forms  of  accounting  distinguished. —  There  are  several 
modes  in  which  an  accounting,  on  the  part  of  an  executor,  adminis- 
trator,- or  testamentary  trustee,  may  he  brought  about,  and  the 
effect  of  an  accounting  differs  according  to  the  mode  or  nature  of 
the  proceeding.  If  the  representative,  of  his  o\m  motion  merely, 
files'  an  account  of  his  proceedings,  this  is  a  distinct  admission  by 
him  of  the  matters  therein  stated,  and  may  serve  to  inform  those 
interested  of  what  he  has  done.  If  he  fails  to  disclose  his  pro- 
ceedings, the  statute,  which  we  shall  presently  explain  in  detail, 
provides  means  by  which  he  may  be  compelled  to  do  so.  But 
the  mere  rendering  of  an  account,  whether  voluntary  or  upon  com- 
pulsory process,  is  not  in  itself  a  settlement  of  the  matters  con- 
tained therein.  The  account  rendered  and  filed  may  inform  those 
interested,  but  it  does  not  bind  them,  and  is  not  necessarily  con- 
clusive, even  upon  the  representative  who  renders  it.  To  make  it 
final  and  conclusive,  there  must  be  an  adjudication  upon  it ;  and 
to  secure  this,  the  parties  must  either  appear  and  be  heard,  or  there 
must  be  due  notice  to  them  that  an  adjudication  and  settlement 

15  See    Foster    v.    Wilber,    1    Paige,  on  the  ground  of  want  of  jurisdiction 

.")37  ;    Dakin   v.    Hudson,   6    Cow.    221.  and  of  res  u(ijinlicat((,  that  the  surro- 

So,  wliere  a  deeedent  died  intestate  in  pate  had  authority  to   pass  upon  the 

t'onneetic'ut,    and    letters    of    adininis-  administrator's  accounts,  and  that  the 

tration   were  issued  to  tl)e  same   par-  ])roceedinos     in     Connecticut     did    not 

ties  to  whom  letters  were  subsequently  divest  liim  of  that  authority.      (  Duffy 

issued  by  the  surrogate  of  New  York  v.  Smith,  1   Dem.  202:  Co.  Civ.  Proc, 

county,  and  an  account  was  filed  with  §  2470,  subd.  .3.)     Notwithstanding  an 

the  surrogate  here,  showing  $7 ,000  to  executor  has  removed  from  tlie  State, 

have   come    into   tlieir   hands   in   New  and   refuses   to  give  bail,   after   l)eing 

York    county:    but   the   account  being  required  by  the  surrogate  to  do  so.  he 

contested,   it   was  referred,  and,   pend-  may  settle  his  accounts  before  the  sur- 

ing  the  reference,  they  were  cited   by  rogate:    and   if  all    parties  entitled  to 

the  Connecticut  court  to  ai)pear  before  notice   voluntarily   aii|)ear,    the   surro- 

it  and  account,  which  they  did,  and  a  gate   luis   jurisdiction;    and   his  decree 

decree  was  made  allowing  the  same, —  for    a    final    settlement    thus    made    is 

Held,  on  an  application  before  the  sur-  final,  unless  appealed   from.      (Everts 

rogate    here,    to    vacate    the    order    of  v.   Everts,  62   Barb.   .577.) 

reference  and  dismiss  all   proceedings.  ^^  Popham  v.   Spencer,  4  Redf.   399. 

48 


§  012.  Accountings.  75-4 

of  the  account  will  Le  liad.  An  account  which,  upon  appearance 
or  due  notice,  is  thus  examined  and  settled  by  an  adjudication 
of  the  surrogate,  concludes  the  parties  in  interest  to  a  certain  ex- 
tent, as  a  judgment  of  a  court  of  record  would,  as  hereafter  ex- 
l)lained ;  and  such  a  proceeding  is  termed,  in  the  Code,  the  judicial 
settlement  of  an  account. 

§912.  "Final  accounting"  explained. —  In  the  former  statutes, 
it  was  called  a  "  final  accounting,"  but  the  words  "  final  account- 
ing," as  thus  used,  did  not  imply  the  rendering  of  the  last  account, 
which  finally  settled  the  estate  and  discharged  the  representative. 
That  might,  in  a  proper  sense,  be  called  the  final  account,  Ijut  a 
"  final  accounting,"  as  those  words  were  used  in  respect  to  the 
administration  of  estates,  meant  an  account, —  first,  intermedi- 
ate, or  last, —  which  had  been  made  conclusive,  and,  in  that  sense, 
"  final,"  by  an  adjudication  or  decree  of  the  surrogate,  on  notice 
to  or  hearing  of  the  parties.  Hence  there  might  be  several  suc- 
cessive ''  final  accountings  "  on  the  same  estate. ■^^  The  phrase  was 
not,  indeed,  uniformly  used  in  this  sense ;  but  was  to  be  so  under- 
stood wherever  it  occurred  in  the  statute,  unless  the  context  indi- 
cated a  different  intent.  All  ambiguity,  in  this  particular,  is 
removed  by  the  present  Code,  which  uniformly  terms  an  account, 
other  than  an  adjudicated  one,  an  intermediate  account,  the  filing 
of  which  may  be  voluntary  or  compelled,  and  designates  the  sur- 
rogate's adjudication  upon  an  account  the  judicial  settlement 
thereof,  which  may  be  had  at  the  instance  of  the  accounting  party ; 
or  of  a  creditor  or  person  interested  in  the  estate  or  fund,  etc.^^ 


1"  Glover  v.  Holley,  2  Bradf.  291.  105.)  If  the  executor  or  administra- 
Under  the  Revised  Statutes,  there  tor  neglected  to  cite  the  parties  in  in- 
^vere  two  modes  in  which  the  account  terest  to  attend  the  settlement  of  his 
of  the  executor  or  administrator  might  account,  and  they  did  not  voluntarily 
be  settled;  one  on  the  motion  of  an  appear,  the  accounting  wou'd  not  be 
adverse  party  applying  for  the  pay-  final.  (Stone  v.  Morgan.  10  Paige, 
ment  of  his  claim,  or  for  leave  to  is-  615;  Bronson  v.  Ward,  3  id.  180;  Hal- 
sue  execution;  the  other  on  the  appli-  lett  v.  Hare,  5  id.  .315.)  The  final  ac- 
cation  of  the  representative  himself,  counting  might  be  had.  although  the 
on  notice  to  all  parties.  The  first  set-  time  had  not  arrived  when,  hx  the  pro- 
tlement  was  conclusive  on  the  parties  visions  of  the  will,  a  final  adjudica- 
only,  and  the  second  was  conclusive  tion  as  to  the  rights  of  all  the  bene- 
on  all  the  parties  interested,  and,  ficiaries  could  be  had.  (Bogart  v. 
therefore,   final.     (Campbell   v.   Bruen,  Van  Velsor,  4  Edw.   718.)      In  an  ac- 

I  Bradf.  224.)     See  also  Guild  v.  Peck,  crunting,  not  final,  on  the  petition  of 

II  Paige,  475;  Westervelt  v.  Gregg,  a  creditor  or  legatee,  the  decree  was 
1  Barb.  Ch.  469.  A  final  accounting  entered,  finding  the  state  of  the  ac- 
was  a  voluntary  proceeding  —  a  sub-  count  to  the  time  when  it  was  ren- 
mission  on  the  part  of  the  executor  or  dered.  (Tucker  v.  McDermott,  2 
administrator    of    all     questions    con-  Kedf.   .317.) 

nected  with  the  distribution  of  the  es-         IS  "  The  expression   'judicial    settle- 

tate.       (Marre   v.    Ginochio,    2    Bradf.  ment,'   where   it   is   applied   to   an   ac- 


755  Accoi-XTiNGS.  g§ 'Ji;;, '.»14. 

In  any  case,  liowevcr,  it  >li<iiil<l  be  observed  that  the  object  of 
the  statutes  rcLating  to  acc(iiintiii<;-  is  to  insure  the  speedy  adminis- 
tration of  estates,  to  give  an  a(k'(iuate  remedy  to  those  who  desire 
an  exhibition  of  the  condition  of  the  estate,  and  adequate  protec- 
Tion  to  the  representative;  and  that  it  is  no  part  of  its  })urpose 
to  determine  the  riglits  of  dittVrent  chiimants  as  between  them- 
selves, or  create  a  new  bar  to  (hbts.'''  With  these  general  explana- 
tions, we  will  pass  to  the  consideration  of  the  provisions  of  the 
statute  regulating  the  right  and  mode  of  procedure  in  each  kind 
of  accounting  by  an  executor,  administrator,  or  testamentary  trus- 
tee, the  accounting  of  guardians  being  treated  in  a  separate  chapter 
concerning  those  officers. 

ARTICLE  THIRD. 

INTERMEDIATE    ACCOUXTIXGS. 

§  913.  Voluntary  filing  of  intermediate  account —  The  expres- 
sion, "  intermediate  accounting,"  as  used  in  the  Code,  ^'  denotes  an 
account  filed  in  the  surrogate's  office,  for  the  purpose  of  disclosing 
the  acts  of  the  ])erson  accounting,  and  the  condition  of  the  estate 
or  fund  in  his  hands,  and  not  made  the  subject  of  a  judicial  set- 
tlement." ^°  "An  executor  or  administrator  may,  at  any  time, 
voluntarily  file  in  the  surrogate's  office  an  intermediate  account, 
and  the  vouchers  in  support  of  the  same."  ^^  So  a  testamentary 
trustee  may,  at  any  time,  file  an  intermediate  account,  and  may 
also  amiually  render  and  finally  judicially  settle  his  account^."" 

v<  914.  Compulsory  filing  of  intermediate  account. —  The  Code 
]n-ovides~''  that  "  in  either  of  the  following  cases  the  surrogate  may, 
in  his  discretion,  make  an  order,  requiring  an  executor  or  ad- 
ministrator to  render  an  intermediate  account : 

"  1.  Where  an  application  for  an  order,  permitting  an  execu- 
tion to  issue  on  a  jiulgment  against  the  executor  or  administrator, 
has  been  made  by  the  judgment  creditor.^^ 

"  2.  On  the  return  of  a  citation,  issued  upon  the  petition  of  a 
judgment  creditor,  praying  for  a  decree,  gi-anting  leave  to  issue 

count,   sijjnifips   a   docreo   of   a    Riirro-  -bioiiclc.   fi   X.   Y.   222.      (^oniparo  Ciil- 

gato's   Court,   whereby  the   account   is  man  v.  Wilber,  1  Dcin.  547. 
made   conclusive   u])on   the   parties   to        20  Co.  Civ.  Proc,  §  2;")14.  subd.  n. 
the   special    procecdiii<:,   cither    for    all         21  Co.  Civ.  Prnc.,  §  272."),  as  amended 

pnrjjoscs  or  for  certain   purposes  spe-  18fl3;    consolidatiiifr   former   §   2722. 
<'iiic<l   in  the  statute:    and  an   account         22  Co.  Civ.  Proc.  §  2S02. 
thus    made    conclusive    is    said    to    be         2.'5  Co.  Civ.  Proc.  §  272."),  as  amended 

iudiciallv    settled."       (Co.    Civ.    Proc.  180.3:    consolidating  former    S   272.3. 
I  2,514,  subd.  8.)  24  "As   prescribed   in   section    182(5.'' 

1»  See  Bank  of  Poughkeepsie  v.  Has-  See  ante,  §  G80. 


§  915.  Accountings,  750 

an  execution  on  a  judgment  rendcrcil  against  the  decedent  in  his 
lifetime.^^ 

''  3.  On  the  return  of  a  citation,  issued  on  the  petition  of  a 
creditor,  or  person  entitled  to  a  legacy,  or  other  pecuniary  pro- 
vision, or  a  distributive  share,  praying  for  a  decree  directing  pay- 
ment thereof.  ^^ 

"  4.  Where  eighteen  months  have  elapsed  since  letters  were  is- 
sued, and  no  special  proceeding,  upon  a  petition  for  a  judicial 
settlement  of  the  executor's  or  administrator's  account,  is  pend- 
ing." 

§  915.  Intermediate  accounting  by  testamentary  trustee. — "  Upon 
the  petition  of  a  person  interested,  absolutely  or  contingently,  in 
the  estate  or  fund  in  the  hands  of  a  testamentary  trustee,  or  in  the 
application  thereof,  or  of  the  income  or  other  proceeds  ■  thereof, 
the  surrogate  may,  in  his  discretion,  make,  at  any  time,  an  order 
requiring  a  testamentary  trustee  to  render  an  intermediate  ac- 
count ;"  ^'^  and  any  testamentary  trustee,  or  any  trustee  appointed 
1)v  competent  authority  to  execute  any  testamentary  trust,  may, 
at  any  time,  file  an  intermediate  account.^*  An  account  may  be 
required,  in  order  to  disclose  the  state  of  the  funds,  notwithstand- 
ing there  is  no  party  entitled  to  present  payment. ^^ 

25  "As  prescribed  in  section  1381."  parties;  and  only  on  a  final  account- 
See  ante,  §  684.  injr,  where  such  parties  are  brought  in, 

26  "As  prescribed  in  section  2722,"  has  the  surrogate  jurisdiction  to  settle 
as  amended  1893.  See  ante,  §  781.  and  adjust  conflicting  rights  and  in- 
Where  a  legatee  presented  to  the  sur-  terests.  { Riggs  v.  Cragg,  89  X.  Y. 
rogate  a  petition  praying  that  the  ex-  479.)  See  Matter  of  Marshall,  ."> 
ecutor  be  ordered  to  appear  and  render  Deni.  357. 

an  account,  and  that  such  further  or  27  Co.  Civ.  Proc,  §  2803.  See  Mat- 
other  proceedings  be  had  as  might  be  ter  of  Odell,  52  Hun.  88. 
necessary  to  enforce  the  payment  of  28  Co.  Civ.  Proc,  §  2802.  Where  no 
her  claim,  and  thereupon  an  order  was  objection  is  made  to  the  intermediate 
granted  that  the  executor  "  render  a  account  of  a  testamentary  trustee,  but 
.-.ettlement,"  and  a  citation  was  issued  an  improper  use  of  the  trust  is  al- 
Ihereon,  requiring  him  to  appear  and  leged,  an  inquiry  into  the  account 
"render  an  account," — Held,  that  the  should  be  deferred  until  the  judi- 
petition  was  sufficient  under  the  origi-  cial  settlement  thereof.  (Glaskin  v. 
nal  statute  (2  Pv.  S.  IIG,  §  18)  to  give  Sheehy,  2  Dem.  289.)  Where  the 
the  surrogate  jurisdiction  over  the  petition  alleged  that  the  trustee  had 
subject-matter;  and,  having  obtained  funds  of  the  estate  in  his  hands  and 
jurisdiction  of  the  person  of  the  ex-  the  answer  did  not  deny  it, —  Held, 
ecutor  by  the  order  and  cit'ation.  he  that  an  order  that  he  file  an  interme- 
had  power  to  proceed  and  examine '  diate  account,  though  not  expressly 
into  the  account,  and  to  settle  and  ad-  asked  for  by  the  petitioner,  was  in  the 
just  the  same,  so  far  as  to  determine  discretion  of  the  surrogate,  and  was 
how  much  should  be  paid  to  the  peti-  properly  issued.  (Matter  of  Taggard, 
tioning  legatee  (Peck  v.  Sherwood,  50  41  St.  Rep.  79G;  16  X.  Y.  Supp.  629.) 
X.  Y.  615)  ;  but  if  it  appear  that  a  2(>  ]\Iatter  of  Lawrence,  15  Civ.  Proc. 
real  question  exists  as  to  the  right  Rep.  54;  16  St.  Rep.  971:  Bogart  v. 
of  one  of  several  persons  to  the  legacy  Van  Velsor.  4  Edw.  718;  Valentine  v. 
or  funrl.  he  cannot  proceed  to  a  deter-  Valentine,  2  Barb.  Ch.  430. 
raination  without  the  presence  of  all 


757 


Accountings. 


§§'jiG, 'jr 


§  916.  Surrogate  may  initiate  the  proceeding. —  Tlio  fcjrmor 
statute  expresr-lv  auihorizcd  the  surrogate  to  call  the  executors  or 
administrators  to  account,  by  a  proceeding  instituted  by  him  ex 
officio,  without  an  application  by  any  one.  And  it  was  very 
reasonably  suggested  that  it  w(juld  be  his  duty  to  do  so  where 
infants  arc  concerned,  after  a  reasonable  time  has  elapsed  for  the 
settlement  of  the  estate,  if  he  has  reason  to  apprehend  that  the 
interests  of  the  infant  require  such  a  course,^^^  The  present  stat- 
ute does  not  confer  jxiwer  upon  the  surrogate  to  compel,  on  his 
own  motion,  a  final  judicial 'scttlciiicnt  of  the  accounts  of  a  repre- 
sentative or  trustee;  but  it  is  not  doubted  that  he  may,  on  his  own 
motion,  call  for  an  account  in  the  nature  of  an  intermediate  ac- 
count, without  an  ap])lication  nuide  to  him  by  an  interested  party."''^ 

§917.  Surrogate's  limited  authority. —  A  stretch  of  this  super- 
visory power  of  surrogates,  to  the  extent  of  requiring  an  inter- 
mediate account,  filed  in  obedience  to  his  unsolicited  mandate,  to 
be  the  same  in  form  and  substance  as  an  account  is  required  to  be, 
on  its  judicial  settlement,  can  be  justified,  if  at  all,  in  only  very 
special  cases,  where  the  parties  are  not  sui  juris,  or,  for  any  reason, 
cannot  be  cited  to  attend  and  protect  their  own  interests.^^  In 
such  cases  the  action  of  the  surrogate,  being  a  special  proceeding, 


30  Sanith  v.  Lawrence,  11  Paige,  20G. 
See  Tucker  v.  McDennott,  2  Redf.  312. 

31  Campbell  v.  Bruen,  1  Bradf.  224 ; 
Thomson  v.  Thomson,  id.  24 ;  Grata- 
cap  V.  Phyfe,  1  Barb.  Ch.  485.  See 
remarks  of  Ransom,  S.,  G  Dem.  507. 

32  In  iMatter  of  Dwiglit  ( 29  St.  Rep. 
210;  9  N.  Y.  Svipp.  927).  the  surro- 
gate of  New  York  county  laid  down 
the  rule,  for  his  own  court,  that  "  the 
account  should  state  if  an  inventory 
has  been  filed,  and  if  none  has  been 
filed,  the  account  itself  sliould  furnish 
the  information  usually  thus  sujiplied. 
It  should  likewise  state  whether  or 
not  advertisements  for  claims  have 
been  published,  what  claims  have  been 
])resented.  what  allowed,  and  what  re- 
jected; and  the  time  and  manner  in 
wliich  they  were  rejected  or  disputed, 
niid  tlic  reason  therefor.  Also,  wluit 
claims  have  l)een  presented  and  al- 
lowed since  the  expiration  of  the  pub- 
lication of  the  advertisement  for 
claims.  The  accountant  should  then 
proceed  to  credit  himself  with  funeral 
charges  and  expenses  of  administra- 
tion, with  moneys  paid  to  creditors, 
naming  them,  and   payments   to  lega- 


tees or  next  of  kin.  He  should  state 
the  age  of  legatees  and  next  of  kin,  if 
any  are  minors,  and  v»-hether  they 
have  guardians,  and  if  so  their  names 
and  places  of  residence,  and  how  ap- 
pointed. If  there  is  any  other  fact 
which  has  occurred  as  ])art  of  his  pro- 
ceedings, which  may  allect  the  estate 
or  the  rights  of  any  distributee  or  his 
own  rights,  he  is  bound  to  state  it. 
He  must  not  only  state  in  what  char- 
acter his  payments  were  made,  as 
whether  to  creditors,  legatees  or  next 
of  kin,  or  for  expenses  for  funeral 
charges,  or  for  administration,  dis- 
tinctly, bvit  he  must  produce  vouchers 
supporting  each  payment :  or  in 
cases  of  claims  under  .$20.  where  no 
voucher  is  produced,  he  nuist  make 
and  present,  in  lieu  of  voucher,  his 
own  oath  positively  to  the  fact  of 
])aymcnt,  when  made,  and  to  whom. 
Unless  the  order  of  the  surrogate,  re- 
quiring an  executor  or  administrator 
to  render  an  account  of  his  proceed- 
ings, is  obeyed  in  this  manner,  as 
jilainly  indicated  by  the  statute,  he 
will  not  have  made  the  proper  re- 
sponse to  the  order."' 


§§  918,  919.  Accountings.  758 

is  governed  by  the  Statute  of  Linntations,"'^"  and  when  the  account 
is  tiled  the  court's  authority  is  exhausted.^"* 

§  918.  Consolidating  the  proceeding. —  Any  party  may  contest 
the  account  provided  the  proceeding  is  not  consolidated  with  a 
subsequent  proceeding  instituted  foi-  the  judicial  settlement  of 
the  representative's  account,""^  which  can  only  be  after  the  expi- 
ration of  a  year  from  the  grant  of  letters.  If  a  year  has  elapsed, 
by  the  return  day  of  the  citation,  the  representative  may  present 
a  petition  for  the  judicial  settlemei\t  of  his  account,  whether  a 
compulsory  proceeding  against  him  is  pending  or  not."^  "  The 
consolidation  does  not  affect  any  power  of  the  surrogate,  which 
might  be  exercised  in  either  j^roceeding."  '"^^ 

AETICLE  FOUKTH. 

JUDICIAL    SETTLEMENT    OF    ACCOUNT. 

SUBDIVISIOX  1. 

WHOSE    ACCOUNTS    SUBJECT    TO    JUDICIAL    SETTLEMENT. 

§  919.  Executors  and  administrators The  executor  or  admin- 
istrator may,  himself,  apply  for  the  settlement  of  his  account,^* 
either  (1)  where  one  year  has  expired  since  letters  were  issued 
to    him,    (2)    where   notice    requiring   all   persons   having   claims 

33  Matter  of  Hale,  G  App.  Div.  411;  per  Daniels,  J.)  This  decision  over- 
39  N.  Y.  Siipp.  .577 ;  overruling,  in  rules  Anonymous,  14  Civ.  Proc.  Rep. 
part.  Matter  of  De  Russy,  37  St.  Rep.  38;  14  St.  Rep.  490.  Under  the  Re- 
646.  vised  Statutes,  which  did  not  make  a 

34  See  Campbell  v.  Bruen,  1  Bradf.  clear  distinction  between  an  inter- 
224.  In  Matter  of  De  Russy  (37  St.  mediate  and  a  final  account,  it  was 
Rep.  646;  20  Civ.  Proc.  Rep.  270),  an  held,  that  where  the  petition  asked  for 
intermediate  account  was  filed,  under  nothing  further  than  that  the  repre- 
subdivision  4,  pursuant  to  an  order  sentative  be  required  to  render  an  ac- 
made  by  the  surrogate  on  his  own  count,  the  surrogate's  jurisdiction  was 
motion.  Held,  that  he  had  no  au-  exhausted  when  the  prayer  had  been 
thority  to  appoint  a  referee  of  his  own  fully  complied  with.  (Westervelt  v. 
motion,  to  examine  it.  The  statute  Gregg,  1  Barb.  Ch.  469 ;  Smith  v.  Van 
provides  no  authority  for  the  judicial  Kuren,  2  id.  473.) 

examination    of    an    intermediate    ac-  35  Co.  Civ.  Proc,  §  2728,  as  amended 

count    by    means    of    a    reference    or  1893;    consolidating    former    §    2729. 

otherwise  in  such  a  case.     "  The  par-  See  §  9.5.5,  poftt. 

ties   in    interest  may  contest   and   in-  36  Co.  Civ.  Proc,  §  2727,  as  amended 

vestigate  the  account,  but  until   they  1901. 

shall  be  brought  in,  or  otherwise  ap-  37  lb. 

pear,   the  power  vested  in  the   surro-  38  This   chapter    relates    to    the    ac- 

gate    will    be    exhausted    by   obtaining  counting  of  executors,  administrators, 

and   filing  a  proper  account.     The  ob-  and  testamentary  trustees ;  for  that  of 

ject  of  the  law  will  then  be  attained,  guardians,  see  c  XX,  post,  and  that  of 

and   that    is   to   show   by   the   account  freeholders   who    sell    land,    etc.,    of   a. 

the   condition    of   the   estarte."      (lb.;  decedent,  ante,  §  905. 


759 


AcCOLNTIXUS. 


§  ')V-K 


against  the  doecased  to  exhibit  the  same,  with  the  vonc-hers 
thereof,  to  such  executor  or  achiiinistrator  has  been  (hily  pub- 
lished according  to  hiw,"'"'  (.*])  where  his  h-ttcrs  have  Ijeen  re- 
voked,^" or  (4)  where  he  desires  to  resign  and  l)e  discharged.^' 
lie  may  also  render  a  voluntary  account,  where  he  has  disposed 
of  real  ])ro])erty,  under  a  power  contained  in  the  will,  where  one 
yc^ar  has  ehqjsed  since  the  issue  of  letters."*"  The  power  of  the 
surrogate  to  call  an  executor  or  administrat(tr  lu  account  does 
not  extend  to  every  person  who  assumes  to  act  as  an  executor  or 
administrator.  A  court  of  equity  will  sometimes  call  to  account 
one  who  has,  without  authority,  assumed  to  act  in  such  a  capacity, 
on  the  ground  that  the  party  in  interest  is  entitled  to  treat  him 
as  a  trustee.^'  But  the  jurisdiction  of  the  surrogate,  which  de- 
pends upon  the  statute,  is  limited  to  those  who  are  or  have  l)een 
authorized  to  act  as  executors  or  administrators.'*'*  But  if  one, 
who  has  tortiously  interfered  with  the  estate,  subsequently  takes 
out  letters  and  qualifies,  he  becomes  liable  to  account  before  the 
surrogate,  and  in  such  case  the  letters  relate  back;  so  that  the 
time  after  which  he  may  be  compelled  to  account  is  to  be  com- 
puted from  the  first  act  of  his  unauthorized  interference  with  the 
■estate. ^'^     One  named  in  the  will  as  executor,  but   who  lias  not 


39  Co.  Civ.  Proc,  §  2728,  as  amended 
1894  (former  §§  272!)-2732).  But 
upon  an  accounting  of  an  executor 
under  that  provision,  there  can  be  no 
decree  judicially  sottlinp;  the  account 
and  directing  distribution,  unless  one 
year  lias  elapsed  since  the  issue  of 
letters.  (Matter  of  Lansing,  37  Misc. 
177;  74  N.  Y.  Supp.  94.");  Matter  of 
Bronner,  30  Misc.  31 ;  Matter  of  Law- 
•son,  36  Misc.  9G.)  Compare  Co.  Civ. 
Proc.,  §  2743. 

*o  lb. 

41  Co.  Civ.  Proc,  §  2089. 

42  Baldwin  v.  Smith.  3  App.  iJiv. 
3.">0:    3S  N.  Y.   Supp.   299. 

4:?  Le  Fort  v.  Delaficld.  3  Edw.  32. 

44  The  Probate  Court  of  another 
State  cannot  discharge  administrators 
ap])ointed  by  a  Surrogate's  Court  of 
this  State,  from  their  obligation  to 
account  to  the  latter  court  for  prop- 
erty of  the  decedent  received  by  them 
and  made  subject  to  the  surrogate's 
jurisdiction  here;  and  such  adminis- 
trators, after  the  grant  of  letters  to 
them  here,  and  after  taking  jiossession 
of  property  here,  cannot  be  allowed  to 
^\■ithdraw  sucli  property  from  this 
State  until  thev  have  accounted  for  it. 
(Duffy  v.  Smith.  1  Dem.  202;  Black 
V.  Woodman,  5  Kcdf.  303.) 


45  Matter  of  Farrell,  1  Tuck.  110; 
:\latter  of  Richardson,  2  Misc.  288 ;  23 
N.  Y.  Supp.  978.  See  §S  131.  .513. 
ante.  And  where  executors  improp- 
erly interfere  with  and  receive  the 
rents  of  an  estate,  they  may  be  com- 
pelled to  account,  as  in  other  eases, 
and  be  allowed  for  repairs  and  care  of 
such  real  estate.  (Matter  of  Wilson. 
1  L.  Bui.  24.)  In  Matter  of  Eisner 
( 1  Connoly,  358) ,  one  of  the  executors 
had,  prior  to  the  death  cf  the  testator, 
acted  as  his  agent,  and  as  such  re- 
ceived moneys  due  the  testator.  Hed, 
that  the  debt  was  an  asset  of  the  es- 
tate for  which  the  agent  who  has 
qualified  as  executor  was  liable  as  for 
so  much  moneys  in  his  hands.  The 
siirrogate  has  power  to  try  the  valid- 
ity of  such  a  claim,  and  to  hold 
the  executor,  if  he  be  found  to  be  a 
debtor,  accountable  therefor  upon  the 
settlement  of  his  account.  The  burden 
is  not  on  the  contestant  to  show  that 
those  moneys  had  not  been  disbur>cd 
on  account  of  the  testator,  or  satis- 
factorily accounted  for  to  him.  It  is 
the  duty  of  the  executor  to  give  some 
account  of  their  disposition.  The 
jurisdiction  of  the  Surrogate's  Court 
is  suflicient  to  probe  the  transactions 
of  the  executor  with  anv  one,  and  to 


§§  920,  021.  AccouxTi.NGs.  760- 

qualiried,  clearly  caiiiKit  he  i-vi[uh\'d  to  account;'*'''  and  an  account- 
ing liy  a  re})resentative,  whose  authority  is  derived  from  an  order,, 
void  in  law,  is  not  within  the  power  of  the  surrogate  to  direct.'' 

§  920.  Separate  proceeding  by  one  of  two  representatives. —  Ono 

of  two  or  more  executors  or  achninistrators  may  present  a  petition 
for  a  jtidicial  settlement  of  his  separate  account,  and  in  such  case 
he  must  pray  that  his  co-executor  or  co-administrator  may  also 
be  cited.'*''  But  one  executor  cannot  petition  for  a  settlement  of 
the  account  of  himself  and  his  co-executor,  on  which  a  citation 
can  issue  directing  the  latter  to  attend  "'  as  one  of  the  execu- 
tors;"*^ nor,  it  seems,  can  one  of  two  or  more  representatives  be 
cited  alone,  to  render  his  account  for  judicial  settlement.'''^  Where 
each  of  two  executors  has  filed  an  account,  and  one  of  them  dies, 
the  accounting  of  the  other  may  proceed,  but  no  distribution  can 
be  ordered  until  the  appointment  of  an  administrator  of  the  de- 
ceased exectitor,  and  his  appearance  in  the  proceeding. ^^ 

§  921.  In  case  of  a  deceased  representative. — The  Code  contains 
a  provision,  to  the  effect  that  where  an  executor,  administrator^ 
guardian,  or  testamentary  trustee  dies,  the  Surrogate's  Court  has 
the  same  jurisdiction,  upon  the  petition  of  his  successor,  or  of  a 
surviving  executor,  administrator,  or  guardian,  or  of  a  creditor 
or  a  person  interested  in  the  estate,  or  of  a  guardian's  ward  or 
the  legal  representative  of  a  deceased  ward,  or  a  surety  upon  the 
official  bond  of  the  decedent,  or  the  legal  representatives  of  a 
deceased  surety,  to  compel  the  executor  or  administrator  of  the 
flecedent  to  account,  which  it  wotdd  have  against  the  decedent, 
if  his  letters  had  been  revoked  by  a  surrogate's  decree.^"  The 
application  may  be  made  at  any  time,  in  fact  immediately,  after 
the  appointment  of  the  lepresentative  of  the  deceased  representa- 
tive;^^ and  may  be  made  for  the  rendition  of  successive  accounts 
to  each  person  entitled  thereto.^* 


ad  jiidwe    that     property     acquired    by         -^l  Matter  of  Koch,  .3.3  Misc.  G72 ;   68 

him,  either  with  or  without  the  asser-  X.  Y.  Supp.  938. 

tion  of  his   authority  as  executor,   is        52  Co.  Civ.  Proc  §  2G0n.  as  amended 

equitably  assets  in  his  hands  for  dis-  1891;  Peltz  v.  Schultes.  64  Hun.  369; 

tribution.       (flatter    of    Schaefer,    34  19  X.  Y.  Supp.  637.    As  to  the  persons 

Misc.  34:   69  X.  Y.  Supp.  489.)  to  be  cited,  see  §   923.  poftt.     The  pro- 

4-3  Wever  a\   Marvin,   14  Barb.   376;  ceedinp  may  be  instituted  by  a  trus- 

7  How.  Pr.  182.  tee  in  bankruptcv  of  a  legatee.      (Mat- 

47  Matter  of  Turner,   34  Misc.   366;  ter  of  Wnnd.   34  Mi>c.  209:   69   X.  Y. 
69  X.  Y.  Supp.  1019.  Supp.  401.) 

48  Co.  Civ.  Proc.  §  2728.  as  amended         ■'''•'!  Matter  of  Wilev.   119  X.  Y.   642: 
1893:  consolidatinjr  former  §  2729.  29    St.    Rep.    787:    Cuthbert   a-.   .Tacob- 

40  Matter  of  Menck.  .5  St.  Rep.  341.  son,  2  Dem.   134:    Matter  of  Scudder, 

50  Hood  V.  Hood,  1  Dem.  392.  21  :\rise.  179:  47  X.  Y.  Supn.  101. 

54  Spencer  v.  Popham,  5  Redf.  425. 


701  Accountings.  §§  922,  'Jj.'i. 

vj  922.  Compelling  delivery  of  trust  property. — "  The  SuiTOgate's 
("oiirt  lias  also  jurisdiction  to  cninix'l  tlie  executor  or  administra- 
tor [of  a  deceased  representative],  or  successor  of  any  decedent,  at 
any  time  to  deliver  over  any  of  tlie  trust  property  which  has 
conic  to  his  possession  or  is  under  liis  control,  and  if  the  same  i* 
delivered  over  after  a  decree,  the  court  must  allow  each  credit 
n])on  the  decree,  as  jlistice  requires."  ^^  An  administrator  de. 
hoiiis  nun  is  the  proper  ]ierson  to  ap])ly  to  compel  an  administra- 
tor, alleged  to  have  received  assets  of  a  deceased  executor,  to  ac- 
count for  such  assets  ;°'^  the  proceeding  cannot  be  maintained  by 
the  next  of  kin,  until  after  the  refusal  of  the  administrator  de 
honis  nan  to  proceed  up<»ii  the  request.^^  This  provision  of  the 
statute  does  not  authorize  a  direction  for  the  payment  of  debts,, 
legacies,  or  distributive  shares.^^ 

>;  923.  Accounting  by  representative  of  deceased  representative. — 
Where  several  estates  are  involved  by  the  decease  of  an  executor 
or  administrator,  and  tlie  api)ointment  of  a  representative  of  his 
estate,  the  surrogate  has  a  right,  on  the  application  of  a  legatee 
of  the  first  estate,  to  cite  tlie  personal  representatives  of  the  execu- 
tor or  administrator  of  that  estate  to  account  for  their  adminis- 
tration.'^''^  And  upon  the  final  settlement  of  such  accounts,  the 
surrogate  may  determine  and  liquidate  the  amount  of  the  claim 
of  the  legatee  against  the  second  estate,  Avhether  such  claim  was 
again?t  the  decedent  in  his  character  of  executor,  or  merely  as  a 
trustee  under  the  Avill  of  the  first  testator.  Before  the  amend- 
ment of  1884,  the  surrogate  had  no  power  to  compel  the  execu- 
tors or  administrators  of  the  second  estate  to  ren<ler  an  account 


!>•'>  Co.  Civ.  Proc.  §  2000,  as  amended  Held,  they  could  not  compel  the  exec- 

1!)01.  utor  to  accoiuit.                                      ' 

51!  Delivery    of    the    trust    property  5S:\Iatter  of  Trask.  40  X.  Y.  Siipp. 

should  be   directed   to   be  made  either  825. 

to    the    eoui't    or    to    some    drsifpHifed  50  ^Vhere  a  will  placed  the  residuum 

person  representinfr  the  estate.    ( [Mount  of  the  estate  so  completely  at  the  dis- 

v.  Mount,  08  App.  Div.  144;  74  X.  Y.  posal   of  the  executor   as   devisee   and 

Su])p.    148.)  letratee   for   life   that    so   much   of  the 

57  Matter  of  O'Brien,  4.")   llun.  284;  estate  as  may  have  been  consumed  by 

Matter  of  Soutter,  10.>  N.  Y.  r)14.     In  him  in  his  lifetime  under  the  terms  of 

Matter  of  O'Brien   (ftiipra),  an  admin-  the  will  could  not  be  projicrly  charrred 

istrator  had  converted   the  assets  and  afrainst  his  personal  rejiresentative,  it 

mingled    them    indisiinnfuishably    with  is    incundient    on    contestants,    before 

his   own    i)roi)erty.   and    they   were   re-  they    can    surchartre    the    account    of 

ceived   in    that   condition   by  his  exec-  such      representative,      to     show     the 

utor  without  notice;   the  parties  inter-  amount   of  the   estate  which   came  to 

ested  in  the  estate  represented  by  the  the    hands    of    the    executor    and    the 

deceased   executor   ne<rlected    to   assert  amount    undisposed    of    at    his    death, 

their    right's,   and    allowed   the   admin-  (Matter   of  Ryalls,   74   Ilun,   205;    56 

istrator    to    distribute    the    assets, —  St.  Kep.  291.) 


§  923. 


Accou:n"tings. 


762 


of  the  adininistratiou  of  the  tirst  estate/*  By  that  amendineut, 
jurisdiction  was  granted  to  Surrogates'  Courts,  to  compel  an 
executor  or  administrator  of  a  deceased  executor,  administrator, 
trustee,  or  guardian  to  render  an  account  not  only  as  to  money 
and  property  of  the  first  estate  which  may  have  come  to  the  hands 
of  the  party  cited,  but  also  as  regards  all  such  money  and  prop- 
erty which  came  at  any  time  into  the  hands  of  the  deceased  rep- 
resentative or  guardian  ;*^^  but  the  jurisdiction  thus  granted  was 
limited  to  cases  of  compulsory  accounting,  and  did  not  enlarge 
the  jurisdiction  of  the  surrogate,  so  as  to  authorize  a  proceeding 
l)y  the  representative  of  a  deceased  representative  for  a  voluntary 
accounting  as  to  the  estate  of  the  first  decedent  generally/^  The 
only  accounting  which  could  be  had  as  to  assets  of  the  first  dece- 
dent was  in  a  compulsory  proceeding  instituted  by  a  creditor  of, 
or  person  interested  in,  the  estate  of  the  first  decedent,  or  a  suc- 
cessor or  survivor  of  the  representative  of  the  latter/^  By  amend- 
ments passed  in  1891  and  1901,  the  representative  of  a  deceased 
executor,  administrator,  guardian,  or  testamentary  trustee  "  may 
voluntarily  account  for  the  acts  and  doings  of  the  decedent  and 
for  the  trust  property  which  had  come  to  his  possession  or  into 
the  possession  of  the  decedent;"  and,  upon  his  petition,  the  suc- 
•cessor  of  such  decedent  and  all  persons  who  would  be  necessary 
parties  to  a  voluntary  accounting  by  the  latter,  "  shall  be  cited 
and  required  to  attend  such  settlement."  ^^ 


fio  The  accountincj  did  not  extend  to 
all  the  property  of  tlie  first  decedent, 
whicli  came  under  the  control  of  the 
deceased  executor,  etc..  or  to  funds  or 
property  received  by  deceased  and  ad- 
ministered or  appropriated  by  him. 
but  only  to  such  of  the  trust  property 
as  'had  come  into  the  possession  or 
control  of  the  accounting  partv.  (Le 
Count  V.  Le  Count,  1  Dem.  29  ■  S.  P., 
Maze  V.  Brown,  2  Dem.  217;  Scofield 
V.  Adriance,  id.  486.)  It  does  not  now 
extend  to  funds  taken  by  the  deceased 
execiitrix  and  widow  on  account  of 
her  interest  as  residuary  leo^atee. 
(Matter  of  Smith,  46  App.'Div.  .318.) 
The  legatee,  however,  cannot  obtain  a 
decree  directing  the  delivery  of  the 
property  to  himself,  but  only  to  a  per- 
son authorized  by  law  to  receive  it. 
in  order  properly  to  administer  the 
same ;  the  object  being  to  enable  any 
one  interested  to  compel  the  placing 
of  the  funds  in  official  custody. 
(Spencer  v.  Popham.  5  Redf.  42.5.) 
Sec  Mount  v.  Mount.  68  App.  Div. 
144;  Dakin  v.  Demming,  6  Paige,  95; 


Montross  v.  Wheeler,  4  Lans.  99 ; 
Walton  v.  Walton.  4  Abb.  Ct.  App. 
Dec.  512;  Murray  v.  Vanderpoel,  2 
Dem.  311.)  Prior  to  the  Code,  a  sur- 
rogate had  no  power  to  settle  the  ac- 
counts of  a  deceased  guardian  against 
his  administratrix,  n^r  to  order  a  pay- 
ment of  the  amount  found  due  on  sucli 
an  application.  ( Andrade  v.  Cohen, 
32  Hun,  225.) 

61  Matter  of  Fithian.  44  Hun.  457 ; 
aflfd..  114  X.  Y.  370:  Herbert  v.  Ste- 
venson. 3  Dem.  236:  Perkins  v.  Stim- 
niel.  114  X.  Y.  370:  Matter  of  Clark. 
119  id.  429:  Matter  of  Irvin,  68  App. 
Div.  158:   74  X.  Y.  Supp.  443. 

•iS  Crawford  v.  Crawford.  5  Dem.  37. 

63Bimne'l  v.  Ranney.  2  Dem.  327; 
Herbert  v.  Stevenson.  3  id.  236;  Mat- 
ter of  Butler.  1  Connolv.  58. 

•■■4  Co.  Civ.  Proc,  §  2606.  as  amended 
1891  and  1901.  The  amendment  of 
1901  also  provides  for  the  revival  of  a 
proceeding  for  an  accounting  in  the 
name  of  the  representative  or  succes- 
sor of  the  deceased  executor.  See 
§  921,  ante. 


763  Accountings.  §§  923a,  1)24. 

§  923a.  Superseded  executor,  administrator,  etc. —  Ihc  docrcc  of 
a  Surrogate's  Court,  revoking  letters  issued  by  an  executor  or 
administrator,  '"  may,  in  the  discretion  of  the  surrogate,  recjuire 
him  to  account  for  all  money  and  other  property  received  l)y  him; 
and  to  pay  and  deliver  over  all  money  and  other  property  in  his 
hands  into  the  Surrogate's  Court,  or  to  his  successor  in  oflEice,  or 
to  such  other  person  aK  is  authorized  by  law  to  receive  the  same; 
or  it  may  be  made  without  prejudice  to  an  action  or  special  pro- 
ceeding for  that  purpose,  then  pending,  or  thereafter  to  be 
brought."  *''"  It  is  further  provided,  that  where  letters  have  been 
revoked  by  a  decree  of  the  Surrogate's  Court,  that  court  has  the 
same  jurisdiction,  upon  the  petition  of  the  successor,  or  of  a  re- 
maining executor,  administrator,  or  trustee,  "  to  compel  the  per- 
son whose  letters  have  been  revoked,  to  account  for,  or  deliver 
over  money  or  other  property,  and  to  settle  his  account,  which  it 
would  have  upon  the  petition  of  a  creditor  or  person  interested 
in  the  estate,  if  the  term  of  otRce,  conferred  by  the  letters,  had 
expired  by  its  own  limitation."  ^^  If  the  decree  of  revocation 
does  not  contain  such  a  provision,  the  surrogate  cannot  compel 
him  to  account,  on  the  petition  of  a  creditor.^^  After  proceed- 
ings have  been  instituted  by  an  administrator,  for  a  final  account- 
ing, and  the  surrogate  has  acquired  jurisdiction  thereof,  the  revo- 
cation of  the  letters  of  administration  does  not  oust  the  surrogate 
of  jurisdiction,  or  ])rcvont  him  from  proceeding  to  a  final  decree.''** 

§  924.  Testamentary  trustees —  The  distinction  between  execu- 
tors, on  the  one  hand,  whcjse  duties  are  to  collect  the  property, 
to  pay  the  debts  and  general  legacies,  and  ascertain  the  residuum 
■either  for  distribution  or  for  the  constitution  of  a  trust  fund; 
■and,  on  the  other  hand,  testamentary  trustees,  v^'ho  nro  to  deal 
with  real  property  in  trust  or  administer  a  trust  fund,  has  already 

c-"'Co.  Civ.  Proc,  §  2003:  which  ex-  '!7  Brcslin  v.  Smyth.  3  Dcm.  •2.)1. 
tends  also  to  guardians.  See  S  444,  tJS  C'asoni  v.  Jerome,  o8  X.  Y.  31.5. 
ante.  But  this  section  does  not  an-  It  sccnifi  that,  in  such  case,  it  is 
thorize  a  direction  to  pay  a  lejiacy  proper,  and  may  be  necessary,  that  a 
under  the  earlier  will,  or  make  distri-  new  administrator  shou  d  he  ajjpoiiited 
hution  to  creditors  of  tlie  estate  dis-  to  represent  the  estate,  before  con- 
posed  of  by  it.  (Matter  of  Moelirinii,  tinning  the  procwdinjjs.  (lb.)  P.e- 
1.54  N.  Y.  423.)  fore   the    amendments,    the    proceedin<» 

f*  Co.  Civ.  Proc.  §  2G0o ;  which  ex-  given  in  the  case  of  a  su]HM-seded  ex- 
tends also  to  guardians.  See  Gerould  ecutor  or  administrator  was  construed 
V.  \Yilson,  SI  X.  Y.  573;  Sperb  v.  rather  strictly,  as  a  mere  discovery. 
IVIoCoun.  110  id.  fi05 ;  Matter  of  and  as  not  enabling  the  surrogate  to 
O'Prien.  45  Hun.  2R4.  The  bene-  compel  the  predecessor  to  deliver  and 
ficiaries  under  the  will  of  the  first  pay  the  assets  to  the  successor.  ( An- 
deccdent  are  not  necessary  parties  to  nett  v.  Kerr,  2  Robt.  55G ;  28  How.  Pr. 
the  proceedinir  bv  the  successor.  (Mat-  324.) 
ter  of  Bacon^  24  Week.  Dig.  194.) 


§  1)24.  Accountings.  764 

been  disciissed.'^^  The  rules  applicable  to  the  control  of  these 
two  classes  of  functionaries,  to  their  accouutiniis,  and  their  re- 
moval and  discharge,  are  somewhat  different;  and  the  difference 
may  exist,  although  they  are  the  same  persons,  vested,  it  may  be, 
with  both  functions  in  regard  to  the  same  estate  and  even  at  the 
same  time."^ 

Formerly,  Surrogates'  Courts  had  no  jurisdiction  to  compel 
testamentary  trustees,  as  distinguished  from  executors,  to  ac- 
count; and  the  rule  was  the  same  whether  they  held  as  trustees 
of  a  power,  or  held  the  title  in  trust.'^^  The  first  statute  of  this 
State  which  conferred  upon  these  courts  jurisdiction  over  testa- 
mentary trustees  was  the  Act  of  1850,^^  which  allowed  such  trus- 
tees to  account  before  the  surrogates.  From  that  time,  until  the 
enactment  of  the  Code,  the  power  of  the  Surrogates'  Courts,  in 
this  regard,  was  enlarged  by  various  supplementary  acts,  so  as 
to  permit  an  accounting  of  testamentary  trustees  in  the  same 
manner  and  by  the  same  procedure  as  in  the  case  of  executors 
and  administrators.^^  These  statutes  have  been  revised  and  sub- 
jected to  various  amendments  in  the  present  Code.  By  the 
amendment  of  1S85,  it  is  provided  that  "any  trustee  created  by 
any  last  will  and  testament,  or  appointed  by  any  competent  au- 
thority to  execute  any  trust  created  by  such  last  will  and  testa- 
ment, may  at  any  time  file  an  intermediate  account,  and  may  alsa 
annually  render  and  finally  judicially  settle  his  accounts  before 
the  surrogate  of  the  county  having  jurisdiction  of  the  estate  or 
trust,  in  the  manner  provided  by  law  for  the  final  judicial  settle- 
ment of  the  accounts  of  executors  and  a<lmini^^trators,  and  may 


<>9  See  §   319,  ante.     Where  an  exec-  as   trustee.      (Matter   of  Emerson.   59 

utor,  who  is  also  a  testamentary  trus-  Hun.  244 ;  36  St.  Rep.  30fl. ) 

tee,    has   made    no    separation   of   the  ''^>  See  Wood  v.  Bro-.m,  34  N.  Y.  337, 

fund  allotted  to  the  beneficiaries,  and  and  cases  cited;    Burt  v.   Burt.  41   id. 

has    opened    no    account    in    his    new  46 ;     Quackenboss    v.    Southwick,     id. 

capacity,   he  is  still   an  executor  and  117;  Matter  of  Anderson,  5  X.  Y.  Leg. 

liable  to  account  as  such.      (Matter  of  Obs.    302;     Matter    of    Grossman,    20 

Hood,   104  N,   Y.    103,)      A   residuary  How.  Pr.  350:   Matter  of  Bull,  31   id. 

bequest  to  an  executor  in  trust,  to  pay  78;     45     Barb.     337,       The     surrogate 

debts  and  then  to  pay  the  income  to  a  never  liad  power  to  settle  the  accounts 

lieneficiary    for    life,    was    followed   by  of   a   trustee   acting   under   a    deed   of 

a  bequest  of  the  whole  estate,  on  the  trust.     (Vulte  v,  Martin,  44  How.  Pr. 

death    of    the    beneficiary    for    life,    to  IS;    Brown's  Accounting,   16   Abb.   Pr. 

another  beneficiary  upon  reaching  the  [X.  S.]   457.) 

age    of   twenty-one   years,    the    income  "i  McSorley  A',   Leary.  4   Sandf.   Ch. 

to  be  for  her  i)enefit  until  that  time. —  414;    Wever  v.  Marvin,   14  Barb.   376. 

Held,  that  a  severance  of  the  fimctions  ~-  L.  1850,  c.  272. 

of  executor   and   trustee   was   contem-  73  See   2    R.    S.    04.    §    66:    L,    1866, 

(I'atod,  and  that  the  executor  was  en-  c  115.  §   1;   amending  L.   1850.  c.  272, 

titled    to   account  finally   as   executor.  S    1:    L,    1867,   c.    782.    §    1:    L.    1871, 

and  to  a  decree  transferring  the  estate  c  482,   §   1.     See  Glover  v.  Holley,  2 

from   himsielf   as   executor   to   himself  Bradf.   20 


765  Accor.xTiNcs.  §§  925,  020. 

for  that  purpose  obtain  and  serve  in  the  same  manner  the  neces- 
sary citations  requiring  all  persons  interested  to  attend  such  final 
settlement;  and  the  decree  of  the  surrogate  on  such  final  settle- 
ment may  be  appealed  from  in  the  manner  provided  for  an  ap- 
peal from  a  decree  of  a  Surrogate's  Court  on  the  final  settlement 
of  the  accoimts  of  an  e-xecutor  or  administrator,  and  the  like  ])ro- 
<5eedings  shall  be  had  on  such  appeal;  *  *  *  the  decree  of 
the  surrogate  on  such  final  annual  settlement  of  an  account  pro- 
vided for  in  this  section,  or  the  final  determination,  decree,  or 
judgment  of  the  appellate  tribunal  in  case  of  appeal,  shall  have 
the  same  force  and  effect  as  the  decree  or  judgment  of  any  other 
•court  of  competent  jurisdiction  on  the  final  settlement  of  such 
accounts,  and  of  the  matters  relating  to  such  trusts  which  shall 
have  been  embraced  in  such  accounts,  or  litigated  or  determined 
■on  such  settlement."  '■* 

§925.  Representative  of  a  deceased  trustee. —  Whatever  statu- 
tory jurisdiction  Surrogates'  Courts  may  have  of  a  trustee  ap- 
pointed by  ilie  Supreme  Court,  the  administration  of  the  trust  is 
primarily  under  the  control  of  the  latter  court,  and  it  does  not 
follow  that  because  the  former  court  may  call  upon  such  a  trus- 
tee, if  living,  for  an  accounting,  it  has  the  same  authority  to 
com])el  his  re])resentative  to  account.^''  Where,  however,  the 
trustee  derives  his  authority  from  a  will,  such  a  power  does  exist.'** 

i^  926.  Temporary  administrators. —  The  account  of  a  temporary 
administrator  may  be  judicially  settled  at  any  time,^^  and  on  the 
application  of  any  one  interested  in  the  estate.^^     On  the  revoca- 


"^  Co.  Civ.  Proc,  §  2802,  ?v,  amended  pay  the  income  to  testator's  dautjhter 

1885.     The  expression,  "  testamentary  for    life,    is    a    testamentary    trustee 

"trustee,"    as   used    in   the    Code,    "in-  within  Co.  Civ.  Proc.  §  2.')14,  suhd.  ti. 

■eludes    every    person,    except    an   exec-  sitpra.   and.   therefore,   he   may   he   re- 

ntor,   an   administrator   with   the   will  (luired   to   account    in   the   Sunojrate's 

annexed,  or  a  <;uardian,  who  is  dcsiji-  Court  for  the  proceeds  of  land  sold  by 

natcd  by  a  will,  or  by  any  competent  liim  and  to  distribute  the  same  as  ])ro- 

authority,  to   execute   a    trust   created  vided   by  sections   2.S02-2S11.   relatinaj 

by   a    will :    and    it    includes   such   an  to  accountings  by  testamentary  trus- 

*xecutor   or    administrator,    where    he  tees.      (Matter  of  Valentine.  2.'3  X.  Y. 

is  acting  in   the  execution  of  a   trust  Supp.  289.) 

■created  by  the  will,  which  is  separable  "5  ]\latter  of  Hazard,  ol   Ilun.  201: 

from  his  functions  as  executor  or  ad-  21    St.   Rep.    787    (substituted    trustee 

ministrator."      (Co.  Civ.  Proc.  §  2.)  14,  appointed    by   the   Supreme   Court), 

subd.   0.)      As  to  whether  a   surrogate  "ti  Co.  Civ.  Proc,  §  2()0() :   Matter  of 

has   power   to   require   a   testamentary  Kreischer.  .30  App.  Div.  .313;  ;il   X.  Y. 

trustee  to   render  to   life  beneficiaries  Supp.    802.     See   Matter  of   Steinway, 

qitnrtcr-yearhi     statements     of     their  .37  Misc.  704. 

dealings  with  the  estate,  see  Delafield  ""Co.  Civ.  Proc,  §  272G.  as  amended 

V.  Schuchardt.  2  Dem.  43.5.     An  exec-  1803. 

utor  who  is  directed  to  sell  testator's  "S  Matter    of    Gall,    X.    Y.    Law    J., 

Teal  estate,   invest   the   proceeds,   and  .Tan.  30.  1890. 


§§  0:^7-0!>0.  AccouivTiNGS.  766. 

tioii  (if  his  letters,  his  accounting  may  1)6  compelled  by  his  suc- 
cessor."'* lie  has  not  an  absolute  right  to  demand  a  judicial 
settlement  of  his  accounts  imtil  his  function  is  terminated  by  the 
appointment  of  a  permanent  representative,  who  may  be  brought 
in  as  a  jiarty  to  the  proceeding.^*' 

ij  927.  Administrators  with  the  will  annexed. —  An  administrator 
Avith  the  will  annexed  may  petition  for  a  judicial  settlement  of 
his  account  and  the  distribution  of  the  estate,  without  waiting 
the  expiration  of  a  year  from  date  of  his  letters,  as  he  is  not 
within  the  restriction  contained  in  the  section  authorizing  a  com- 
I)uLsory  proceeding.*^ 

SUBDIVISIOX  2. 

WHEN    SETTLEMENT    MAY    BE    COMPELLED. 

§  928.  Accounts  of  executors  and  administrators. — "  In  either  o£ 
the  following  cases,  the  Surrogate's  Court  may,  from  time  to 
time,  compel  a  judicial  settlement  of  the  account  of  an  executor 
or  administrator:  (1)  Where  one  year  has  expired  since  letters, 
were  issued  to  him.  (2)  Where  letters  issued  to  him  have  been 
revoked,  or,  for  any  other  reason,  his  powers  have  ceased.'^ 
(3)  Where  a  decree  for  the  disposition  of  real  property,  or  of  an 
interest  in  real  property,  for  the  payment  of  debts  or  funeral 
expenses,  has  been  made,  as  prescribed  in  the  Code,  and  the  prop- 
erty, or  a  part  thereof,  has  been  disposed  of  by  him,  pursuant 
to  the  decree.*^  (4)  Where  he  has  sold,  or  otherwise  disposed 
of,  any  of  the  decedent's  real  property,  or  devisable  interest  in 
real  property,  or  the  rents,  profits,  or  proceeds  thereof,  pursuant 
to  a  power  contained  in  the  decedent's  will,  where  one  year  has 
elapsed  since  letters  were  issued  to  him."  *^ 

§  929.  Testamentary  trustees. —  ''  In  either  of  the  following 
cases,  the  Surrogate's  Court  may,  from  time  to  time,  compel  a 
judicial  settlement  of  the  account  of  a  testamentary  trustee:  (1) 
Where  one  year  has  expired  since  the  will  Avas  admitted  to  pro- 
bate. (2)  Where  the  trustee  has  been  removed,  or,  for  any  other 
reason,  his  powers  have  ceased.  (3)  Where  the  trusts,  or  one  or 
more  distinct  and  separate  trusts,  created  by  the  terms  of  the  will. 


7J>Co.  Civ.  Prof'.,  §  2G05.     See  §422,  31    X.  Y.  Supp.   .588:    affd.,   146  X.  Y. 

ante.  257 :  Matter  of  Bradley,  2.5  Misc.  261 ; 

80  Bible   Society   v.   Oaklev.   4   Dem.  .54   X.   Y.    Supp.    .5.5.5;"  affd.,   42    App. 

450.                                                '  Div.  .301. 

SI  Matter  of  Biirlinpr.  5  Dem.  47.  s.3  Co.  Civ.  Proc,  §  2726,  as  amended 

82  Matter  of  Bolton.   S3   Hun.   250;  1893:   consolidating  former   §   2724. 
63  St.  Rep.  142:  as  Bolton  v.  Myers, 


767  Accou.xTixcis.  §§930,  !J:5U 

have  been  executed,  or  are  ready  to  be  executed;  so  that  tlir-  ])f'r- 
sons  beneficially  interested  are,  by  the  terms  of  the  will,  ur  by 
operation  of  law,  entitled  to  receive  any  money  or  other  personal 
property  from  the  trustee."  **■*  The  testamentary  trustee  himself 
may  voluntarily  petition  for  the  settlement  of  his  acco\int,  either 
(1)  "  where  one  year  has  expired  since  the  probate  of  the  will,  or 
when  the  trusts,  or  one  or  more  distinct  and  separate  trusts, 
created  by  the  will,  have  been,  or  are  ready  to  be,  fully  executed  ;"  **''' 
or  (2)  when  ho  desires  to  resign  and  obtain  his  discharge.*^ 

§  930.  Successive  accountings. — Representatives  are  not  to  be  re- 
quired to  account  a  second  time  in  respect  of  moneys  which  they 
have  duly  paid,  in  accordance  with  a  judgment  which  was  obliga- 
tory upon  them,  although  the  judgment  be  afterward  overruled 
or  reversed.*^  After  an  executor's  account  has  once  been  ju- 
dicially settled,  the  mere  fact  that,  since  the  entry  of  the  decree, 
assets  have  come  into  his  possession  for  which  the  decree  made  no 
provision  does  not,  of  itself,  afford  sufficient  ground  for  com- 
pelling another  accounting.  Considerations  of  economy  may  indi- 
cate the  propriety  of  the  postponement  of  another  settlement,  until 
it  can  embrace  the  results  of  a  completed  administration.^^  More- 
over, the  decree  on  the  preceding  accounting  is,  in  certain  par- 
ticulars, conclusive  on  all  the  parties  to  it,  until  set  aside. ^^ 

§  931.  Authority  of  surrogate  pending  accounting  in  Supreme 
Court —  The  fact  that  a  trustee  was  aj^pointed  by  the  Supreme 
Court  in  the  place  of  a  deceased  trustee  named  in  the  will,  and 
consequently  liable  to  account  in  that  court,  does  not  deprive  tlu^ 
Surrogate's  Court  of  jurisdiction  to  compel  him  to  account  to  it.'""' 
Therefore,  an  answer  to  a  petition  to  compel  an  accounting,  which, 
without  denying  the  petitioner's  claim  as  legatee,  sets  up  the 
pendency  of  an  action  commenced  by  the  truste(\  in  which  the  pe- 
titioner and  others  are  defendants,  to  settle  allegcnl  contlicting 
claims  upon  the  fund,  is  not  a  ground  for  refusing  an  oj-der  thar 
the  trustee  account  in  the  Surrogate's  Court  ;^^  but  whore  a  legatee 

84  Co.  Civ.  Proc.  §  2807.  Hun.  107;   30  N.  Y.  Supp.  054.     It  is 

85  Co.  Civ.  Proc,  §  2810.  no  answer  to  the  application  of  tlip 
8<i  Co.  Civ.  Proc,  §  2814.  successor  of  a  doceased  executor  to 
87  Shipman  v.  Fanshaw,   15  Abb.  N.    compel    the    accnuntinf:    of    tlie    repre- 

C.  288.  sentative  of  such   executor,  that   such 

88Wetmore  v.  Wet  more.  .'?  Dem.  414.  executor  had  a  chiim  a^rainst  his  own 

See  Close  v.  Shute.  4  id.  54().  testator's    estate   in    respect    to   which 

89  Matter  of  Soutter.  105  N.  Y.  607.  an  action   is  now  pendinjr.      (Stewart 

90  Matter  of  Pitcher.  4  L.  Bui.  32.  v.  O'Donnell.  2  Dem.  17.)  Compare 
See  Co.  Civ.  Proc.  §  2810.  Christv  v.  Libbv.  2  Daly.  418:   Lewis 

91  Matter  of  McCarter.  04  N.  Y.  v.  Mal'oney.  12  Hun.  207.  See  §  !10S. 
558.     Compare  Matter  of  Ayrault.  81  ante.      But   it   seems    that    it    is    im. 


f  932.  Accountings.  Y68 

or  distributee  lias  commenced  an  action  against  the  representative 
to  recover  the  amount  of  his  legacy  or  distributive  share,  the  Sur- 
rogate's Court,  though  having  the  power,  will  not  generally  enter- 
tain a  proceeding  for  the  same  purpose  and  for  an  accounting, 
pending  the  action.'"^"  The  pendency  of  an  equitable  suit,  by  a 
claimant,  for  his  own  benefit,  and  not  for  the  general  benefit  of 
all  entitled  to  share  in  the  distribution,  is  not  a  reason  for  sus- 
pending the  proceedings  for  an  accounting  before  the  surrogate. 
But  the  representative  should  not  be  unnecessarily  put  to  the  ex- 
pense and  trouble  of  a  double  accounting.  In  such  a  case,  it 
is  proper  for  him  to  apply,  in  the  equitable  suit,  for  a  full  and 
final  accounting  of  his  administration.  If  he  fails  to  do  so  within 
n  reasonable  time,  the  surrogate  may  properly  require  him  to  pro- 
ceed, notwithstanding  the  pendency  of  the  suit  in  equity.^^  Where, 
however,  a  creditor  has  obtained  a  decree  for  an  accounting,  in 
the  usual  form,  in  behalf  of  himself  and  all  others  who  may  come 
in,  the  surrogate  should  not  proceed,  at  the  instance  of  other  cred- 
itors, if  the  fact  of  the  pendency  of  the  suit  is  interposed  in  abate- 
ment. In  such  case,  the  court  of  equity  might  enjoin  such  other 
creditors  from  proceeding  before  the  surrogate,  and  compel  them 
to  come  in  under  the  decree  or  be  barred. °^ 

g  932.    Proceeding   barred  by  Statute   of   Limitations. —  As  the 

right  to  compel  an  accounting  accrues  on  the  expiration  of  one 
year  from  the  date  of  the  grant  of  letters,  such  right  is  barred 
after  the  lapse  of  six  years  from  the  time  of  such  expiration  — 

proper  for  testamentary  trustees  to  ment  of  the  Supreme  Court  upon  the 
begin  an  action  in  the  Supreme  Court  surrogate,  on  the  question  of  distribu- 
for  an  accounting,  pending  their  ac-  tion,  see  Matter  of  Ransier.  2G  Misc. 
counting  as  executors  in  the  Surro-  582 ;  57  N.  Y.  Supp.  650. 
gate's  Court.  Executors  who  are  93  Bloodgood  v.  Bruen,  2  Bradf.  8. 
charged  with  trust  duties  should,  94  Rogers  v.  King,  8  Paige,  210; 
when  finally  accounting  as  executors,  Bloodgood  v.  Bruen,  2  Bradf.  8.  Corn- 
include  all  their  proceedings  in  the  ad-  pare  Brower  v.  Bowers,  1  Abb.  Ct. 
ministration  of  the  estate,  in  whatever  App.  Dec.  214.  Where  executors 
capacity  they  have  assumed  to  act.  brought  an  action  against  surviving 
(Whitney  v.  Phoenix,  4  Redf.  180.)  partners  of  the  testator  to  close  up  the 
92  Lewis  V.  Maloney,  12  Hun,  207;  estate,  and  it  was  alleged  that  moneys 
Matter  of  Straut,  22  St.  Rep.  550 ;  were  withdrawn  from  the  firm  by  the 
Matter  of  De  Pierris,  79  Hun,  279;  testator  during  his  lifetime,  and  de- 
29  X.  Y.  Supp.  .360:  Matter  of  Mer-  fendants  interposed  a  counterclaim  for 
ritt,  35  App.  Div.  .3.37  :  54  N.  Y.  Supp.  the  moneys  thus  withdrawn  without 
955.  On  the  other  hand,  where  an  their  consent. —  Held,  that  defendants, 
executor's  accounts  have  already  been  ui>on  its  appearing  that  the  executors 
passed  by  the  surrogate,  a  party  can-  would  probably  make  a  distribution 
not  compel  the  rendition  of  a  new  ac-  of  the  assets  in  their  hands  before  the 
count  in  the  Supreme  Court  until  he  determination  of  the  suit,  might  have 
has  proved  that  he  is  entitled  to  it  by  an  injunction  to  restrain  them  from 
impeaching  the  one  alreadv  rendered,  so  doing.  (Mitchell  v.  Stewart,  3 
(Moffat  v.  MoflPat.  3  How.  "Pr.  [N.  S.]  Abb.  Pr.  [N.  S.]  250.) 
156.)     As  to  binding  effect  of  a  judg- 


TOD  AccouxTixGs.  §  932. 

that  is,  seven  years  from  the  grant  of  letters/"*''  /.  e.,  the  grant  of 
letters  to  the  representative  called  on  to  account.'""*  Jiut  this  period 
may  be  extended  by  some  act  or  admission  of  the  representative, 
e.  g.,  payment  on  account  of  the  petitioner's  debt  <»r  legacy."'  Tlie 
provision  of  section  1819,  that  for  the  purpose  of  computing  the 
time  within  which  an-  action  may  Ije  C(>mmenced  to  recover  the 
aiiKiunt  of  a  legacy  or  distributive  share,  the  cause  of  action  is 
deemed  to  accrue  when  the  representative's  account  is  judicially 
settled,  has  no  application  to  this  proceeding. ®®  The  time  when  the 
petitioner  first  had  knowledge  of  the  grant  of  letters,  has  no  ef- 
fect on  the  rnnnino-  of  the  statute.^^     A  surety  on   an   adminis- 


85  Clark   V.    Ford.    1    Abb.    Ct.    App.  that  upon  reversal  the  creditor  became 

Dee.    3')'.);     Thomson    v.    Thomson.     1  a  mere  holder  of  a  disputed  claim,  and 

Bradf.  24;   Matter  of  Miller,   15  Misc.  as   such  was  barred  by  the  lapse  of  time 

;?.56 ;    37   N.  Y.   Supp.    1129;   sub   nom.  and  the  motion  was  granted,  without 

^Matter    of   Elkins.    74    St.    Rep.    299;  prejudice  to  another  application  should 

jNIatter   of   Kirkpatriek,   9   Misc.   228;  he  again   recover   judgment.      An    e.x- 

30    X.   Y.    Supp.    283.      See   Matter   of  ccutrix     havin.ij     died     nearly      seven 

Van  Wert,  3  Alisc.  5(i3 ;  24  X.  Y.  Supp.  years  after  letters  were  issued  to  her, 

719;    Matter   of    Schlesinger.    30   App.  without  accountinur.  and  another  exec- 

l)iv.  77;   55  X.  Y.   Supp.  514:   Matter  utrix  havinjj- qualified. —  Held,  that  the 

of    Barnes,    25    Misc.    279;    55    X.    Y.  latter   could    not    l)e   compelled    to   ac- 

Supp.  430,  and  cases  infra.     The  ob-  covuit  until  one  year  had  elapsed  from 

jection  must  be  taken  by  answer  and  the    date    of    her    own    appointment, 

not  by  motion  to  dismiss.      (Matter  of  (Matter  of  Crowlev.  33  ^lisc.  (J24 :   (iS 

Jordan.   50   App.   Div.   244;    03   X.   Y.  X.  Y.  Supp.  939.)    'in  Matter  of  Limsi- 

Supp.  911.)      As  to  the  application  of  botham    (38  App.  Div.   007;    57   X.   Y. 

the   statute   to  an   accountinfj   for  the  Supp.   118),  the  Appellate  Division  of 

proceeds    of    land    sold    to    pay    debts,  the  Second  Department  held,  upon  the 

see   Mi'tter    of   Sargent,   42   A])p.    Div.  authoiity  of  Matter  of  IJoger-    i  15:5  X. 

301;   59  X.  Y'.   Supp.    105.  Y.  310)."  that  an  accounting  by  an  ad- 

96  In   Matter   of   Post    (30    St.    Rep.  ministratrix  is  barred  by  the  lapse  of 

217;  9  X.  Y.  Supp.  449),  a  proceeding  ten   years.      From   an   examination   of 

against    an    administrator     with     the  the    Rogers    case,    however,    it    would 

will  annexed,  who  had  received  assets  seem   not  to  be   an   authority   for  the 

within    six    years,    was    sustained,    al-  proposition    asserted    by    the    learned 

though    more    than    that    period    had  Appellate    Division.      But    see    Matter 

ela])sed  since  the  granting  cf  original  of  Smith.  00  App.  Div.  340:   72  X.  Y. 

letters    testamentary.       If    the    repre-  Supp.    10()2. 

sentative  has  paid  out  the  assets  in  9"  Matter  of  C"am|)l)ell.  21  Mise.  133: 
advance  of  the  final  settlement,  and  47  X.  Y.  Supp.  29. 
costs  he  incurred  in  a  suit  in  behalf  ••■'^Matter  of  Van  Dyke.  44  Hun, 
of  the  estate  in  which  he  failed,  the  394;  Matter  of  Duiiliaiii.  1  Connoly. 
Statute  of  Limitations  is  no  defense  323;  22  Abb.  X.  C.  47!l:  Matter  of 
to  a  call  upon  him  for  an  accounting  Clayton.  1  Connoly.  444  :  22  St.  Rep. 
for  the  claim.  (Matter  of  Mills.  37  880'.  Compare  Butler  v.  .Tohnson.  1 1 1 
St.  Rep.  700:  13  X.  Y.  Supp.  783.)  X.  Y.  204:  19  St.  Rep.  85:  :\iatter  of 
In  Matter  of  O'Brien  (33  Misc.  17;  Latz,  33  Hun.  018:  Matter  of  Hodg- 
67  X.  Y.  Supp.  1110).  a  judgment  man,  31  St.  Rep.  479;  10  X.  Y.  Supp. 
having  been  obtained  against  an  exec-  491.  And  see  §  782.  ante. 
utor  on  a  disputed  claim,  the  party  Oil  ;>ratter  of  Clayton.  1  Connoly. 
holding  the  judgment  was  allowed  to  444.  The  eases  of  Collins  v.  Waydell 
intervene  and  file  objections  to  the  ac-  (3  Dem.  30;  6  Civ.  Proc.  Rep.  85). 
count,  the  decree  on  the  accounting  and  Wood  v.  Rusco  (4  Redf.  380), 
being  vacated.  The  judgment  being  are  overruled  on  this  point.  See  Mat- 
reversed,  a  motion  was  made  to  vacate  ter  of  Van  Dyke.  44  Hun,  394;  Drake 
the  order  allowing  intervention. — Held,  v.  Wilkie,  30  id.  537. 

49 


§  933.  Accountings.  770 

trator's  bond  has  no  longer  time  to  compel  an  accounting  than  any 
other  party. ^  But  a  proceeding  by  the  successor  of  a  deceased 
representative  for  an  accounting  by  the  executor  or  administrator 
of  the  latter  is  not  concurrent  with  any  right  of  action  at  law,  and 
is,  therefore,  not  barred  until  ten  years  after  the  death  of  such  pre- 
decessor ;^  otherwise,  however,  where  such  proceeding  is  instituted 
by  legatees,  next  of  kin,  or  creditors." 

Independently  of  the  statute,  a  great  lapse  of  time,  e.  g.,  twenty- 
nine  years  since  the  issue  of  letters,  has  been  regarded  as  sufficient 
to  bar  the  right  of  a  creditor  to  demand  a  formal  account,  even 
where  the  applicant's  demand  has  not  been  barred  by  the  Statute 
of  Limitations.  But  in  such  case,  if  it  be  suggested  that  the 
executor  or  administrator  has  recently  received  assets,  he  may 
properly  be  compelled  to  submit  to  an  examination,  for  the  pur- 
pose of  establishing  the  right  to  an  account.^  But  in  the  absence 
of  any  such  suggestion,  the  surrogate  may  properly  presume,  after 
the  lapse  of  a  quarter  of  a  century  from  the  commencement  of 
administration,  that  full  administration  has  been  had,'  or  will  hold, 
at  least,  that  the  applicant  is  barred  by  his  own  acquiescence.^ 
Where  the  fund  is  a  direct  trust,  and  not  the  ordinary  case  of 
assets  of  the  estate,  the  rule  applies  that  no  lapse  of  time  is  a 
bar,^  so  long  as  there  is  no  open  repudiation  of  the  trust,  or  until 
the  determination  thereof.^ 

SUBDIYISIOy  3. 

AT    WHOSE    INSTANCE    SETTLEMENT    MAY    BE    COMPELLED. 

^  933.  Compulsory  settlement  of  account  of  executor,  etc. —  Ap- 
plication to  compel  a  judicial  settlement  of  the  account  of  an 

1  Matter  of  Perrv,  37  St.  Rep.  576;  Div.  440:  42  X.  Y.  Supp.  295;  Govin 
15  X.  Y.   Supp.  535.  V.  De  Miranda.  79  Hun,  329;  29  N.  Y. 

2  Matter  of  Rogers.  153  N.  Y.  316;  Supp.  347:  Matter  of  Martin,  27 
Matter  of  Latz.  33  Hun.  618;  Pitkin  Misc.  416;  59  N.  Y.  Supp.  374; 
V.  Wilcox.  12  N.  Y.  Supp.  322.  See  Matter  of  Post.  30  Misc.  551;  64 
Matter  of  Waite,  43  App.  Div.  296.  X.    Y.     369 ;     ISIount    r.     Mount,    35 

3]Vratter    of   Boylan.    25    ]Misc.    2S1  ;  Misc.     62.       For     an     application     of 

55  X.  Y.  Supp.  426 :  Matter  of  Barnes,  this  rule  to  executors,   see   ^Matter   of 

25  Misc.  279;    55   X.  Y.   Supp.   430.  Bevea.   10  Misc.    198;    31   X.  Y.  Supp. 

4Lerov   V.   Bayard,    3     Bradf.    229;  200;    Matter   of   .Jones.    51    App.    Div. 

Warren  V.  PafT,  4  id.   260.  420;     64    X.    Y.    Supp.    667.      As    to 

5  Thomson  v.  Thomson,  1  Bradf.  24,  ^lardians,  jMatter  of  Camp,   50  Hun, 

29;   Matter  of  Hood.  90  X.  Y.  512.  388;   s.  c,  on  another  appeal,   126  X. 

« Robinson     v.     Robinson,     5     Lans.  Y.    377.      See    Matter    of    Porter,    30 

168:   Stouvenel's  Estate.  1  Tuck.  241;  App.  Div.  213;   51  X.Y.  Supp.  G09. 

Merritt  v.  Merritt,  32  App.  Div.  442;  7  Matter  of  Irvin,  68  App.  Div.  158; 

53  X.  Y.  Supp.   127:   affd..  161  X.  Y.  74  X.  Y.  Supp.  443. 
634;    Cornwell    v.    Clement,    10    App. 


771  AccoL-NTiNGs,  §g  'j:j4,  lj:j5. 

executor  or  administrator,  incliuliiig  a  temporary  administrator, 
niay  be  made  "  by  a  creditor,  or  a  person  interested  in  the  estate 
or  fund,  including  a  child  born  after  the  making  of  a  will;  or 
by  any  person,  in  behalf  of  an  infant  so  interested ;  or  by  a  surety 
in  the  official  bond  of  the  person  required  to  account,  or  the  legal 
representative  of  such  a  surety."  ^  The  accounting  which  may  be 
called  for  by  a  creditor  or  other  party  in  interest,  after  the  ex- 
])iration  of  one  year,  is  a  matter  of  right,  which  the  surrogate  is 
bound  to  order,  on  the  single  fact  being  shown  that  the  applicant 
lias  a  demand  as  creditor,  legatee,  or  next  of  kin. '^    ' 

i^  934.  Testamentary  trustees. —  Application  to  compel  a  judicial 
settlement  of  the  account  of  a  testamentary  trustee  nuiy  be  made 
"  by  any  person  beneficially  interested  in  the  execution  of  any 
of  the  trusts;  or  by  any  person  in  behalf  (if  an  infant  so  bene- 
ficially interested  ;  or  by  a  surety  in  the  bond  of  the  testamentary 
trustee,  given  as  prescribed  "  in  the  Code,  or  by  the  legal  repre- 
sentative of  such  a  surety.-'*'  It  is  not  necessary  that  there  should 
he  a  party  entitled  to  present  payment ;  the  account  may  be  re- 
(juired  in  order  to  disclose  the  state  of  the  fund,  its  amount,  and 
the  securities  in  which  it  is  invested. -"^  Tlius,  a  rcniaindernum  is 
"  a  person  interested  in  the  estate,"  under  the  statute,  and  may 
demand  an  accounting  without  Avaiting  the  termination  of  the 
prior  estate.^"  It  is  not  necessary  that  the  petitioner's  legacy 
should  be  due  and  presently  payable.  One  who  is  entitled  to  a 
legacy  upon  the  death  of  another  person  has  such  an  interest  as 
entitles  him  to  demand  an  accounting  by  the  executor. ^'^ 

§  935.  Settlement  at  instance  of  co-executors,  etc. —  It  is  well 
settled,   that  one  executor  or  administrator  mav  institute   a   pro- 


8  Co.  Civ.  Proc.  §  2727,  as  amended  12  Campbell  v.  Purdy,  5  Redf.  4.34. 
1893;  consolidating  former  §  2726.  See  Matter  of  Watts.'  08  App.  Div. 
Var  the  difference  between  an  inter-  357;  74  N.  Y.  Supp.,  7.5.  Otherwise, 
mediate  accountintr  and  a  judicial  prior  to  the  Code.  (O'Connor  v.  Gar- 
settlement,  see  ]\Iatter  of  Fitiiian,  1  ripan,  17  Week.  Dip.  302.) 
Cnnnoly,   187:    and   §   i)13,  ante.  i^  :\Iatter    of    Wood,    5    Dem.     345. 

»  Matter  of  .Tones,  1  Redf.  203.    But  Wliere  a  fund  is  to  be  ])aid  to  legatees 

a  person  interested,  who  was  not  cited  when  they  attain  their  majority,  such 

on    an    accounting,    is    not    entitled   to  legatees   '  may.     upon     reaching     that 

proceed   dc   novo,   but  should   move  to  period,    compel    the    executors    to    ac- 

open   the  decree.      (^Matter  of  Killan,  count   before    the   surrogate,   although 

66    App.    Div.    312;     72    X.   Y.    Supp.  the    executors    may    have    had    their 

714.)  accounts    finally    settled    during    the 

10  Co.  Civ.  Proc.   §  2808.  luinoritv    of    the    legatees.       (Hood    v. 

11  Rogart  V.  Van  Velsor.  4  Edw.  Tfood.  1  Dem.  302;  27  ITun,  570.) 
718;  Valentine  v.  Valentine.  2  Barb.  See  s.  c,  90  X.  Y.  515.  and  Edwards 
Ch.  430;   .Matter   of  Lawrence.   10   St.  v.  Edwards,  1  Dem.  132. 

Jlep.  971;    15  Civ.  Proc.  Rep.  54. 


§  935.  AccouNTiis-GS.  772 

ceeding  to  compel  his  co-executor  or  co-administrator  to  account 
for  that  part  of  the  estate  in  his  hands  ;^*  and  especially  is  this  so, 
where  the  executors  are  also  trustees  under  the  will,  entitled  as 
such  to  the  residue  of  the  estate.^^  In  like  manner,  one  of  two  ex- 
ecutors may  compel  his  co-executor  to  account  as  executor  of 
another  estate  which  the  two  executors  are  entitled  to  receive  under 
the  will  of  their  testator.  It  is  true  that,  in  common-law  courts, 
one  co-executor  or  administrator  cannot  sue  his  colleague  for  a 
debt  due  from  the  latter  to  the  decedent ;  but  a  court  of  equity 
can  settle  the  question  arising;  in  such  cases,  and  make  such  dis- 
position of  the  fund  as  justice  and  equity  require.  And  there 
is  no  reason  why  that  cannot  be  done  in  this  proceeding  before  the 
surrogate,  as  well  as  by  a  suit  in  equity.  In  such  a  case,  the 
surrogate,  upon  a  final  settlement  of  the  account  of  the  executor 
Avho  is  thus  required  to  render  his  account,  may  declare  and  de- 
termine the  balance  in  the  executor's  hands  which  belongs  to 
the  estate  of  the  second  testator,  and  direct  him  to  apply  it,  in  the 
due  course  of  his  administration,  as  one  of  the  executors  of  the 
latter  estate.  Then,  whenever  afterward  called  to  account,  as 
one  of  the  executors  of  the  latter  estate,  the  decree  of  the  surrogate 
Avill  be  the  evidence  of  the  amount  due  from  him  to  such  latter 
estate,  in  his  character  of  executor  of  the  former  estate.^^ 


14  Woodruff  V.  Woodruff,  17  Abb.  decedent  was  in  the  partnership,  and 
Pr.  165;  Matter  of  Rumsey,  4.5  St.  that  it  was  unliquidated. —  Held,  that 
Rep.  453;  18  N".  Y.  Supp.  402;  Matter  the  surrogate  had  power  to  require 
of  Hodgman,  31  St.  Rep.  479;  10  N.  him  to  proceed  with  the  accounting, 
Y.  Supp.  491.  See  Matter  of  Archer,  and  produce  the  papers  and  books  of 
23  N.  Y.  Supp.  1041.  account  of  the   late  firm,  and  to  sub- 

15  Buchan  v.  Rintoul,  70  N.  Y.  1 ;  mit  to  such  examination  as  might  be 
Wood  V.  Brown,  34  id.  337 ;  Burt  v.  necessary  to  disclose  the  accounts  of 
Burt,  41  id.  46 ;  Mead  v.  Willoughby,  the  decedent  with  the  partnership. 
4  Dem.  364.  And  a  surviving  execu-  The  co-partner  and  co-executor  in  such 
tor  may  sue,  for  an  accounting,  the  case  may  be  required  by  the  surrogate 
executor  of  his  co-executor  (who  had  to  disclose  the  state  of  the  assets  by 
exclusive  control  of  the  estate),  alleg-  rendering  an  account.  (Woodruff  v. 
ing  defendant's  mismanagement  of  the  Woodruff,  17  Abb.  Pr.  105:  followed 
deceased  co-executor's  estate.  (Price  in  Matter  of  Stouvenel,  1  Tuck.  241.) 
V.  Brown,  60  How.  Pr.  511.)  A  re-  The  objection  that  he  might  not  have 
moved  executor  may  be  cited  by  his  the  jurisdiction  of  a  court  of  equity 
successor  to  account.  (Marrison  v.  to  settle  the  partnership  account,  and 
Clark,  87  N.  Y.  572;  Matter  of  Seitz,  wind  up  the  affairs  of  the  concern 
16  Misc.  522;  40  N.  Y.  Supp.  206.)  upon  the  executor's  application  for  a 
See   iinte,   §    923o.  final    settlement   of   the   account,   does 

16  Smith  v.  Lawrence,  11  Paige,  206.  not  affect  his  power  to  require  an  ac- 
So.  too.  where  the  executor  had  been  count  to  be  rendered  in  such  a  case, 
a  co-partner  with  the  decedent  in  a  See  Matter  of  Rumsey.  45  St.  Rep. 
mercantile  firm,  and  his  co-executrix  453;  18  N.  Y.  Supp.  402:  Matter  of 
petitioned  that  he  be  required  to  ac-  Hodgman,  31  St.  Rep.  479;  10  N.  Y. 
count,    and    accordingly    he    filed    an  Supp.  491. 

account,   stating  what  interest  of  the 


ACCOUNTIXGS. 


§§  ont;,  '.1:57 


§  936.  Who  is  "  a  person  interested." — "  The  expression,  "  per- 
son iuterested/  where  it  is  used  in  eounection  with  an  estate  or  a 
fund,  iiieliuU's  every  ])erson  entitled,  either  absolutely  or  c(jn- 
tingently,  to  share  in  the  estate  or  the  proceeds  thereof,  or  in  the 
fund,  as  husband  and  wife,  legatee,  next  of  kin,  heir,  devisee,  as- 
signee, grantee,  or  otherwise,  except  as  a  creditor."  ^'  The  repre- 
sentative's interest  in  the  estate,  to  the  extent  of  the  statutory 
commissions  he  may  l)ecome  entitled  to  receive,  does  not  make  him 
a  person  interested  within  the  meaning  of  the  statute  so  as  to 
entitle  a  receiver  of  his  property  to  compel  him  to  account,  for  the 
purpose  of  ascertaining  the  commission  earned,  and  reaching  the 
same  or  any  surplus  thereof.^^  Creditors  are  entitled  to  insti- 
tute the  ju-oceeding,  and  to  be  made  parties  to  a  voluntary  ac- 
counting;^'* but  the  creditor  must  be  a  creditor  of  the  decedent. 
Hence  one  claiming  to  be  a  creditor  upon  a  contract  made  with  the 
executor  ha?  no  stand ing.^^ 

g  937.  Legatees  and  distributees.— Legatees  and  distributees 
are  given  a  remedy  (besides  that  of  an  action)  by  a  special  pro- 
ceeding for  the  payment  of  their  legacy  or  distributive  share  ;"^ 
and  they  may  include,  in  one  proceeding,  an  application  for  the 
payment  of  the  legacy  or  share,  and  for  the  settlement  of  the  rep- 
resentative's account.'^  Such  a  legatee  or  distributee  may  make 
the  application,  notwithstanding  he  has  assigned  his  interest,  or 
executed  a  release  to  the  re])resentative,  on  an  allegation  that  the 


17  Co.  Civ.  Proc,  §  2514,  siibd.  11. 
See  eases  eited  a»1c.  §  98.  The  fuet 
that  the  app' leant  has  no  interest  in 
the  estate,  tlioiij^h  it  may  be  a  siiffi- 
eient  defense  to  tlie  proeeedin<T  before 
the  snrro<;ate,  is  not  f^round  for  grant- 
ing an  injunetion  in  a  court  of  equity, 
to  stay  tlie  proceedings  before  tlie  sur- 
rogate. (]5ecker  v.  Hager,  8  How.  Pr. 
68.) 

i^Worrnll  v.  Driggs,  1  Redf.  440. 
l?ut  wiien  the  husband  of  decedent  is 
aduiinistrator  of  her  estate,  a  receiver 
appointed  in  sup])lenientary  ])roceed- 
ings,  instituted  upon  a  judgment 
ngiinst  the  husband,  is  entitled  to  be 
eited  upon  the  administrator's  ac- 
eouTiting.  and  is  the  assignee  of  the 
administrator's  sliare  of  his  wife's  es- 
tate. (Matter  of  Cilligan,  1  Connolv. 
1:^7:  IS  St.  Pep.  812.)'  See  ^tatter  of 
Painev.  2(i  X.  Y.  Supp.  8*12.  Compare 
jMatter  of  Brown,  47   Hun.  300. 

l!>See  S§  !t().  <I7,  ante,  and  S  H.SS. 
post. 


20  Mead  v.  Willoughby.  4  Dem.  304 
(services  rendered  to  executor)  :  Mat- 
ter of  Sliarp.  5  id.  510  (goods  pur- 
cliased  by  executor,  in  continuation  of 
decedent's  business).  See  S  (il7.  mite. 
Matter  of  Flint.  15  Misc.  598;  38  N. 
Y.  Supp.  188  (claim  for  funeral  ex- 
penses). See  §  546,  aufe.  Compare 
Matter  of  Hiekey,  34  Misc.  360:  69 
X.  Y.  Supp.  844.  But  in  Close  v. 
Shute  (4  Dem.  546).  it  was  held,  that 
attorneys  for  a  ])]aintifl"  wlio  had  re- 
covered a  judgment  against  an  admin- 
istrator, have.  l)y  reason  of  their  Men 
u])on  sncli  judgment,  a  riglU  to  insti- 
tute a  i)roceeding  to  compel  a  judicial 
settlement  of  the  administrator's  ac- 
count. See  Matter  of  Shafer,  35  Misc. 
371:  71  N.  Y.  Supp.  1033.  Sec  ante, 
§  552. 

-1  See  a))tr.   §   781. 

22  Matter  of  Macaulay.  27  TTun.  577. 
Compare  Ashley  v.   Lamb.   50   id.   508. 


§§  938,  939. 


Accou^■Tl^■Gs. 


774 


assignment  or  release  was  void."^  A  legatee  of  the  residuary  es- 
tate is  a  party  in  interest.^'*  All  persons  who  are  entitled  to  share 
in  the  proceeds  of  the  testator's  real  estate,  sold  by  the  executor 
nnder  a  power  contained  in  the  will,  are  deemed  legatees  within 
the  statute,  because  the  proceeds  of  a  sale  so  ordered  are  regarded 
as  personal  estate,  being  deemed  in  equity  as  converted  from 
realty  by  the  direction  of  the  will.^^ 

§  938.  Assignees  of  creditor,  legatee,  or  next  of  kin —  As  the  sur- 
rogate has  ])()wer,  in  a  ])roceeding  for  a  judicial  settlement,  to 
direct  distribution  of  the  surplus  to  and  among  creditors,  legatees, 
next  of  kin,  etc.,  or  their  assirjus,  it  necessarily  follows  that  an 
accounting  may  be  ordered  at  tlie  instance  of  such  assigns,  in- 
eluding  a'receiver^^  or  trustee  in  bankruptcy,"'  of  a  legatee  or  next 
of  kin ;   provided    the   interest   of   the   assignor   was   assignable.^^ 

§  939.  Persons  entitled  to  next  eventual  estate. —  Where  the  ex- 
ecutor lias,  in  his  capacity  as  such,  received  accumulations  of  in- 


23  Matter  of  Jones,  7  L.  Bui.  91; 
Reilley  v.  Duffy,  4  Dem.  3G6 ;  Matter 
of  Read,  41  Hun,  95;  citing  Riggs  v. 
Cragg,  89  N.  Y.  490;  Lambert  v. 
Craft,  98  id.  347;  Fiester  v.  Shepard, 
92  id.  2.54;  Harris  v.  Ely,  25  id.  138; 
Clock  V.  Chadeagne,  10  Hun,  97.  The 
surrogate  has  jurif^diction  to  try  the 
question  of  the  validity  of  the  release. 
( lb. )  Attaching  creditors  of  a  dis- 
tributee are  not  proper  parties  to  an 
accounting  of  an  administrator  and 
cannot  contest  the  validity  of  an  as- 
signment of  the  distributee's  share. 
(Duncan  v.  Guest,  5  Redf.  440.) 

24  Matter  of  Prout,  52  Hun,    109. 

25  Stagg  V.  Jackson,   1  N.  Y.  200. 
23  Matter    of    Gilligan,     1     Connolv, 

137;  18  St.  Rep.  812;  Matter  of 
Stevens,  64  N.  Y.  Supp.  990;  Matter 
of  Beyea,  10  Misc.  198;  31  N.  Y.  Supp. 
200.  A  covenant  by  a  person  inter- 
ested, to  pay  attorneys  a  certain  share 
of  moneys  to  be  recovered  from  the 
estate,  in  return  for  their  services,  is 
not  an  assignment,  and  gives  the  at- 
torneys no  right  to  compel  an  account- 
ing by  the  representative.  (^Matter  of 
Shafer,  35  Misc.  371;  71  N.  Y.  Supp. 
1033.)  A  receiver  of  a  legatee  suffi- 
ciently alleges  his  authority  by  stat- 
ing he  was  appointed  receiver  in  a 
proceeding  specified,  without  reciting 
each  step  in  the  proceeding.  (Matter 
of  O'Connor.  47  St.  Rep.  415:  19  N. 
Y.  Supp.  971.)  If  a  valid  appointment 
is  denied,  however,  the  petitioner  must 


prove  it.  (lb.)  See  Matter  of  Sis- 
tare,  2  Connoly,  545. 

2T  Matter  of  Wood,  34  Misc.  209. 

28  L.  1896,  c.  547,  §83;  1  R.  S. 
730,  §  63,  provides  that  "  no  person 
beneficially  interested  in  a  trust  for 
the  receipt  of  the  rents  and  profits  of 
lands  can  assign  or  in  any  manner  dis- 
pose of  such  interest :  but  the  rights 
and  interest  of  every  person  for  whose 
benefit  a  trust  for  the  payment  of  a 
sum  in  gross  is  created  are  assign- 
able." See  Lent  v.  Howard,  89  N.  Y. 
181;  Tolles  v.  Wood,  16  Abb.  N.  C. 
19;  First  Nat.  Bank,  etc.  v.  Morti- 
mer, 28  Misc.  686;  Matter  of  Tomp- 
kins, id.  351.  In  Matter  of  Eisner 
(X.  Y.  Law  J.,  Apr.  22.  1891),  the 
surrogate  said:  "The  assignment 
made  to  the  petitioner  is,  if  valid, 
operative  only  as  to  such  interest  as 
the  assignor  has  in  the  estate  other 
than  his  beneficial  interest  in  the 
trust  created  for  his  benefit.  This  la 
inalienable,  and  the  assignee  could  ac- 
quire no  interest  in  it.  She  is.  there- 
foie,  not  entitled  to  any  accounting 
respecting  it.  The  principal  of  the 
trust  estate  in  which  the  assignor 
would  be  entitled  to  ^hare  in  case  he 
survive  the  expiration  of  the  trust  is 
held  by  the  respondents  as  trustees, 
and  they  have  not  been  cited  to  ac- 
count as  such.  They  are.  therefore, 
not  called  upon  to  account  in  this 
proceeding  for  such  principal."' 


775  AccouNTi.Nus.  §§M4(),  l>41. 

terest,  wliicli  arose  upon  a  provision  of  tlic  will,  void  by  tlie 
statute  against  perpetuities,  and  the  accumulations,  therefore, 
presumptively  belong  to  the  parties  entitled  to  the  next  eventual 
estate,  such  parties  may  compel  an  accounting  before  the  surro- 
gate. The  jurisdiction  of  the  surrogate  extends  to  the  accounting 
in  respect  to  such  a  fund,  for  the  principal  is  under  the  control  of 
the  executor  as  such,  and  the  authority  to  receive  the  interest  or 
income  may  be  deemed  valid,  although  the  direction  for  an  accu- 
mulation be  void."*' 

SUBDIVISION  4. 

THE    PETITION,    CITATION,    AND   ANSWER. 

§  940.  Petition  for  voluntary  judicial  settlement. —  Where  an 
acting  executor  or  administrator  makes  the  application,  as  to  his 
own  account,  in  a  case  other  than  where  lie  desires  a  revocation 
of  his  letters  and  a  discharge  from  the  trust,  it  must  be  by  "  a 
written  petition,  duly  verified,  praying  that  his  account  may  be 
judicially  settled ;  and  that  the  sureties  in  his  official  bond,  or  the 
legal  representatives  of  such  surety  and  all  creditors,  or  persons 
elaiming  to  be  creditors,  of  the  decedent,  except  such,  as  by  vouch- 
ers annexed  to  the  account  filed,  appear  to  have  been  paid,^*^  and 
the  decedent's  husband  or  wife,  next  of  kin,  and  legatees,  if  any ; 
or,  if  either  of  those  persons  has  died,  his  executor  or  adminis- 
trator, if  any,  may  be  cited  to  attend  the  settlement.  If  one  of 
two  or  more  co-executors  or  co-administrators  presents  a  petition 
for  a  judicial  settlement  of  his  se]iarate  account,  it  must  pray  that 
his  co-executors  or  co-administrators  may  also  be  cited."  ^^  The 
pendency  of  a  compulsory  proceeding  against  the  representative 
does  not  preclude  liim  from  ]U'esenting  such  petition.^" 

§  941.  Time  of  filing  petition. —  According  to  the  statute,  the 
jx'tition  may  be  filed  at  any  time  after  the  expiration  of  one  year 
since  letters  were  issued  to  the  petitioner,  or  where  notice  to  cred- 
itors has  been  duly  published. ^^  It  is  to  be  observed  that  the  stat- 
ut(>  in  terms  permits  tlu^  filing  of  an  account  where  notice  to  cred- 
itors has  been  published,  and  this  may  be,  and  often  is,  within  one 
year  from  the  e:rant  of  letters.     But  so  far  as  executors  are  con- 


29Eol)ison  V.   Rohison.  5  Lans.   16.').  32  Co.  Civ.  Proo..  §  2727.  as  amciuled 

30  It   is  hpftor  practice,  however,  to  IflOl. 

■cite  all  creditors,  wlicther  paid  jr  not.  3."?  This  provision  was  first  contained 

(Matter  of  De   Forest.   86   Hiin.   .'^OO:  in   L.    1S03.   e.   2r)2.   but   that   act   was 

.S.S  N.  Y.   Snpp.  210.)      See  Matter  of  superseded   by  L.    ISO:^.   c.   080.   which 

Rainforth.  .37  Misc.   000.  adopted  the  original  section.    The  sub- 

31  Co.  Civ.  Proc.  §   2728.  as   amended  stance  of  the  former  act  was,  however, 
1804:    conso!idatin,<T  former   §   2720.  embodied  in  L.   1804.  c.  421. 


§§  942,  04o.  Accou:s"nxGs.  776 

ccnicd,  liie  Legislature,  in  enacting  this  amendment,  seems  to  have 
overlooked  other  sections  of  the  Code  which  require,  or  at  least 
contemplate,  that  testate  estates  shall  remain  within  the  juris- 
diction of  the  surrogate  for  one  year.  Hence,  it  has  been  held  that 
the  second  subdivision  of  the  section  applies  only  to  adminis- 
trators, and  that  executors  are  not  entitled  to  a  judicial  settlement 
of  their  accounts  imtil  after  the  lapse  of  one  year.^"* 

g  942.  Petition  for  leave  to  account  on  resignation. —  Where  the 
applicant's  letters  have  been  revoked,  his  petition  must  also  be  in 
writing  and  duly  verified,  and  must  pray  "  that  his  account  be 
judicially  settled,  and  that  his  successor,  if  a  successor  has  been 
appointed,  and  the  other  persons  "  above  specified,  be  cited  to  at- 
tend the  settlement.  Upon  the  presentation  of  the  petition,  in 
either  of  such  cases,  the  surrogate  must  issue  a  citation  accord- 
ingly.^'' And  where  an  executor  or  administrator  desires  to  pro- 
cure a  revocation  of  his  letters  and  a  discharge  from  his  trust,  he 
may  apply  to  the  Surrogate's  Court  by  "  a  written  petition,  dulj 
verified,  praying  that  his  account  may  be  judicially  settled ;  that 
a  decree  may  thereupon  be  made,  revoking  his  letters,  and  dis- 
charging him  accordingly ;  and  that  the  same  persons  may  be  cited 
to  show  cause  why  such  a  decree  should  not  be  made,  who  must 
he  cited  upon  a  petition  for  a  judicial  settlement  of  his  account. 
*  *  *  The  petition  must  set  forth  the  facts  upon  which  the 
application  is  founded ;  and  it  must,  in  all  other  respects,  conform 
to  a  petition,  praying  for  a  judicial  settlement  of  the  account  of 
an  executor  or  administrator."  ^'^ 

§  943.  Petition  by  testamentary  trustee —  Where  the  testamen- 
tary trustee,  himself,  makes  the  application,  in  a  case  other  than 
that  of  his  intended  resignation,  it  must  be  by  "  a  petition,  duly 
verified,  setting  forth  the  facts,  and  praying  that  his  account  may 
be  judicially  settled ;  and  that  all  the  persons  who  are  entitled, 
absolutely  or  contingently,  by  the  terms  of  the  will,  or  by  opera- 
tion of  law,  to  share  in  the  fund,  or  in  the  proceeds  of  property 
held  by  the  petitioner,  as  a  part  of  his  trust,  may  be  cited  to  attend 
the  settlement.  Thereupon  the  surrogate  must  issue  a  citation 
accordingly.''  "^ 

34  Matter  of  Lansinjr.  37  Misc.  177;  36  Co.  Civ.  Proc,  §  2689.  See 
74  N.  Y.  Supp.  94.5:  Matter  of  Bron-    §§  442,  44.3,  ante. 

ner,  30  Misc.  31;  Matter  of  Lawson,  37  Co.  Civ.  Proc.,  §§  2810,  2814. 
36  id.  96.  Compare  Co.  Civ.  Proc,  For  proceedino:s  on  a  petition  for  leave- 
§  2743.  as  amended  1898.  to  resign,  see  §  451,  ante. 

35  Co.  Civ.  Proc.  §  2728.  as  amended 
1893;   consolidating  former   §   2732. 


777  Accou.\TiN(is.  §§  044-!)4«L 

§  944.  Petition  for  compulsory  accounting. —  An  application  by 
a  creditor  or  other  jx'rsdii  aliovc  mentioned,"'*^  to  c<»in])C'l  the  scttle- 
nicnt  of  an  executor's  or  atlministrator's  account,  must  be  made- 
by  a  j)etiti<jn  i)rayin<;-  for  the  judicial  settlement  of  the  account, 
and  that  the  executor  (tr  adnlini^itrator  be  cited  to  show  cause  why 
he  sliould  not  rt-nder  and  settle  the  sanie.'"^  Upon  the  presentation 
of  such  a  jx'tition,  a  citation  must  be  issued  accordiniily ;  except 
that,  whei-e  the  ground  of  the  application  is  that  one  year  has  ex- 
pired since  the  issue  of  letters,  if  the  petition  is  presented  within 
eiii'hteen  months  after  letters  Avere  issued  to  the  executor  or  ad- 
ministrator, the  surrogate  may  entertain  or  decline  to  entertain 
it,  in  his  discretion.'**'  The  petition  shou]<l  be  confined  to  the 
purpose  of  an  accounting;.  It  is  improper,  for  instance,  to  com- 
bine in  one  petition  a  prayer  (1)  to  vacate  a  decree  settling  the 
executor's  account;  (2)  to  revoke  the  executor's  letters;  (3)  to 
eoin]H'l  him  to  make  a  discovery,  and  (4)  to  compel  him  to  ac- 
count. These  remedies,  being  regulated  by  distinct  provisions 
of  the  Code,  should  be  separately  pursued. ^^ 

|:^  945.  Petition  and  citation  against  testamentary  trustee. —  An 

ap})lication  by  a  beneliciary,  or  other  person  above  mentioned,"*" 
to  compel  the  settlement  of  a  testamentary  trustee's  account,  must 
be  made  by  a  petition  ])raying  f<ir  the  judicial  settlement  of  the 
account,  and  that  the  testamentary  trustee  may  be  cited  to  show 
cause  why  he  should  not  render  and  settle  the  same.  ''  Fpon  the 
presentation  of  the  petition,  the  surrogate  must  issue  a  citation: 
accordingly,  unless  the  account  of  the  testamentary  trustee  has 
been  judicially  settled,  within  a  year  before  the  petition  is  pre- 
senteil ;  in  Avhich  case,  the  surrogate  may,  in  his  discretion,  enter- 
tain, or  decline  to  entertain,  the  petition."  "'^ 

§  946.  Requisites  and  object  of  petition. — The  petition  should 
]iro])ound  the  substance  of  the  ])etitioncr"s  claim,  and  the  nature 
and  grounds  thereof,  thus  enabling  the  executor  or  administrator 
to  object  that  the  allegations  are  insufficient  and  show  no  grounds 
for  proceeding  against  him,  or  take  issue  on  the  allegation,  or  put 
in  a  counter-allegation  in  the  nature  of  a  plea  in  abatement  or 


■^sSoo  §  0.33.  nnfr.  4f  Co.  Civ.  Proe..  §  •2727.  as  amended 

39  A  legatee  under  a  will  may  com-  1893:   consolidating  former   §   2726. 

pel  the  executor  to  accoimt  hut  therf^  41  Hood  v.   Hood,   1   Dem.   392.     See 

can    he    no    distrihution    of    the    fund  §  SS.  a)ife. 

unlil   all    the   parties   in   interest    have  42  See  §  033.  nntr. 

heen   cited   and   given   an   opnortunity  ■*:?  Co.  Civ.  Proc.,  §  2808. 

to   he   heard.      (flatter   of   Rainforth, 

37  Misc.  660.) 


g  'j-lT.  Accountings.  778 

bar/^  Under  the  former  statute,  wherein  the  present  clear  dis- 
tinction between  an  intermediate  accounting,  and  the  judicial 
settlement  of  an  account,  did  not  exist,  it  was  held  that  a  petition 
which  sought  anything  more  than  the  rendering  of  an  account 
ought,  properly,  to  specify  the  object,  so  as  to  include  the  settle- 
ment and  adjustment  of  the  account,  and  the  payment  of  the  debt, 
legacy,  or  distributiye  share  which  was  sought  for.^^  And  al- 
though a  prayer  for  general  relief  might  be  suthcient  for  this  pur- 
pose,^® yet  it  was  held  that  where  no  relief,  either  general  or  spe- 
-cific,  was  asked,  except  the  rendering  of  an  account,  the  jurisdic- 
tion of  the  surrogate  was  exhausted  when  that  prayer  had  been 
fully  complied  with  ;*"  the  prayer  for  relief  being  regarded  as  de- 
termining the  character  of  the  proceeding. ^^ 

§  947.  Allegation  of  interest. —  The  Code  contains  an  express 
2irovision  relating  to  the  sufficiency  of  an  allegation  of  interest  on 
the  part  of  '"  a  person  interested,"  but  the  like  subject,  in  respect 
to  a  creditor,  is  left  under  the  rule  established  by  the  decisions. 
Where  a  provision  of  the  eighteenth  chapter  of  the  Code  "  pre- 
scribes that  a  person  interested  may  object  to  an  appointment,  or 
may  apply  for  an  inventory,  an  account,  or  increased  security, 
an  allegation  of  his  interest,  duly  verified,  suffices,  although  his 
interest  is  disputed ;  unless  he  has  been  excluded  by  a  judginent, 
decree,  or  other  final  determination,  and  no  appeal  therefrom  is 
pending."  ^^  It  has  been  the  settled  practice  to  order  an  account, 
where  only  the  rendering  of  an  account  is  required,  notwithstand- 
ing the  interest  of  the  party  applying  be  denied,  provided  the  alle- 
gation of  interest  is  positive ;  that  is,  if  facts  are  stated  on  oath 
sufficient,  in  the  first  instance,  if  uncontroverted,  to  show  a  legal 
interest.^''  But  where,  though  an  interest  is  alleged,  the  papers 
show  on  their  face  that  the  petitioner  has  no  interest,  the  surro- 
gate is  not  bound  to  entertain  the  application.^^  Thus,  where,  in 
opposition  to  a  petition  for  an  accounting  and  payment,  the  repre- 
sentative set  up  that  the  petitioner  had  sold  and  assigned  his 
claim  to  a  third  person  named,  who  was  not  a  party  to  the  pro- 

44  Foster  v.   Wilbur,    1    Paipe.   .537;  49  Co.   Civ.   Proc.   §   2514.  i?nbd.   11. 

Crataocap   v.    Phyfe.    1    Barb.    Ch.   485.  In  Wever  v.  :Marvin    (14   Barb.   376), 

4.">  Wpstervelt  v.  Gregg.  1   Barb.  Ch.  a   petition  stating  that  the  petitioner 

460.  "  was  a  creditor  of  the  deceased,  and, 

4T  Wood  V.  BroAvn.  34  X.  Y.  337.  as    such,    has    claims    against    the    es- 

47  Westervelt      v.      Gregg,      supra  :  tate  "  was  held   sufficient. 

Smith  V.  Van  Kuren.  2  Barb.  Ch.  473.  50  Burwell   v.    Shaw,   2    Bradf.    322. 

4R  Clark   v.    Ford.    1    Abb.    Ct.    Aiip.  and  cases  ante,  §§  flS.  00.  and  036. 

Dec.  3.50.     And  see  Tucker  v.  McDer-  "l  ]\rnttpr    of    T)e    Pierris     70    Hun 

mott,  2  Redf.  314.  270;  29  N.  Y.  Supp.  360.  ' 


■779  Accou.NTiNus.  §§  048,  04'J. 

<?ecding,  the  surrogate  held  that,  as  he  could  not  determine  the 
right  of  the  assignee,  because  he  could  not  be  made  a  party,  unless 
cited  by  the  administrator  on  an  application  for  a  final  settlement 
of  the  account,  the  proper  course  was  to  order  the  accounts  to  be 
rendered,  as  the  applicant  was,  upon  his  own  petition,  prima  facie 
entitled  to  the  account,  and  might  need  the  rendering  of  the  ac- 
count, to  ascertain  whether  there  had  been  a  fair  settlement,  and 
whether  there  was  good  ground  for  an  attempt  to  set  aside  the 
alleged  assignment.^" 

§  948.  Representative's  answer  to  petition. —  By  way  of  answer 
to  a  petition  and  citation  for  a  compulsory  accounting,  the  repre- 
sentative may  interpose  a  plea  to  the  jurisdiction,  or  in  abate- 
ment, or  in  bar,  on  the  sufficiency  of  which  the  petitioner  is  en- 
titled to  be  heard  —  that  is,  he  may  reply,  by  way  of  demurrer 
to  the  sufficiency  of  the  answer,  or  he  may  set  up  new  matter  avoid- 
ing the  answer.  It  is  no  sufficient  answer  by  one  of  several  ex- 
ecutors to  say  that  the  others  have  not  been  served  with  the  order 
to  account;  those  served  can  account  for  what  they  have  received. 
And  he  cannot  claim  that  by  a  voluntary  settlement  with  legatees, 
made  out  of  court,  he  has  been  discharged  as  executor,  and  now 
holds  the  fund  only  as  a  trustee.^^  But  where  the  validity  and 
l)inding  force  of  such  a  settlement  is  not  called  in  question  by 
the  petitioner,  and  particular  securities  which  were  turned  over 
to  him  in  payment  of  his  legacy,  in  pursuance  of  such  settlement, 
continue  to  be  held  by  the  executor  as  the  legatee's  agent,  the 
■surrogate  has  no  jurisdiction  to  order  the  latter  to  account  as 
-executor. ^^ 

§  949.  Impeaching  petitioner's  interest. —  The  question  of  juris- 
-diction  not  infrequently  arises,  in  these  proceedings,  on  a  plea  that 
the  petitioner  has  released  his  interest  in  the  estate,  as  legatee, 
next  of  kin,  or  otherwise,  to  which  the  petitioner  replies  that  the 
alleged  release  is  void  for  the  reasons  set  forth.  Has  the  Surro- 
gate's Court  jurisdiction  to  try  and  determine  the  validity  of  such 
release?     It   is  obvious  that  the  determination  of  this   question 


52Bonfaiiti    v.    Dowuerro.    .3    Bradf.  holds  tho  property,  at  tlio  timo.  a^  a 

429.  trustee    under    the    will.       (Matter    of 

53  Bonfaiiti    v.    Deguerre.    .3    Bradf.  Hutchinson.  10  Week.  Dis:.  268.)      See 

431;    Matter    of    Stouvenel.  1     Tuck.  Adams  v.  Outhouse.  45  N.  Y.  .318.     As 

241:   Matter  of  Hood,  104  N.  Y.   103:  to  what  issues  the  surrogate  has  ;i/ri.s-- 

Matter  of  Shipman.  .53  Hun.  ."ill.     By  diction   to  try.  see  subd.   ti  of  this  ar- 

not   objectinj?   until    after   such    ohjec-  tide,   jyoxf. 

tions    iiave    l)een    filed,    he    loses    the        54  Woodruff  v.- Young.  31  Hun.  420. 
right  to  object  on  the  izi-ound  that  he 


§  949.  AccouNTixGS.  780 

is  absolutely  essential  to  enable  tlie  court  to  make  an  order  of  dis- 
tribution, as  to  which  its  jurisdiction  is  very  broad.  The  right 
of  a  particular  person  to  2)articipate  in  such  distribution  is  an  issue 
necessarily  incidental  to  a  determination  as  to  how  the  account 
should  be  made  and  stated,  and  to  whom  the  surplus  should  be 
paid.  Hence,  an  answer  setting  up  such  an  alleged  release  is 
not  a  ground  for  dismissing  the  petition  of  one  of  the  next  of 
kin.  He  has  a  right,  as  such,  to  demand  an  account  for  the  purpose 
of  ascertaining  the  condition  of  the  accounts  at  the  execution  of  the 
release,  alleged  to  be  invalid,  and  the  further  right,  upon  an 
accounting  being  had,  to  try  the  question  of  the  validity  of  the 
release,  as  a  necessary  incident  to  his  right  to  a  distributive  share.^^ 
So,  an  answer  which,  by  not  denying,  admits  the  validity  and 
legality  of  the  petitioner's  claim  to  interest  on  the  trust  fund,  but 
sets  up  affirmatively  that  petitioner  has  assigned  his  interest,, 
which  averment  the  petitioner  denies,  does  not  show  that  the  claim 
is  of  doubtful  validity  so  as  to  deprive  the  surrogate  of  jurisdic- 
tion to  order  an  account  filed.^^  The  fact  that  a  creditor's  claim 
is  disputed  is  no  ground  for  denying  his  application  for  a  com- 
pulsory accounting.^'  One  having  an  apparent  interest  in  an 
estate  may  maintain  the  proceeding,  notwithstanding  he  has  exe- 
cuted a  release  of  his  interest  in  the  estate,  where  there  is  a  sworn 
allegation  that  such  release  is  invalid.^^  It  is  not  necessary  that 
the  petitioner's  interest  be  established  by  full  proof;  if  the  petition 
is  properly  verified,  the  surrogate  may,  and  ordinarily  will,  re- 
quire the  account,  without  trying  the  issue  of  interest,  as  between 
the  representative  and  the  petitioner.^^ 

The  provision  of  the  Code  requiring  a  dismissal  of  the  petition 
for  the  payment  of  a  legacy  or  distributive  share,  upon  the  filing 
of  a  verified  answer,  raising  a  doubt  as  to  the  validity  of  peti- 


55  Matter   of   Read,   41    Hun.    95:    2  all     claims     except     the     petitioner's 

St.    Rep.    339;    followed    in   Matter   of  which  was  in  dispute. —  Held,  not  suf- 

Dunkel,  5  Dem.  188.     Compare  Matter  ficient  to  warrant  a  dismissal.      (Mat- 

of  Pruyn,  141  N.  Y.  ,544;   57   St.  Rep.  ter  of  Callahan,  66  Hun,   118;   49   St. 

824.      See    Duane    v.    Paige,    82    Hun,  Rep.   425.) 

1.3.9:    31   N.  Y.  Supp.   310.  58  Reilley  v.  Duffv.  4  Dem.  366:  s.  c. 

5 ;  Matter  of  :\IcCarter,  94  X.  Y'.  558.  as   :\Iatter*  of   Duffy,   3   How.   Pr.    (N. 

5"  Matter  of  Cowdrey,  5   Dem.  453;  S.)    240:   Fraenzinck  v.  Miller,  1  Dem. 

Schmidt  v.   Heusner.   4   id.   275:   over-  136;  Harris  v.  Ely,  25  N.  Y.  138:   Rie- 

ruling  Matter  of  George,  1  L.  Bui.  87.  ben  v.  Hicks,  4  Bradf.  136.     See  S  937, 

See  Matter  of  Zoischner.   15  St.   Rep.  nnie. 

744.       An    answer    that    the    executor  59  Thomson  v.  Thomson,  1  Bradf.  24. 

was    the    residuary    legatee:    that    he  See    Matter    of    Kipp,    17    ]Misc.    491; 

was  able  and   willing  to  pay  all   just  41  N.  Y.  Supp.  259;  afi'd.,  5  App.  Div. 

claims  due;   that  he.  had  in  fact  paid  625. 


781  Acc()rxTi.\<;s.  §  950. 

tioner's  claim,  applies  exclusively  to  proceedings  taken  under  that 

section,  and  has  no  application  to  a  procecdinir  for  a  conipulsm-y 
accrnintino'."^ 

;<  950.  Defense  of  prior  accounting. —  Any  ))lca  in  altatoniont  or 
in  l>ai",  which  would  he  hold  uood  in  jiii  action,  may  he  interposed 
by  the  representative  to  the  petition  and  citation  in  this  ])roceed- 
inu".  Thus,  it  is  a  ijood  answer  tliat  a  ])rior  iinal  accounting  ha.s 
hccn  had,  to  which  the  petitioner  was  a  ])arty,  as  tiic  decree  on 
the  ])rior  accounting  ])resuinptively  embraced  all  the  matters  as 
to  whi(di  tlie  r('i)resentative  was  liable  to  account.  If  it  did  not, 
or  if  new  facts  existed  rendei'ing  a  furl  her  account  ])ropei',  they 
should  have  been  averred  in  the  petition.*''^  The  court  has,  how- 
ever, under  its  general  powers  "  to  direct  and  control  and  settle 
the  accounts  of  executors,"  etc.,  discretionary  power  to  open  the 
account,  and  hear  objections  to  it,  on  the  representative's  appli- 
cation to  be  finally  discharged.*^'^  It  is  no  answer  to  a  petition 
for  an  accounting  to  set  up  a  counterclaim,  since  that  cannot  be 
tried  before  a  surrogate,'"''  or  that  the  petitioner  has  collateral 
«ecuritv  beloncina'  to  the  decedent,   from  the  sale  of  wdiicli  he 


fioWood    V.    Crooke,    5    Redf.    381;  ter  of  Wagner,  52  Hun,  23 ;  Matter  of 

Matter  of   Beam,   f)  L.   Bui.  48.      The  O'Brien.  45  id.  284 :  Matter  of  Soutter, 

itecount    beiuif    ordered,     the    question  105   N.   Y.   514.     The   reversal,  on  ap- 

of  the  jurisdiction  of  the  surrogate  to  peal,  of  a  prior  decree,  judgment  not 

try    and    determine,    upon    the    settle-  luiving  been   entered,   is  no  answer  to 

ment    of    tlie    account,    the    conflicting  an   application   for  a    final   accounting 

(•hiiiiis  of  the  petitioner  and  of  a  third  by   an    executor.      (Matter   of   Reeves, 

person,    under    an    assignment    of    the  37  St.  Rep.  95!);    14  N.  Y.  Supp.  454; 

petitioi)er's    interest,    is   another    mat-  affd..    it    seems,    without    opinion,    in 

ter,    to    which    allusion   will   be   made  128  N.  Y.  612.) 

liereafter.     See  §  !)(>S.  po.^t .  <;^Iii   Matter  of  Cornell    (137   X.   Y. 

•'1  Matter  of  Hood,  90  N.  Y.  512;  000),  an  administrator  petitioned  to 
Hyland  v.  Baxter.  98  id.  610.  Com-  be  discliarged  upon  filing  receipts 
pare  Kicben  v.  Hicks,  4  Bradf.  136.  showing  payments  made  pursuant  to 
Such  an  accounting  and  decree  do  not  the  surrogate's  decree  in  |)roceedings 
bar  a  proceeding  for  the  removal  of  for  a  final  accounting  then  pending, 
the  executor.  ( Matter  of  Hood,  98  and  that  objections  then  filed  should 
X.  Y.  363.)  It  is  a  good  answer  to  be  overruled.  The  next  of  kin  ap- 
an  application  to  comj^el  an  account-  peared.  insisted  upon  said  ol)jections, 
ing  l)y  a  siirviving  re|)resentative  that  and  made  further  olijections,  referring 
a  full  settlement  iiad  been  made  while  to  facts  alleged  which  occurred  since 
the  deceased  representative  was  alive  the  accounting,  sliowing  l)ad  faith  on 
-and  solvent,  which  settlement  had  the  part  of  the  administrator  on  the 
been,  for  many  years,  acquiesced  in,  accounting.  Held,  it  was  within  tlie 
and  that  by  a  stipulation  in  writing  discretion  of  the  surrogate  to  deny 
then  made  between  the  jiarties,  an  or-  the  motion,  permit  the  filing  of  an 
der  was  to  be  entered  approving  the  answer  by  the  next  of  kin.  and  direct 
account,  though  such  order  was  never  a  hearing  thereon  and  tliat  the  exer- 
■entered.  The  fact  that  the  account  cise  of  this  discretion  was  not  review- 
was  not  approved  and  passed  by  the  able  in  the  Court  of  Api)eals. 
surrogate  is  not  material.  (Brnndage  '^"^  Matter  of  O'Connor,  47  St.  Rep. 
V.  Rust,  21  St.  Rep,  900.)    S.  P.,  Mat-  415;  19  N.  Y.  Supp.  971. 


§951. 


Accountings. 


T82 


had  realized  money  for  which  he  had  not  accounted,  but  which 
wa?  applrcahle  To  the  petitioner's  claim. ^ 

§  951.  Statute  of  Limitations. —  In  addition  to  the  plea  that  the- 
proceeding  is  barred,  as  being  commenced  after  the  expiration 
of  seven  years  from  the  grant  of  letters,''^  the  outlawry  of  the 
claim  upon  which  the  petition  is  based  is  a  good  answer  to  it^ 
where  the  fact  appears  on  the  face  of  the  papers.  If  it  does  not 
so  appear,  the  surrogate  will  not  determine  this  issue  upon  the 
petition  and  answer  alone,  as  the  petitioner  has  the  right  to  offer 
evidence  to  avoid  the  defense  of  the  statute.^*'  To  be  made  avail- 
able, the  statute  should  be  pleaded.*^"  Tlie  plea  of  the  statuto 
may  be  interposed  at  any  stage  of  the  proceeding,  e.  g.,  by  the 
answer  of  the  accounting  representative  made  to  objections  of  :i 
creditor  filed  to  the  account.*'**  It  may  be  interposed,  as  well  by 
a  legatee  or  next  of  kin,  as  by  the  representative;  and  (^^ath  the 
qualification  hereafter  explained)  as  well  against  a  claim  pre- 
sented by  the  representative,  in  his  own  favor,  as  against  a  claim 
by  a  creditor,  legatee,  or  distributee.^^  And  the  same  limitation: 
which  would  apply  to  the  claim  in  an  action  of  law  is,  by  analogy^ 
applicaljle  to  the  proceedings  in  the  Surrogate's  Court. ^'^ 


c-t  :\Iatter  of  Lvman.  60  Hun,  82 ; 
37  St.  Rep.  928;  "affd.,  128  X.  Y.  614. 

'^  See  §  932,  ante. 

e6:Matter  of  Uriderhill.  1  Connolv, 
.541;  9  N.  ,Y.  Supp.  455:  affd.,  32  St. 
Rep.   1061. 

CT  Matter  of  Read,  41  Hun.  95.  See 
Matter  rf  Xichnlls.  23  Abb.  X.  C. 
479 :  Matter  of  Jordan.  50  App.  Div. 
244:  63  X.  Y.  Supp.  911. 

^-s  Where  the  representative  accounts 
more  than  six  years  after  the  issue 
of  letters,  he  cannot  invoke  the  stat- 
ute against  objections  to  the  account. 
(Matter  of  Lyth.  32  Misc.  608:  67  X. 
Y.  Supp.  579.)  In  ^Matter  of  Clavton 
(1  Connoly.  444:  22  St.  Rep.  886). 
the  administrator  filed  a  voluntary 
account  admitting  the  receipt  of  the 
proceeds  of  a  certain  mortgage,  but 
alleged  that  it  was  done  only  nomi- 
nally as  administrator,  for  the  y)ur- 
pose  of  being  able  to  satisfy  the  mort- 
gage, to  oblige  the  mortgagor:  alleg- 
ing that  the  mortgage  was  tlie  indi- 
vidual property  of  the  administrator, 
and  denying  that  the  same  was  an 
asset  of  the  estate, —  Held,  that  by 
this  accounting  the  protection  of  the 
Statute  of  Limitations  was  not  waived. 

f  9  Martin  v.  Gage.  9  X.  Y.  398; 
Clark  V.   Ford.    1   Abb.   Ct.  App.   Dec. 


359;  Warren  v.  Paff,  4  Bradf.  260  j 
Treat  a*.  Fortune.  2  id.  116;  Broome  v^ 
Van  Hook,   1   Redf.  444. 

70  Clark  v.  Ford,  I  Abb.  Ct.  App. 
Dec.  359.  The  statute  begins  to  run 
against  legatees,  whose  bequests  are- 
made  payable  out  of  the  proceeds  of 
real  estate  directed  to  be  sold  by  the 
executors,  from  the  time  the  executors 
execute  the  power.  ( Warren  v.  PaflF, 
4  Bradf.  260.)  Lands  vested  in  the 
deceased  debtor  are  assets  at  the  time 
of  his  death,  and  as  to  them  the  stat- 
ute begins  to  run  from  the  time  the 
compulsory  remedy,  aflorded  by  the 
statute  for  their  sale,  can  be  invoked, 
that  is.  [twelve]  months  after  the 
grant  of  letters,  or  when  an  account 
of  the  personal  estate  has  been  ren- 
dered, (lb.)  But  a  decree  against 
executors  or  administrators  in  a  court 
of  this  State  and  of  general  jurisdic- 
tion cannot  be  questioned  before  the 
surrogate,  in  a  proceeding  relating  to 
the  personal  estate.  If  the  Statute  of 
Limitations  was  a  good  bar  to  the 
claim  in  that  court,  it  should  have 
been  interposed  there.  A  judgment 
establishes  a  valid  debt,  entitled  to  be 
paid  in  due  course  of  administration^ 
if  there  are  assets  wherewith  to  pay- 
it.      (Leroy  v.  Bayard.  3  Bradf.  228.) 


783  AccouNTiXGs.  §§  052,  053. 

§  952.  Denial  of  assets. — It  is  a  good  answer  to  an  application 
to  couipel  tlie  survivor  of  two  executors  or  administrators  to  ac- 
count that  he  never  received  any  of  the  assets,  the  same  having- 
been  exclusively  managed  and  controlled  by  the  deceased  co-repre- 
sentative, the  survivor  not  having  been  guilty  of  negligence  or 
bad  faith  ;^^  although  a  mere  denial  by  the  representative  that 
any  property  has  come  into  his  possession  or  under  his  control, 
does  not  terminate  the  proceeding;  for  the  applicant  may  still 
examine  the  representative  nnder  oath.'^  An  answer  denying 
the  representative's  knowledge  or  possession  of  any  assets  of  the 
decedent  may  be  treated  as  if  it  were  an  account  filed,  which  the 
jietitioner  may  object  to,  and  falsify  in  the  same  manner.^^ 

§  953.  When  order  to  account  is  discretionary. —  If  the  petition 
is  based  on  the  fact  of  the  lapse  of  one  year  since  the  issue  of 
letters,  and  is  presented  '^  within  eighteen  months  after  letters 
were  issued,"  in  such  case  "  the  surrogate  may  entertain,  or  de- 
cline to  entertain,  it,  in  his  discretion."  '^  The  real  question  for 
him  to  consider  is  whether  it  is  for  the  best  interest  of  the  estate, 
and  practicable,  for  the  representative  to  render  his  account.'* 
Such  a  discretionary  order  is  not  subject  to  review  in  the  Court 
of  Appeals;'*'  and  an  order,  though  not  discretionary,  that  the 
representative  make  and  tile  an  account  is  not  appealable  to  that 
court,  it  not  being  a  final  order  within  the  meaning  of  section' 
100."^^ 

71  Bnmdage  v.  Rust,  21  St.  Rep.  by  way  of  an  answer  to  a  petition  for 
000;  s.  c.  as  Matter  of  Rust,  23  Abb.  a  compulsory  a('C'ountin<i:.  that  one  -M. 
N.  C.  78.  .  liad  an  action  i)en(lin<f  in  tlie  Supreme 

72  Co.  Civ.  Proe.,  §  2729,  as  amended  Court  aj^ainst  decedent  to  recover 
189.'5;    consolidating  former   §   273.5.         .$10,000,     and     that     there    were     also 

7:5  Matter    of   Allen,    N.    Y.    Law   .T.,  pending    certain    actions    to    foreclose 

June  30,    1892.     In  Matter  of  Palmer  mechanics'      liens.        The     application 

(3    ])em.    129),   no   inventory   of  dece-  was    granted,    the    surrogate    saying: 

denfs  property  having  been  made  or  "  Neither  the  details  of  the  litigations, 

filed,  and  no   proceedings  having  been  nor    the    reason    why    their    pendency 

taken  to  compel  the  return  of  an  in-  makes  it  impracticable  for  tlie  execu- 

ventory,  certain  creditors  cited  the  ex-  tors  to  render  an  account,  are  stated, 

ccutors  to  account,  with  a  view  to  the  While  it  is  possible  that   this  may  lie 

payment   of    their    claims;    wliereupon  a  proj)er  case  for  denying  tlie  ap])lica- 

tlic  latter  filed  a  duly  verified  account  tion,    the    general    allegations    of    the 

showing  that  no  property  of  decedenfs  answer   would  not  justify  its  denial." 

estate    had    come    into    their    hands.  See   Matter   of  ^lerritt.   3.5  App.   Div. 

Held,  that  the  burden  was  cast  upon  337  ;   54  N.  Y.   Supp.   955 ;    Matter  of 

the  creditors   of  proving  that  the  ex-  Withers,  23  App.  Div.  404;    48  N.   Y. 

ecutors    were    chargeable    with    assets.  Supp.    109. 

74  Co.  Civ.  Proc,  S  2727.  70  Matter  of  Cornell,  137  N.  Y.  600. 

75  In  Matter  of  Rabb  (N.  Y.  Law  J.,  77  Matter  of  Callahan,  139  N.  Y.  51. 
Nov.   25,    1891),  the   executor  set  up, 


f  §  954,  955.  Accountings.  ^84 

SUBDIVISION  5. 

FILING    ACCOUNT    AND    OBJECTIONS     THERETO. 

§954.  Compulsory  proceeding;  order  to  account. —  If,  on  the  re- 
turn of  a  citation,  issued  against  an  execntor  or  administrator,  to 
show  cause  why  he  should  not  account,  he  fails  either  to  appear 
or  to  show  good  cause  to  the  contrary,  or  to  present,  in  a  proper 
case, —  i.  e.,  if  a  year  has  elapsed  since  his  letters  were  issued, — 
his  o^^'n  petition  for  a  judicial  settlement  of  his  account,  "  an 
■order  must  be  made,  directing  him  to  account  within  such  a 
time,  and  in  such  a  manner,  as  the  surrogate  prescribes,  and  to 
attend,  from  time  to  time,  before  the  surrogate,  for  that  pur- 
pose." He  is  ''  bound  bv  such  an  order,  A\'ithout  seryice  thereof;"* 
and  if  he  disobeys  it,  the  surrogate  may  issue  a  warrant  of  at- 
tachment against  him,  and  his  letters  may  be  reyoked,  as  where 
a  warrant  of  attachment  is  issued  to  compel  the  return  of  an 
inyentory."  '''* 

^  955.   Consolidating    compulsory    and    voluntary    proceedings. — 

Upon  the  return  of  a  citation  issued  against  a  personal  repre- 
sentatiye.  or  trustee,  to  compel  either  an  intermediate  account, 
or  a 'judicial  settlement  of  account,  the  representatiye  may  as- 
sume the  initiatiye  l)y  himself  presenting  a  petition  asking  for 
a  judicial  settlement  of  his  account.  If  such  petition  is  pre- 
sented at  or  l)efore  the  return  of  the  citation'^'^  in  the  ]n*oceed- 
ings  pending  against  him,  the  citation  issued  thereon  need  not  be 
directed  to  petitioner  in  that  proceeding,  and  the  two  proceed- 
ings must  be  consolidated.  The  surrogate  may,  in  his  discretion, 
and  on  such  terms  as  may  be  just,  direct  the  consolidation  of  any 
two  or  more  of  such  proceedings  pending  before  him,  and  such 


78  Only,  however,  where  the  citation  tempt,  but  may  be  personally  charged 
has  been  served  upon  him  personally,  with  the  costs  of  the  proceeding, 
or  where  it  is  proved  that  the  copy  (Matter  of  Wenning,  N.  Y.  Law  J., 
left  at  his  residence  has  come  to  his  March  25,  1890.)  A  nonresident  exec- 
actual  knowledge.  (flatter  of  Wil-  utrix,  of  a  deceased  executor,  who  has 
Hams,  3  L.  Bui.  96.)  been    ordered,    but    has    neglected,    to 

79  Co.  Civ.  Proc.  §  2727.  as  amended  render  an  account  of  his  proceedings 
1893.  This  section  is  made  applicable  as  executor,  will  not  be  granted  any 
to  testamentary  trustees  by  section  relief,  for  until  she  obeys  its  order, 
2809.  For  proceeding  to  compel  a  re-  she  is  not  in  a  position  to  ask  favors 
turn  of  an  inventory,  see  §  500.  ante:  of  the  court.  (Matter  of  Wade,  38 
for  proceedings  to  enforce  orders  gen-  Misc.    154.) 

erally,  see  c.  XXI,  post.     If  the  repre-  so  The   consolidation   may   be    made 

sentative,   after   failing   to   file  an   ac-  upon    the    return    of    the    citation    in 

count  on  the  day   fixed  by  the  order,  the  voluntary  proceeding.      (Matter  of 

comes   in   afterward  and   files  one,   he  IMuIry,   31   Misc.    78;    G4   X.   Y.    iSupp. 

will  not   be   committed  as  for   a  con-  576.) 


'785  AccouxTiNGS.  §  950. 

consolidation  docs  not  affect  any  power  of  the  surrop^atc,  which 
might  bo  exercised  in  either  proceeding,"  *^  But  a  proceeding,  in- 
stituted for  the  payment  of  a  debt  or  legacy,  cannot  be  met  by  a 
counter-petition^^  of  the  representative  for  a  judicial  settlement 
of  his  account.  To  make  such  a  counter-petition  effectual  as 
the  basis  of  a  judicial  settlement  or  for  any  other  purpose,  a 
citation  must  be  issued  on  it,  directed  to  and  served  on  the  neces- 
sary parties.  It  need  not,  however,  be  directed  to  the  petitioner 
in  the  compulsory  proceeding  pending  against  the  representative.^ 
The  petitioner  in  the  compulsory  proceeding  becomes  a  party 
to  the  judicial  settlement,  and  gives  him  the  right  to  appear  and 
contest  the  account,  without  any  new  evidence  of  interest,  al- 
though, of  course,  the  demand  on  which  he  claims  an  interest 
must  he  established  or  admitted  on  the  accounting,  before  he 
can  have  a  decree  for  its  payment.^'* 

In  case  the  party  cited  files  an  account  as  required,  but  does 
not  take  steps  to  initiate  a  proceeding  for  a  volitntary  account- 
ing, the  account  as  filed  may  be  judicially  settled  in  the  com- 
])ulsory  proceeding,  all  the  parties  in  interest  being  first  brought 
in.  The  statute  provides  that  if  it  appears  (on  the  return  of  the 
citation  issued  in  the  compulsory  proceedings^)  that  there  is  a 
surplus,  distributable  to  creditors  or  persons  interested,  the  .sur- 
rogate may,  at  any  time,  issue  a  supplemental  citation,  directed 
to  the  persons  who  must  be  cited,  upon  a  petition  for  a  voluntary 
judicial  settlement,  and  requiring  them  to  attend  the  account- 
ing.'^'' lentil  the  return  of  such  supplemental  citation,  no  dis- 
tribution can  be  decreed.®^ 

g  956.  Consolidation  of  proceedings  by  and  against  representa- 
tives of  deceased  representative. —  Prior  to  1901  the  course  of  pro- 
(•(•(bn-c  just  dc^ci'ibcd  was  not  intended  for  the  case  of  a  pro- 
ceeding for  a  conq)ulsory  accounting  against  n  representative  of 
a  deceased  representative,  trustee  or  giiardian,  brought  under 
section  2000;  such  a  proceeding  not  being  susceptil)le  of  consoli- 
dation by  the  filing  of  a  count('r-])ctition  for  a  judicial  settle- 
ment.^^     But  by  an  amendment  in  that  year,  it  was  provided  that 

SI  Co.  Civ.  Pioc,  §  2727.  as  amended  S5  Schlefrel  v.  Winckel,  2  Deni.  2.^2. 
1001    (former  SS  272().  2727.  2728).  ««  Co.  Civ.  Proc.  §  2727.  as  amended 

«2  Crawford  v.  Crawford,  5  Dem.  37.  180.3. 

S3  Co.  Civ.  Proc.,  §  2727,  as  amended        st  flatter    of    Hector,    X.    Y.    Surr. 

1901    (former  §  2728).  Decis.    1888.   p.    .357:    Matter   of    Her- 

84  A   formal    order   need   not  be  en-  rinj?.  X.  Y.  Law  .1..  April   l.i,  1893. 
tered   granting   to   a    creditor    an   ac-        ss  Matter  of  Chuck.  X.  Y.  Law  .L, 

I'ountinjT  hy  an   executor,  wlicre   lie  files  Dec.    19.    1890.      See    Matter    of   Sliip- 

iiis  account  in  response  to  the  citation,  man.  82  Hun.  108:  31  X.  Y.  Supp.  571. 
(Schlegel  v.  Winckel.  2  Dem.  232.) 


b 


0 


§§  957,  D58.  AccouxXTiNGs.  786 

the  Surrogate's  Court  may,  at  any  time,  on  its  own  motion,  or  on 
the  motion  of  any  party  to  any  one  of  two  or  more  proceedings 
for  an  accounting  by,  or  against,  a  representative  of  a  deceased 
rp])resentative,*^^  consolidate  said  proceeding;  but  without  preju- 
dice to  the  power  of  the  court  to  make  any  subsequent  order  in 
either  of  them. 

^957.  Voluntary  proceeding;  parties  to  be  cited. —  After  what 
has  been  said  in  a  previous  chapter  on  the  subject  of  parties  in 
^'ijjccial  proceedings  in  Surrogates'  Courts,  it  is  only  necessary  to 
add  here  that  certain  persons,  though  not  necessary,  are  yet 
proper,  parties  to  a  proceeding  for  a  voluntary  accounting,  such 
as  the  assigTiee  of  a  legatee,  or  of  a  distributee,  or  a  receiver  of 
his  property  ;^*^  since,  in  this  proceeding,  distribution  may  be  de- 
creed among  those  primarily  entitled,  or  their  assigns.  But  the 
creditors  of  a  legatee,  or  of  a  distributee,  are  not  proper  parties, 
and  have  no  right,  as  such,  to  intervene  with  a  view  of  contest- 
ing the  validity  of  an  assignment  of  a  distributive  share,  or  of 
preventing  its  payment,  until  the  A'alidity  of  the  transfer  is  deter- 
mined in  another  forum. ^^ 

§  958.  Intervening  of  third  parties. —  A  creditor,  or  a  person 
interested  in  the  estate  represented  by  the  executor,  administra- 
tor, or  trustee,  although  not  cited,^^  and  any  person,  although  not 
named  in  the  citation,  who  is  beneficially  interested  in  the  estate 
or  fund  which  came  to  a  testamentary  trustee's  hands,  or  in  the^ 
proceeds  thereof,  or  in  the  application  of  that  estate  or  fund,  or 
of  the  jiroceeds  thereof ,^^  is  entitled  to  appear  upon  the  hearing, 
and  thus  make  himself  a  party  to  the  proceeding  so  instituted 
by  an  executor,  administrator,  or  trustee.^^     The  surrogate  may 

8S>  Co.  Civ.  Proc,  §  2G06,  as  amended  valid.       (Mills    v.    Smith.    141    N.    Y. 

1901.  256.) 

90  Monahan  v.  Fitzpatrick,  IG  Misc.  5W  Co.  Civ.  Proc,  §  2728,  as  amended 
508;   39  N.  Y.  Supp.  8.57.  1893;     consolidating    former     §     2731. 

91  Matter  of  Kedfield,  71  Hun,  344;  In  Weller  v.  Suggett  (3  Redf.  249), 
Duncan  v.  Guest,  5  Redf.  440.  See  the  committee  of  a  legatee  appointed 
§  908,  post.  by  a  court  of  another  State  sought  to 

92  Matter  of  Martine,  11  Abb.  N.  C.  represent  such  legatee,  on  a  final  ac- 
50.  counting  of  the  executor,  and  claimed 

9'i  Co.  Civ.  Proc,  §  2810.     In  the  ab-  to  be  entitled  to   receive  the  legatee's 

sence    of    a    fraudulent   connivance    or  share  of  the  estate.     Held,  that   such 

combination  on  the  part  of  the  resid-  committee  could  not  intervene  on  the 

uary    legatees    and    where    it   appears  accounting,    and    had    no    standing   in 

that  the  trust  fund  was  set  apart  and  court,    by    virtue    of    his    foreign    ap- 

invested   by   the  executors,   an   irregu-  pointment.      As    to    who    are    proper 

larity    in    not    citing    the    beneficiary  parties   on   an   accounting   by  the   ad- 

and    remainderman    to    appear    upon  ministrator    of    a    surviving    partner, 

the  accounting  does  not  render  the  dis-  see  Welte  v.  Bosch,  6  Dem.  364;  Mat- 

tribution  of  the  residuary  estate  in-  ter  of  Wood,  5  id.  345. 


T87  AccoL-NTi.vfis.  §§  959-901. 

join  an  assignee  df  a  lei»atee  with  sueli  legatee,  as  a  party  to  an 
accounting,  witlimit  displacing  the  hitter.''*" 

§  959.  Filing  account  for  judicial  settlement. —  The  statute,'"' 
implieill\'  at  least,  r('<piires  the  tiling  of  the  account  Ijy  the  rep- 
resentati\c  as  a  prere(iuisite  to  issuing  a  citation;  hut  in  many  of 
the  counties  of  the  State  it  is  treated  as  a  not  inflexible  rule.  It 
has  been  held  sufKcient  if  he  file  it  on  or  before  the  return  day, 
or  on  the  day  to  which  the  licariug  upon  the  citation  is  adjourned.*' 

§  960.  Examination  of  account  and  of  accounting  party. —  It  is 

not  necessary  for  a  j)ai'ty  in  intcvcst  to  tile  foi'inal  objections  to 
the  account  to  entitle  him  to  examine,  under  oath,  the  accounting 
representative;  he  may  have  such  examination  for  the  purpose 
of  enabling  him  to  formulate  objections  to  specific  items,*-*  or 
the  eourt,  for  its  own  information,  may  reipiire  such  examina- 
tion, whether  foi-mal  objections  to  the  account  have  Ijeen  filed  or 
not."''  "  The  surrogate  may,  at  any  time,  make  an  order  requiring 
the  accounting  ])arty  to  make  and  file  his  account;  or  to  attend 
and  be  examined  under  oath,  touching  his  receipts  and  disburse- 
ments ;  or  touching  any  other  matter  relating  to  his  administra- 
tion of  the  estate,  or  any  act  done  by  him  under  color  of  his 
letters,  or  after  the  decedent's  death,  and  before  the  letters  were 
issued;  or  touching  any  personal  ])roperty,  owned  or  held  by  the 
decedent  at  the  time  of  his  death.''  ^  In  a  case,  however,  where- 
an  issue  has  been  made  by  objections  filed,  and  the  matter  is  be- 
fore the  court  or  referee  for  trial,  a  party  who  has  filed  no  objec- 
tions is  not  entitle(l,  as  matter  of  right,  to  cross-examine  the  ac- 
(vmiiting  ]iarty." 

i-  961.  Filing  objections  to  account. — The  rendering  of  an  ac- 
count by  the  re])i'('S('ntative  and  the  jiulicial  settlement  of  it,  after 
it  has  been  rendered,  are  distinct  ]n'Oceedings,^  though,  as  mat- 
ters of  connnon  jM'actice,  the  one  is  merely  a  continuation,  of  the 
other.'*     Any  party  may  contest  the  account,   Anth  respect  to  a 


95  Til,],.,,  V.  nows.  2  Doni.  4S9 :  Gib-  09  Gecr  v.  Ransom,  f)  Redf.  57S. 

bons   V.   Slii'piud.   id.   '247.      S,-c    S    ID-").  .      ^  Co.  Civ.  Proc,  §  2720.  as  amended 

ante.  1S!);5;     consolidalinfj    former     §     27.3">. 

9'' Co.  Civ.  Proe..  §  272S.  As   to    testamentary   trustees,   see    id., 

9T  Matter    of    Harris.    1    Civ.    Proc.  S  2S11. 

Rep.    102.  2  Matter  of  Healy,  2G  St.  Rep.  944: 

osHathawav  v.   Russell.   7    Abb.   K  7  X.  Y.  Su])p.  (i!U." 

C.  138;   Matter  of  Hall.  id.  149:  :\rat-  3  Remington     v.     Walker.     21     Hun. 

ter  of   Denike.  21    id.   289;    Matter  of  322. 

DousUxss.  3  Redf.  .'538 :  Robert  v.  Mor-  4  Westervelt   v.   Oreg!:.    1    Barb.    Cb. 

jran.  4  Dem.   148;   Matter  of   Fitbian.  469;   Smitb  v.  Van   Kuren,  2  id.  473. 

14  Civ.  Proc.  Rep.  52.     See  Rule  VIII.  See  Mount  v.  Mitchell.  31  N.  Y.  356, 

N.  Y.  Surr.  Ct..  post,  §  9U1,  note  8.  3G3 :   19  Abb.  Pr.  1. 


§  !»(jl.  Accountings.  788 

matter  affecting  his  interest  in  the  settlement  and  distribution 
of  the  estate.'^  The  surrogate  may  retjuire  written  statements 
of  claims,  objections,  and  other  matters  contested,  so  that  the 
issue  may  be  defined,  and  the  parties  precluded  from  taking  new 
objections  after  the  proofs  are  closed;^  but  the  objecting  party  is 
not  absolutely  confined  to  his  first  objections.'  The  allegation  of 
objections  may,  of  course,  cover  every  possible  ground,  such  as 
a  want  of  proper  vouchers,  or  that  payments  have  been  made,  or 
that  debts  are  entered,  which  are  not  properly  to  be  charged 
against  the  estate,  or  that  fraudulent  charges  have  been  made,  or 
that  assets  not  included  in  the  inventory  have  come  into  the  hands 
of  the  executor  or  administrator.  There  is  no  statutory  require- 
ment to  file  specific  objections  to  an  account  by  an  executor.^ 
The"  jiractice  generally  ]U'evails  of  permitting  objections  to  be 
stated  in  the  most  general  language.  The  filing  of  a  notice,  which 
either  generally  or  specifically  denies  the  correctness  of  the  ac- 


5  Co.  Civ.  Proc,  §  2728,  as  amended  St.    Rep.    IIG;    appeal    dismissed,    110 

1893;     consolidating    former    §    2730.  N.  Y.  (i41.) 

See    Biiehan    v.    Rintoul,    70   N.   Y.    1.  8  Thompson    v.    Mott,    2    Dem.    154. 

Objections    filed    by    persons    who    are  No  pleadings  or  specifications  are  nec- 

not  parties  must  be  disregarded  as  ob-  essary  to   charge   an  accounting  exec- 

iections,    although    they   may    be    con-  utor  with  a   debt  which   he   owed  the 

sidered  as  notice  of  the  claims  of  the  testator.      (Matter  of  Consalus,  9.5  N. 

persons    interposing    them,    and    thus  Y.   340.)      In   New   York   county,   the 

warrant  a  direction  in  the  decree  for  following  rule  on  this  subject  is  estab- 

the  retention  of  a  proper  sum  to  meet  lished :     "  On    any    accounting    by    an 

their    claims.       (Matter    of   Collyer,    4  executor,   administrator,   guardian,   or 

Dem.   24.)  trustee,  which  may  be  contested,  any 

•5  See  Co.  Civ.  Proc,   §  2533;  Disos-  party  interested,   or   a  creditor   desir- 

way  V.  Bank  of  \Vashington,  24  Barb,  ing   to   contest  the   account,    shall   file 

60.'     After   the   proofs  are  closed   and  specific  objections  thereto  in  writing, 

the  cause  submitted,  it  is  too  late  to  and  serve  a  copy  thereof  upon  the  ac- 

interpose   the    Statute   of   Limitations  counting  party  or  upon  his  attorney, 

for  the  first  time.     The  parties  should  in  case  he  shall  have  appeared  by  at- 

make    statements   of   their   claims,   in  torney,    within    eight    days    after    the 

the  nature  of  pleadings,   so  as  to  de-  filing  of  the  account  in  the  surrogate's 

fine   the   issue.       (Van   Vleck  \.   Bur-  office,  where  the  accounting  is  a  com- 

roughs.  0  Barb.  341.)      See  Matter  of  pu!sory    one,    and    within    eight    days 

Heuser,  87  Hun,  262 ;   33  N.  Y.  Supp.  after  the  return  of  the  citation  where 

831.                                           -  the  accounting  is  a  voluntary  one,  or 

7  Gardner  v.  Gardner,  7  Paige,  112.  within  such  further  or  other  time  in 

The  surrogate  may  allow  the  filing  of  either  case  as  shall  be  allowed  by  the 

further   objections   in   addition   to   the  surrogate ;    and    the    contest    of    such 

original  objections  to  an  account  (ilat-  account  shall  be  confined  to  the  items 

ter  of  Turfier.  78  Hun,  258:  Matter  of  or  matter  so  objected  to.     If  it   shall 

Von  Glahn,  53  App.  Div.  164;  Matter  appear  to  the  satisfaction  of  the  sur- 

of  Heuser,  supra),  and  it  seems  that  rogate,   by   affidavit   or   petition,    that 

the  referee,  to  whom  the  account  has  an     examination     of     the     accounting 

been  sent,  may  do  the  same,      (flatter  party  will  be  necessary  to  enable  the 

of  Fithian,  5   Dem.   305;    15  St.   Rep.  contesting  party   to   interpose  his  ob- 

734. )      The  contestant  may  amend  his  jections,     such    examination    may    be 

objections  by  alleging  an  indebtedness  ordered  by  the  surrogate  for  that  pur- 

of  which  hehad  at  first  but  indefinite  pose."      (Rule  VIII.) 
information.      (Matter  of  Burnett,  15 


789  ACCOL-.NTINGS.  §  902. 

count,  is  sufficient  to  raise  an  issue,  though  unquestionably  the 
surrogate  has  a  discretion  to  recjuire  the  objection  to  be  made 
more  definite  and  specitic.''  Thus  an  ol)jection  to  a  trustee's  ac- 
€(iuiit,  to  the  etiV'ct  that  ''  the  trustees  have  not  accounted  for 
interest  on  the  moneys  in  their  hands,"  is  too  indefinite,  as  it 
does  not  show  vvhether  the  trustees  had  actually  received  interest; 
for  which  tliev  had  not  accounted,  or  whether  l)y  diversion  of 
trust  moneys  they  had  become  chargeable  with  interest. "^'  While 
it  is  a  })ro])('r  and  a  better  practice  to  object  s])ecifically  to  the 
items  of  the  account  whicli  it  is  meant  to  question,  yet,  under  a 
general  objection  to  an;,  and  all  of  the  items,  it  has  been  held, 
that  the  surrogate  couki  inquire  into  and  scrutinize  the  account, 
and  is  not  bound  by  the  executor's  oath  thereto,  or  the  vouchers 
produced  by  him;^^  and  the  surrogate,  in  examining  it,  may  allow, 
for  his  information,  any  person  to  point  out  en-ors  and  defects 
tlKrcin.'-  Xevertheless;  it  is  not  error  for  the  court  or  referee  to 
refuse  to  consider,  upon  the  hearing  of  objections  filed  to  an 
account,  claims  of  creditors  or  others  which  were  in  no  way  re- 
ferred to  in  the  olijections  filed  by  thcm.^" 

ij  962.  Serving  copy  of  objections.— It  is  the  better  practice  for 
the  contesting  ]»arty,  besides  tiling  his  objections,  to  serve  a  copy 
thereof  upon  the  attorney  of  the  accountant.  But  the  fact  that 
a  copy  of  the  objection  filed  had  not  been  served  upon  the  at- 
torney for  the  accounting  party,  is  no  ground  for  overruling  the 
objection.^*  As  the  surrogate  may  require  a  petition  or  answer 
to  be  verified,'''  he  may  also  require  objection  to  an  account  filed 
to  be  verified.'*' 


9  Matter   of   Brcnflock.   X.   Y.    Riirr.  tlicifto   form    tlie    plpadinps,    «ind   the 

Ct.,  Deo.  0.  1870.  MS.;  Matter  of  Hall,  dlijector    to    an    acfount    is    as    much 

7    Abb.    X.    C.     14!).       See    Matter    of  bound    to    set    up    in    such    objections 

Boj'd.   1   L.   Bui.   87;   Larrour  v.  Lar-  any  claims  wliich  he  proposes  to  make 

rour.  2  Redf.  74.  ajrainst   the   administrator   as   tiu'   de- 

if>  Frame  v.   Willets,  4  Dem.  369.  fendant  in  an  action  is  bound  to  set 

11  Peck  V.   Sherwood.  .56  X.  Y.  61.5.  up    in    his    answer    any    claims    which 

12  Buchan  v.  Rintoul.  70  X.  Y.  1.  he  proposes  to  in-ge  against  the  plain- 
Where,  therefore,  the  person,  upon  tiff,"  (lb.;  per  Van  Brunt.  C.  .1.) 
whose  application  the  order  requirin<^  It  was  also  hVld.  in  tliat  case,  that 
the  account  was  frranted,  files  objec-  although  the  ajipellate  couit  had  the 
tions  thereto,  the  surrogate  is  not  j)ower  to  amend  tlie  objections  nunc 
bound  to  strike  out  or  dismiss  them,  pro  liDic.  in  support  of  a  decree,  it 
but.  at  least,  may  retain  and  use  tliem  would  never  do  so  in  order  to  justify 
as  the  basis  of  his  investigation.    (lb.)  tlie   reversal    of   the   decision   below. 

13  Matter  of  Hart.  60  Hun.  ol6;  u  .Tournault  v.  Ferris.  2  D-m.  .320. 
30   St.   Rep.   .521.     "In   these   proceed-  i"' Co.  Civ.  Proc.  §  2533. 

ings,  the  account  and   the  objections  itJ  Thompson  v.  Mott,  2  Dem.  154. 


§§  1)03,  004.  AccouNTi.xGs.  790 

SUBDIVISION  0. 

PROCEEDINGS    UPON    CONTESTED    ACCOUNTINGS. 

§  963.  Referring  the  account. —  Until  1870,  no  surrogate  had 
the  power  to  order  a  reference,  except  in  the  single  proceeding 
for  the  final  settlement  of  the  account  of  an  executor  or  adminis- 
trator, in  which  case  the  statute^^  permitted  him,  in  his  discre- 
tion, to  refer  the  account  to  one  or  more  auditors  to  examine  and 
report  upon  the  same,  subject  to  his  confinnatior.  In  the  above 
vear  an  act  was  passed,  applying  only  to  iSTew  York  county,  giv- 
ing the  surrogate  a  general  power  to  appoint  a  referee  to  take 
testimony  in  any  proceeding  before  him,  and  to  hear  and  deter- 
mine disputed  claims  and  other  matters  relating  to  accounts,  and 
to  report  thereon,  subject  to  the  surrogate's  confirmation.^^  The 
Code  adopted  this  provision,  extending  it  to  all  surrogates,  and 
enlarging  the  referee's  powers. 

§  964.  Referee's  powers—  The  statute  expressly  provides  that 
the  referee  may  be  authorized  to  "  examine  an  account  rendered, 
to  hear  and  determine  all  questions  arising  upon  the  settlement 
of  such  an  account  which  the  surrogate  has  power  to  determine; 
and  to  make  a  report  thereon,  subject,  however,  to  confirmation 
or  modification  by  the  surrogate.  Such  a  referee  has  the  same 
power,  and  is  entitled  to  the  same  compensation,  as  a  referee  ap- 
pointed by  the  Supreme  Court,  for  the  trial  of  an  issue  of  fact  in 
an  action;"  and  the  provisions  of  the  Code,  applicable  to  a  refer- 
ence by  the  Supreme  Court,  apply  to  such  a  reference,  so  far 
as  they  can  be  applied  in  substance,  without  regard  to  the  form 
of  the  proceeding. -"^  This  enactment  supersedes  many  of  the 
rulings  which  had  been  made  as  to  the  functions  of,  and  pro- 
ceedings Ijefore,  auditors,  particularly  by  virtue  of  the  clause 
assimilating  the  referee's  powers  to  those  of  a  referee  in  the 
Supreme  Court.  Parties  may,  of  course,  appear  before  the  ref- 
eree, by  counsel,  as  it  was  held  they  might  before  an  auditor, ""^ 

17  2  R.  S.  94,  §  64.  and  title  of   auditor   no   longer   exist. 

18  L.  1870,  c.  359,  §  0.  This  pro-  Under  the  Act  of  1870.  the  surrogate 
vision  applied  to  testamentary  trus-  of  New  York  county  referred  an  ac- 
tees.  (Matter  of  Uglow.  51  How.  Pr.  count  to  one  termed,  in  the  order  of 
.342.)  In  Matter  of  Hoes  (54  App.  reference,  an  auditor;  but  this  was 
Div.  281)  it  was  held,  that  the  sur-  held  not  to  vitiate  the  order,  the  mis- 
rogate  had  power  to  refer  a  disputed  nonier  being  but  a  matter  of  form, 
claim  which  the  parties  had  consented  and  the  order  operative  to  appoint  a 
should  be  determined  bv  him.  See  referee.  (Buchan  v.  Rintoul.  70  X. 
ante.  ^  U7.                         '  Y.  1.)      See  now,  Co.  Civ.  Proc.  §  1018  ; 

19  Co.  Civ.  Proc.  §  2540.     See  Mat-  also.  Matter  of  Odell.  1  Connolv.  91. 
ter  of  Russell.  .3  Dem.  377.     The  office  2o  ;Matter  of  Ritch.  3  Redf.  177. 


7U1  Accountings.  §§  005,  UGG. 

and  such  counsel  may  examine  the  accounting  party.  An  au- 
ditor appointed  under  the  Kevised  Statutes  had  no  power  to  allow 
further  objections  to  be  filed;  if  the  contestants  desired  to  present 
a(Ulitional  objections,  they  were  required  to  file  them  before  tin; 
tturroaate,   and  obtain  an  order  reforrina,'  thctn  to  the  auditor."^ 

^  965.  Referee  subject  to  surrogate's  directions. —  The  report  of 
the  referee  has  no  bindiiiii'  force  or  effect,  and  affords  no  evidence 
of  the  facts  therein  stated,  until  it  is  confirmed  by  the  surro- 
gate's decree."  The  surrogate  has  power  to  send  the  same  back 
to  the  referee  with  directions  to  pass  upon  any  questions  of  fact 
not  covered  by  his  report,  or  he  nuiy,  liimself,  modify  the  report 
and  determine,  upon  the  evidence  submitted  to  the  referee,  any 
question  presented."^  Even  after  the  surrogate  has  confirmed 
the  report  of  a  referee  settling  the  accounts  of  an  administrator, 
ho  has  power  nevertheless  to  make  an  order  pennitting  the  filing 
of  a  supplemental  account  and  referring  the  same  back  to  the 
r.'feree  to  hear  and  dotonniiie."^ 

§  966.  General  principles  of  settlement. —  In  adjusting  the  ac- 
counts of  executors  and  adniinistrators,  the  Surrogate's  Court  is 
governed  by  princi])les  of  ecpiity,  as  well  as  of  law;  and  it  is  at  all 
times  com])etent  for  the  rejiresentative  or  trustee,  unimpeded 
by  technical  rules,  to  show  the  fairness  of  his  dealings,  the  real 
natur(>  of  the  transactions,  and  the  amount  for  which  he  should  bo 
held  liable.  The  Surrogate's  Court  has  ample  powers  to  consider 
and  adjust,  upon  equitable  ])rinciples,  questions  between  the  ac- 
counting party  and  those  interested  in  the  estate."'  Thus,  where, 
■on  an  accounting  by  an  administrator,  he  claimed  credits  for 
moneys  paid  to  the  widow  for  the  support  of  herself  and  infant 
chiUlren,  the  latter  having  no  guardian  entitled  to  receive  for 
them  any  portion  of  the  fund,  the  equities  being  clearly  in  favor 
of  allowing  the   claim,   the  court  has   jurisdiction   to   allow   it."" 


21  Bouffhton  V.  Flint.  74  N.  Y.  476.  was  quoted  with  approval.     See  Mat- 

22^ratter  of  IMeEvov,   1   L.  Bnl.  63.  ter  of  Wafrner,  11!)  N.  Y.  28. 

23  Matter  of  Schaefer,  65  App.  Div.  2i;  Hyland  v.  Baxter,  98  N.  Y.  610: 
378.  As  to  the  necessity  of  his  mak-  afTfj.  42  Ilun,  0.  In  that  case,  the 
ing  separate  findings  in  such  cases,  surrogate  had  decided  tliat  he  had  no 
see  §   119,  ante.  jurisdiction    to    adjust    such    equities, 

24  People  ex  rel.  Stevens  v.  Lott,  42  and  the  facts  establishing  them  had. 
Hun,  408.  Such  order  is  appealable,  therefore,  not  been  fully  i)rcsented: 
and  a  writ  of  inamlainus  will  not  the  Supreme  Court  on  a]q)eal  remitted 
issue  to  compel  the  signing  of  a  de-  the  case  to  tlie  Surrogate's  Court  for 
cree    based     on     the     origiiuil     report,  a  rehearin<j;  and  decision  upon  the  ad- 

(lb.)      See  Matter  of  Pollock.  3  Redf.  ditional  facts.      In  Browne  v.   Bedford 

101;  Matter  of  Quin,   1   Connoly,  381.  (4  Dem.  304),  a  widow,  without  tak- 

25  In  INIatter  of  Woodward.  09  App.  ing  out  letters  of  administration  upon 
Div.  2S6 :  74  N.  Y.  Supp.  755,  the  text  her  husband's  estate,  used  the  income 


§  906. 


Accountings. 


792- 


C^pon  the  same  principle,  the  eqiiitahle  lien  which  an  executor  has 
upon  a  legacy  for  the  amount  of  the  legatee's  debt  to  the  tes- 
tator, Avill  he  ju'otcctcd,  in  a  proceeding  to  settle  his  account 
and  distribute  the  assets  of  the  estate;  and  this  right  is  unaffected 
by  the  fact  that  such  debt  is  barred  by  the  Statute  of  Limi- 
tations.-' This  is  not  a  question  of  legal  set-off,  but  of  equitable 
lien  and  right  of  retainer.  It  is  only  where  the  legatee's  alleged 
■indebtedness  is  denied,  and  is^  therefore,  in  dispute,  that  the  surro- 
gate will  decline  jurisdiction  of  such  a  question.^  The  surrogate 
has  ample  power  to  entertain,  in  any  proceeding  before  him,  the 
defense  of  an  equitable  estoppel,  and,  on  an  accounting  and  dis- 
tribution of  an  estate,  can  preyent  injustice  being  done  executors 
who  haye  proceeded  in  the  course  of  distribution  according  to  the 
consent  of  all  the  legatees  and  persons  interested. ^^  On  the  other 
hand,  the  power  to  enforce  the  set-off  of  mutual  judgments,  as 
where  an  accounting  executor  seeks  to  set  off  a  judgment  belonging 
to  the  decedent  against  a  judgment-creditor's  claim  presented 
against  the  estate,  does  not  belong  to  Surrogates'  Courts,^*^  Where 


thereof  for  the  support  of  herself  and 
children. —  Held,  that  subsequently 
taking  out  letters  and  accounting  to 
such  children,  she  might  be  allowed 
the  sums  so  expended  for  the  benefit 
of  children,  as  payments  upon  their 
share,  and  such  allowance  need  not  be 
limited  to  income,  but.  where  the  es- 
tate is  so  small  that  the  income  is  in- 
sufficient, it  may  take  in  the  principal 
of  the  infant's  share.  In  Matter  of 
Hobson  (Gl  Hun.  .504:  41  St.  Rep. 
.56.5:  affd.,  1.31  X.  Y.  575),  it  was 
held,  that  an  administrator  was  not 
entitled  to  be  credited  with  a  '  pay- 
ment to  the  mother  of  infant  bene- 
ficiaries, she  not  being  their  guardian, 
in  the  absence  of  proof  that  the  money 
was  expended  for  their  support, —  it 
being  assumed  that  it  was  expended 
for  her  benefit  in  the  main. 

27  Smith  V.  Kearnev,  2  Barb.  Ch. 
533:  Rogers  v.  Murdcck,  45  Hun.  30: 
Smith  V.  Murray.  1  Dem.  34:  Matter 
of  Foster,  15  Misc.  175;  37  N.  Y. 
Supp.  36.  But,  it  seems,  that  a  trus- 
tee cannot  set  olT  personal  claims  for 
professional  services  against  claims  of 
beneficiaries  against  him  as  trustee. 
(Harris  v.  Elliott,  24  App.  Div.  133; 
48  N.  Y.  Supp.  1020.)  The  surrogate 
has  no  jurisdiction,  against  objection, 
to  determine  whether  an  indorser  on 
a  note  made  and  paid  by  tlie  decedent. 
is  liable  to  the  estate  for  the  amount 


of  the  note,  as  made  for  the  indorser's 
accommodation,  though  he  is  husband 
of  the  decedent  and  a  legatee.  (Mat- 
ter of  Schmidt,  58  N.  Y.  Supp.  595.) 
The  proper  proceeding  in  such  case  is 
to  adjourn  the  accounting  of  the  exec- 
utor, to  enable  the  parties  to  estab- 
lish their  rights  in  the  appropriate 
tribunal,  and  then  proceed  with  the 
accounting  and  distribution.     (lb.) 

28  Rudd  V.  Rudd,  4  Dem.  335 :  Mat- 
ter of  Schmidt.  58  K  Y.  Supp.  595^ 
and  cases  cited.  §  784.  ante.  See  Mat- 
ter of  Peaslee,  81  Hun,  597;  30  N.  Y. 
Supp.  1028. 

2»Paxton  V.  Patterson.  26  Abb.  N. 
C.  389;  12  X.  Y.  Supp.  563.  A  legatee 
who  does  not  object  to  a  pajnnent  by 
executors  to  two  of  the  legatees  for 
the  purpose  of  equalizing  them  with 
the  others,  and  who  has  knowledge 
that  such  papnents  are  about  to  be 
made,  is  estopped  from  afterward 
charging  the  executors  with  such  pay- 
ments on  the  ground  that  they  were 
not  authorized  bv  the  will.  (flatter 
of  Turfler,  1  Misc.  58 ;  23  N.  Y.  Supp. 
135.) 

sostilwell  V.  Carpenter,  59  N.  Y. 
414,  and  cases  cited  ante,  §  47. 
The  rule  that  an  executor  or  admin- 
istrator cannot  set  off  a  debt  due  to 
him  personally,  or  purchased  by  him 
since  the  decedent's  death,  against  a 
demand  against  the  estate,  applies  to 


793  Accor.NTiNcis.  §  007. 

an  executor  in  good  faith  resists  the  charging  of  a  legacy  upon  the 
residuary  estate  in  his  hands,  and  shows  that  there  exists  a  real 
question  of  fact  or  law,  the  surrugatc  will  not  decide  the  question 
upon  settlement  of  the  executor's  accounts. '^^ 

vij  967.  Issues  triable. —  'J'he  limitations  upon  the  jurisdiction  of 
SiaTogates'  Court-  have  lieen  generally  considered  already. ^^ 
Jii-;'  jurisdiction  over  (|uesti:)ns  on  an  accounting  of  executors, 
administrators,  trustees,  and  guardians  is  not  expressly  defined, 
but  the  courts  have  liberally  allo\\c<l  ])owers  as  incidental  to  gen- 
eral jurisdiction,  which  enable  the  court  or  referee  to  pass  upon 
all  such  questions  as  the  amounts  with  which  the  accounting 
party  is  chargeable,  and  the  amount-  v.hicdi  ought  to  be  credited 
to  and  allowed  him.  The  decision  of  these  questions  involves  the 
determination  of  what  arc  as-ets  in  iheir  liands;  whether  the 
representative  has  been  guilty  of  any  negligence  in  getting  in 
the  estate;  whether  he  has  retained,  as  part  of  the  estate,  property 
which  he  should  have  sold  and  turned  into  cash;  whether  the 
cash  received  has  been  invested  upon  proper  securities;  whether 
sales  of  property  have  been  made  in  good  faith  toward  the  estate 
and  in  due  forni;"^'*  whether  he  is  chargeable  with  any,  and,  if 
so,  how  much,  interest  on  the  moneys  received  ;"^^  whether  he  has 
failed  to  collect  debts  which  he  ought  to  have  collected,"^''  or  has 
impro])erly  paid  or  compromised  any;'^*^  whether  he  has  been 
gtu'lty  of  any  fraud  or  bad  faith  in  dealing  with  the  estate,  as  by 
using  the  property  or  moneys  of  it  for  his  own  advantage,  or  by 
buying  it  in  for  his  own  profit  at  sales  made  by  him;  wdiether  the 
amounts  jiaid  by  him.  <ni  account  of  alleged  debts  or  liabilities 

the    case     of    a     judgment     for    costs  lessees    with     instruments    offered    is, 

against  the  executor  or  administrator  pretended  security  for   the   rent,   with 

in  his  representative  capacity,  and  to  the   result  that  nothing  was  collected 

he  collected  out  of  the  estate."  (Dudley  (hniiig  the  entire  term.     Upon  the  ac- 

V.    (iriswold.   2    I?radf.    24.)      Xor   caii  counting  of  such  trustee. —  Held,  that 

he    set   off.    in    equity,   a    debt   due   to  if  it  appeared  that  such  tenants  were 

him   personally,  against  a  claim  of  the  worthless,   it  became   the  duty  of   the 

defendant    on'  the   estate.       (Mead   v.  trustee  to  have  evicted  them  within  a 

Merritt,  2  Paige,  402.)  reasonable   time   and    relet   the   preni- 

•■^1  Bevan  v.  Cooper.  72  N.  Y.  313.  ises,  and  for  failure  to  do  so,  if  he  had 

32  .9po  ante,  §  47  ct  scq.  acted   in   bad    faith   or   was   guilty   of 

">3  But    see    ^fatter    of    Valentine.    1  such    neglect    of   duty  as  amounted   to 

^lisc.   4!)1.  and   S    .")!)S.  ttnlc.  wilful    negligence,    he    was    chargeable 

•■«  See  (tnfr.  §  (il!)  cf  ftrq.  with  the  loss  of  the  reasonable  rental 

35  Harrington  v.   Keteltas.  92  X.  Y.  value,   and   not   with   rent   at  the  con- 

40:    O'Connor   v.   Gifford.   6  Dem.   71;  tract   rate.       (Matter   of    Hunt.    3    St. 

s.    c.    as    Matter    of    O'Connor.    20    St.  Rep.   340.) 

Rep.   140;   Matter  of  Dunn.  S  id.  766.  3fi  Shute  v.   Shute.   .5  Dem.    1:    Mat- 

A  trustee  of  real  property  who  leased  ter  of  Strickland.  22  St.  Rep.   901 ;   5 

the  same  for  a  sum  exceeding  its  fair  X.  Y.  Suppl.  851.     See  airte,   §   630. 
rental  value  was  imposed  upon  by  the 


^  [)66.  Accountings.        ,  ■       71*-^: 

of  the  decedent,  were  proper  charges  upon  his  estate;  whether  the 
amounts  paid  out,  in  the  administration  of  the  estate,  for  funeral 
expenses,  headstones,  and  costs  and  counsel  fees  in  suits  brought 
1  y  and  against  him,  are  proper  in  themselves  and  reasonable 
in  amount;  and  what  sum  he  is  entitled  to  as  commissions.  In 
thort,  alL  the  questions  already  treated  of  in  the  seventeentK 
■chapter  of  this  work,^^  as  to  the  rights  and  liabilities  of  execu- 
tors and  administrators,  and  the  payment  of  funeral  expenses 
and  debts,  are  usually  raised  and  determined  on  such  accounting; 
as  well  as  the  questions,  who  are  entitled  to  the  residue  as  lega- 
tees or  distributees  and  the  amounts  of  their  respective  shares; 
and  in  case  a  debt  of  the  estate  has  not  been  paid,  and  is  not  dis- 
puted, or  has  been  established,  the  surrogate  in  making  a  decree 
of  distribution  may  also  provide  for  its  payment. 

§  968.  Limits  of  surrogate's  powers  on  decreeing  distribution. — 

The  principle  has  been  many  times  repeated  that  Surrogates' 
■Courts  can  exercise  only  such  jurisdiction  as  has  been  specially 
conferred  by  statute,  together  with  those  incidental  powers  which 
may  be  requisite  to  effectually  carry  out  the  jurisdiction  actually 
granted ;^^  and  further,  that  jurisdiction  cannot  be  obtained 
by  assuming  it,  without  objection  on  the  part  of  any  of  the  parties 
before  the  court,  or  even  on  the  express  consent  of  such  parties.'^'' 
Another  observation  worth,  repeating  here  is,  that,  on  the  one 
hand,  these  courts  do  not  possess  the  general  powers  of  a  court 
<if  equity,  and,  on  the  other,  they  are  not,  by  their  very  constitu- 
tion, adapted  to  exercise  the  powers  of  common-law  courts  in  dis- 
posing of  a  variety  of  questions,  such  as  questions  of  title  to 
property,  which  have  always  l)een  reserved  for  common-law 
courts,  where,  except  in  cases  of  equitable  cognizance,  the  right 
to  a  jury  trial  is  guaranteed.^*^  The  statutory  powers  of  a  surro- 
gate on  a  judicial  settlement  of  the  accounts  of  executors  and 
idm'misirators'*'^  are  defined  by  a  section  of  the  Code  which  pro- 
vides^^  that  where  any  part  of  the  estate  "  is  ready  to  be  dis- 
tributed to  the. creditors,  legatees,  next  of  kin,  husband  or  wife 
of  the  decedent,  or  their  assigns,  the  decree  must  direct  the  pay- 


37  See   §§    600,  630,  ante.  \.    :nS.    329;    :Matter   of   Walker.    136 

38  Rigors    V.    Cragg,    89    N.    Y.    489;  id.  20. 

Matter  of  Underhiil.  117  id.  471:  Mat-        40  Matter    of    Walker,    svprn.      See 

ter    of    Wagner.    119    id.    28:    28    St.  §  43,  anie. 

Rep.    266,   and   cases   cited,    §§    42,   47        41  See    §    2812,    in    reference   to    ae- 

ft  seq.  counting     by     testamentary    trustees; 

••i!>  Tucker    v.    Tucker,    4    Abb.     Ct.  §  973.  /jo.sf. 
App.  Dec.  428;  Bevan  v.  Cooper,  72  N.        42  Co.  Civ,  Proc,  §  2743,  as  amended 

1895. 


7!»5  AccouxTi.\<;s.  §  008. 

iiicnt  and  distribution  thcrc<jf  t<»  the  persons  so  entitled,  accord- 
inn'  to  their  respective  rights.  *  ''  *  Where  the  validity  of 
tlie  debt,  claim,  or  distributive  share  is  admitted,  or  has  been  estab- 
lished upon  the  accounting  or  other  proceeding  in  the  Surrogate's 
Court,  or  other  court  of  competent  jurisdiction,  the  decree  must 
determine  to  whom  it  i,s  payable,  the  sum  to  be  paid  by  reason 
thereof,  and  all   other  questions  concei-niiiu'  the  same."  ^■' 

There  is  an  embarrassing  conflict  of  decisions  as  to  the  au- 
thority of  these  courts,  in  decreeing  a  distribution  of  the  estate, 
to  recognize  equitable  titles  to,  or  ecpiitable  interests  in,  any 
jiortion  of  the  distributable  surplus,  as  against  legal  titles,  and 
to  determine  disputes  between  rival  claimants  of  the  same  debt, 
legacy  or  distributive  share,  where  (pu'stions  of  fraud,  duress, 
and  the  like,  are  necessai'ily  involve<l,  and  in  which  relief,  if 
any,  must  be  granted  upon  ecpiitable  princi]des,  depending,  fre- 
quently, on  a  complicated  state  of  facts.  Such  is  the  nature  of 
the  claim  of  a  third  person  to  a  legatee's  or  distril)utee's  share, 
under  an  assignment  to  him,  which  is  impeached  by  the  assignor 
•on  the  ground  that  it  had  been  procured  by  false  and  fraudident 
representations;"*'*  and  the  claim  of  a  creditor  of  the  distributee 
that  he  has  an  equitable  lien  on  the  share,  su])erior  to  the  title 
■of  an  assignee  of  the  distributee;"*'^  and  the  claim  of  a  distriliutee 
that  a  release  of  his  interest  executed  to  the  representative  is  void 
or  voidable,  on  the  ground  of  mistake,  concealment  or  false  rep- 
resentations.'*'^ Without  att(Mn])ting  any  discussion  of  the  sub- 
ject, it  is  enough  to  say  that,  in  our  opinion,  the  weight  of  au- 
thority establishes  the  true  interpretation  of  the  foregoing  section 
of  the  Code  to  1)0  this:  that  in  directing  ''  the  payment  and  dis- 

43  See    Matter    of    Clauss.    IG    App.  -ir,  :\[.,ttpr  of  Kcdtiold  (71  Ilnn.  344) . 

Div.  lU;   44  X.  Y.  Supp.  805.  where  it  was  lield  the  surrojiate  coiikl 

.    44  Matter  of  ^NtcCahe    (28  Abb.  X.  C.  not  determine  tlie  question  wlietlier  a 

.5!);  18  X.  Y.  Supp.  71o),  where  it  was  share  of  a  next  of  kin  should  be  paid 

held  the  court  liad  jurisdiction  to  de-  to  his  assijjnee  or  to  one  elaiminj:  to 

termine    the    validity    of    the    assijjn-  be  a  creditor  of  the  next  of  kin.     Xor 

nient.     See  Stronfj  v.  Strong.  3  Redf.  has  he   any  jurisdiction  to  determine 

477;    Dubois   v.    Brown,    1    Dem.   317.  the  right  to   a   legacy  as  between   an 

<\)mpare  [Matter  of  Geis  (27  Misc.  400:  assignee  and  an  attaching  creditor  (f 

5!)  X.  Y.  Supp.  175) .  where  it  was  said  the  legatee.      (Matter  of   Arkenburgh, 

dial,   altliough   the   Surrogate's  Court,  38    App.    Div.    473;    5»i    X.    Y.    Supp. 

not    being   a    court    of   equity,    has   no  523.)      But  a  receiver  of  a   legatee  is 

juiisdiclion  to  try  an   issue  as  to  the  entitled   to   so  much   of  tlie   legacy   as 

validity  of  an  assitrnment  attacked  on  will    pay   the    judgment    and    also    the 

the    ground    of    fraud    or    mistake,    it  expenses  of  the  receivership.      (Mona- 

will  determine  the  fact  whether  or  not  han  v.    Fitzpatrick,    Ui   Misc.   508;    30 

a    decedent    to    whom    a    legacy    was  X.  Y.  Supp.  857.) 

given,  assigned  it  so  as  to  justify  his  40  Sanders  v.  Soutter,  120  X.  \'.  103. 
administrator  in  paying  it  to  the  per- 
i>on  clainiinir  the  amount. 


S  009. 


Accountings. 


79(5 


tribution  to  the  persons  so  entitled  "  (i.  e.,  "  to  creditors,  legatees^ 
next  of  kin,  husband  or  wife  of  the  decedent  or  their  assigns  ")^ 
and  iu  determining  to  whom  a  debt,  claim,  or  distributive  share 
"  is  ])ajable  and  the  sum  to  be  ])aid  and  all  other  questions  con- 
cerning the  same,"  the  court  will  not  recognize  claimants  other 
than  those  having  legal  titles,  but  will  remit  parties  claiming  ad- 
versely to  such  titles,  on  grounds  of  equity,  to  other  tribunals,, 
as  not  itself  having  any  power  to  nullify  and  set  aside  the  deeds 
of  the  parties  for  fraud,  or  on  other  equitable  considerations/'^ 

S  969.  What  disputes  surrogate  may  decide. —  It  is  well  settled 
that  a  Surrogate's  Court  has  jurisdiction  to  entertain,  on  the  final 
accounting,  or  in  any  other  proceeding  where  the  matter  is  at 
issue,  such  questions  as  the  right  of  a  person  to  a  legacy,"*^  or 
whether  a  legacy  has  lapsed, ^^  or  abated, ^"^^  or  whether  it  is  valid,^^ 
or  when  it  was  vested,^^  or  whether  a  legatee  is  competent  to 
take,^"  or  a  distributee  is  legitimate  ;■'''*  whether  a  widow  is  entitled 


47  In  Matter  of  Wagner  (119  K  Y. 
28),  Gray.  J.,  said:  "I  think  we 
should  hold  it  as  the  true  exposition 
of  the  law  in  such  cases,  where  an 
application  is  made  to  the  surrogate 
for  an  order  compelling  the  executor 
or  administrator  to  file  an  inventory, 
or  to  render  an  account,  and  it  ap- 
pears, in  answer  to  it,  that  the  appli- 
cant can  have  no  right  to  such  an 
order,  by  reason  of  his  interest  having 
been  satisfied  and  extinguished  by  a 
settlement  and  distribution,  whether 
in  or  out  of  court,  or  barred  by  a  re- 
lease, or  otherwise,  and  the  factum  of 
a  settlement,  or  of  a  release,  or  any 
act  constituting  the  bar,  is  put  in 
issue  by  the  reply  of  the  applicant, 
that  the  surrogate  should  dismiss  the 
petition  and  remit  the  applicant  to 
his  proceeding  in  a  court  having  gen- 
eral equity  powers  to  try  out  such  an 
i^ssue.  That  power  the  surrogate  does 
not  possess."  The  question  of  juris- 
diction was  carefully  examined  in 
Matter  of  Cook  (68  Hun,  280:  22  N. 
Y.  Supp.  909),  and  in  Matter  of  Red- 
field  (71  Hun.  344).  where  this  doc- 
trine was  reiterated  and  followed. 
See  Matter  of  Brown.  3  Civ.  Proc. 
Rep.  39,  5.5;  Matter  of  Martine.  11 
Abb.  X.  C.  54;  Matter  of  Colwell,  15 
St.  Rep.  742;  Van  Valkenburg  v. 
La.sher,  53  Hun.  594:  25  St.  Rep.  291 ; 
6  N.  Y.  Supp.  775;  WoodruflT  v.  Wood- 
raff,  3  Dem.  505;  Peck  v.  Peck.  id. 
548;  Matter  of  Sistare,  27  Abb.  N.  C. 
34;    Adams   v.   Glidden,   6   Dem.    197; 


Matter  of  Dunn.  8  St.  Rep.  706 ;  Mat- 
ter of  Woodward.  09  App.  Div.  286; 
74  N.  Y.  Supp.  755 :  Matter  of  Grant, 
37  Misc.  151:  74  X.  Y.  Supp.  958; 
Matter  of  Randall.  152  N.  Y.  508.  In 
Fraenznick  v.  Miller  (1  Dem.  130;  3 
Civ.  Proc.  Rep.  39).  it  was  held,  that 
where  a  release  or  an  assignment 
is  assailed  by  its  maker  as  in- 
valid and  ineflFectual  by  reason  of 
fraud,  the  court  should  hold  in  abey- 
ance its  decree  of  distribution,  so  far, 
at  least,  as  concerns  that  interest  in 
the  estate  to  which  such  assignment 
or  release  relates,  until  the  rights  of 
the  parties  can  be  determined  in  an- 
other tribunal.  See  Matter  of  Ruther- 
ford, 5  Dem.  499 ;  Tappen  v.  M.  E. 
Church.  3  id.  187:  s.  c.  as  Matter  of 
York,  0  Civ.  Proc.   Rep.   245. 

4S  Riggs  V.  Cragg.  89  N.  Y.  479 ; 
Matter  of  Arden.  1  Connoly,  159;  Mat- 
ter of  George.  23  Abb.  N.  C.  43;  21 
St.  Rep.   128   [gift  causa  mortis]. 

4!»Gill  V.   Brouwer,  37  X,  Y.  549. 

511  Orton  V.  Orton.  3  Keyes,  480. 

51  Matter  of  Wehrhane,  40  Hun^ 
542 :  Matter  of  Johnson,  1  Connoljv 
51S:    Lynch   v.   Lorretta.   4   Dem.   312. 

52  .Jones  V.  M.  E.  Sunday  School,  4 
Dem.  271;  Matter  of  Hedger,  1  Con- 
noly,  524. 

53  Wardlow  v.  Home  for  Incurables, 
4  Dem.  473;  Matter  of  Look.  1  Con- 
noly, 403. 

54  Matter  of  Laramie.  24  St.  Rep. 
702:  0  X.  Y.  Supp.  175;  Matter  of 
Pearsall,  4   id.   305. 


797 


AccoL'NTl.\<;s. 


§  969. 


to  'lower  in  iidilition  to  Ix'iiolits  "ivcn  by  the  will,"'"''  or  whether 
one  chuinin^'  as  hnshaiid  is  entitled  as  such,  to  an  interest  in  his 
wife's  (State,"'"''  and  othei-  like  (jnestions.^'^  As  every  item  of  an 
account,  as  tiled  l)y  the  representative,  may  be  controverted,  and 
the  entire  mana_i>ement  of  the  estate  may  be  overhauled,  it  follows 
that  the  (juestion  whether  the  representative  AVas  justified  in  allow- 
ing <tr  ])aying'  a  particular  creditor's  claim,  may  properly,  and 
pei-haps  nec(\ssarily,  arise  and  call  for  decision,  although  this,  in 
one  sense,  involves  the  trial  of  a  "  disputed  claim. ^^  The  surro- 
gate may  detonnine  whether  a  claim  has  l)een  rejected  by  the 
reprosentatii'(\''''  and  he  may  determine  the  validity  of  a  claim 
allowed  by  him,  and  for  which  he  claims  to  be  credited  in  his 
account;"'"  but  he  cannot,  at  the  instance  of  a  creditor,  ])ass  upon 
the  validity  of  an  alleged  debt  which  the  re]iresentative  has  re- 
ject(Ml  as  invalid,  except  upon  the  consent  of  the  ])arties."^  But 
a  judgment  against  the  decedent,  although  disputed  or  rejected 
by  his  ])ersi)nal  representatives,  need  not  be  sued  over,  in  order 
to  authorize  a  decree  for  its  payment  by  the  surrogate."" 


55  Matter  of  Gordon,  68  App.  Div. 
388 ;  74  N.  Y.  Supp.  2.")9.  Even  though 
it  involves  tlie  validity  of  an  ante- 
nuptial bond.  (]\Iatter  cf  Jones,  3 
Misc.   .")8().) 

50  Matter  of  Tahor,  .31  Misc.  579. 
In  such  case  the  next  of  kin  may  at- 
tack the  validitv  of  the  marriage, 
(lb.) 

^''  See  Matter  of  Verplanck,  27  Hun, 
(iO!);  Ferrer  v.  Pyne,  81  N.  Y.  281; 
Wheeler  v.  Ruthven,  74  id.  428 ;  Luce 
V.  Dunham,  (i9  id.  30;  Lawrence  v. 
Lindsay.  (18  id.  108;  Teed  v.  Morton, 
fiO  id.  502;  Hoppock  v.  Tucker,  59  id. 
202;  C'ushnian  v.  Horton,  id.  149; 
Whitson  V.  Wliitson,  53  id.  479;  Bas- 
coni  V.  Albert -;on.  34  id.  584;  Mc- 
Naughton  v.  McXaughton.  id.  201; 
Stagg  V.  Jackson,  1  id.  20(5 ;  Parsons 
v.  L}nnan,  20  id.  103:  Savre  v.  Ladd, 
7  Week.  Dig.  302:  Board"  of  Missions 
V.  Scovell,  3  Deni.  51(!.  The  surro- 
gate has  jurisdiction  to  determine  the 
amount  of  advances  to  a  legatee,  and 
his  decision  in  that  respect  is  binding 
iind  conclusive.  I  Foulks  v.  Foulks, 
32  St.  Rep.  1038:  10  X.  Y.  Supp. 
785.)  But  he  has  no  power  to  deter- 
mine the  claim  of  an  administrator 
for  advances  in  the  form  of  merchan- 
dise made  to  a  distributee,  where  the 
latter  denies  the  receipt  of  such  mer- 
chandise and  disputes  its  value. 
(Barker  v.  Lanev.  90  Hun,  108;  35 
N.  Y.  Supp.  G26.) 


58  Matter  of  Strickland,  1  Connoly, 
435;  22  St.  Rep.  902.  See  §§  027,0.34 
et  scq.,  ante. 

59  Lambert  v.  Craft,  98  X.  Y.  .342; 
Hoyt  V.  Bonnett,  50  id.  538 ;  Bowne 
\'.  Lange,  4  Dem.  350. 

CO  Matter  of  Frazer.  92  X.  Y.  239. 
It  is  not  essential  that  the  accounting 
party  shall  have  actually  jxiid  the 
claim  of  a  creditor,  to  enable  the 
court  to  pass  upon  it  on  tlie  account- 
ing. It  is  sufficient  if  the  representa- 
tive, having  allowed  the  claim,  in- 
cludes it  in  his  account  as  a  credit, 
though  the  same  has  not  been  paid. 
(Matter  of  Strickland,  supra.)  See 
flatter  of  Warrin.  50  Apj).  Div.  414. 
If  a  voucher  showing  payment  of  a 
claim  be  objected  to.  the  objector  may 
show  that  the  signature  thereto  was 
forged,  that  the  amount  represented 
was  not  due  to  the  alleged  creditor, 
that  it  has  not  been  paid,  or  that  only 
a  portion  of  it  has  been  ])aid.  (Mat- 
ter of  Llovd.   .39    St.    Rep.   851.) 

«lCo.  Civ.  Proc,  §  1822.  as  amended 
1895.  For  a  case  prior  to  the  anu^nd- 
ment,  see  Matter  of  Perry.  5  Misc. 
149. 

<52M(.Xulty  v.  Ilurd,  72  X.  Y.  518. 
The  surrogate  may,  upon  application 
for  a  decree,  inquire  into  and  pass 
upon  alleged  payments  made  to  ap])ly 
upon  the  judgment,  and  determiiu^  the 
amount  due  thereon,  and  may  also 
determine    who    is    the    owner   of    the 


g  1170. 


Accountings. 


'98 


§  970.  Pawer  to  construe  will. — Tlio  iiii]ilie(l  power  of  siirro- 
liiiTes  io  construe  a  will,  in  any  proceeding  touching  the  adminis- 
tration of  the  estate  nnder  it,  and  to  determine  the  validity  of 
any  of  its  provisions,  where  that  question  is  pertinent,  has  been 
already  sufficiently  stated.""'  Questions  frequently  arise  on  an 
accvtunting,  as  to  th'e  rights  of  legatees,  often  involving  a  judicial 
inter])retation  of  the  will,  and  as  to  the  rights  of  the  next  of  kin, 
their  identity,  their  legitimacy,  and  the  like;  all  which  questions 
the  Surrogate's  Court  has  jurisdiction  to  determine,  as,  without 
such  determination,  a  distribution  of  the  estate  cannot  be  had. 
A  Surrogate's  Court  has  no  jurisdiction  to  determine  the  right 
to  inheritance  of  the  heirs-atdaw  in  a  contested  proceeding,  nor 
to  direct  the  division  of  a  fund,  regarded  in  law  as  real  estate;^* 
':ut,  upon  the  accounting,  the  surrogate  has  jurisdiction  to  try  and 
determine  a  question  as  to  the  meaning  of  the  provisions  of  the 
decedent's  will,  so  far  as  necessary  to  enable  him  to  direct  the 
distribution  of  the  entire  estate;*'"'  but  not  to  adjudge  that  next 
of  kin  who  have  received  assets  shall  pay  to  the  administrator 
their  share  of  debts  incurred  by  the  latter,  and  giving  the  latter 
execution  therefor.^^  The  question  of  the  taxability  of  any  legacy 
or  distributive  share  may  be  raised  upon  the  accounting  of  the 
executor    or    administrator.       On    such    accounting,    the    county 


judgment  and  entitled  to  the  money: 
but  he  has  no  jurisdiction  to  deter- 
mine whether  there  has  been  an  accord 
and  satisfaction,  or  whether  the  es- 
tate is  entitled  in  equity  to  a  release 
or  discharge,  either  in  whole  or  in 
part,  from  the  judgment,  fib.)  See 
ante,  §  fi!t2  et  ficq.  He  may.  however, 
entertain  an  objection  that  a  judg- 
ment presented  as  a  claim  was  ren- 
dered in  a  court  having  no  jurisdic- 
tion. (Matter  of  Radde,  30  St.  Rep. 
741;   9  N.  Y.   Supp.  812.) 

f^-j  See  §  2.53  et  scq.,  ante.  The  gen- 
eral doctrine  was  stated  by  Gray.  J., 
in  Garlock  v.  Vandervoort  (128  N.  Y. 
374),  thus:  "Though  a  judicial  of- 
ficer with  limited  and  prescribed 
jurisdiction  and  powers,  yet  it  is  not 
open  to  question  that  in  a  proceeding 
before  him,  having  for  its  object  the 
settlement  of  an  executor's  accounts 
and  to  obtain  a  decree  directing  the 
distribution  of  the  fund  in  his  hands, 
and  with  all  the  parties  in  interest 
present,  the  surrogate  may  construe 
the  provisions  of  the  will  and  de- 
termine the  meaning  and  validity  of 
any  of  them,  whenever  such  a  deter- 


mination is  necessary  in  order  to  make 
his  decree  as  to  distribution.  Such  a 
jurisdiction  is,  of  course,  not  general; 
but  it  is  one  which  is  incidental  to 
his  office,  and  which  flows  clearly 
from  the  authority  conferred  upon 
him  by  the  statute." 

''4  flatter  of  \Yood worth.  5  Dem.  156. 
As  to  power  to  determine  whether  a 
legacy  is  a  charge  on  real  estate,  see 
Matter  of  Kick,  11  St.  Rep.  688; 
Bloodgood  V.  Bruen.  2  Bradf.  8.  The 
surrogate  has  jurisdiction  to  determine 
that  there  was  by  the  will  such  an 
equitable  conversion  of  the  testator's 
real  estate  into  personalty  as  author- 
ized and  required  the  executor  to  col- 
lect rents  and  sell  the  realty  and  to 
apply  the  same  or  the  proceeds 
thereof  to  the  pajTiient  of  legacies. 
( Matter  of  Richmond.  63  App.  Div. 
488:   71   X.  Y.  Supp.   79.5.) 

"5  Board  of  ^lissions  v.  Scovell,  3 
Dem.  .516:  Baldwin  v.  Smith.  3  App. 
Div.  350;  38  X.  Y.  Supp.  299.  Com- 
pare IMatter  of  Schweigert.  17  IMisc. 
186;  40  X.  Y.  Supp.  979. 

<■>'■' Matter  of  Keef,  43  Hun.  98.  See 
S  774,  ante. 


7!»!)  Accountings.  §i^  HTl,  itT^. 

troasnrcr  may  intervene  (if  lie  was  not  served  with  the  citation 
in  the  accountini;'  ju'oceeding)  and  make  a  claim  tliat  certain  leg- 
acies or  shares  are  snhjcct  to  the  tax.  'riicrcupoii,  the  surrogate 
may  i^siic  a  citation  to  the  ]>ro])cr  ])arties  to  show  cause  why  the 
tax  ^hoiiiil  not  he  assessed  and  paid,  and  pending  the  appraisal 
and  assessment,  the  decree  settling  the  account  will  he  suspended. 

;^  971.  Advances  to  beneficiaries. —  Moneys  advanced  hy  an  ex- 
ecutor or  administrator,  ont  of  his  own  resources,  to  a  legatee  or 
distributee,  may  be  reimbursed  by  allowing  his  charge  therefor 
on  his  accounting.*'^  And  where  allowances  are  made  for  the  sup- 
port of  minors  in  the  family  of  the  executor  or  administrator,  the 
subject  of  offsetting  the  value  of  their  services  should  be  con- 
sidered.*'^ 

ij  972.  Disputed  claim  made  by  or  against  representative. —  There- 
is  one  sort  of  "  disj)uted  "  claim  which  the  surrogate  is  expressly 
authorized  and  directed  to  determine,  on  the  judicial  settlement 
of  accounts,  which  has  been  already  mentioned.*"^  On  the  judicial 
settlement  of  his  account,  the  accounting  party  "  may  prove  any 
del)t  owing  to  him  by  the  decedent.  Where  a  contest  arises  be- 
tween the  accounting  party  and  any  of  the  other  parties,  respect- 
ing any  })roperty  alleged  to  belong  to  the  estate,  but  to  which  the 
accounting  party  lays  claim,  either  individually  or  as  the  repre- 
sentative of  the  estate;  or  i'es})ecting  a  debt,  alleged  to  be  due  by 
tlie  accounting  party  to  the  decedent,  or  by  the  decedent  to  the 
accounting  party ;  the  contest  must,  except  where  the  claim  is 
made  in  a  rejn'esentative  cajiacity,  in  which  case  it  may,  be  tried 
and  determined  in  the  same  manner  as  any  other  issue,  arising  in 
the  Surrogate's  Court."  '*'  The  Surrogate's  Court  has  jurisdic- 
tion, therefore,  to  try  and  determine  a  disputed  claim  of  the  ac- 
counting party  against  the  decedent,^^  or  a  claim  alleged  to  be 

fiT  Brnomo    v.    Van    Hook.    1    Redf.  eiirity  for  a  del)t  duo  to  dopodont.    On 

444:   Matter  of  Atwood.  10  Misc.  480;  decedent's    deatli.    the     wife    was    ap- 

'.VI    N.    Y.    8npp.    115.      As    to    proper  ])oinled  administratrix,  and  tlie  prop- 

form  of  account  l)y  administrator,  wlio  t-rty  was  sold.     Held,  that  the  adniin- 

lias    made    advances    to    next    of    kin  isti'atrix  held  the   i)roceeds  as  trustee 

without    reserving    sutlicient    to    pay  for    the    estate,    for    which    she    must 

debts,    see    Matter    of    Keef.    43    Hun,  account,  at  the  instance  of  a  creditor 

!)S.     See  ante,  §  069.  note  .57.  of    decedent,    and    that    the    surrogate 

<'S  Evertson  v.  Tappen,  ;>  Johns.  Ch.  had    juris(li<'tion   to  determine   such   a 

4!)7.  claini.       (Matter    of    Potter.    :V2    Hun. 

''f»See  §   (142.  (iiitr.  .^OO.) 

TO  Co.  Civ.  Proc.  §  27.31.  as  amended        Ti  Kyle    v.    Kyle,    (17     X.    Y.    400: 

1S0.5     (former    §    2739).      An    interest  Boughton    v.    Flint.    74    id.    471"..      See 

in  real    pro])erty  was  conveyed  to  the  l?4'van  v.  Cooper.  72  id.  318:   Stiles  v. 

wife  of  decedent  in  his  lifetime  as  se-  Burch,  5   Paige,   132;    Payne  v.  Mat- 


§  973.  xVccouxTiNGS.  800 

cliio  by  the  representative  to  the  estate,  either  individnally/^  or 
jointly  with  another. "'*  But  it  has  no  jurisdiction  to  determine 
the  validity  of  a  claim  due  from  the  estate  to  a  firm  of  which  the 
executor  is  a  member.'^ 

It  is  manifestly  the  duty  of  the  accounting  party  to  include  in 
his  account  a  statement  of  a  claim  due  to  himself  by  the  decedent 
and  support  it  by  aihrmative  proof,  whether  it  is  disputed  or  not.'^ 
He  should,  of  course,  at  the  same  time,  exhibit  and  charge  him- 
self with  any  debt  due  by  himself  to  the  decedent.  If  he  fails  to 
do  so,  any  party  interested  may  present  a  claim  therefor,  and  the 
proper  time  to  do  so  is  on  the  accounting,^**  and  he  may  be  charged 
for  suA  debt  wherever  he  administers,  notwithstanding  he  resides 
in  another  jurisdiction,  unless  the  rights  of  creditors  in  the  place 
of  his  residence  require  protection. ^^ 

§  973.  Testamentary  trustees'  accounts. — Where  an  executor  is 
also  a  testamentary  trustee  and  his  accounting  involves  all  that 
has  been  done  by  him  in  that  capacity  under  the  same  will,  the 
surrogate  has  authority  to  pass  upon  a  claim  presented  against 
such  testamentary  trustee."*  The  suggestion  that  the  court's  pow- 
ers on  a  trustee's  accounting  are  broader  than  those  which  can  be 
exercised  on  an  executor's  accounting,  is  not  sustained. "^^  The 
Code  provides  that  "  upon  a  judicial  settlement  of  the  account  of 
a  testamejitary  trustee,  a  controversy  which  arises,  respecting  the 
right  of  a  party  to  share  in  the  money  or  other  personal  property 
to  be  paid,  distributed,  or  delivered  over,  must  be  determined  in 


thews,  6  id.  10:  Jumel  v.  .Jumel.  7  id.  on  the  ace  Jtinting,  at  which  time  any 

.501  :   ^Merchant  v.  Merchant.   2   Bradf.  interested  party  may  question  the  pro- 

4.32:    Matter   of   Leslie.    .3   Redf.    280:  priety    of    its    payment.       (Matter    of 

Leviness  v.  Cas.sebeer.  3  id.  401:  Bar-  Jones,  2  Misc.  221;  54  St.  Rep.  273.) 

ras    V.    Barras.    4    id.    263:    Smith    v.  '5  As   to  the  nature  and  sufficiency 

Christopher,    6    Sup.    Ct.     (T.    &    C. )  of  the  proof  required,  see  ante,   §  643. 

288:     Richardson    •«'.    Root,    19    Hun,  "There    is    no    necessity    for    filing    a 

476;    Sexton  v.   Sexton,   64   App.   Div.  further    or    supplemental    account    for 

385;    72   N.   Y.    Supp.   213.      The   sur-  the  purpose  of  enabling  the  adminis- 

rogate    has     no     power,     however,     to  tratrix  to  verify  the  claim  which  she 

try    issues    arising    out    of    the    repre-  has   presented  against   the  estate.      It 

sentative's    interest    as    mortgagee    of  is   within  the   province  of  the  referee 

decedent's    real    estate.        (^Matter    of  to  allow  a   properly  verified  claim   to 

Monroe,    142   X.   Y.   484;    60    St.   Rep.  be  now  filed,  or  the  claim  as  presented 

102.)  to  be  now  verified."     (Matter  of  Cava- 

72  Everts   v.    Everts.    62    Barb.    577:  nagh.  X.  Y.  Law  J..  .July  28,  1802.) 
Gardner  v.  Gardner.  7  Paige,  112.    See  "6  Churchill    \.    Prescott,    3    Bradf. 
Xeillev  v.  Xeillev.  80  X.  Y.  352  :  :\Iat-  233. 

ter  of"  Eisner.   I'Connolv.  .358.  "Churchill    v.    Prescott,    3    Bradf. 

73  Sliakespeare   v.    :\raVkham.    72    X^.  233. 

Y.  400:  Matter  of  Eisner.  5  Dem.  383.  78  Gladding  v.  Follett,  2  Dem.  58. 

7-t  In  such  a  case,  the  executor  may  70  Van     Sinderen    v.    Lawrence,    50 

pay  the  firm,  and  on  filinsr  a  voucher  Hun,  272. 
therefor,    ask   credit  for   the   amount. 


801 


ACCOL'XTINGS. 


§§  074,  'Jlo. 


the  same  manner  as  other  issues  are  determined.'"  ^"  I'ndcr  tliis 
section,  it  has  heen  held  tiiat  a  .<uri-«t,i;ate  has  j)o\ver  to  determine 
the  validity  and  legality  of  an  alleged  assignment  by  a  cestui  qur 
Intst.'^^  lie  may  also  pass  upon  the  right  of  the  trustee  to  deduct 
from  income  an  overpayment  ])revionsly  made  by  mistake,**^  but 
he  has  no  power  to  determine  the  validity  of  agreements  by  the 
distributees  as  to  the  trustee's  compensation.*^ 

!^  974.  Proceedings  on  settlement  of  account. —  On  the  return  of 
the  citation,  issueil  in  a  voluntary  j)roceeding,  "  the  surrogate  must 
take  the  account,  and  hear  the  allegations  and  proofs  of  the  parties 
respecting  the  same."  *■*  Where  the  parties  cited  on  the  repre- 
sentative's petition  neglect  Vj  appear,  the  hitter  may  proceed  ex 
■parte;  but  an  infant  who  thus  makes  default  is  not  thereby  de- 
])rived  of  his  right,  A  guardian  <u}  litem  should  be  appointed;*^ 
and  in  New  York  county  the  rule  is  that  a  decree  shall  only  be  en- 
tered, on  a  written  report  of  the  guardian  appearing  for  the  infant 
to  the  effect  that  he  has  carefully  examined  the  account  and  finds 
it  correct. 

§  975.  Proceedings  before  referee The  general  powers  of  ref- 
erees  appointed    in    Surrogates'    Courts   have   already  been    fully 


80  Co.  Civ.  Proc,  §  2812.  This  sec- 
tion refers  to  a  controversy  which  in- 
volves a  claim  to,  or  a  lien  upon,  the 
specific  share  itself.  Ilenee.  a  snrro- 
jjate  cannot  withhold  payment  of  a 
clistril)iitive  share  mitil  an  action  is 
brouj,']it  and  it  is  determined  wliether 
the  owner  of  tlie  sliare  is  liable  as 
surety  upon  the  bond  of  a  former  trus- 
tee of  tlie  estate.  (Matter  of  Horn, 
7  App.  niv.  89;  30  N.  Y.  Supp.  n.14.) 
Upon  the  accounting;  of  a  testamentary 
trustee  wlio  has  been  directed  to  hold 
a  certain  sum  invested  in  order  to 
produce  cert.ain  annuities,  the  objec- 
tion that  the  sum  so  held  is  unneces- 
sarily larjje,  and  that  a  part  of  it 
should  ])e  returned  to  the  residuary 
estate,  does  not  re'ate  to  the  account- 
in<x  and  cannot  be  considered  in  tliat 
proceeding.  (Matter  of  Willets.  ,5 
Dem.  342:  aflfd.,  on  other  points,  in  9 
St.  Rep.  321.) 

51  :Ma<ter  of  TJofrers.  2  Connolv,  039. 

52  Rutlierford  v.  IMvers.  oO"  App. 
Div.  208:   (13  X.  Y.  Supp.  039. 

53  ^fatter  of  Yoiinsx.  1">  App.  Div. 
28.1:   44  y.  Y.  Supp.' 58.-1. 

54  Co.  Civ.  Proc,  §  2728.  as  amended 
1893    (former   §  2730). 

SSKellett  V.  Rathbun.  4  Paiae,  101: 

51 


Matter  of  Leinkauf,  4  Dem.  1.  Tlie 
appointment  of  special  fruardians,  or 
•Tuardiaiis  mJ  liicm,  for  infants,  is 
t^overned  by  general  regulations  ap- 
])licab]e  to  all  special  proceedings  in 
the  Surrogate's  Court.  See  ante, 
S  108.  Tf  minors  are  cited,  it  is 
imperative  that  special  guardians  of 
such  minoi.s  shou'^1  be  appoint cd.  or 
the  Surrogate's  Court  will  have  no 
jurisdiclion  OA^er  such  minors,  except 
for  service  of  the  citation.  (flatter 
of  Lockman,  4  Abb.  N.  C.  173.)  The 
recital  in  tlie  surrogate's  decree  upon 
the  final  accounting  of  an  executor, 
that  proof  of  service  of  the  citation 
upon  infant  legatees  was  produced,  is 
not  conclusive:  it  is  the  executor's 
duty  to  see  that  proof  of  service  is 
preserved.  (Hood  v.  Hood,  8.1  X.  Y. 
r)(ll.)  I'ending  a  voluntary  account- 
ing by  a  testamentary  trustee,  a  bene- 
ficiary of  the  trust  estate  died,  leav- 
ing an  infant  child  and  a  will,  exe- 
cuted before  the  child's  birth,  wliich 
made  no  jirovision  for  it.  Held.  that. 
on  its  parents'  death,  the  child  was 
vested  with  some  interest  in  the  trust 
estate,  and  was,  therefore,  a  proper, 
although  perhaps  not  a  necessary, 
party  to  tlie  accounting:  and  that  the 


§  976.  Accou.NTixNGS.  80^ 

stated.^^  On  a  judicial  settlement,  the  account  itself  i's  the  sub- 
ject-matter of  the  proceeding;  and,  like  a  pleading  in  an  action^ 
the  court  or  referee,  even  at  the  trial,  may  allow  any  amendment 
of  it  Avhich  does  not  include  a  transaction  subsequent  in  time  to 
the  return  day  of  the  citation.*^ 

§  976.  Burden  of  proof. —  Items  in  the  account,  not  disputed,  are 
to  be  iuliuittcd.''''  Where  the  affidavit  annexed  to  the  account  is 
full  and  distinct  as  to  the  payments,  and  the  items  charged  as 
(lis])ursements  under  twenty  dollars,  do  not,  together,  exceed  five 
hundred  dollars,  and  the  payment  of  sums  over  that  amount  are 
su])ported  by  vouchers,  it  is  for  the  party  who  objects  to  tlie  ac- 
count to  falsify  and  surcharge  it,  by  objections  in  the  form  of 
distinct  and  specific  allegations,  and,  on  the  hearing,  he  must 
support  his  allegations  by  proof.*^  While  the  accounting  party 
must  be  prepared  to  establish  the  propriety  of  his  payments,  if 
disputed ;  yet,  speaking  generally,  the  burden  of  impeaching  the 
accouuts,  if  they  are  duly  supported  by  his  oath,  is  upon  the 
party  objecting.^^     It  is  not  necessary  that   a   debt   should  have 

child,   as  well   as -the   executor  of  its  Ch.  430;   Orser  v.  Orser,  5  Dem.  21; 

deceased    parent,    having    been    made  Matter  of  Rowland,  id.  216;   Metzger 

parties    to    the    accounting,    the    judg-  v.    Metzger,    1    Brr.df.   26.5;    Carroll   v. 

nient  on  the  accounting  would  be  bind-  Hughes,  5  Redf.  337.   A  payment  made 

ing  on  the  child   and   on   its  parents'  on  account  of  a  debt  of  the  estate,  not 

estate.      CNIatter   of    Smith,    68    Hun,  exceeding  the  pro  rata  share  to  which 

530;    23   N.   Y.    Supp.    87.)      See   the  such    debt    would    be    entitled    in    the 

seventh    article   of   this  chapter,   post,  pro    rata    distribution,    should    be    al- 

S''>  See  §S    118.  6.50,  653.  ante.  lowed,    though    the    creditor    does    not 

8"  Matter   of   Odell,   1   Connoly,   94 ;  come  in  to  claim  the  residue  upon  the 

18  St.  Rep.  997:  Matter-  of  Oearns,  27  final  settlement.     (Johnson  v.  Corbett,. 

Misc.   76;   58   X.  Y.   Supp.  200;   Mat-  11  Paige.  265.) 

ter  of  Frank.  1  App.  Div.  39;  s.  c.  as  90  Journault  v.  Ferris,  2  Dem.  320; 
Matter  of  Schneider.  36  X.  Y.  Supp.  St.  John  v.  McKee,  id.  236;  Matter 
972:  Matter  of  Munoz.  N.  Y.  Law  J.,  of  Palmer,  3  id.  129;  Lynch  v. 
July  2C,  1093.  In  Price  v.  Brown  Patchen,  id.  58:  Matter  of  White,  6 
(112  X.  Y.  677).  upon  trial  before  a  id.  375:  :Matter  of  Fithian,  1  Con- 
referee  of  an  action  to  recover  a  bal-  noly,  187  :  Bellinger  v.  Potter,  36  St. 
ance  of  trust  funds  alleged  to  have  Rep.  601;  13  X.  Y.  Supp.  9:  Matter 
heen  in  the  hands  of  defendant's  tes-  of  Smith,  13  Misc.  592:  Matter  of 
tator  at  the  time  of  his  death,  the  Arkenburgh,  id.  744:  35  X.  Y.  Supp. 
referee  allowed  an  amendment  of  the  251 ;  Matter  of  Sprague,  40  App.  Div. 
complaint  by  striking  out  a  credit  615:  57  X.  Y.  Supp.  1128:  affd.,  162 
given  by  mistake  and  increasing  the  X.  Y.  611;  flatter  of  Stevenson,  86 
amount  claimed,  and  where  the  judg-  Hun,  325;  33  X.  Y.  Supp.  493; 
ment  entered  upon  the  referee's  report  flatter  of  Baker,  42  App.  Div.  370. 
was  reversed  and  a  new  trial  granted.  The  burden  of  proving  that  an  ex- 
—  Held,  that  the  amendment  did  not  ecutor  might  have  collected  a  de- 
introduce  a  new  cause  of  action  and  mand  inventoried  is  upon  the  con- 
was  within  the  discretion  of  the  ref-  testant  (Smith  v.  Collamer,  2  Dem. 
eree.     See  §  118.  ante.  147)  :    and  so  is    the    burden    of    im- 

SS  Westervelt  v.  Gregg.   1   Barb.  Ch.  jieaching     the     justness     of     disburse- 

469.  mcnts.  made  by  a  trustee  for  expenses 

soYalentino    v.    Valentine,    2    Barb,  of  administration.      (Valentine  v.  Val- 


80^>                                      Accou-XTixos.  ,^  'J 7 7. 

teen  paid  —  the  allowance  and  payment  of  which  are  contested  — 

in  order  to  shift  the  hiirden  of  proof  from  the  contestant ;   it  is 
enough  that  the  claim  has  been  allowed  by  the  accounting  party. "^ 

§  977.  Proceedings   upon   referee's   report.       'Jhc    report    of   the. 

referee  beiiiii'  tiled,'"*^  any  party  dissatisfied  therewith   sliouM   file 

entine,  3  Dom.  .")(>7.)  On  the  account-  the  eonvejance  is  not  necessarily  con- 
ing of  an  adininistratiix  of  an  exec-  elusive  on  him  on  the  ace -unting. 
utor,  to  wlioni  the  will  gave  the  right  (Upson  v.  Hadeau,  '.i  liradf.  l.'J.)  The 
to  use  the  estate  for  his  own  benefit,  surrogate  should  not  refuse  to  allow 
the  burden  is  upon  the  contestants  to  proof  of  certain  payments  to  the  next 
show,  by  competent  proof,  the  amount  of  kin,  because  the  parties  have  sub- 
lemaining  in  the  executor's  hands  at  mitted  their  case  without  proof  of 
his  death.  (Matter  of  Kyalis,  80  such  payment,  if  the  application  is 
Hun,  4.59;  02  St.  Hep.  287.)  But  in  made  while  the  proceedings  are  still 
the  absence  of  a  voucher,  the  burden  pending,  and  after  the  surrogate  has 
is  upon  the  accounting  party  to  prove  annovinced  that  he  would  hear  the 
the  correctness  and  justice  of  a  charge  parties  touching  anything  that  had 
for  which  he  asks  credit,  and  the  escaped  his  attention,  when  they  come 
voucher  for  which  has  been  lost.  (Mat-  before  him  to  settle  the  decree.  (  Peo- 
ter  of  Rowland.  5  Dem.  21().)  See  pie  v.  Coffin,  7  Hun,  (iOS.)  The  sub- 
Rose  V.  Rose.  G  Dem.  20;  s.  c,  19  St.  mission  of  the  case,  without  ])roof  of 
Rep.  783.  But  compare  Matter  of  the  payment,  at  most,  furnishes  mat- 
Nockin,  15  id.  731 ;  ^Matter  of  Selleck,  ter  for  the  exercise  of  his  discietion, 
111  N.  Y.  284.  The  surrogate  may  like  an  applicalicn  on  a  trial  to  in- 
compel  an  accounting  executor  to  be  troduce  further  testimony  after  coun- 
cross-examined  as  to  the  items  of  his  sel  have  rested,  or  to  recall  a  witness 
attorneys  bill  for  costs.  (Matter  of  after  he  has  left  the  stand;  and  al- 
Denike.  48  Hun.  (500.)  Where  the  ac-  though,  as  a  general  rule,  a  higher 
counting  party  is  thus  examined  un-  court  will  not  review  the  exercise  of 
der  oath  by  an  adverse  party,  his  a  discretionary  power  by  an  inferior 
wiiole  statement  must  be  taken  to-  tribunal,  yet  it  is  its  duty  to  do  so, 
gether;  and  a  part  tending  to  charge  in  the  case  of  a  palpable  abuse  of  dis- 
him  cannot  be  separated  from  a  part  cretion.  As  tlie  surrogate  in  this  case 
tending  to  explain  it  ana  o])erating  in  refused  to  exercise  his  discretion,  on 
his  favor.  (Ogilvie  v.  Ogilvie,  1  Bradf.  the  ground  of  a  want  of  power,  that 
350.)  Compare  Rouse  v.  Whited,  25  was  an  error  which  it  was  the  duty 
X.  Y.  170.  Upon  a  question  of  assets,  of  the  higher  court  to  correct.  (lb.) 
the  declarations  of  the  decedent  as  to  '•>!  Matter  of  Warrin,  50  App.  Div. 
the  amount  or  value  of  his  pro])erty  414.  Compare  Matter  of  Davis,  X.  Y. 
are  not  competent  to  charge  the  ad-  Law  J.,  Feb.  19.  1892. 
ministrator  with  assets.  The  admin-  !•- As  to  form  of  report,  exceptions 
istrator  is  only  boiiiid  to  a  failliful  tliereto,  and  proceedings  thereon,  gen- 
attempt  to  realize  U])on  such  assets  as  erally.  see  §  118  c^  srq..  antr.  After  a 
uiay  come  to  his  knowledge.  The  dec-  referee  has  filed  his  reiuut.  he  cannot 
larations  of  deceased  can  have  no  make  an  additional  finding.  (  Matter 
other  eflect  than  to  ])ut  him  upon  in-  of  Richardson.  2  Misc.  288.)  But  see 
quiry.  upon  their  being  brought  home  S  904,  anlr.  An  auditor  appointed 
to  him.  (Cinoeliio  v.  Porcella,  3  jjursuant  to  the  Revised  Statutes  could 
Bradf.  277.)  See  Matter  of  \Vood-  not  withhold  his  rep(Ut  until  his  fees 
\vard.  09  App.  Div.  280.  It  is  error  were  paid,  since  the  allowance  to  be 
for  the  surr(  gate  to  receive  evidence  made  to  him  by  the  surrogate  was  to 
of  the  declarations  of  the  testator,  follow  tlie  confirmation  of  the  report 
against  the  executor,  in  reference  to  or  other  determination  ui)on  it.  (Mat- 
business  matters  between  them,  tend-  ter  of  Woodhousc,  1  U.  Bui.  15;  ;Mat- 
ing  to  charge  the  latter  with  an  in-  ter  of  Foster.  3  Redf.  532.)  In  the 
debtedness  to  the  estate.  (Everts  v.  latter  ease,  the  auditor  instituted  a 
li^verts,  02  Barb.  57".)  Where  the  jjroceeding  to  compel  the  executor  to 
vepresentative  -old  property  belonging  take  up  a  report  in  his  favor,  and 
to  the  estate,  the  price  mentioned   in  there    were    no    assets    in    his    hands. 


§  9T8,  Accou-\Ti-N(;s.  804 

exceptions  tliereto,^^  and  these  should  specifically  point  out  the 
errors  complained  of,  where  they  do  not  appear  from  a  mere  de- 
nial of  the  correctness  of  the  finding. ^^  It  is  the  duty  of  the  court 
to  consider  the  exceptions  filed,  and  determine  the  questions  pre- 
sented thereby.^^  The  court  is  not  bound  to  sustain  or  overrule 
the  exceptions  specifically,  but  if  it  is  satisfied  that  justice  re- 
quires the  taking  of  further  testimony,  it  will  reserve  the  ques- 
tions on  the  exceptions,  and  order  further  testimony  to  be  taken. ^** 
The  proceedings  to  review  a  referee's  report  are  now  substantially 
the  same  as  if  the  reference  was  had  in  an  ordinary  civil  action, 
and  the  rules  applicable  thereto  are  to  l)e  found  in  the  general 
provisions  of  the  Code  of  Civil  Procedure. 

AETICLE  FIFTH. 

FORM  AND  CONTENTS  OF  THE  ACCOUNT,  AND  PRODUCTION  OF 

VOUCHERS. 

SUBDIVISIOX  1. 

FORM    OF    THE    ACCOUNT,    ITS    VERIFICATION,    AND    VOUCHERS. 

§  978.  The  debtor  side  of  the  account. — Executors  and  adminis- 
trators, in  making  up  their  accounts,^'  are,  in  convenient  order, 
first,  to  charge  themselves  with  the  amount  of  the  property  of  the 

Otherwise,   as   to   a   referee   appointed  ^  Ingrem   v.   Mackey,   5   Redf.    357. 

in   accordance   with   the   provisions   of  The    court    is    entitled    to    something 

the    statute   of    1870.       (lb.)      Doubt-  more    than   a    general   exception    that 

less,    the    latter    ruling    applies    to    a  the  conclusion  of  law  is  "  contrary  to 

referee  appointed  under  the  Code.  the  evidence  and   the  law."      (Matter 

93  In  New  York  county  the  follow-  of    Sickles,    X.    Y.    Law    J.,    Feb.    10, 

ing  rule   is   in   force:      "When  a   ref-  1890.) 

eree's    report    shall    be    filed,    together  95  Matter    of    Pool.    18    Week.    Dig. 

with  the  testimony  taken  before  him,  55.5. 

said    report   shall    be   confirmed   as   of  96  Matter  of  Pollock,  3  Redf.   101. 

course,  unless  exceptions  thereto  shall  97  The  statute  does  not  prescribe  any 

be  filed  by  a  creditor  or  party  inter-  special  form  to  be  adopted  by  an  exec- 

ested  in  the  accounting  or  proceeding,  utor  in  making  up  his  account.     Such 

within    eight    days    after    a    written  a    paper    should    contain  a  clear  and 

notice    of    such    filing   and    a    copy   of  definite  statement  of  his  dealing  with 

such    report    shall    have    been    served  his  testator's  estate,  so  that  it  can  be 

upon  the  opposing  party:  and  in  case  made  the  subject  of*  intelligent  objec- 

exccptions    shall    be    so    filed,    either  tions.        (Solomons     v.     Kursheedt,     3 

party    may    bring    on    the    hearing    of  Dem.    307. )       In    that   case,    the   e::ec- 

said  exceptions  on   eight  days"  notice,  utor    of   the   will    of   each    of   two    de- 

on  any  stated  motion  day  of  said  Sur-  cedents,  whose  respective  testamentary 

rogate's   Court."     Where  the  account-  provisions  were  in  direct  antagonism, 

ing  party  does  not   file  exceptions,   it  cited   all    persons   interested   in   either 

will  be  inferred  that  he  acquiesced  in  of   the   estates   to    attend   the   judicial 

the    report,  and    the    court    will    not  settlement  of  his  account  as  represen- 

afterward   grant    him    a    rehearing   on  tative  of  one  thereof,   and    applied   to 

the    matters    decided    by    the    referee,  the   court    for    instructions    as    to    the 

(Matter  of  Mull,  22  St.  Rep.  327.)  proper  mode  of  presenting  the  account. 


805  Accountings.  §  979. 

deceased  contained  in  the  inventory,  at  the  appraised  value.  They 
are  then  to  charge  themselves  with  the  increase  thereof,  such  as 
interest  that  has  accrue<l  on  debts  owing  to  the  deceased,  and  prop- 
erty and  denunuLs  wliidi  have  been  discovered  subsequently  to  the 
taking  of  the  inveiitory ;  next,  sums  for  which  they  have  sold 
property  exceeding  its. appraised  value,  and  then  all  other  increase 
to  the  inventory,  showing  the  items  thereof.  The  sum  total  of 
these  matters  of  increase,  added  to  the  value  of  the  property 
shown  by  the  inventory,  and  subject  to  such  modification  as  the 
event  justifies,  u])iiii  pi-inciplcs  which  are  elsewhere  explained, 
constitutes  the  debtor  side  of  the  account.^*  Where  the  executor 
or  administrator  has  received  the  proceeds  of  real  property,  he 
should  not.  in  the  absence  of  any  equitable  conversion  of  such 
proceeds  into  personalty,  include  them  as  personal  assets,  but  they 
should  l)e  stated,  if  at  all,  separately.^^  When  the  provisions  of 
tlic  will  operate  as  an  oquitalile  conversion  of  the  real  estate,  the 
executor  is  accountable  for  the  rents. ^ 

§  979.  The  credit  side  of  the  account. —  The  next  business  of 
the  accounting  party  is  to  show  what  has  become  of  the  sum  total. 
Aiul,  in  a  convenient  order,  the  first  class  of  items  on  the  credit 
side  consists  of  debts  found  to  be  bad  or  doubtful,  which  have  not 
been  paid,  and  these  are  credited  as  the  uncollectible  amounts  set 
down  in  ihv  invciirorv.  And  the  reason  why  such  debts  were  not 
collectible  should  be  stated,  except  where  it  is  unnecessary  because 
they  were  marked  worthless  in  the  inventory,  and  may  lie  pre- 
sumed uncollectible.  The  fact  wlu'tlier  debts  are  marked  worthless 
Avere  collectible  or  not,  is  a  fact  to  be  judicially  determined  by  the 
surrogate  in  passing  ujion  the  account.  And  if  a  final  accounting 
is  sought,  tlie  facts  justifying  the  credit  claimed  should  be  stated. 
The  statement  of  the  fact  that  the  debts  are  not  collected  will  not 
justify  a  decree  that  they  M'ere  not  collectible.^  The  next  class  of 
credits  comprise  the  sums  for  which  the  representative  has  neces- 

Held.    that    such    instniftions    shon]J  uro,  and  subsoquontly  sold  at  a  higher 

not  bo  fjivpn :   tho  oxocutor  should,  in  sum.   soo   Farmers'   Loan  &   Trust    Co. 

the  fust  instance,  solve  for  himself  tho  v.    ITall.  5   Deni.   7.3.     A   testamentary 

problem    which    confronted    him.   leav-  trustee  of  a   life  estate  in  net  income 

inir    it    to    those     interested     to     raise  must   distinguish    in    his    nccovmts   lie- 

(Ic^ircd    issues  by  filinfr  objections.  tween    the    income    deiived    from    the 

f>'^  TNlattcr    of    Jones.    1     "Rcdf.    203:  estate    and    the    charircs    thereon,    and 

Willccx  V.  Smith.  2C>  Barb.  31fi.  340.  the   principal  or  fo;-/»».s'  of  the  estal*-. 

!>->:\Iattcr    of    Place.    1     "Redf.    270:  (Wilcox   v.   Quinbv.   73   Hun.   .''124:    20 

Matter  of  Brown.  5  Dem.  223.     As  to  X.  Y.  Supp.    114.)' 

the    proper    statement    of    the   account  i  'Nfatter  of  Lanplois.  2t!  Abb.  X.  C. 

of    a    testamentary    trustee    who    has  2211:    14  X^.  Y.  Supp.   140. 

invested    moneys    on     mortfrajre.    and  ~  Matter  of  Jones,  1  Redf.  263. 
Iniui^lit  in  tho  property  at  a  lessor  fig- 


§  980.  AccouxTixGS.  806 

sarily  sold  property  at  less  prices  than  its  appraised  value,  with  a 
list  of  articles  or  description  of  the  property  so  sold.^  A  third 
class  comprises  the  articles  of  proj^erty  lost  without  the  fault  of 
the  executor  or  administrator.  And  here,  too,  the  cause  of  loss, 
with  the  appraised  value  of  the  articles  in  question,  should  be 
stated,  for  the  surrogate  is  here,  also,  to  pass  judicially  on  the 
sufficiency  of  the  excuse  offered.  The  fourth  class  comprises  the 
funeral  expenses  and  the  debts  of  the  decedent,  naming  the  credit- 
ors and  the  times  and  amounts  of  payments.  The  fifth  class  com- 
prises the  items  of  the  actual  and  necessary  expenses  paid  in  the 
course  of  administration  in  execution  of  duty.^  The  sixth  class 
comprises  payments  to  legatees  and  next  of  kin. ^  The  sum  total 
of  such  credits  is  then  to  be  subtracted  from  the  amount  of  the 
debtor  side  of  the  account.  Following  this,  should  be  mentioned 
the  articles  of  property  which  are  yet  unsold,  with  the  appraised 
value  thereof,  and  the  reasons  w^hy  they  have  not  been  sold.  And 
the  delivery  of  articles  set  apart  for  the  widow  and  children,  if 
any,  imder  the  statute,  may  also  properly  be  stated. 

§  980.  Facts  additional  to  the  pecuniary  items. —  Besides  the 
items  of  account,  strictly  so  called,  the  accounting  party  should 
set  forth  a  number  of  other  facts  which  arc  pertinent  and  proper 
to  be  considered  by  the  surrogate  in  making  up  his  decree  —  such 
as  an  enumeration  of  the  parties  in  interest,  and  a  statement  as 
to  the  proceedings  of  advertisement,  etc.,  to  ascertain  the  debts. 
Under  these  heads,  the  executor  or  administrator  should,  in  ordi- 
nary cases,  state  the  names  and  ages  of  the  legatees  and  next  of 
kin ;  and  if  any  are  minors  or  incompetents,  that  fact  should  be 

aWillcox   V.    Smith.    26    Barb.    316,  is     entitled.        In     ascertaining     this 

.346.     See  Farmers'  Loan  &  Trust  Co.  amount,    the    executors    are     entitled 

V.  Hall,  5  Dem.  73.  to    credit   for   payments   to     legatees, 

4  The  expenses  of  the  accounting  only  to  the  extent  of  the  distribu- 
proceeding  should  not  appear  in  the  five  share  to  which  each  legatee 
account,  but  should  form  a  part  of  the  was  entitled  at  the  time  of  the  ac- 
bill  of  costs  presented  for  allowance  counting.  If  they  have  overpaid  a 
and  taxation  upon  the  entry  of  the  legatee,  they  must  look  to  him  for  re- 
decree  passing  the  account,  (^tatter  imbursement :  they  cannot  claim  credit, 
of  Perry,  5  Misc.  149.)  The  failure  for  the  amount'  so  overpaid,  and 
of  the  executor  to  set  forth  in  his  ac-  thereby  diminish  or  postpone  the 
count  the  items  of  necessary  expense  amounts  payable  to  other  legatees, 
actually  paid  by  him.  does  not  pre-  (Adair  v.  Brimmer.  74  X.  Y.  .530.) 
elude  an  allowance  therefor  by  the  ^Moneys  paid  out  by  the  executor  for 
surrosate.  (^Matter  of  Kane.  64  App.  the  siipport  of  infant  children  of  the 
Div.  .566;  72  X.  Y.  Supp.  333.)  testator,    before    his    receipt    of    any 

5  The  account  should  be  made  up  so  moneys   in  the   capacity  of   guardian, 
as  to  show,  in  the  first  instance,  the  should   be   credited   in   his  account    as 
net  amount  of  assets  in  the  hands  of  executor.    (Matter  of  Gearns,  27  Misc. 
the    accounting    party,    and    the    dis-  76;   58  N.  Y.  Supp.  200.) 
tributive  share  to  which  each  legatee 


^07  Accuu.NTi>us.  §  981. 

stated,  and  whether  they  have  guardians,  and,  if  so,  their  names, 
residences,  and  the  mode  of  their  appointment ;  and  if  any  are 
females,  whether  they  are  married  or  unmarried  —  these  circum- 
stances being  necessary  to  enable  the  surrogate  to  pass  oh  the  pro- 
priety of  payments  made  to  them,  or  their  right  in  respect  to 
■claims  of  legacies  or  shares.  The  account  should  also  state,  as 
part  of  the  proceedings,'  when  the  inventory  was  filed;  when  the 
advertisements  for  claims  were  published ;  what  claims  were  al- 
lowed, what  disputed,  and  what  were  rejected,  and  the  time  and 
manner  in  which  they  were  rejected  or  disputed ;  what  suits,  if 
any,  have  been  commenced  thereon ;  which  of  them  have  been  de- 
termined, and  how,  and  which  are  pending,  and  the  amount 
•claimed.  This  is  necessary,  in  order  to  enable  the  surrogate  to 
•determine  if  any  of  the  estate  is  to  be  reserved  for  disputed 
■claims.  The  account  should  also  state  what  claims  have  been 
presented  and  allowed  since  the  expiration  of  the  advertisement 
for  claims.  If  no  such  claims  have  been  rejected  or  disputed 
and  no  suits  have  been  commenced,  it  must  be  so  stated.  If  the 
accounting  party  has  a  claim  for  debt  owing  to  him  by  the  dece- 
dent, it  should  be  stated  with  some  fullness.  If  he  took  no  voucher 
when  he  made  payment  of  a  claim,  or  if  the  voucher  taken  has 
been  lost  or  destroyed,  he  should  state  the  fact,  and  attach  the 
proof  of  payment.^  All  these  things  are  essential  in  the  account.'^ 
It  is  material,  also,  that  the  character  of  the  debts  paid,  allowed, 
or  prosecuted  slirould  be  stated ;  that  is,  whether  they  are  judg- 
ments docketed,  etc.,  or  debts  of  an  inferior  class.®  If  any  other 
fact  has  occurred,  as  a  part  of  the  proceedings,  which  may  affect 
the  estate,  or  the  rights  of  any  party  in  interest,  or  his  own  rights, 
he  ought  to  state  it. 

^981.  Separate  account  for  each  of  several  trusts. —  In  the  case 
of  several  distinct  trusts,  as  where  the  decree  settling  the  ac- 
counts of  executors  directs  them  to  set  apart  twelve  different  trusts 
as  provided  by  the  will,  tlie  tru?t<>es,  in  subsequently  accounting, 
may  properly  do  so  by  twelve  separate  petitions  and  citations, 
instead  of  one,  the  trustees  having  kept  the  accounts  as  to  each 

OSee  §   084,  post.  8  Soo  ^Matter  of  Jonos.   1   Rodf.  2(53. 

"  But  it  need  not  show  the  amount  Whore     oxeeutors     credit     tlu'inselves 

of  the  residuary   estate   when   it  does  witli   payment   of  a  debt   by  onVettinjr 

show  the  amount  of  such  estate,  sub-  one   due   the  estate,   they   must    show 

ject  to  deductions  which  can  only  be  such   offset   has   been   allowed   by   the 

fixed  at  the  entry  of  the  decree  of  set-  other  party.      {In  re  Archer,  23  N.  Y. 

tlement.      (Bullard  v.  Benson,  1  Deni.  Supp.  1041.) 
486.) 


§§  982,  983.  Accou.\TK\GS.  808 

trust  separately;  and  the  surrogate  properly  denied  a  motion  to 
compel  a  consolidation  of  the  accounts.'^ 

§  982.  Verification  of  account. —  To  each  account  "  must  be  ap- 
])ended  the  affidavit  of  the  accounting  party,  to  the  effect  that 
the  account  contains,  according  to  the  best  of  his  knowledge  and 
belief,  a  full  and  true  statement  of  all  his  receipts  and  disburse- 
ments on  account  of  the  estate  of  the  decedent ;  and  of  all  money 
and  other  property  belonging  to  the  estate,  which  have  come  to 
his  hands,  or  been  received  by  any  other  person,  by  his  order  or 
authority,  for  his  use ;  and  that  he  does  not  know  of  any  error  or 
omission  in  the  account,  to  the  prejudice  of  any  creditor  of,  or 
person  interested  in,  the  estate  of  the  decedent."  ^'^  The  like  affi- 
davit must  be  appended  to  each  account  filed  with  the  surrogate 
by  a  testamentary  trustee,  "  except  that  the  expression,  '  the  trust 
created  by  the  will,'  with  such  other  description  of  the  trust  as  is 
necessary  to  identify  it,  must  be  submitted  in  place  of  the  words,. 
'  the  estate  of  the  decedent.'  "  ^^ 

§  983.  Production  of  vouchers.^ —  The  accounting  party  must 
produce  and  file  a  voucher  for  every  payment,  except  in  one  of 
the  following  eases:  "  (1)  He  may  be  allowed,  without  a  voucher, 
any  proper  item  of  expenditure,  not  exceeding  twenty  dollars, 
if -it  is  supported  by  his  own  uncontradicted  oath,  stating  posi- 
tively the  fact  of  payment,  and  specifying  when  and  to  whom 
the  payment  was  made;  but  all  the  items  so  allowed  against  an 
estate,  on  all  the  accountings  of  all  the  executors,  or  adminis- 
trators, shall  not  exceed  five  hundred  dollars.  (2)  If  he  proves, 
by  his  own  oath,  or  another's  testimony,  that  he  did  not  take  a 
voucher  when  he  made  the  payment;  or  that  the  voucher  then 
taken  by  him  has  been  lost  or  destroyed;  he  may  be  allowed  any 
item,  the  pavment  of  which  he  satisfactorily  proves  by  the  testi- 
mony of  the  person  to  whom  he  made  it;  or,  if  that  person  is 
dead,  or  cannot  after  diligent  search  be  found,  by  any  competent 
evidence,  other  than  his  o^^^l  oath  or  that  of  his  wife."  ^" 


^Matter  of  Willets.   112  N.  Y.  289.  should  not  be  relaxed,  in  favor  of  the 

10  Co.  Civ.  Proc,  §  2729,  as  amended  representative  of  an  estate  under  cer- 
1893:  consolidating  former  §  2733.  tain  circumstances,  injustice  would  be 
See  Williams  v.  Purdy,  6  Paige,  166;  done,  and  a  serious  obstacle  to  the 
Gardner  v.  Gardner,  7  id.  112.  assumption    of    such    trusts    be    pre- 

11  Co.  Civ.  Proc.   §  2811.  vented.      (Matter   of   Pollock,   3   Redf. 

12  Co.  Civ.  Proc.  §  2729,  as  amended  100,  130.)  So.  it  was  held,  that  execu- 
1893;  consolidating  former  §  2734.  tors  were  not  bound  to  require  vouch- 
And  see  Co.  Civ.  Proc,  §  2811.  The  ors  from  creditors  whose  claims  were 
last  clause  modifies  the  provision  of  attested  by  the  decedent's  books  of 
the  former  statute,  as  to  which  it  was  recount,  and  by  personal  information 
said  to  be  manifest,  that  if  the  rules  cf    their    correctness    from    his    book- 


809 


ACCOUNTI.N'GS. 


§984. 


§  984.  Proof  on  nonproduction  of  voucher.—"  But  an  allowance 
cannot  Lo  so  made,  unites  the  ,siii'ro<:at('  is  satisfied  that  the  ciiarge 
is  correct  and  just."  ''  The  accoiintiiia'  jtarty  is  not  hound  to 
estahlish  j)avnients  for  whicdi  he  ])resents  vouchers  unless  denied 
by  ohjections,  and  the  burden  of  inipeacliing  such  payments  is 
on  the  contestant.'^  'Die  hick  of  xouchers  is  not  necessarily  an 
insujx'rable  obstacle  to  ])assini>'  the  accounts.  The  surrogate,  by 
reason  of  the  nature  of  his  ottice,  may,  by  evidence  morally  admis- 
sible, ascertain  where  truth  and  justice  lies  and  decree  accord- 
ingly.^"''    It   seems,   however,   that    an   oral   admission  ])V   contes- 


keeper  (Gillespie  v.  Brooks,  2  Kedf. 
349)  ;  and  that  information  from  the 
widow  that  a  certain  sum  was  due 
from  the  decedent  to  a  servant  was 
sullicient  to  justify  the  execiitor  in 
making  payment  without  a  voucher. 
(Ih.)  Jn  Willcox  v.  Smith  (2(i  Barb. 
316),  it  was  held,  that  the  statute 
was  imperative  in  requiring  the  pro- 
duction of  vouchers;  and  that  if  an 
account  could  be  allowed  in  any  case 
without  vouchers,  and  without  proof, 
other  than  the  oath  of  the  executor 
or  administrator,  it  was  only  where 
creditors  lefused  to  give  voiu-hers,  or 
where  tliev  had  been  lost  or  destroyed. 
In  Westci-velt  v.  Gi-egg  ( 1  Barb.  Ch. 
409,  479),  it  was  held,  that  an  estate 
should  jiot  be  subject  to  the  useless 
expense  of  producing  evidence  to  prove 
the  items  in  a  verified  account,  when 
the  correctness  of  those  items  was  not 
in  fact  questioned  by  the  parties  in  in- 
terest. 

13  Co.  Civ.  Proc,  §  2r29.  as  amended 
1893.  See  Peck  v.  Sherwood,  5()  N.  Y. 
61.5.  Payments  made  by  the  repre- 
sentative cannot  be  rejected  merely 
because  neither  the  accounts,  nor  the 
oath  to  the  accounts,  disclose  to  whom 
such  payments  have  been  made:  it  is 
sullicient  if  the  testimony  of  the  rep- 
resentative shows  to  whom  the  money 
has  been  i)aid:  and  it  seems  that  in 
case  of  payments  under  .$20.  where 
there  is  no  reason  to  doubt  that  the 
payment  has  been  made,  such  pay- 
ments will  not  be  disallowed  in  all 
cases,  even  where  the  rejuesentative 
cannot  remember  the  name  of  the 
pavee,  and  cannot  idcntifv  him.  flat- 
ter of  Nichols.  4  Kfdf.  "288:  decided 
inider  the  K.  S.  It  is  not  an  in- 
sujjerable  objection  to  allowing  a  gross 
sum  for  disbursements  made  by  the 
executor,  in  managing  tlie  estate  for  a 
series  of  years,  that  he  is  not  lial)le 
to  give  in  detail  all  the  various  items 


of  charge.     (Brohde  v.  Bruner.  2  Redf. 
333.)      See  Cornwell  v.   Deck.  id.  87. 

l4Boughton  V.  Flint.  74  N.  Y.  477; 
Bainbridge  v.  McCullough,  1  Hur., 
488;  Carroll  v.  Hughes,  .5  Redf.  337. 
Where  an  administrator  actually  has 
vouchers  for  claims  under  .$20  which 
he  has  paid,  the  surrogate  may  require 
their  production  upon  his  accounting 
in  Older  that  they  may  be  scrutinized 
by  the  contestants,  and  fiis  refusal  to 
do  so.  will  be  a  ground  for  suspicion 
aiul  furnish  the  surrogate  sutllcient 
reason  in  the  exercise  of  his  discretion 
for  the  rejection  of  such  claims  as 
credits.  (Orser  v.  Orser,  5  Dem.  21.) 
The  neglect  of  the  representative  to 
require  the  affidavit  of  the  claimant 
on  the  presentation  of  the  debt,  as  he 
is  authorized  to  do,  is  not  in  itself 
ground  for  rejecting  the  allowance,  if 
the  demand  is  supported  by  a  voucher 
upon  the  accounting.  ( Metzger  v. 
Metzger,    1    Bradf.    20.).)       See    §   C40, 

(I  life. 

i"*"'  Matter  of  Langlois.  2  Connolv. 
481:  20  Abb.  X.  C.  220.  In  that  case, 
the  books  of  a  deceased  executrix  were, 
without  objection,  received  in  evidence 
in  support  of  the  account  of  her  suc- 
cessors, and  contestants'  counsel  orally 
admitted  in  open  court  the  correctness 
of  the  account.  In  Matter  of  \\'agner 
(119  N.  Y.  31).  the  remark  of  Gray. 
.1..  though  obiter,  conunends  itself: 
"The  general  jurisdiction  conferred 
upon  the  Surrogate's  Court  in  mat- 
ters relating  to  the  conduct  of  execu- 
tors and  administrators  would  seem 
meaningless,  if  not  an  absurdity,  if  it 
did  not  comprehend  the  right  to  de- 
cree intelligently,  and  u]»on  e(piitable 
principles,  and  to  order  their  conduct 
upon  principles  of  justice  ami  of  rea- 
son." In  Willcox  V.  Smith  (20  Harb. 
343),  after  stating  the  stringent  rules 
to  which  executors  and  administrators 
are  held  in  establishing  their  accounts. 


^  985. 


Accountings. 


810 


tant's  counsel  in  open  court,  of  the  correctness  of  the  account,  is 
a  complete  waiver  of  the  objection  that  proper  vouchers  or  evi- 
•dence  have  not  been  produced. ^^ 

SUBDIVISION  2. 


THE  SUBJECT-MATTER  OF  THE  ACCOUNT. 

§985.  The  assets  mentioned  in  the  inventory. —  If  a  proper  in- 
ventory has  been  filed,  it  will  usuallv  disclose  the  principal  assets 
for  which  the  representative  is  bound  to  account;  and  presump- 
tively, the  value  fixed  in  the  inventory  is  the  value  for  which  ho 
must  account.^'  The  inventory  is  prima  facie  evidence  against 
him,  both  of  what  the  assets  consist  of  and  of  their  value.  But 
the  inventory  is  not  conclusive  against  either  party.  The  repre- 
sentative has  a  right  to  show  that  property  was  included  in  the 
inventory  which,  in  fact,  did  not  belong  to  the  estate,^^  and  he 
may  also  show  that  property  belonging  to  the  estate  was,  in  fact, 
of  less  value  than  the  amount  at  which  it  was  inventoried,  and 
that,  notwithstanding  his  diligence  and  fidelity,  he  has  been  un- 
able to  realize   the   amounts  contained   in   the   inventory. ^^      So, 


and  pronouncing  them  "  eminently 
just,"  the  court  said  these  rules 
"  should  not  be  departed  from  except 
in  cases  of  the  most  urgent  necessity, 
and  in  order  to  prevent  absolute  injus- 
tice." In  Matter  of  Gerow  (23  X.  Y. 
Supp.  847 ) ,  the  surrogate  of  Rock- 
land held,  that,  in  the  absence  of 
vouchers,  some  proof  of  payment  must 
be  furnished  by  competent  witnesses, 
as  provided  by  subdivision  2.  Refer- 
ring to  Matter  of  Langlois,  he  said : 
■"  If  a  surrogate  can  substitute  his 
own  sense  of  justice  in  place  of  that 
of  the  Legislature,  as  embodied  in  sec- 
tion 2734,  and  determine  that  vouchers 
need  not  be  taken,  then  the  rule  is 
practicallv  annulled."  Compare  Mat- 
ter of  Cruger,  34  X.  Y.  Supp.  191;  68 
St.  Rep.  241.  In  Matter  of  Grant  (40 
St.  Rep.  044:  If)  X.  Y.  Supp.  716),  the 
General  Term  of  Fifth  Department  re- 
versed a  decree  allowing  payments  for 
a  tombstone  and  funeral  expenses, 
where  no  vouchers  were  filed  and  no 
evidence  showing  payment  appeared 
in  the  case  on  appeal.  The  letter,  as 
well  as  the  policy  of  the  statute,  re- 
quire that  the  oath  of  the  accounting 
party,  in  the  case  of  a  lost  or  de- 
stroyed voucher,  should  be  excluded. 
But  where  he  is  called  as  a  witness  bv 


the  contestant  and  examined  as  to 
such  payments,  his  testimony  concern- 
ing payments  made  by  him,  where  he 
took  vouchers,  which  are  lost,  con- 
cludes the  contestant.  (Rose  v.  Rose, 
6  Dem.  26;  s.  c.  as  Matter  of  Rose,  19 
St.  Rep.  783.) 

10  Matter   of   Langlois,    supra. 

17  Matter  of  Childs,  26  X.  Y.  Supp. 
721;  Matter  of  Shipman,  82  Hun, 
108;  31  X.  Y.  Supp.  571:  Matter  of 
Maack,  13  Misc.  368:  35  X.  Y.  Supp. 
109.     See  Co.  Civ.  Proc,  §   1832. 

18  Where  the  appraisers  had  failed 
to  set  apart  the  statutory  allowance 
to  the  widow,  it  may  be  done  on 
the  accounting.  (Matter  of  Maack, 
supra.) 

19  Co.  Civ.  Proc,  §  1832 :  Schultz  v. 
Pulver,  11  Wend.  361.  Where  debts 
due  decedent,  to  a  lai'ge  amount,  were 
inventoried  as  worthless,  and  the  ex- 
ecutors, under  the  advice  of  decedent's 
bookkeeper,  who  was  familiar  with  the 
circumstances,  did  not  attempt  to  col- 
lect them  by  suit. —  Held,  they  were 
not  chargeable  with  such  debts,  in  the 
absence  of  evidence  that  the  debts 
might  have  been  collected.  (Gillespie 
v.  Brooks.  2  Redf.  349.)  Where  the 
surviving  partner  is  also  the  executor 
or  administrator  of  the  deceased  part- 


•Sll  ACCOUXTJXGS.  §  OftO. 

where  the  representative  received  money  pai<l  to  liini  by  mistake, 
as  due  to  the  estate,  he  is  not  charfioahle  with  it  as  assets,  unless 
the  person  paying  it  has  waived  liis  chiim  to  recall  it.^"  lie  may 
.also  show  that  the  value  placed  u])ou  any  article  of  the  assets  in 
the  inventory  was  excessive,  Init  very  clear  proof  of  this  should 
be  required.  It  is  not  enough  to  show  that  he  has  not  realizcrl 
the  inventory  value.  Thus,  if  he  sells  assets  at  the  inventory 
valuation,  and,  instead  of  securing  payment  of  the  price,  gives 
a  long  credit  without  sufficient  security,  and  by  this  negligence 
loses  a  part  of  the  price,  he  is  not  entitled  to  a  diminution  of  the 
valuation  upon  the  ground  that  the  price  for  which  he  bargained 
was  higher  than  he  could  have  secured  on  a  cash  sale."^  Upon 
the  same  principle,  if  the  executor  buys  in  assets  for  his  own 
benefit,  though  in  the  name  of  another  person,  at  less  than  the 
inventory  price,  he  cannot  be  allowed  to  account  at  only  the 
price  fixed  by  the  sale.  In  such  a  case,  he  is  properly  chargeable 
with  the  value  of  the  assets  so  sold;  and  in  the  absence  of  any 
■decisive  and  satisfactory  proof  otherwise;  the  best  evidence  v.ill 
be  the  sworn  inventory  filed  by  the  representative  himself." 

§986.  Impeaching  inventory. —  On  the  other  hand,  the  parties 
interested  may  show  that  assets,  other  than  those  contained  in 
the  inventory,  have  come  to  the  hands  of  the  representative,  or 
might  have  come,  by  the  exercise  of  due  care  and   attention."'^ 


ner,   a   statement    of   the   partnership  ported  to  them  the  sum  of  $475,  as 

/affairs  is  incidental  to  the  settlement  collected    from    a    tenant,    which    was 

-of    the    accounts    of    the    executor    or  not  actually  collected;   and  the  execu- 

administrator,  and,  in  a  case  of  final  tors,   in   accounting   before   the   surro- 

^ccounting,     is    absolutely    necessary,  gate,    credited    the    estate    with    that 

(Marre    v.    Ginochio.    2    Bradf.    IG.j.)  sum.      But   the   tenant   having   failed. 

The  books  of  the  firm  and  the  balance  and    the    sum    remaining    uncollected, 

sheet,  showing  the  amount  due  the  es-  without     fault    of    the    agent, —  Held, 

tate,  are  evidence  against   him  on  his  j)roper  for  the  executors   to   rejiay   it 

accounting.      And    if    he    claims    that  aiid  charge  it  in  their  account, 

any  deduction  shall  be  made  with  rcf-  -i  Hasbrouck    v.    llasbrouck,    27    X. 

erence  to  the  uncertain   value  of  the  Y.  182. 

assets,    the    burden    is    upon    him    to  22  Schenck   v.    Dart.    22    X.    Y.    420. 

show  what  corrections,  if  any,  are  to  Tn  \Vright  v.  Fleming  (71  X^.  Y.  (>12). 

"be  made.      (Matter  of   Saltus,   .3  Abb.  an  administrator's  accounts  showed  a 

'Ct.   App.   Dec.   243.)  sale  of  bonds  belonging  to  the  estate. 

20  Johnson    v.     Corbett.     11     Paige,  and    he    accounted    for    the    proceeds. 

"26.5.      In   Matter   of   Pollock    (.3   Redf.  In    the    absence    of    any    objection    to 

101),  the    executor,  in    his    accounts,  them  or  proof  tending  to  impeach  the 

«rroneously  cliarged  himself  with  sums  statement, — -Held,    error    for    the    sur- 

of   money. —  Held,    it   did   not    prevent  rogate  to  charge   him   with   the  value 

him    from   afterward,  on    his   account-  and    interest,    as    if    he    had    retained 

ing,  claiming  that  he  was  not  properly  them.     See  Matter  of  Yetter.  44  App. 

chargeable  with  them.     See  Matter  of  Div.  404:    01    X.  Y.   Supp.    175:    affd.. 

Rembe,   23   Afisc.   44:   51   N.  Y.   Supp.  102  X.  Y.  015. 

507.     In  Hetts  v.  Betts   (4  Abb.  X".  C.  23  The    inirden  of  so  doing  is  upon 

324,   439),   an  agent  of  executors   re-  the   contestant.       (Matter    of    Mullon, 


§  r)87. 


Accountings. 


812: 


The  inventory  may  be  rebutted  by  showing  that  the  account 
whicli  the  representative  renders  is  false  or  erroneous  in  the 
omission  of  assets  received,  or  which  ought  to  have  been  received » 
or  by  showing  that  the  accounting  party  has  intentionally  failed 
to  account  for  parts  of  the  estate,  or  made  himself  liable  by  wrong 
dealing  or  negligence.^'* 

§987.  Assets  not  in  inventory. —  Where  the  existence  of  other 
assets  is  alleged,  for  which  the  representative  has  not  accounted^ 
the  surrogate  has,  of  course,  jurisdiction  to  determine  the  ques- 
tion; and  if  the  representative,  admitting  that  the  articles  referred 
to  belong  to  the  decedent,  sets  up  a  gift  by  the  decedent  to  him 
before  death,  the  surrogate  has  jurisdiction  to  determine  the 
question  of  a  gift  as  necessarily  incidental  to  the  settlement  of  the 
accounts,  and  making  a  decree  for  distribution.^^  It  will  often 
happen  that  assets  have  been  acquired  since  the  tiling  of  the 
inventory,  the  existence  of  which  was  unknown  at  the  time,  or 
depended  on  a  contingency,  making  their  inventory  and  appraisal 
impracticable.  In  case  of  an  equitable  conversion,  the  executor 
has,  by  virtue  of  his  office,  the  administration  of  both  kinds  of 
property,  real  and  personal,  and  should  account  for  all  as  assets."**' 


145  X.  Y.  98;  64  St.  Rep.  551;  Matter 
of  Van  Sise.  38  Misc.  155.)  Co.  Civ. 
Proc,  §  1832.  relating  to  the  rebuttal 
of  inventories,  was  not  designed  to 
operate  upon  an  accounting  where  an 
administrator's  management  of  his 
trust  is  upon  trial.  (Matter  of  Wood- 
wortli,  5  Dem.   156.) 

24  Hasbrouck  v.  Hasbrouck.  supra; 
Halsted  v.  Hyman.  3  Bradf.  426; 
Montgomery  v.  Dunning,  2  id.  220. 
See  Matter'of  Tobin.  40  St.  Rep.  300; 
16  N.  Y.  Supp.  462.  The  mere  fact 
that  decedent  owned  certain  property 
some  years  befoi'e  her  deatli.  dof>s  not 
authorize  the  presumption  that  she 
died  the  owner  of  it.  (Matter  of  Rv- 
alls,  80  Hun,  459;  30  X.  Y.  Supp. 
455.) 

25  Merchant  v.  Merchant,  2  Bradf. 
432,  437.  See  §§  584.  907.  ante.  Also 
Dotv  v.  ^Villson.  47  X.  Y.  .580;  Fowler 
A-.  Lockwood.  3  Redf.  405;  Matter  of 
Barefield,  30  Misc.  745;  74  X.  Y. 
Supp.  472.  So,  too,  a  person  inter- 
ested in  the  estate  as  a  widow  or  next 
of  kin.  who  has  presented  to  the  ap- 
praisers an  article,  under  the  belief 
that  it  was  a  part  of  the  property  of 
the  decedent,  is  not  necessarily  es- 
topped by  the  appraisal :  but  may  sub- 
sequently,   on    being    advised    of    his 


own  title  thereto,  interpose  his  e'aim. 
(Sanford  v.  Sanfoi'd,  5  Lans.  486;  61 
Barb.  293. )  Compare  Van  Slooten  v. 
Wheeler.  140  X.  Y.  624.  See  Matter 
of  Myers,  36  App.  Div.  625;  oo  X.  Y. 
Supp.  168.  For  a  case  where  the  rep- 
resentative deposited  her  own  moneys 
in  the  testator's  bank  account  and  it 
was  sought  to  add  them  to  the  inven- 
tory, see  Matter  of  Shipman,  82  Hun, 
108. 

26  Matter  of  Mitchell,  61  Hun,  372: 
16  X.  Y.  Supp.  180.  See  Shut  tie  worth 
V.  Winter.  55  X.  Y.  024.  031.  The 
surrogate  has  power  to  compel  an  ex- 
ecutor to  account  for  proceeds  result- 
ing from  the  exercise  of  a  discretion- 
ary power  to  sell  real  estate.  (Matter 
of'Cutting,  X.  Y.  Daily  Reg.,  Nov.  18, 
1885.)  A  general  devise  to  executors 
to  sell  and  distribute,  in  a  specified 
way,  the  proceeds  of  real  estate,  does 
not  convert  it  into  personalty,  so  as 
to  make  them  accountable  for  such  as 
has  not  been  sold,  as  personalty  upon 
their  final  accounting,  and,  if  a  sale 
is  not  made  within  a  proper  time,  the 
remedy  is  by  application  to  the  court 
to  compel  it.  (Matter  of  Hunter,  3 
Redf.  175.)  As  to  powers  of  personal 
representatives  with  respect  to  real 
estate    and    their    accountabilitv    for 


S13  AccouxTiXGs.  §§  988,  989. 

The  representative  is  not  charpjeable  with  the  vahie  of  chattels, 
in  the  use  of  wliicli  the  testator  has  given  a  life  estate  to  one  per- 
son, with  reiiiniiidi  r  unci-  td  oihors.  The  remedy  of  the  reniain- 
•dorincn  is  not  against  the  representati\c,  l»iit,  in  ease  of  danger 
to  the  chattels,  to  require  the  life  tenant  to  iiive  security."^  Hav- 
ing already  treated,  as  fully  as  was  thought  to  be  necessary,  of 
the  quantity  of  the  estate,  and  what  assets  executors  and  admin- 
istrators are  accountable  for,  it  will  be  unnecessary  to  pursue  the 
subject  any  further  here."** 

ARTICLE  SIXTH. 

COMPENSATION   OF   EXECUTORS,    ADMINISTRATORS,   AND   TESTA- 
MENTARY TRUSTEES. 

§  988.  Rate  of  compensation  of  executors  and  administrators. — ■ 

The  statute  ])rovides  that,  "  on  the  settlement  of  the  account  of 
ill!  executor  or  administrator,  the  surrogate  must  allow  to  him 
for  his  services,  and  if  there  be  more  than  one,  apportion  among 
them,  according  to  the  services  rendered  by  them  res])ectively, 
over  and  above  his  or  their  expenses,  at  the  following  rates: 

"  For  receiving  and  paying  out  all  sums  of  money  not  exceed- 
ing one  thousand  dollars  at  the  rate  of  five  per  centum. 

''  For  receiving  and  paying  out  any  additional  sums,  not  amount- 
ing to  more  than  ten  thousand  dollars,  at  the  rate  of  two  and 
one-half  })er  centum. 

''  For  all  sums  above  eleven  thousand  dollars,  at  the  rate  of  one 
per  centum."  ~^ 

§  989.  Allowance  for  expenses. — In  addition  to  the  allowance 
hy  way  of  compensation  for  their  personal  services,  the  represen- 
fatives  must  be   allowed  for  their  "  necessary  expenses  actually 

ronts    and    profits,    see    ante,    §§    530,  ried  into  the  Code,  and  boinfr  consoli- 

Jj.32.  dated   with   the   former   sections   iTSt], 

27  Matter  of  Place,  1  Redf.  276.     See  2737.   and   2738    (now  repealed),   con- 

§  740,  atitc.     Under  a  will  which  pave  stitute  section  2730.    The  second  para- 

to  trustees  a  farm  and  farniin<j  uten-  fjraph  of  the  oriorinal   statute    (before 

sils  and  live  stock  for  the  use  of  tes-  the   amendment  of    18fl3.   on   bringing 

iator's   son, —  Held,    that  the   trustees  it     into    the    Code)     allowed    'I'^'j    per 

were  not  chai-geablo  to  the  remainder-  cent.    "  for    receiving    and    paying    out 

man  for  the  personal  j)roperty  because  any    sums    exceeding    $1,000,    and    not 

thev  gave   it   into   the  custodv  of  the  amounting    to    $10,000,"    that    is,    on 

^on.     (Matter  of  Washbon,  38'St.  Rep.  .$0,000:    and    1    per  cent,   on   all    sums 

tilO;   14  X.  Y.  Sui)p.  ti72.)  above  $10,000:   whereas  now  the  rate 

-^' See  §  .')28  rf  sirq.,  ante.  is    increased    by    $2.5    on    all    sums    of 

2!i  By  L.  1803,  p.  686.  the  foregoing  $11,000  or  under.     As  to  compensation 

provision   of  the  Revised   Statiites    (2  of   temporary  administrators,  see  §  423, 

H.   S.   03,   §   ri8,  as   amended   L.    1863,  ante. 
■c,  3G2,  §  8;   L.  1880,  c.  245)   was  car- 


§§  090,  991.  Accountings.  S14r 

paid  by  them."  ^^  The  reader  is  referred  to  previous  pages,  where 
the  subject  of  expenses  of  administration  is  fully  dealt  with.^^ 
Expenses  of  accounting  are  mentioned  later  on. 

§  990.  Compensation  of  testamentary  trustees. —  Xotwithstanding: 
the  repeal  of  the  statute,"^  which  gave  the  same  commissions  to 
testamentary  trustees  as  to  executors,  etc.,  it  was  held  that  trus- 
tees were  within  the  equity  of  the  statute,  and  the  surrogate  had 
power  to  grant  them  such  commissions  as  are  incident  to  his 
general  power  to  settle  their  accounts,  and  the  power  was  uni- 
formly assumed."'^  The  statute  now  provides,  however,  that  in 
all  "  annual  accountings  "  of  trustees  created  by  will  or  appointed 
by  any  competent  authority  to  execute  a  trust  created  by  will,  the 
surrogate  "  shall  allow  to  the  trnstee  or  trustees  the  same  com- 
pensation for  his  or  their  ser\-ices,  by  way  of  commission,  as  are 
allowed  by  law  to  executors  and  administrators,  besides  their 
just  and  reasonable  expenses  therein."  ^'^ 

§  991.  Ground  of  the  right  to  compensation. —  The  statute  gives 
the  commissions  as  matter  of  right,  and  the  surrogate  has  no 
power  to  withhold  them,  or  to  state  a  balance  excluding  them,^^ 
providing  the  representative  has  properly  administered  the  es- 
tate.^" The  doctrine  of  the  common  law,  on  the  contrary,  is 
that  an  executor  or  administrator,  like  any  other  trustee,  is  not 
entitled  to  commissions,  nor  to  any  compensation  for  his  services- 
in  the  execution  of  his  trust;  the  reason  of  this  refusal  to  award  • 
a  compensation,  without  statute  authority,  being,  that  the  accept- 
ance of  a  trust  must  be  deemed  voluntary  and  confidential,  and  a 
just  indemnity  is  all  that  can  be  expected  or  required. ^'^     The 

30  Co.  Civ.  Proc,  §  2730,  as  amended        3^  Ilalsey  v.  Van  Amringe.  6  Paige, 

1895.  12:  Dakin  v.  Deniminp.  id.  95:  Matter 

•■'1  ^ee   §   552  ef  scq.,  ante.  of  Curtiss.  9  App.  Div.  285.     Compare 

32  L.    18G6.  c.   155.  Secor  v.  Sentis.  5  Redf.  570.     The  com- 

33  Hiirlburt  v.  Durant,  88  X.  Y.  mi>^sions  of  an  insolvent  executor,  who 
121;  Johnson  v.  Lawrence,  95  id.  154:  is  indebted  to  the  estate,  must  be  ap- 
Laytin  v.  Davidson,  id.  263:  ]\Ieeker  plied,  on  the  settlement  of  his  account, 
V.  Crawford,  5  Redf.  450;  Matter  of  to  the  liquidation  of  his  indebtedness 
Roose-i-plt,  id.  601:  Hall  v.  Campbell,  to  the  decedent.  (Freeman  v.  Free- 
1  Dem.  415:    Slosson  v.  Xaylor,  2  id.  man.   4  Redf.   211.) 

257:  4  Civ.  Proc.  Rep.  280.'  3fi  See    Wheelwricrht   v.    Rhoades.    28 

34  Co.  Civ.  Proc.  §  2802.asamend€d  Hun.  57:  11  Abb.  X.  C.  382;  Welling 
1885.  -The  commissions  of  testamen-  v.  Wellinor,  3  Dem.  511,  and  cases 
tary  trustees  are  governed  by  the  law  infra. 

in  force  at  the  time  of  the  settlement        37  In  an  early  case.  Chancellor  Kent,, 

of    their    accounts,    although    the    ser-  in   refusing   a    trustee's   request   to   be 

vices  may  have  been  performed  prior  allowed   commissions,  said  that  it  could 

to  the  enactment  of  such  law.      (Xay-  not  have  a  very  favorable  influence  on 

lor   V.    Gale,    73    Hun,    53;    25    N.   Y.  the  prudence  and  diligence  of  a  trus- 

Supp.  934.)  tee,  were  the  court  to  promote,  by  the 


815 


LCCOU-\TIX(i.S. 


^'  !»:»2. 


statute  now  allows  a  spooitic  coiniK'nsation;  Imt  as  to  all  bcvond 
that,  the  eoiivt?;  ^^till  adhere  to  this  statutory  principle,  and  the 
executor  or  inhniiiistrator  cannot,  even  Lv  rendering  service  be- 
yciiiil  his  duty  as  trustee,  entitle  himself  to  additional  compensa- 
tion,   huwcvcr   necessary   the   service   and   reasonable   his   price.''* 

i<  992.  Statute  allowance  exclusive. —  The  statute  allowance,  if 
claiiuccl,  is  exclusive  of  a  specific  compensation  in  the  will;  and 
it  a  testator  has  provided  for  such  compensation,  an  election  be- 
tween that  and  the  statute  allowance  is  necessary.  The  Code 
declares  that  where  the  will  jtrovides  a  sj)ecific  compensation  to 
an  executor,  administrator,  or  trustee,  he  is  not  entitled  to  any 
allowance  for  his  services,  unless,  by  a  written  instrument  filed 
with  the  surrogate,  he  renounces  the  specific  compensation.^* 
The   subjects  of  legacies  given  in   lieu  of  commissions   is   con- 


hopes  of  reward,  a  competition,  or 
even  a  desire,  for  the  possession  of  ]tv\- 
vate  trusts  that  relate  to  the  moneyed 
concerns  of  the  helpless  and  intinn. 
(Manning  v.  Manning,  1  Johns,  lli. 
527.) 

38Mvers  v.  Bolton,  l.")7  X.  Y.  393; 
28  Civ.  Proc.  Rep.  397:  :\Iatter  of 
Howard,  3  Misc.  170;  24  X.  Y.  Supp. 
83(j.  See  ^  5.57  ct  seq.,  ante.  As  to  the 
transferable  nature  of  the  right  to 
commissions,  see  De  Peyster  v.  Fer- 
rers, 11  Paige,  13:  Gray  v.  ^Murray, 
3  .Tolins.  Ch.  107:  Worrall  v.  Drigss, 
1  Redf.  449:  Matter  of  Worthington, 
141  X.  Y.  9:  5(5  St.  Rep.  5G1.  A  de- 
cree cf  a  surrogate  will  not  be  reversed 
because  it  allows  a  gross  sum  to  tlie 
ndministrator  for  his  services,  if  it 
appear  that  it  does  not  exceed  the 
:miount  of  his  statutorv  fees.  (Green 
V.  Sanders,  18  Hun.  308.)  For  pro- 
ceedings in  an  action  to  recover  from 
executors  commissions  allowed  by  a 
decree  of  the  surrogate,  wliich  was 
afterward  reversed,  see  Scholev  v.  Hal- 
sey,  72  X^.  Y.  578. 

3t)Co.  Civ.  Proc.  §  2730.  as  junended 
1893:  consolid;)ting  former  §  2737. 
Compare  Russell  v.  Hilton.  37  ^fisc. 
042:  7f)  X'.  Y.  Supp.  233.  Section 
2811.  making  former  section  2737 
(now  rcjiealed)  apply  to  testamen- 
tary trustees,  will  doubtless  be  held  to 
make  present  section  2730  applicable 
1n  them.  Though  the  statute  fixes  no 
lime  for  the  election,  the  executors 
:M-e  bound,  if  they  desire  to  renotinco 
the  latter,  to  do  so  as  soon  as  they 
ascertain   which   rate  would   be   more 


advantageous,  and  they  may  lose  their 
opportunity  by  laches.  (Arthur  v. 
Xelson.  1  Deni.  337.)  In  Matter  of 
Weeks  (5  Dem.  194),  it  was  held,  that 
t!\e  time  within  which  an  executor 
may  renounce  his  legacy  is  not  limited 
by  law.  So  long  as  he  has  not  indi- 
cated his  election  between  such  provi- 
.sion  and  the  statutory  commissions, 
cither  by  taking  to  himself  one  or  the 
other,  or  by  some  other  mode,  iiis 
rigiit  to  file  a  renunciation,  and  to 
avail  himself  of  its  benefits,  remain* 
unimpaired.  To  the  same  efTecl,  Mat- 
ter (f  Arkenburgh.  38  App.  Div.  473: 
56  X.  Y.  Supp.  523:  distinguishing 
Arthur  v.  Xelson,  supra.  Where  an 
executor  has  renounced  the  right  to 
^^pecified  compensation,  tlie  -urrogate 
is  not  authorized  to  permit  him  to  re- 
tract the  same  witliout  the  consent  of 
the  parties  in  interest.  (lb.)  In 
:Matter  of  Tildon  (5  Dem.  230;  44 
Hun.  441:  98  X.  Y.  Su!)p.  434).  the 
win  provided  for  compensation  to  be 
received  by  the  executors,  which  it  di- 
rected to  be  piid  tn  them  from  time 
to  time  in  ]iro])ortion  to  their  st-rviees. 
Held,  that  a  decree  settlim,'  their  ac- 
c'liints  was  not  an  adjudication  that 
the  sum  therein  charged  as  commis- 
sions was  all  the  compensation  to 
which  the  executors  were  then  enti- 
tled, and  that  such  decree  did  not  pre- 
vent a  subsequent  allowance  as  com- 
missions of  any  siun  in  addition  to  the 
sums  there  allowed  which  the  execu- 
tors could  show  themselves  entitled  to 
upon  a  subsequent  account incr.  S«e 
Smith  v.  Lansing,  24  Misc.  5GG, 


§§  993,  994.  Accountings.  816 

sidered  elsewhere.^"  When  the  provision  made  by  the  will  fails, 
the  court  cannot,  in  construing  the  will,  award  the  executor  a 
-compensation  in  money,  in  lieu  thereof,  on  the  theory  that  it  may 
iiward  a  pecuniary  equivalent.'*^  But  since  a  testator  may  give 
what  compensation  he  pleases  (except  as  against  creditors),  he 
may  expressly  give  compensation  in  addition  to  the  statute  allow- 
ance, and  in  such  case  the  court  will  award  payment  of  both, 
if  the  services  are  actually  performed.*^  On  the  other  hand,  the 
will  may  limit  the  compensation  for  particular  services  rendered. 
Thus  a  direction  in  a  will,  that  one  of  three  executors  should 
'*'  receive  a  commission  of  six  per  cent,  upon  all  moneys  collected 
by  him,"  does  not  entitle  him  to  the  commission  on  the  entire  pro- 
ceeds of  the  estate,  or  upon  all  sums  received  by  him,  but  only  on 
collections,  giving  the  word  its  ordinary  meaning.'*" 

g  993.  Compensation  regardless  of  statute. —  It  is  a  general  r\ile, 
that  where  the  instrument  creating  a  trust  provides  that  the 
trustee  shall  have  "  a  reasonable  compensation  "  for  his  services, 
lie  is  not  confined  to  the  statutory  allowances  to  executors,  etc.; 
Tjut  his  compensation  is  to  be  adjusted  at  what  shall  be  deter- 
mined, upon  judicial  investigation,  to  be  reasonable  under  the 
circumstances,  without  regard  to  the  statute.'**  It  is  perfectly 
competent  for  the  parties  interested  to  agree  with  the  represen- 
tative for  the  allowance  to  him  in  addition  to  his  statutory  com- 
missions, and  such  an  agreement,  if  just  and  fair,  will  be  en- 
forced.'*^ 

g  994.  Estoppel  from  claiming  commissions. —  The  allowance  of 
commissions  is  not  mandatory  or  compulsory,  l)ut   is   to  be  ad- 


i'*  See  §  746,  ante.  debts  owing  to  me,  or  for  the  income 

41  Downing  v.  Marshall.  1  Abb.  Ct.  of  other  funds  or  investments,  five  per 
App.  Dec.  525.  See  Bigelow  v.  Tilden,  cent,  of  the  amount  received:"' — ^  Held, 
62  App.  Div.  390.  to  include  the  principal  of  government 

42  Clinch  v.  Eckford,  8  Paige,  411;  bonds  held  by  testator  at  the  time  of 
"but  not  where  the  representative  has  his  death,  and  paid  by  the  government 
neglected  and  mismanaged  the  estate,  to  such  executors.      (Matter  of  Tilden, 

(Widmayer    v.    Widmayer,    76    Hun,  44  Hun,  441 ;  5  Dem.  2.30.) 

251;    27    St.    Rep.    773.)      A   testator  44  Matter  of   Schell,    53   N.   Y.   268. 

may   likewise   authorize   his   executors  See  Cram  v.  Cram,  2  Redf.  246. 

to  agree  with  one  of  their  own  number  45  ;Matter    of    IMcCord,    2    App.    Div. 

for  a  special  compensation  to  be  made  324;    37   X.   Y.   Supp.   852;    Matter   of 

to  him   for   special    services.      (Clinch  Braunsdorf,    13    Misc.    666;    35    N.    Y. 

v.    Eckford,   supra.)      And   see    §    557,  Supp.  208;  affd.,  2  App.  Div.  73;  Mat- 

antc.  ter  of  Young.  17  Misc.  080:  sith  nom. 

43  Ireland  v.  Corse,  67  N.  Y.  343.  Matter  of  Cornell,  41  X.  Y.  Supp.  539 : 
A  will  provided  that  the  executors  affd.,  15  App.  Uiv.  285;  Matter  of 
should  receive  for  their  services  "on  Turfler,  24  N.  Y.  Supp.  91.  See  Mat- 
all  sums  received  for  personal  prop-  ter  of  Hodgman,  69  Hun,  484;  affd., 
erty  sold,  or  rents,  or  the  collection  of  140  X.  Y.  421. 


M7 


ACCOUNTIXGS. 


§905. 


judged  by  tlie  surrogate.  A  party  may  Le  estopped  from  claim- 
ing them  by  an  agreement,  express  or  implied/"  (jr  by  the  terms 
■of  the  will,  in  the  case  of  exeentors."''  The  fact  that  the  execu- 
tor Avas  given  the  whole  income  for  life  will  not  bar  his  right 
to  commissions  upon  sums  received  and  paid  for  the  benefit  of 
the  general  estate.'** 

§  995.  Forfeiture  of  commissions. —  Executors  and  administra- 
tors who  have  resigned  their  trusts,  before  the  complete  execu- 
tion of  the  duties  imposed  upon  them,  are  not  entitled  to  com- 
pensation to  be  charged  upon  the  corpus  of  the  estate.'*'*'  Although 
one  of  several  executors  has  not  resigned,  yet  where  he  declined 
to  unite  in  the  inventory,  and  performed  none  of  the  duties  as 
-executor,  he  may  be  refused  commissions.""  Trustees  do  not 
necessarily  lose  their  right  to  commissions  by  improper  invest- 
ment of  the  trust  funds,  for  which  ])ayment  of  interest  has  been 
imposed  upon  them,  where  tlie  estate  has  suffered  no  loss.^^     But 


46  Matter  of  Hopkins,  32  Hun,  618; 
Matter  of  Cooper.  03  N.  Y.  .507.  See 
Matter  of  Allen.  Dti  id.  327:  Matter  of 
Hodfrnian,  supra.  Where  the  trustees 
annually  rendered  accounts,  and  paid 
over  the  whole  net  income  to  tlie  bene- 
ficiaries, without  making  any  claim 
for  coTMniissions,  they  waived  theii; 
right  theretc.  tlie  income  being  the 
sole  fund  from  which  the  commissions 
were  payable,  and  they  cannot  charge 
past  commissions  upon  the  income  of 
future  vears.  (Spencer  v.  Spencer,  38 
App.  Div.  403:  .56  N.  \.  Supp.  460.) 
To  the  same  effect,  Matter  of  Bevier, 
17  Misc.  486:  41  N.  Y.  Supp.  268; 
Matter  of  Harper,  27  Misc.  471:  59 
X.  Y.  Supp.  373:  Matter  of  Haight. 
.51  App.  Div.  310:  64  N.  Y.  Supp. 
1020:  Matter  of  Slocuni.  60  App.  Div. 
438;  60  X.  Y.  Supp.  1036:  modified 
oil  another  point,  160  N.  Y.  153:  Mat- 
ter of  Tucker.  20  Misc.  728 ;  62  X.  Y. 
Supp.    1021. 

4Tln  Matter  of  Kernochan  (104  X. 
Y.  618),  testator's  will  provided:  "It 
is  also  my  request  that  all  persons 
liorein  named  as  executors  and  trus- 
tees, and  that  each  executor  and  trus- 
tee, other  than  my  wife,  do  also  re- 
ceive and  take  the  full  rate  of  coin- 
missions  ])rovided  by  law  for  each 
(^xecutor.  intending  this  to  provide 
suitable  compensation  for  their  ser- 
vices in  and  nttentio-i  to  the  duties 
herein  devolved  upon  them."  Substan- 
tially tlie  wliole  income  of  the  estate 
in    the    hands    of    the    executors    was 


given  to  the  wife; — Held,  that  it  was 
testator's  intention  to  exclude  his  wife 
from  compensation,  \^'llere  an  execu- 
tor is  denied  compensation  in  the  will, 
the  surrogate  cannot  allow  him  com- 
missions on  the  ground  that,  by  the 
nonaction  of  a  co-executor,  his  labors 
have  been  more  onerous  than  testa- 
tor anticipated.  (Matter  of  Gerard. 
1  Dem.  244.)  The  testator,  by  his 
will,  granted  to  one  of  two  executors, 
and  to  the  wife  of  the  other,  one-half 
of  the  lesiduum,  and  declared  that  the 
executors  sliould  receive  no  compensa- 
tion or  fees  for  their  services  in  set- 
tling the  estate.  On  their  final  ac- 
counting, the  executors  asked  for  fees : 
—  Held,  not  allowable.  (Secor  v. 
Sentis,  5  Kedf.  570:  explaining  llalsey 
V.  Yan  Amringe.  6  Paige,  12:  Dakin 
V.   Demming.  id.  05.) 

4s  Betts  V.  Betts.  4  Abb.  X.  C.  324. 

49  Matter  of  Havden.  54  Hun.  107; 
aflfd..  125  X.  Y.  776:  Matter  of  Allen, 
06  id.  327:  :Matter  of  Baker.  35 
id.  272:  ^Matter  of  .Tones.  4  Sandf. 
Ch.  615.  Compare  Matter  of  Doug- 
las. 60  App.  Div.  64:  60  X.  Y.  Sujip. 
687. 

so  Eager  v.  Rolierts,  2  Redf.  247: 
Walke  V.  Hitchcock.  5  id.  217:  Matter 
of  Pike.  2  id.  255.  But  see  Matter  of 
Diinkel.  5  Dem.   188.  and  §  487.  ante. 

51  Morgan  v.  Morgan.  4  Dem.  353: 
Gillesnie  v.  Brooks,  2  Redf.  340 :  Mat- 
ter of  Baker.  72  App.  Div.  211.  See 
Wheelwright  v.  Rhoades.  28  Hun,  57. 


§  000. 


Accountings. 


81& 


where  the  accoimting:  party  is  shown  to  have  grossly  misman- 
aged the  trust,  in  effect  converting  a  part  of  the  estate  to  his  own 
use,  k(e]»ing  no  proper  accounts,  and  suhjecting  the  })arties  inter- 
ested to  great  ditHcnlty  and  expense  in  attempting  to  unravel 
them,  the  court  may  properly  disalloAv  commissions.^^ 

!:J  986.  Double  commissions  as  executor  and  as  trustee. —  Some 
embarrassment  has  been  met  with  in  deciding  the  question 
whether  one  who  is  both  executor  and  trustee  is  entitled  to  com- 
missions in  each  character,  /.  e.,  to  double  commissions.  Many 
authorities  may  be  cited  against  giving  an  executor  double  com- 
missions on  the  same  fund,  where  he  is  merely  required  by  the 
\x\\\  to  invest  and  hold  it  in  trust  and  apply  the  income,  until  such 
time  as,  by  the  terms  of  the  will,  the  principal  is  payable.^''  If 
it  does  not  appear,  from  the  language  of  the  will^  that  the  tes- 
tator contemplated  a  trust  that  would  attach  to  the  person  of 
the  executor,  or  intended  the  execution  of  it  in  the  character  of 
a  trustee  rather  than  an  executor,  a  payment  out  of  the  general 
fund,  held  in  trust,  is  a  payment  by  him  as  executor  and  not  as 
trustee;  and  having  been  allowed  full  commissions  as  executor, 
he  is  not  entitled  to  additional  commissions  as  trustee.^     That 


52  Cook  V.  Ix)wry.  95  X.  Y.  103; 
Matter  of  Harnett.'  15  St.  Rep.  725; 
Matter  of  Conklin.  2  Connoly.  176: 
20  N.  Y.  Supp.  oft :  Stevens  v.  Melclier, 
152  N.  Y.  551:  Matter  of  Wotton.  59 
App.  Div.  584:  G9  X.  Y.  Supp.  753 
(167  X.  Y.  629)  :  Matter  of  Matthew- 
son.  8  App.  Div.  8:  40  X.  Y.  Supp. 
140:  Matter  of  Wellino:.  51  App.  Div. 
355:  64  X.  Y.  Supp.  1025:  Matter 
of  Scudder.  21  Misc.  179:  47  X.  Y. 
Supp.  101 :  White  v.  Rankin.  18  App. 
Div.  293:  46  X.  Y.  Supp.  228:  affd., 
162  X.  V.  622.  Se6  Matter  of  Rut- 
ledge,  id.  31 :  30  Civ.  Proc.  Rep.  405. 
An  executor  who  pays  the  whole  of 
the  assets  to  a  legatee  for  life,  with- 
out taking  security  to  protect  the  in- 
terest of  the  remaindermen,  can  only 
have  commissions  (and  any  demand 
established  by  him  against  the  estate), 
to  be  paid  out  of  such  assets  as  re- 
main in  his  hands,  or  may  be  thereaf- 
ter received.  (Lang  v.  Howell.  20 
Abb.  X.  C.  117.)  Where  an  executor 
bad  wrongfully  withheld  a  bond  and 
mortsrage.  he  Avas  not  allowed  com- 
missions unon  it.  (MoMahon  v.  Al- 
len. 4  E.  D.  Smith.  519.) 

53  Valentine    v.    Valentine.    2    Barb. 
Ch.  430 ;  Drake  v.  Price,  7  Barb.  388 ; 


affd.,  5  X.  Y.  430:  Westerfield  v.  Wes- 
terfield,  1  Bradf.  198;  Mann  v.  Law- 
rence, 3  id.  424 :  Lansing  v.  Lansing, 
45  id.  182:  Bett>.  v.  Betts,  4  Abb.  X. 
C.  437;  Meeker  v.  Crawford,  5  Redf. 
450;  Johnson  v.  Lawrence,  95  X.  Y. 
154;  Matter  of  Woolsey.  29  Hun,  626; 
Matter  of  Leinkauf.  4  Dem.  1 ;  INIatter 
of  Starr,  2  id.  141:  Matter  of  Slocum. 
169  X.  Y.   153. 

54  Hall  v.  Hall,  78  X.  Y.  535.  In 
that  case,  the  will  devised  real  estate, 
subject  to  a  power  of  sale  given  to  the 
executors;  the  residuary  estate  was 
given  to  the  executors  and  trustees, 
"  the  survivors  and  survivor  of  them 
and  the  successors  and  successor  of 
tliem  in  trust,"  to  convert  into  money, 
invest  and  hold  for  the  purposes  of 
certain  trusts  specified.  The  execu- 
tors exercised  the  power  of  sale  as  to 
the  real  estate,  and  invested  and  held 
the  proceeds.  On  an  accounting,  they 
were  allowed  iwW  conunissions  as  ex- 
ecutors. In  subsequent  proceedings 
for  a  final  accounting  as  executors,  a 
decree  was  made,  directing  them  to 
pay  over  to  one  of  the  legatees  her 
share  of  the  estate ;  there  had  been 
no  separation  of  this  share  from  the 
general  fund  in  the  hands  of  the  ex- 


819  AccouxTi.xcs.  ^  'JUT. 

is,  where  the  functions  or  duties  of  executor  and  of  trustees  are  not 
separable,  hut  are  Mended,  double  enimnissions  arc  not  allowable.'''"'' 

§997.  Same;  when  allowed. —  \U\t  where  the  will  eonteniplates 
a  time  wlicn  the  (hitics  of  the  executors,  as  such,  shall  cease,  after 
which  they  shall  assume  the  character  exclusively  of  trustees, 
an  allowance  to  them  as  executors,  on  their  accounting  as  such, 
does  not  prevent  a  like  allowance  to  them  on  a  subsequent  account- 
ing as  trustees.  In  order  to  entitle  them  to  such  double  com- 
missions, it  is  not  necessary,  as  was  at  one  time  held,  that  the 
separation  of  tlie  two  functions  of  executor  and  trustee  shall 
liave  been  actuaUy  effected,  either  voluntarily  by  the  executor 
in  the  actual  division  of  the  trust  estate  into  several  distinct 
trusts,^^  or  that  the  separation  shall   have  been   ordered  by  the 

ecutors.    Held,  that  tho  executors  were  scendants.     He  appointed  f.  and  two 

properly  allowed  coiiuiiissions  only  on  others  "  executors  of  this  my  will,  and 

the   amount  of   income   collected   .-ince  trustees   of  the   several   trusts   herein- 

the    last    acccuntinji;    that   they    were  before  created,"  and  provided,  in  case 

entitled   to    full    commissions   as   trus-  "  any  of  said  trustees  "  should  die  or 

lees  on  the  amount  paid  such  legatee;  become    disqualified,    for    the    appoint- 

and,  as  the  payment  was  not  of  a  sep-  ment  of   a   successor.      Held,   that  the 

arate  fund  in  the  hands  of  the  execu-  executors  were  not  entitled  to  double 

tors,   there  was  no  such   holding.     In  commissions. 

this  same  estate,  subsequently  to  this  C5  .Johnson  v.  Lawrence.  IM  X.  Y. 
decision  the  trustees  sejjarated  eacli  1.54;  Matter  of  Babcock,  'rl  Hun.  olO; 
trust  fund  from  the  general  fund,  and  Matter, of  ]\IcAlpine,  1.")  St.  Kep.  'V.Vl; 
kept  them  separately  invested.  Upon  113  N.  Y.  ().")8 ;  McAlpine  v.  Potter, 
paying  the  princijjal  of  one  of  such  126  id.  285;  ^Matter  of  Hogarty,  (i2 
trust  funds,  and  on  an  accounting  as  App.  Div.  79;  70  X.  Y.  Supp.  839; 
to  that  fund,  full  conunissions,  as  Matter  of  Clinton.  12  App.  Div.  132; 
trustees,  were  allowed.  (Hall  v.  42  X.  Y.  Supp.  (574 :  Matter  of  Slo- 
Campbell,  1  Dem.  41o.)  To  the  same  cum,  l(l!t  X.  Y.  lo3.  Where  the  peti- 
effect  are  Matter  of  Carman,  3  Kedf.  tion,  on  an  accounting,  alleges  that 
4G ;  Ward  v.  Ford,  4  id.  34.  The  em-  there  has  been  no  accounting  by  the 
ployment  of  no  other  than  merely  ex-  executor  and  trustee,  and  the  will  it- 
ecutorial  functions  being  required  by  self  is  not  before  the  court,  it  cannot 
the  will,  the  wording  of  a  decree  tiiat  assume  that  the  functions  of  execiuor 
the  executor  do  retain  a  certain  sum  and  trustee  co-exist  and  are  in-epara- 
"  as  trustee"  does  not  change  the  b!y  blended.  (Matter  of  Hanunond, 
character  of  the  executor  into  that  of  92  Hun,  478;  30  X.  Y.  Supp.  1074.) 
a  trustee  so  as  to  entitle  him  to  dou-  i""  Laytin  \.  Davidson,  9.5  X.  Y.  2()3. 
ble  conunissions.  (McKie  v.  Clark,  3  In  that  case,  the  executors  had  a  final 
Dem.  380.)  In  Matter  of  Townsend  accounting;  the  amount  of  the  residu- 
(5  Dem.  147),  testator  gave  the  resi-  ary  estate  was  adjudged,  and  the  de- 
due  of  his  real  and  ])ersonal  ])roperty  eree  directed  the  executors  to  retain 
to  his  executors,  in  trust  to  sell  the  and  hold  the  same  "  as  trustees  "  un- 
former,  and  divide  the  jiroceeds  of  the  der  the  will.  Subsequently,  upon  the 
entire  residue  into  thirty-two  equal  (leath  of  one  of  the  ccstiiis  que  trust, 
parts,  whereof  he  directed  the  execu-  the  trustees,  on  a  judicial  settlement 
tors  to  invest  in  their  names  as  trus-  of  their  accounts,  claimed  one-half 
tee?,  five  for  the  Ix^nefit  of  his  daugh-  conunissions  on  the  whole  capital  of 
ter  M..  eight  for  that  of  his  daughter  the  trust  fund,  and,  in  addition,  one- 
B.,  and  nineteen  for  that  of  his  daugh-  half  on  the  share  of  the  deceased 
ter  C,  during  their  respective  natural  rrsliiis  que  trust  directed  to  be  dis- 
lives.  and.  at  the  death  of  each  of  his  tributed.  Held,  that  they  were  enti- 
said  daughters,  to  jiay  the  princioal  tied  to  coniini'^sions  as  claimed,  and 
invested    for    her    benefit    to    her    de-  the   fact   that   thev  had   not   made   an 


§  ni): 


Accountings. 


820 


decree  of  the  court.  Xo  doubt  a  separation  by  order  or  decree 
of  the  surrogate  would  be  the  most  satisfactory  evidence  of  the 
real  relation  of  the  party  to  the  fund,  but  the  statute  recognizes 
the  existence  of  the  othce  of  executor  and  of  testamentary  trvis- 
tee  in  the  same  person,  and  provides  for  compensation  of  each 
under  certain  circumstances.^^  It  is  not  necessary,  therefore, 
that  the  decree  upon  the  settlement  of  their  accounts  as  execu- 
tors should,  in  terms,  discharge  them  as  such.^^  It  is  sufficient 
that  their  functions  as  executors  have  been,  in  effect,  terminated 
by  the  decree,  and  that  they  have  assumed  the  duties  of  trustees. 
Thus,  where,  upon  the  settlement  of  the  accounts  of  executors, 
the  decree  directed  them  to  pay  to  themselves,  as  trustees,  the 
several  trust  funds,  under  the  will,  which  was  done,  they  thence- 
forth assume  the  duties  of  trustee-s.^*^ 


actual  division  of  the  trust  fund  into 
shares,  as  directed,  did  not  change  the 
question.  To  the  same  etfect,  Matter 
of  Crawford.  113  N.  Y.  5G0 ;  Foote  v. 
Bruggerhof,  66  Hun,  406;  21  N.  Y. 
Supp.  509;  Blake  v.  Blake,  30  Hun, 
471.  See  Matter  of  Martens.  16  Misc. 
245;  3fl  N.  Y.  Supp.  189;  Matter  of 
Beard,  77  Hun,  111;  28  N.  Y.  Supp. 
305;  Matter  of  Curtiss,  9  App.  Div. 
285;  Matter  of  Gilbert,  25  Misc.  584; 
56  N.  Y.  Supp.  149;  Matter  of  Tucker, 
29  Misc.  728;  62  N.  Y.  Supp.  1021; 
Matter  of  Union  Trust  Co.,  70  App. 
Div.  5:  75  N.  Y.  Supp.  68.  Where  it 
was  for  the  mutual  benefit  of  the 
beneficiaries  that  the  trust  estate 
should  not  be  presently  divided  as  di- 
rected by  the  will,  and  each  got  his 
proper  income,  the  executors'  failure 
to  make  a  division  does  not  affect 
their  right  to  commissions  as  trus- 
tees. (Matter  of  Johnson,  57  App. 
Div.  494:  67  N.  Y.  Supp.  1004;  modi- 
fied on  another  point,  170  X.  Y.  139.) 
In  Clute  V.  Gould  (28  Hun.  348),  tes- 
tator, after  the  payment  of  debts  and 
certain  specific  legacies,  bequeathed 
$30,000  to  his  executor  in  trust,  to 
invest  and  collect  the  interest  and  in- 
come thereof,  and  pay  over  the  same 
to  testator's  widow  so  long  as  she  re- 
mained unmarried;  then  to  divide  the 
residue  of  his  estate  into  five  equal 
parts.  One  of  said  parts  he  sepa- 
rately bequeathed  to  his  executor  to 
be  held  in  trust  for  one  of  testator's 
five  children.  He  appointed  one  Sav- 
age guardian  and  trustee  of  his  chil- 
dren, and  executor  of  his  will.  Savage 
was  removed  for  misconduct,  and 
plaintiff  was  appointed  trustee,  and 
subsequently  he  was  appointed  admin- 


istrator with  the  will  annexed.  Upon 
an  accounting  by  plaintiff, —  Held, 
that  he  was  entitled  to  commissions 
as  trustee  upon  each  of  the  six  dis- 
tinct trusts  held  by  him,  even  though 
there  had  been  no  actual  division  of 
the  estate  into  separate  funds.  See 
also  s.  c,  24  Hun.  307.  Where  the 
trust  estates  were  actually  severed 
from  the  general  assets,  and  thereafter 
separate  accounts  were  kept  with  each 
beneficiary,  there  is  no  doubt  as  to  the 
trustee's  right  to  receive  double  com- 
missions. (Phoenix  v.  Livingston,  101 
X.  Y.  451;  28  Hun.  629.)  Compare 
Roosevelt  v.  Van  Alen,  31  --^pp.  Div. 
1;  52  X.  Y.  Supp.  304.  But  where 
the  life  beneficiary  died  before  the 
payment  over  by  the  executors  of  the 
trust  fund  to  themselves  as  trustees, 
they  w-ere  not  entitled  to  commissions 
on  the  principal  as  trustees.  (Mat- 
ter of  Irwin,  29  :Misc.  266;  Matter  of 
Lawrence.  37  id.  702.) 

STHurlburt  v.  Durant,  88  X.  Y. 
121;  Johnson  v.  Lawrence,  95  id.  154; 
Matter  of  Mason,  98  id.  527.  But 
where  there  has  been  no  accounting  as 
executor,  nor  separation  of  his  fimc- 
tions,  he  is  not  entitled  to  trustee's 
commissions.  (Matter  of  Reed,  45 
App.  Div.  196;  61  X.  Y.  Supp.  50.) 

5S  Laytin  v.  Davidson,  95  X.  Y.  263. 
Compare  Matter  of  Slocum,  169  X.  Y. 
153. 

rjg  Matter  of  Willets,  112  X.  Y.  289; 
Matter  of  Crawford.  113  id.  560:  WiK 
dev  v.  Robinson,  85  Hun,  362 :  32  X. 
V."  Supo.  1018.  In  Matter  of  Carman 
(3  Redf.  46),  testator  devised  all  the 
residue  of  his  property  to  his  execu- 
tors in  trust  (with  power  of  sale)  to 
divide  it  into  three  equal  shares,  and 


821  AccoiNTixcs.  §§  908,  009. 

SJ  998.  One-half  commissions. —  Executors,  administrators,  and 
trustees  are  entitled  to  one-half  of  their  commissions  for  the  re- 
ceipt of  the  funds  and  the  oth.er  half  for  payinj^  out  the  same.'^' 
A  trustee,  as  such,  is  entitled  to  one-half  commissions  for  re- 
ceivin<>-  trust  funds  from  hiui'^elf  as  executor,  although  the  corpus 
remains  in  his  hands,'"'  and  the  other  half  on  the  termination  of 
the  trust,  when  he  pays  the  principal  to  the  heneiiciarv.  Thus, 
where  one  of  several  trusts  has  terminated,  the  executor  is  en- 
titled to  full  commissions  as  trustee  upon  the  principal  released 
for  distribution,  and  half  commissions  on  the  residue  still  held 
in  trust. ^"  In  case  an  account  is  presented  for  settlement  before 
completion  of  the  performance  of  the  executorial  duties,  only 
half  commissions  can  be  allowed  upon  proceeds  of  sale  in  hand, 
the  other  half  being  awardable  when  those  duties,  with  respect 
to  the  fund,  are  terminated,  and  the  accounting  parties  enter 
upon  the  discharge  of  their  functions  as  trustees.^"^  Where  one 
of  two  executors  qualifies  and  receives  full  commissions  and  then 
dies,  and  thereafter  the  other  nominee  receives  letters,  he  is 
entitled  to  full  commissions  on  moneys  received  and  paid  out, 
and  half  connnissions  on  moneys  received  and  held.*'*^ 

!j  999.  Full  compensation  to  each  of  several. — "  If  the  value  of 
the  pei'Sdnal  ])roperty  of  the  decedent  amounts  to  one  hundred 
thousand  dfdlars,  or  more,  over  all  his  debts,  each  executor,  or 
administrator,   is  entitled  to  the  full  compensation  on  principal 

pay  over  the  rents  and  profits  of  one  is    not    entitled    to    commissions    for 

sliare  to  A.  for  his  life.     The  executors,  merely    receivinj;    its    moneys    nor    iin- 

on  a    final   acconntin<r.  on   which   they  less  she  has  also  paid  them  out.     (  Mat- 

were    allowed    full    commissions,    were  ter  of  Bidijood,  36  Misc.  .51(5:  7.'?  X.  Y. 

ordered     to    set    apart    and    keep    in-  Supp.    10(il.) 

vested,    for  the   benefit  of  A.,   a    fixed  «i  ]\[;,tter  of  Willets,   112  N.  Y.  280. 

sum    (being  one-third  of  the  residue).  The  decision  in  this  case  was  explained 

The  executors  set  apart  such  sum.  and  in    AIcAlpine    v.     Potter     (120    N.    Y. 

kept  a  separate  account  of  it,  and  p  lid  28;")).  where  it   was  held  that  no  law 

over  the  rents  and  jjrofits  to  A.  durinpr  jijstifies     the     allowance     of     one-half 

his  lite,  and  on  his  death  accounted  as  commissions  upon  the  estimated  value 

testamentniy  trustees  before  the  surro-  of  securities,  in  advance  of  their  ron- 

irale.    Held,  tl\at  they  were  entitled  to  version    into  money  or   its  e(iuivalent. 

the   full   commissions,   as   thou<rh   they  "  I'ntil   the  securities  become  sums  of 

had  never  acco\inted  as  executors.  money,  either  by  conversion  into  cash. 

60  Matter  of  Roosevelt.  .5  Redf.  fiOl  ;  or    by    their    acceptance    as    cash    by 

Morgan's  Estate,   l.^i  Abb.   X.    C    108;  those  entitled,  the  allowance  is  prenia- 

s.    c.    as    Rowland   v.   Morgan,   3   Dem.  ture."     Compare  Matter  of  Garth.    10 

280;    Lvende(ker    v.    Eisemann,    3    id.  App.    Div.    100:    41    X.    i.  Rupp.    1022. 

72:   Frame  v.  Willets,  4  id.  308.     The  r.2  Matter  of  ^forris,  10  St.  Rep.  701. 

mere  transfer  of  the  fund   to  another  <"'•'' Matter    of    TxMnkauf.    4    Dem.    1: 

trustee  is  not  a  "paving  out."      (^lat-  ^Matter  of  Douirhis.   00  App.   Div.  64; 

ter  of  Todd.  04  App".   Div.  43ri :   72  X.  00  X.  Y.  Rupp.  087. 

Y.  Supp.  277.)     An  executrix  who  did  64  ]\latter  of  Depew.  6  Dem.  ;)4. 

not  close  up  the  estate  of  her  testator  , 


§  01)0. 


Accountings. 


822 


and  income  allowed  herein  to  a  sole  executor  or  administrator, 
unless  there  are  more  than  three;  in  which  case,  the  compensa- 
tion, to  which  three  wonld  be  entitled,  must  be  apportioned 
among  them  according  to  the  services  rendered  by  them  respec- 
tively, and  a  like  apportionment  shall  be  made  in  all  cases  where 
there  shall  be  more  than  one  executor  or  administrator."  ^^  The 
intention  of  the  statute,  even  before  the  amendment,  was  assumed 
to  be  that  the  value  of  the  estate,  for  the  purpose  of  computing 
commissions,  was  to  be  determined,  not  as  of  the  date  of  dece- 
dent's death,  but  at  the  close  of  the  administration,  that  is,  on  the 
final  accounting,  and,  consequently,  that  the  increase  of  the  es- 
tate, pending  administration,  was  to  be  included  in  the  valua- 
tion.^'^ Trustees  are  entitled,  without  doubt,  to  commissions  on 
the  income  of  funds  invested  by  them;^'  they  are  not  limited  to 
the  principal  fund.  If  the  annual  income  or  annuities  exceed 
$100,000,  double  or  triple  commissions  are  awardable;  but  where 
the  accounting  is  of  income  only,  the  fact  that  the  principal  ex- 
ceeds that  sum  is  no  ground  for  allowing  double  commissions  on 
its  income  which  is  less  than  that  amount.*''^     So,  too,  where  the 


65  Co.  Civ.  Proc,  §  2730,  as  amended 
1893;  consolidating  iormer  §  2736,  as 
amended  1892.  The  words  in  italics 
were  inserted  by  the  amendment  of 
1892,  and  supersede  the  ruling  that, 
in  determining  whether  the  value  of 
tlie  personal  estiite  amounts  to  $100- 
000.  reference  must  be  had  to  the  es- 
tate as  it  existed  at  the  time  of  dece- 
dent's death,  and  not  at  the  time  of 
the  accounting,  and,  consequently, 
that  acctmiulations  of  income  could 
tiot  be  added  to  the  principal,  so  as  to 
make  up  the  sum  of  $100,000.  (Slos- 
pon  V.  Taylor.  2  Dem.  2.57 :  4  Civ.  Proc. 
Ren.  280:  Waters  v.  Faber,  2  Dcm. 
290.)  The  rents  and  profits  of  the 
estate  result,  it  was  said,  from  its 
management  and  use  by  the  trustees, 
and  did  not  constitute  a  part  of  the 
property  left  by  the  decedent,  on 
which  the  commissions  were  comput- 
able. .(Savage  v.  Sherman.  24  Hun, 
.307.) 

66  In  Matter  of  Blakenev  (1  Con- 
noly,  128:  23  Abb.  N.  C.  32),  the  in- 
ventory value  of  the  assets  was  $96,000. 
By  the  executors'  accounts,  on  their 
accounting,  the  assets  were  then  of 
the  value  of  $101,000.  Held,  that  each 
executor  was  entitled  to  full  commis- 
sion«.  This  was  sustained  in  principle 
by  ,the  decision  in  Matter  of  Hayden 


(54  Hun,  197:  affd.,  125  N.  Y.  776), 
that  the  section  had  no  application 
to  a  case  where  the  trust  had  not 
been  fully  executed,  the  executors 
having  resigned.  On  an  examina- 
tion of  the  authorities,  Mr.  Abbott, 
in  a  note  to  the  Blakenev  case  (23 
Abb.  X.  C.  38).  states  the*  rule  thus: 
"Although  executors,  as  such,  may  not 
be  entitled  to  charge  commissions  on 
the  A'alue  of  real  estate  of  which  they 
have  charge,  all  the  property  of  the 
estate  which  comes  into  their  hands 
in  money,  and  is  paid  out  by  them, 
as  well  as  all  personalty  upon  the  in- 
ventory, is  to  be  regarded,  when  pre- 
sented upon  the  accountinq,  as  the 
basis  for  determining  whether  several 
executors  are  entitled  to  full  commis- 
sions." In  Matter  of  Leggatt  (4  Redf. 
148),  the  personal  assets  did  not 
amount  to  $100,000.  but  the  rents  of 
real  estate  collected  and  paid  out 
amounted  to  more  than  that  sum,  and 
the  accounting  included  the  rents, 
vith  the  coneurrence  of  nil  the  pnrtien. 
Held,  the  executors  were  entitled  to 
three  several   commissions. 

07  Matter  of  Mason,  98  N.  Y.  527, 
and  cases  infra. 

fW  Matter  of  Willets.  112  X.  Y.  289: 
explained  and  applied  in  flatter  of 
McAlpine,  120  X.  Y.  285  :   37  St.  Rep.  6. 


823  Accountings.  §  1000. 

trusts  are  separated,  the  basis  for  computing  commissions  is  the 
value  of  each  trust  separately  considered;  hence,  although  the 
entire  estate  exceeds  $100,000,  full  commissions  cannot  be  al- 
lowed, if  the  assets  belonging  exclusively  to  each  trust  do  not 
equal  that  amount."'^  In  ascertaining  whether  the  "  personal 
estate,"  after  deducting  debts,  exceeds  $100,000,  the  ])roceeds  of 
real  estate,  equitaldy  converted  by  the  will,  are  to  be  regarded 
as  personal  estate  for  this  purpose;''^  and  the  same  may  be  said 
of  land  bought  in  by  the  executors  upon  foreclosure  of  a  mort- 
gage belonging  to  the  estate. ^^  It  will  be  noted  that  the  value 
of  the  estate  of  the  decedent  must  be  $100,000  or  more,  "over 
all  his  debts."  Where,  therefore,  the  ])urchase  price  of  lands, 
sold  by  the  executor,  included  the  amount  of  a  mortgage  incum- 
brance upon  the  land,  the  mortgage  was  to  be  regarded  as  a  debt 
of  the  decedent,  and  the  equity  of  redemption  only  should  be 
taken  account  of.^^  While  the  suliject  of  a  specific  bequest  — 
e.  g.,  shares  of  stock  —  does  not  form  a  basis  for  charging  the 
statutory  commissions,  it  is  nevertheless  held  that  its  value  is  to 
be  taken  into  consideration,  in  ascertaining  whether  the  estate 
amounts  to  $100,000,  entitling  each  executor  to  full  commissions.^'* 

§  1000.  Compensation  on  different  letters. —  "  Where  successive  or 
different  letters  are  issued  to  the  same  person,  on  the  estate  of  the 
same  decedent,  including  a  case  where  letters  testamentary  or 
letters  of  general  administration  are  issued  to  a  person  who  has 
been  previously  appointed  a  temporary  administrator,  he  is  en- 
titled to  compensation,  in  one  capacity  only,  at  his  election ;  ex- 
cept that  where  he  has  received  compensation  in  one  capacity, 
he  is  entitled  to  the  excess,  if  any,  of  the  compensation  allowed 
by  law,  above  the  sum  which  he  has  already  receive<l  in  \\\v  i>tlicr 
capacity."  '"*  It  will  be  observed  that  this  provision  applies  only 
to  a  case  where  two  sets  of  "  letters  are  issued,"  and,  therefore, 
would  not  extend  to  an  executor,  acting  also  as  testamentary  trus- 
tee, not  having  received  letters  in  the  latter  capacity. 


«>:\Iattor  of  Johnson.  170  N.  Y.  139.  Schorniprhorn.    IS   Hun.    10.      Funoral 

"t>  Smith  V.   Buchanan.   '•>  Dem.    169;  expenses  and   expenses  of  administra- 

Matter   of    McLaren,   0    Misc.   48.3;    27  tion    are    not    debts    in    reckoninji    the 

N.  Y.  Supp.  2S9.     roni])are  Savage  v.  amount    of    the    assets.       (Matter    of 

Sherman,   24   Hun,   .307.  Franklin,   supra.) 

71  Matter  of  Franklin,  20  Misc.  107:  T.^latter   of   Jones.   N.    Y.    Law   J.. 
56   N.   Y.    Supp.    808.      See    Matter   of  May   11,   1803. 

Ross,   33   Misc.   103;    68  JST.   Y.   Supp.  ~'^  Co.  Civ.  Proo..  §  27.30,  as  amended 

373.  1893;     consolidating    former     §     2738. 

72  Matter  of  St.   John,  N.  Y.   Daily  See  §  423,  ante. 
Reg.,  June  10,  1884.     Compare  Cox  v. 


g  1001.  AccouxTi.xGs.  824 

§  1001.  Commissions  on  trust  income. —  Where  the  subject  of  the 
accounting  is  the  principal  fund,  and  the  income,  the  income  is  to 
be  regarded  as  an  addition  to  the  principal,  and  the  commissions 
are  to  be  computed  upon  the  sum  of  the  two,  that  is,  the  aggre- 
gate of  capital  and  income  as  received  once  and  paid  out  once.^^ 
Where  the  accounting  is  of  the  income  only,  commissions  are 
chargeable  at  the  same  rate  as  are  allowed  on  the  principal  of  the 
cstate.^^  The  income  which  the  trustee  is  required  bj  the  will 
to  receive  and  distribute  among  beneficiaries,  constitutes  an  alto- 
gether new  fund,  on  which  commissions  will  be  separately  allowed. 
The  novelty  of  the  fund  is  the  controlling  fact.^^  As  a  general 
rule,  the  amount  of  commissions  on  the  income  is  a  charge,  not 
upon  the  principal  of  the  estate,  but  upon  the  interest  of  the  bene- 
ficiary;'* that  is,  a  trustee  holding  a  fund  under  a  trust  to  pay 
the  net  income  annually  to  a  beneficiary,  may,  on  paying  over  the 
income,  deduct  and  retain  full  commissions  each  year  from  the 
income  received ;  and  in  such  a  case  there  is  no  occasion  for  an 
annual  judicial  settlement  of  his  account. ^^  A  different  rule  might 
apply  where  the  trustee  is  required  to  accumulate  the  income,  or 
if  he  allowed  it  to  accumulate  in  his  hands  for  several  years,  and 
then  accounted  and  paid  over  a  gross  sum  to  the  beneficiary.**' 
An  exception  to  the  general  rule  also  arises  where  the  intention 
of  the  testator  was  that  the  commissions  should  be  paid  as  an  ad- 
ministrative expense.*^  The  right,  however,  of  a  trustee  to  make 
periodical  rests  in  his  accounts,  and  at  such  times,  even  without 


75  Betts  V.  Belts,  4  Abb.  X.  C.  324.  Bradf.   269 ;    Booth   v.  Ammermann,  4 

See  Slosson  v.  Xaylor,  2  Dem.  257.  id.   129:   Lansing  v.  Lansing,  45  Barb. 

7ft  Matter    of  Mason.   98    N.   Y.   527.  182:     Drake    v.    Price.    5    X.    Y.    430; 

77:NLatter  of  Meserole.  36  Hun,  298.  Whitson  v.  Whitson,  53  id.  481. 

See   Morgan   v.   Hannas,    13   Abb.    Pr.  79  Matter   of   Mason,   5)8   X.  Y.   527. 

(N.     S.)     361:     Fisher    v.     Fisher,     1  But  the  fact  that  the  income  was  re- 

Bradf.    335 :    Brush  v.    Smith,    1   Dem.  ceived    and    distributed    monthly    does 

477:    flatter   of  Pirnie,    1   Tuck.    119;  not  warrant  a  charge  of  full  commis- 

Betts    V.    Betts.    4    Abb.    X.    C.    324;  sions  monthly.     (Matter  of  Selleck.  Ill 

Frame  v.   Willets,  4   Dem.    368 :    over-  X.  Y.  284. )  "  Where  a  trust  is  created 

ruling  Andrews  v.  Goodrich,  3  id.  245.  solely   for    the    support    of    the    cestui 

See  also  ^Matter  of  Johnson,  170  X.  Y.  r/ue    trust,   with    no   disposition   as    to 

139.    Full  commissions  on  annual  rests  the    remainder,    and    the    cestui    que 

are     not     allowable     merely     because,  trust  dies  before  the  final  accounting 

without  the  order  of  court  or  require-  of  the  executors,  they  are  entitled  as 

ment  of  statute,  rests  have  been  made  trustees  to  commissions  only  upon  the 

for  the  purpose  of  charging  the  trustee  amount    expended    for    such    support, 

with  interest.      (Tucker  v.  McDermott,  (Matter  of  Bennett.  16  Misc.   199;   38 

2  Redf.  321.)      See  Cram  a-.  Cram,  id.  X.  Y.  Supp.  945:   sub  nom.  Matter  of 

246:  Ward  V.  Ford.  4  id.  34.  Clinton,    74    St.    Eep.    534:    affd..    12 

7S  Cammann   v.    Cammann,    2    Dem.  App.  Div.   lf?2.) 

211:    overruling   Matter    of   Blount.    2  80  Matter  of  Mason,  supra. 

Redf.  40.".  and  citing  Stubbs  v.  Stubbs.  81  Reynolds  v.  Reynolds,  3  Dem.  82. 
4  Redf.   171:   Pinekney  v.  Pinckney,  1 


82; 


Ac 


rf»r.\TiN<. 


§  1002. 


presenting  his  accounts  for  settlement,  to  withhold  his  lawful  com- 
missions, is  not  limited  to  cases  where  by  statute,  or  by  general 
rule,  or  special  order  (if  court,  such  periodical  rests  are  required 
(ir  p(  riiiitted,  Imt  extends,  also,  to  cases  where,  by  the  direction 
of  his  testator's  will,  or  for  the  proper  administration  of  his  tes- 
tator's estate,  he  is  required  to,  and  does,  make  periodical  pay- 
ments.**" 

§  1002.  Basis  for  computing  commissions. —  We  remark,   in  the 

first  ])hu'c,  that  an  award  <>i  statutory  commissions  is  not  regu- 
lated by  the  law  as  it  existed  at  the  time  the  services  were  ren- 
dered, but  liy  the  rule  existing  at  the  time  of  the  award  ;^  and, 
in  tiie  next  ])lace,  that  simis  of  money,  received  and  paid  out,  are 
the  basis  of  computation.  The  statute  gives  the  commissions  "'  for 
receiving  and  paying  out  all  sums  of  money ;"  hence  the  proceeds 
of  lands,  whether  by  way  of  rents,^^  or  by  a  sale  under  authority, 
passing  through  the  hands  of  an  executor  or  trustee,  are  to  be 
considered  in  computing  the  commissions,  but  the  value  of  real 
property,  as  such  and  unsold,  is  not  to  be  taken  into  account.*^ 


82Hancox  v.  :Meeker,  95  K  Y.   528. 

83  Matter  of  Harris,  4  Dem.  4()3. 

«■*  As  to  rents  of  land  occupied  by 
life  tenant,  see  Matter  of  Washbon, 
.S8    St.    Rep.   019. 

•''•J  Plutnix  V.  Livingston,  101  X.  Y. 
451.  In  that  case,  as  the  fee  in  the 
real  estate  vested  at  once  in  the  re- 
iiiaindernian.  the  trustees  taking  only 
an  estate  commensurate  with  their 
trust,  wiiich  simply  terminated,  and 
was  never  transferred  or  paid  over, — 
Held,  therefore,  their  commissions 
nuist  be  computed  upon  the  amount 
received  and  paid  out,  and  not  o7i 
the  ^"alue  of  the  real  estate  unsold 
at  tiie  termination  of  the  trust.  See 
WagstafT  V.  Lowerre,  23  Barb.  209; 
Stevenson  v.  Leslev.  70  N.  Y.  512; 
Matter  of  Baker,  35  Hun,  272;  Sav- 
age V.  Sherman,  24  id.  307 :  Matter 
of  McLaren.  G  Misc.  483;  27  N.  Y. 
Supp.  289;  :Matter  of  Bennett.  10 
:Misc.  199;  38  X.  Y.  Supp.  945:  sub 
nam.  Matter  of  Clinton,  74  St.  Rep. 
5.34:  add..  12  App.  Div.  132:  Mat- 
ter of  Tucker.  29  Misc.  728:  02  X. 
Y.  Supp.  1021.  In  Matter  of  Til- 
den  (44  Hun,  441).  it  was  held,  that 
executors  were  not  entitled  to  com- 
missions \ipon  the  value  of  real  es- 
tate, the  title  to  which  was  in  tes- 
tator's sons  under  the  will,  and  which 
they     partitioned     among     themselves. 


the  executors  uniting  in  the  deed  by 
reason  of  the  will  conferring  upon 
them  certain  powers  in  reference 
thereto,  but  not  the  power  of  parti- 
tion or  division.  To  the  same  effect. 
Matter  of  Ross.  33  Misc.  103:  08  X.  Y. 
Supp.  373.  So  an  administrator, 
though  concurring  in  a  sale  by  a 
trustee  appointed  by  the  court  to  exe- 
cute a  power  in  the  will,  is  not  en- 
titled to  share  the  commissions  for 
the  sale.  (Matter  of  Paton.  41  Hut]. 
497. )  See  Matter  of  McKav.  37  Misr. 
590:  75  X.  Y.  Supp.  1009."  Where  an 
executor  sells  testator's  real  property 
under  a  jiower  in  the  will,  jiersonally 
and  not  as  an  executor,  he  should  not 
include  the  ])roceeds  cf  sale  in  his  olli- 
cial  account,  nor  are  the  same  charge- 
able with  conunissions.  (Matter  of 
Brown,  5  Dem.  223.)  See  ^fcKce  v. 
Weeden,  1  App.  Div.  583:  37  X.  Y. 
Supp.  405.  Where,  although  the  legal 
title  to  real  estate  and  a  ])ower  of 
sale  are  given  to  executors,  it  is  evi- 
dent from  the  terms  of  the  will,  that 
tlie  ])ower  \\as  given  to  them  only  to 
be  exercised  for  the  purposes  of  a 
trust  conferred  upon  them,  and  not 
to  be  exercised  by  them  as  exei-utors 
(except  for  the  jiaynient  of  debts  or 
legacies),  commissions  can  l>e  allowed 
to  them  thereon,  only  in  their  capacity 
as  trustees,  and  where  they  ajiply  for 


§  1002. 


AcCOU^'TINGS. 


826 


Where,  however,  property  or  securities  are  turned  over  to  a  party 
Avho  accepts  them  as  a  payment  of  money,  the  commissions  are 
earned. ^^  Assets  other  than  money,  which  are  specifically  be- 
■queathed,  and  which  the  executor  delivers  specifically  to  the  lega- 
tee, are  not  the  subject  of  commissions  f"  nor  is  any  property, 
inventoried  but  not  actually  sold,  though  a  sale  will  ultimately  be 
necessary.^^ 

In  computing  the  one-half  commissions  "  for  receiving,"  to 
which  a  representative,  who  qualified  after  moneys  or  securities 
had  been  received  by  his  co-representative,  is  entitled,  the  securities 
are  to  be  valued  by  the  highest  market  quotations  on  the  day  he 
qualified.*^     The  amount  of  a  debt  due  the  representative,   and 


leave  to  resign  the  trust,  no  commis- 
sions will  be  allowed  to  them  as  trus- 
tees, upon  the  proceeds  of  land  sold 
under  such  a  ])Ower.  (Matter  of  Cur- 
tiss,   9  App.   Uiv.    285,) 

86  Matter  of  Mason,  98  N.  Y.  527; 
jVIcAlpine  v.  Potter,  126  id.  285; 
Cairns  v.  Chaubert,  9  Paige,  100: 
Matter  of  Kellogg,  7  id.  265 :  Foley  v. 
Egan,  13  Abb.  Pr.  (N.  S.)  362,  note; 
Matter  of  Moffat,  24  Hun,  325;  Mat- 
ter of  Ross,  33  Misc.  163;  68  N.  Y. 
Supp.  373.  In  Smith  v.  Buchanan  (5 
Dem.  169),  the  executors  had  sold  part 
of  testator's  lands  to  his  children,  tak- 
ing from  them  receipts  for  the  pur- 
chase price,  which  were  applied  upon 
their  share  in  the  estate  of  their 
father: — Held,  in  legal  effect,  to  be 
substantially  a  sale  and  conveyance 
of  the  same,  as  if  the  payment  had 
T)_een  made  in  cash,  so  that  the  exec- 
utors were  entitled  to  have  commis- 
sions computed  on  the  amount  of  such 
purchase  price. 

STSchenck  v.  Dart,  22  N.  Y.  420: 
Hawley  v.  Singer,  3  Dem.  589;  Mat- 
ter of  Robinson,  37  Misc.  336 :  75  N. 
Y.  Supp.  490.  But  see  Matter  of  Haw- 
ley, 104  N.  Y.  250;  and  same  case  on 
a  rehearing  Ijefore  the  surrogate,  5 
Dem.  82.  In  :Matter  of  Egan  (7  Misc. 
262;  27  X.  Y.  Supp.  1009).  it  was  in- 
timated (erroneously,  we  think),  that 
the  statute  awarding  commissions  did 
not  apply  to  a  temporary  administra- 
tor, and  hence  that  property  specifi- 
cally bequeathed  should  be  considered 
in  estimating  his  commissions.  Com- 
missions are  not  to  be  computed  upon 
specific  legacies,  although  converted 
into  money.  (Farquharson  v.  Nugent, 
6  Dem.  296.)  In  Hall  v.  Tryon  (1 
id.   296),  testator  left  a   personal  es- 


tate including  certain  corporate  bonds, 
which  he  bequeathed  to  his  executors 
in  trust,  to  collect  and  pay  the  in- 
come to  certain  life  beneficiaries,  at 
whose  death  the  executors  were  di- 
rected to  divide  and  deliver  the  said 
bonds  and  accrued  income  among  and 
to  certain  persons  named.  The  exec- 
utors were  also  given  a  discretionary 
power  to  sell  any  of  the  bonds.  On 
an  accoimting,  during  the  lifetime  of 
the  life  beneficiaries,  none  of  the 
bonds  having  been  sold,  the  executors 
asked  half  commissions  on  the  value 
of  the  bonds,  as  constituting  a  sum 
of  money  received  by  them.  Held,  that 
the  bonds,  in  respect, to  the  principal 
thereof,  were  specific  legacies,  and  that 
no  commissions  were  allowable  on 
their  value.  Where  the  share  of  one 
of  the  residuary  legatees  was  provided 
for  by  a  specific  devise  of  land,  the 
executor  Avas  not  allowed  commissions 
upon  it.  ( Burtis  v.  Dodge,  1  Barb. 
Ch.    77.) 

88  Cairns  v.  Chaubert,  9  Paige,  160; 
Matter  of  McAlpine,  15  St.  Rep.  532 ; 
Matter  of  Bennett,  16  Misc.  199;  38 
N.  Y.  Supp.  945 ;  sub  nom.  Matter  of 
Clinton,  /4  St.  Rep.  534:  affd.,  12  App. 
Div.  132.  Compare  Matter  of  Cur- 
tiss,  9  id.  285. 

8i>  Betts  y.  Betts,  4  Abb.  X.  C.  324 ; 
Rowland  v.  ^Morgan,  3  Dem.  289.  See 
Foley  V.  Egan,  13  Abb.  Pr.  (X.  S.) 
362, 'note;  Matter  of  Baker,  35  Hun, 
272:  and  ante.  §  1001.  Commissions 
are  not  chargeable  upon  receipts  and 
disbursements  having  only  a  con- 
structive, and  not  an  actual,  exist- 
ence. Accordingly,  where  testator  re- 
cited that  he  had  made,  and  might 
continue  to  make,  advances  to  his 
children,   etc.,   and   had   or   might  be- 


827  ACCOLMINGS.  §   lOUo. 

allowed  him  on  the  accounting,  are  properly  included  in  the  sum 
on  which  his  commissions  are  calculat^'d."*^  Sj,  where  he  is 
i-'harged  with  loss  resulting  from  his  neglect  to  make  regular  in- 
vestments of  a  fund,  he  is  entitled  to  commissions  on  the  amount 
charged  against  him.' '  Where  an  executor  sells  real  estate,  sub- 
ject to  mortgages,  which  were  personal  liabilities  of  the  decedent, 
hi-  is  entitled  to  commissions  on  the  whole  purchase  price,  includ- 
ing the  amount  of  the  mortgages,  and  is  not  limited  to  commis- 
sions on  what  remains  after  deducting  the  amount  of  the  mort- 
gages therefrom.^^ 

Legacies  are  not  subject  to  a  charge  for  commissions,  unless  in- 
directly, by  way  of  abatement,  whore  the  estate  is  not  sufficient 
to  pay  the  commissions.  On  a  regular  accounting,  the  whole 
amount  of  receipts  and  disbursements  forms  the  basis  of  charging 
commissions,  which  are  deducted,  and  the  legacies  are  then  paid 
out  (if  the  snr])lus  remaining  after  the  jiaynicnt  of  the  debts  and 
expenses  of  administration.^^ 

Reinvestme7}ts  of  principal  are  not  ground  for  allowing  com- 
missions \^^  if  they  were,  the  principal  wonhl  soon  be  impaired. 

Payment  of  dower,  admeasured  by  a  judgment  of  the  Supreme 
Court,  is  not  an  executorial  duty  under  the  will,  and  no  commis- 
sions can  be  allowed  on  the  payment.®^ 

§  1003.  Apportioning  commissions. —  Where  there  are  several 
co-executors  or  co-administrators,  the  commissions  should  be  com- 


oome   liable   to   pay  certain   sums   for  ecutrix  and  applied  by  her  to  her  own 

them,  and  directed  the  amount  of  such  use    as    beneficiary    under    the    trust, 

payments,    etc.,    to    be    deducted    from  (Stevens  v.   Melcher.   152  X.  Y.  5.')1.) 

their  respective  shares  of  his  estate. — ■  !'2  Cox  v.  Schermerhorn.  18  Hun.  IH. 

Held,  that  commissions  must  be  com-  But  see  Baucus  v.   Stover,  24  id.    100  ■ 

puted  upon  the  amount  of  the  several  (revd.    on    another    jjround,    89    N.    Y. 

shares    after    makinj;    the    deductions  1);    and    Matter    of    St.    John,    atitc, 

provided    for    in    the    will.       (Rill    v.  §  noo.  note  72. 

Xelson,  1  Dem.  .3.57.)  nsWesterfield      v.      Westerfield,      1 

00  Matter    of    Mount,    2    Redf.    405.  Bradf.    108. 

See  Hosack  v.  Ko<rers,  9  Paijje.  461.  ''4  ;>ror<i:an   v.    Hannas.    13    Abb.    Pr. 

ni  :\ratter  of  Mount.  2  Redf.  405.  (X.  S.)  301.  In  Matter  of  Havden 
See  Morjran  v.  Mor-ran,  4  Dem.  353;  (125  X.  Y.  770:  alT^'.  54  Hun.  107), 
fJillespie  v.  Brooks,  2  Redf.  340.  Sur-  the  representative  continued  the  tes- 
Aivinjr  executors  are  not  entitled  to  tator's  business; —  Held,  that  the 
commissions  upon  a  sum  paid  to  per-  amounts  paid  out  for  expenses  of  the 
sonal  representatives  of  a  deceased  ex-  business,  but  subsequently  repaid,  in 
<>cutrix,  for  arrears  of  commissions  the  general  ajjfjrepate  receijits,  con- 
due  to  her.  (Botts  v.  Betts.  4  Abb.  stituted  a  reinvestment  of  the  prin- 
N.  C.  324.)  And  where  testamentary  cipal  of  the  fund  in  his  hands,  on 
trustees  have  bt>en  allowed  conunis-  which  he  was  not  entitled  to  cnmmis- 
sions  on  so  much  of  the  cnrpw  of  the  sions  for  his  service*.  Followed.  Beard 
trust  fund  as  has  been  received  by  v.  Beard.  140  X.  Y.  200:  55  St.  Rep. 
them  they  are  not  entitled   to  fiirther  408. 

commissions  on   sums  received  by  the  5*5  Matter  of  Lawrence,  37  Misc.  702. 
cestui  que  trust  who  was  also  an  ex- 


§  1004.  Accountings.  828 

jjuted  upon  the  aggregate  sums  received  and  paid  out  by  any 
and  all  of  them,  and  not  upon  the  amount  received  and  paid  out 
by  each  individually  ;^^  and  the  surrogate  may  apportion  the  com- 
missions among  them  according  to  the  services  rendered  by  them 
respectively.  If  he  fails  to  do  so  (except  in  case  of  an  estate  over 
one  hundred  thousand  dollars  in  value),  and  the  account  is  finally 
settled  without  apportionment,  it  seems  that  each  is  entitled  to  an 
equal  share,  irrespective  of  the  relative  services  rendered. ^'^  Al- 
though commissions  are  intended  to  compensate  executors  for 
their  services,  care,  and  responsibility,  and  should  be  apportioned 
accordingly,  yet  because  one  executor  voluntarily,  and  perhaps 
by  design,  takes  possession  of  all  the  assets  and  transacts  prac- 
tically all  the  business,  it  does  not  follow  that  he  should  receive 
all,  and  his  co-executor  none,  of  the  commissions.^'^ 

§  1004.  Apportionment  of  three  commissions. —  In  dividing  the 
three  commissions  between  the  executors,  according  to  the  services, 
rendered  by  them,  each  should  be  awarded  the  proportion  thereof 
which  the  evidence  shows  he  fairly  earned ;  and  although  this  can- 
not be  ascertained  to  a  mathematical  certainty,  it  is  the  duty  of  the 
surrogate  to  make  the  apportionment  in  view  of  the  situation  of 
the  estate,  and  the  residence  and  relation  of  the  parties  to  it,  and 
in  consideration  of  the  burden  of  the  labors  that  fell  upon  each.^^ 
The  intention  of  the  statutory  provision  for  three  commissions 
was  that  they  should  be  given  only  Avhen  the  trust  has  been  fully 
administered.  Consequently,  where  all  three  executors  resigned 
before  their  duties  were  finished,  three  commissions  will  not  be 
given  to  one  of  them  who  had  alone  managed  the  estate  up  to  the 
.time  of  his  resignation:  he  is  only  entitled  to  receive  one  full 
commission   on   sums  paid  out  for  debts   and  legacies, —  nothing- 

''fi  Valentine    v.    Valentine.    2    Barh.  But    Avhere    one    of   two    trustees   has 

Ch.  430;   Betts  v.  Betts,  4  Abb.  N.  C.  had  almost  the  entire  management  of 

324.       But    where    the    personalty    is  the  trust  estate,  it  i^  proper  to  award 

given  to  one  class  of  persons  and  the  to  him  two-thirds  of  the  commissions 

proceeds    of    realty    to    another    class,  allowed  to  both  trustees.      (Matter  of 

and  each   executor  has   solely   admin-  Curtiss,  9  App.  Div.  28.5.) 
istered  a.s  to  one  kind  of  property  and         -9  Smith  v.  Buchanan,  .5  Dem.   160; 

rendered    a    .separate    account    thereof,  flatter  of  Franklin.  26  Misc.   107 ;    56 

each    executor    is   entitled    to   commis-  X.  Y.   Supp.   8.18.     Before  the  amend- 

sions   on   the   fund   he   represents   and  ment  of  1881.  providing  for  an  appor- 

each  class  of  persons  should  bear  the  tionment   of  commissions,  no   discrim- 

expense  of  accounting  as  to  the  fund  ination    could    be    made    among    them. 

in  which  it  is  interested.      (Matter  of  although  one  of  them  performed  most 

Mansfield.    10    Misc.    296;     31    N.    Y.  of   the   labor.      See   Matter   of   Harris, 

Supp.  684.)  4   Dem.   463;    Matter  of  Van   Nest.    1 

9T\Vhite  V.  Bullock,  4  Abb.  Ct.  App.  Tuck.   130;    Bohde  v.   Bruner,  2  Redf. 

Dec.  .578.  333;  Matter  of  Pike,  id.  255. 

98  Matter    of   Dunkel,    5    Dem.    188. 


S29 


ACCOUNTIXUS. 


§  1005. 


by  way  of  commissions  on  the  body  of  the  estate.^  Wliere,  how- 
-cver,  two  siirviviu<^  executors,  the  tliird  having  died,  pending  tlie 
administration,  completed  the  trust,  three  full  commissions  will 
be  allowed,  on  the  accounting  of  the  survivors,  to  be  apportioned 
auKjng  the  latter  and  the  rej)resentative  of  the  deceased  executor, 
although,  by  tiiis  means,  each  of  the  surviving  executors  will  re- 
ceive commissions  in  ekcess  of  full  commissions,  by  reason  merely 
of  the  death  of  their  co-representative."  liut  the  statute  does  not 
apply  to  a  case  wiici-c  the  representatives  were  appointed  tn  suc- 
ceed each  other  and  did  not  act  simultaneously  in  the  administra- 
tion of  the  trust.'  This  power  to  apportion  commissions  does  not 
include  the  ])ower  totally  to  abate  any  executor's  commission,  ex- 
cept, perhaps,  in  case  of  misconduct  resulting  in  loss,  or  where  the 
net  estate  proves  to  be  less  than  one  hundred  thousand  dollars.* 

§  1005.  When  commissions  are  payable. —  The  connnissions  are 
allowed  only  by  ordcu'  of  the  surrogate,  and  on  the  settlement  of 
the  account ;  those  claiming  them  have  no  authority  to  appropriate 
sums  to  their  own  use,  as  commissions,  until  they  are  so  allowed,"' 
except  in  the  case  of  periodical  payments  of  trust  income.''  If 
they  do  so,  it  is  a  misappropriation,  and  they  are  chargeable  with 
interest,  from  the  date  of  the  withdrawal  to  the  date  of  the  decree ;' 


1  Matter  of  Harden,  54  Hun,  198; 
affd..  125  N.  Y.  77ti. 

swelling  V.  Welling.  3  Dem.  511; 
ioUowed  in  ^Matt^r  of  Garrison,  N.  Y. 
Law  J..  Julv  28.  1800.  See  .Matter  of 
Newland,  7  'Misc.  728 ;  28  N.  Y.  Supp. 
496. 

3  Thus,  in  ^Nfatter  of  Kennedy  (N. 
Y.  Law  .r..  Juno  i;3.  1891).  the 'testa- 
tor ap]Jointed  tliree  executors,  one  of 
Iheni  being  liis  wife,  and  provided,  iii 
ease  of  the  death  of  any  of  them  other 
than  his  wife,  for  the  appointment  of 
another  in  place  of  the  deceased  exec- 
utor. The  wife  predeceased  tlie  testa- 
tor. The  other  two  executors  quali- 
fied and  entered  upon  tlie  adinini-itra- 
tion  of  the  estate.  One  of  them  after- 
"ward  died,  and  in  his  ])lace  another 
qualified  and  acted,  '•'he  estate  was 
of  tiie  value  of  $l()n,OMn  in  excess  of 
the  decedent's  debt.  Three  fidl  com- 
missions were  disallowed. 

4  Matter  of  Kenworthv.  ()3  Hun. 
1C5;  44  St.  Rep.  275.  I'n  that  case, 
one  of  three  executors  was  allowed 
nothing,  the  others  being  allowed  full 
f-omniissions.  on  the  ground  thai  they 
liad  iK'iformed  all  the  work  of  the  ad- 
ministration.    Held,  error;   that  hav- 


ing duly  qualified  and  having  done 
some  acts  in  administration,  the 
former  was  "  entitled "  to  compensa- 
tion. "  The  basis  for  her  commissions 
is  the  amount  of  the  estate.  I  can 
see.  no  other  meaning  to  the  words 
'  full  compensation.'  This  '  compensa- 
tion '  is  by  moans  of  commissions; 
full  compensatiim.  therefore,  moans 
'full  commissions.""'      (Per  Pratt.  .J.) 

•'•  Fieeman  v.  Freeman,  4  Rodf.  211; 
Whitney  v.  Phoenix,  id.  ISO;  Wheel- 
wriijht  V.  Wheelwright,  2  id.  501  ; 
:\Iatter  of  Willard,  29  St.  Rep.  949; 
9  N.  Y.  Supp.  555;  Matter  of  Rich- 
ardson, 2  Misc.  288;  23  N.  Y.  Supp. 
978.  The  commissions  are  to  be  do- 
<lucted  as  of  the  date  of  the  sottle- 
uient  of  the  account,  and  not  as  of 
the  date  of  filing  it.  ( llaskin  v.  Tel- 
ler. 3  Rodf.  310.)  Until  they  are  fixed 
by  the  decree,  the  right  to  them  is 
merely  inchoate,  and  they  cannot  be 
assigned.  ( Matter  of  Worthington 
141  X.  Y.  9;   5(!  St.  Rep.  501.) 

<;See  ante.  §  1001. 

-  Wheelwright  v.  Rhoades,  28  Hun. 
57;  11  .\bb.  X.  r.  382;  Carroll  v. 
Hughes.  5  Redf.  337:  Matter  of  Pey- 
ser, 5  Dera.  244. 


§§  1000-1008.  Accountings.  830 

but  where  there  is  no  intentional  violation  of  duty,  and  no  loss  or 
injury  to  the  estate  is  shown,  interest  will  not  be  charged  thereon,* 
jiarticnlarly  where  the  taking  of  coniniissions  was  by  the  consent 
of  the  beneficiaries.'*'  But  they  are  not  bound  to  part  with'  pos- 
session or  control  of  funds  necessary  to  meet  their  commissions^ 
until  their  claim  thereto  has  been  determined  by  the  surrogate.^**' 

ARTICLE  SEVENTH. 

THE   DEICREE  AND   ITS   EFFECT. 

§  1006.  Decree  on  judicial  settlement. —  To  settle  the  accounts 
of  a  representative,  is  to  ascertain  what  is  justly  due  by  him  to 
the  several  persons  who  are  entitled  to  share  in  the  distribution 
of  the  moneys  in  his  hands,  after  defraying  the  expenses  of  the 
trust. ^^  The  main  purpose  of  a  judicial  settlement  is  the  distribu- 
tion of  the  surplus,  and  some  good  reason  must  be  given  for  omit- 
ting to  make  provision  for  such  distribution  in  the  decree  pro- 
posed for  signature.^^  It  is,  of  course,  otherwise  in  the  case  of 
an  intermediate  account.  A  decree  which  merely  settles  the  ac- 
count of  the  representative  by  fixing  the  amount  of  the  balance  in 
his  hands  subject  to  distribution,  but  which  does  not  direct  the 
distribution  or  name  the  distributees,  or  prT)vide  any  mode  of 
ascertaining  them,  or  the  shares  due  them,  respectively,  cannot  be 
made  the  foundation  of  an  action  by  one  claiming  to  be  entitled 
to  one  of  such  distributive  shares. -^^ 

§  1007.  Decree  must  contain  summary  of  account. — "  Each  de- 
cree, whereby  an  account  is  judicially  settled,  must  contain,  in 
the  body  thereof,  a  summary  of  the  account  as  settled,  or  must  refer 
to  such  a  summary,  which  must  be  recorded  in  the  same  book,  and 
is  deemed  a  part  of  the  decree."  ^^ 

§  1008.  Direction  for  payment  and  distribution. —  Where  an  ac- 
count is  judicially  settled,  "  and  any  part  of  the  estate  remains, 
and  is  ready  to  be  distributed  to  the  creditors,  legatees,  next  of 
kin,  husband  or  wife  of  the  decedent,  or  their  assigTis,  the  decree 
must  direct  the  payment  and  distribution  thereof  to  the  persons 

8  Beard    v.    Beard.    140    N.    Y.    2fi0.        n  People  v.  Coffin.  7  Hun.  COS.    See 

In  Whitney  v.  Phoenix  (sw/jro-) ,  simple  Seaman  v.  Duryea.   11  X.  Y.   324. 
interest  was  charfted.  12  Matter  of  '  Roux.     X.     Y.     Surr. 

9:STatter  of  Ross.   3.3  Misc.   163:    68  Deeis.   1889.  p.  003:   :\[atter  of  Quinn, 

X".  Y.  Supp.  373:   Matter  of  Franklin.  X.  Y.  Law  J.,  Mav  2,   1800. 
26  :vrisc.   107:   56  X.  Y.  Supp.  858.  13  .Tohnson  v.  Richards.  3  Hun.  454. 

10  Wheelwright       v.       Wheelwright,        n  Co.  Civ.  Proc,  §  2551. 
supra. 


831  ACCOLNTI.NGS.  §§  KJOK,  lOl"; 

so  entitled,  according  to  their  respective  rights.  In  case  oi  adiiiiii- 
istration  in  intestacy  the  decree  must  direct  iminediate  payment 
and  distrihuti(»n  to  creditors,  next  of  kin,  hvishand  or  wife  oi  the 
decedent,  or  tlieir  assigns,  where  tlie  administrat.ir  has  ])etitioned 
voluntarily  for  judicial  settlement  of  liis  account  as,  and  in  the 
case,  provided  in  subdivision  two  (jf  section  twenty-seven  hundred 
and  twenty-eight  of  |  the' ("ode j.  If  any  person,  who  is  a  necessary 
])arty  for  that  purjiose,  has  not  been  cited  or  has  not  appeared, 
a  su])plemental  citation  must  he  issued,"  as  heretofore  mentioned. ^^ 
"  Where  the  validity  of  a  debt,  claim,  or  distributive  share,  is  ad- 
mitted, or  has  been  established,  upon  the  accounting,  or  other  pro- 
ceeding in  the  Surrogate's  Court,  or  other  court  of  competent  juris- 
diction, the  decree  must  determine  to  whom  it  is  payable,  the^ 
sum  to  be  paid  by  reason  thereof,  and  all  other  questions  concern- 
ing the  same."  *® 

!:<  1009.  Direcnon  to  deliver  specific  property. —  In  either  of  the 
following  cases,  the  decree  may  direct  the  delivery  of  an  unsold 
chattel,  or  the  assignment  of  an  uncollected  demand,  or  any  other 
personal  ]iroj)erty,  to  a  jnirty  or  parties  entitled  to  payment  or 
distribution,  in  lieu  of  the  money  vahie  of  the  pro])erty :  '' 1. 
Where  all  the  parties  interested,  who  have  ap]ieared,  manifest 
their  consent  thereto  by  a  writing  filed  in  the  surrogate's  office. 
2.  Where  it  appears  that  a  sale  thereof,  for  the  purpose  of  pay- 
ment or  distribution,  wouhl  cause  a  loss  to  the  parties  entitled 
thereto.  The  value  must  be  ascertained,  if  the  consent  does  not 
fix  it,  by  an  appraisement  under  oath,  made  by  one  or  more  per- 
sons, appointed  by  the  surrogate  for  the  purpose."  ^" 

§  1010.  Direction  to  retain  money  for  undetermined  claim. — 
"  Where  an  admitted  debt  of  the  decedent  is  not  yet  du<'.  ;ind  the 
creditor  will  not  accept  present  payment,  with  a  rebate  of  interest; 

15  Co.  Civ.  Prop..  §  2743.  as  amoiulod  iT  Co  .   Civ.    Proc,    §§    2744.    2811. 

1808.      This    amendment    precludes    a  The  application,  by  the  new  Code,  of 

decree    of    distribution    upon    an    ac-  this   regulation   to  testamentary   trus- 

countingr    of    an    executor,    under    the  tees,  as  well  as  executors  and  admin- 

sul)(livision    referred    to.       (flatter    of  istrators.   sustains  Carman  v.   Cowles. 

Lawson.  .3(i  :\risc.  OG ;   72  X.  Y.  Supp.  2  Redf.   414.     Tlie   former  rulin-,'  that 

(54.1,  ai^.d  cases  cited  in  §  019.  note  30,  an   administratiix   could   not.   tlirouirli 

itulr.)      A  (lc('r(v>  whicli  distribiites  tlie  the    decree    on    an    accounting,    secure 

estate   of    a    decedent    should    adjudge  the    setting    apart    to    lier    of    artich-s 

that   the   payment   of   tlie   amounts   to  which     she     miglit,     as     widow,     have 

he   distriliutcd    be    made    by   the    indi-  claimed    to    be    exempt    in    lier    favor 

vidual  and  not  as  executor  or  admin-  (Cornwell    v.    Deck.    2    Redf.    87),    in 

islratnr.      (flatter  of  Monell.  28  Misc.  now    superseded    bv    section    2724.    aa 

308:   .10  X.  Y.  Supp.  081.)  amended    1803    (former   §   2721).     See 

i«Co.  Civ.  Proc,  §  2743,  as  amended  §  510,  ante. 
1805.     See  §  2811. 


§  1011.  Accountings.  832 

or  where  an  action  is  pending  between  the  executor  or  adminis- 
trator, and  a  person  claiming  to  be  a  creditor  of  the  decedent  ;^* 
the  decree  must  direct  that  a  sum,  sufficient  to  satisfy 'the  claim,  or 
the  proportion  to  which  it  is  entitled,  together  with  the  probable 
amount  of  the  interest  and  costs,  be  retained  in  the  hands  of  the 
accounting  party ;  or  be  deposited  in  a  safe  bank  or  trust  com- 
pany, subject  to  the  surrogate's  order;  or  be  paid  into  the  Surro- 
gate's Court,  for  the  purpose  of  being  applied  to  the  payment  of 
the  claim,  when  it  is  due,  recovered  or  settled ;  and  that  so  much 
thereof,  as  is  not  needed  for  that  purpose,  be  afterward  distributed 
according  to  law."  ^^ 

And-  where,  on  the  judicial  settlement  of  a  testamentary  trus- 
tee's account,  a  controversy  respecting  the  right  of  a  party  to 
share  in  the  money  or  other  personal  property  to  be  paid,  dis- 
tributed, or  delivered  over,  "  remains  undetermined  after  the  de- 
termination of  all  other,  questions  upon  which  the  distribution  of 
the  fund,  or  the  delivery  of  the  personal  property  depends,  the 
decree  must  direct  that  a  sum,  sufficient  to  satisfy  the  claim  in 
controversy,  or  the  proportion  to  which  it  is  entitled,  together  with 
the  probable  amount  of  the  interests  and  costs,  and,  if  the  case  so 
requires,  that  the  personal  property  in  controversy  be  retained  in 
the  hands  of  the  accounting  party ;  or  that  the  money  be  deposited 
in  a  safe  bank  or  trust  company,  subject  to  the  surrogate's  order, 
for  the  purpose  of  being  applied  to  the  payment  of  the  claim,  when 
it  is  due,  recovered,  or  settled ;  and  that  so  much  thereof,  as  is  not 
needed  for  that  purpose,  be  afterward  distributed  according  to 
law."  2'^ 

sj  1011.  Direction  as  to  paying  minor's  and  unknown  person's  share. 

—  The  Code  gives  very  particular  instructions  as  to  the  mode  of 

18  Such   a  provision  is  proper,  even  building  remaining  on  the  premises  at 

though   the   action   has   not  been   com-  the   expiration   of   the   term."    it   does 

menced,    owing    to    inability    to    serve  not   make   her   a   debtor   to    the   lessee 

process  upon  the  representative.     (Mat-  until    the   term    has   actually   expired, 

ter  of  Easch,  20  ilisc.  459:    5.5  X.  Y.  and  where   she   dies  before   that   time 

Supp.  4.34.)  the    court    has    no    authority    on    the 

1S»  Co.  Civ.  Proc,  §  2745.  See  Giles  judicial  settlement  of  the  accounts  of 
\.  De  Talleyrand.  1  Dem.  97;  Pu  Bois  her  administrators  to  require  them  to 
v.  Brown,  id.  317;  Matter  of  Brown,  retain  in  their  hands  the  probable 
3  Civ.  Proc.  Rep.  39;  Greene  v.  Day,  amount  of  their  claim  under  Co.  Civ. 
1  Dem.  45 ;  Matter  of  Orser,  4  Civ.  Proc,  §  2745,  authorizing  such  act 
Proc.  Rep.  129.  The  section  does  not  "  where  an  admitted  debt  of  the  de- 
apply  to  actions  involving  claims  in  cedent  is  not  yet  due."  (flatter  of 
favor  of  the  estate.  (Matter  of  Trus-  Henshaw,  37  Misc.  536;  75  N.  "Y. 
low.  37  Misc.  189;  74  N.  Y.  Supp.  Supp.  1047.) 
t144.)  Where  a  lessor,  since  deceased,  20  Co.  Civ.  Proc,  §  2812. 
covenants  to  pay  her  lessee  "  for   the 


^33  Acctn-NTiXG.s.  §§  1012,  1013. 

paying  and  investing  a  legacy  or  a  distributive  share  due  to  an  in- 
fant,"' or  to  a  person  who  is  unknown."" 

§  1012.  Direction  as  to  paying  unclaimed  legacy. —  The  decree 
"  must  also  direct  the  executor  or  administrator  to  pay  to  the 
<iounty  treasurer  a  legacy  or  distributive  share  which  is  not  paid 
10  the  person  entitled  thereto,  at  the  expiration  of  two  years  from 
the  time  when  the  decree  is  made,  or  when  the  legacy  or  dis- 
tributive share  is  payable  by  the  terms  of  the  decree.  The  money, 
so  paid  to  the  county  treasurer,  can  be  paid  out  by  him  only  by 
lhe  special  direction  of  the  surrogate;  or  pursuant  to  the  judg- 
ment of  a  court  of  competent  jurisdiction."  ^^ 

§  1013.  Conclusive  effect  of  decree  for  payment  and  distribution. — 
AVith  respect  to  directions  in  the  decree  for  the  payment  and  dis- 
tribution of  the  surplus,  the  statute  declares  that  the  decree  is 
conclusive  upon  each  party  to  the  proceeding,  for  the  judicial  set- 
llcment  of  the  account,  who  was  duly  cited  or  appeared;  and 
u])on  every  person  deriving  title  from  such  a. party.""*  The  usual 
j.rovision,  that  the  executor  or  adniinistratur  pay  over  the  balance 
found  in  his  hands,  is  not  a  payment  so  as  to  exonerate  the  fund 
distributable,  as  against  the  person  to  whom  it  is  made  payable. 
The  decree  gives  to  the  distributee  a  remedy  against  the  exec- 
utor personally,  for  his  proportion  of  the  fund  found  to  be  in  the 

21  Co.  Civ.  Proc,  §  2746.  See  §  792,  found  due  to  the  surrogate,  taking  his 
a}ite.  receipt  as  paid  to  the  next  of  kin,  if 

22  Co.  Civ.  Proc.,  8  2747.  See  Peo-  lhe  surrogate  fails  to  pay  over  to 
pie  V.  Chapin,  101  N.  V.  682.  those   entitled,   since   such   payment  is 

23  Co.  Civ.  Proc,  §  2748.  See  Koch  not  a  payment  into  court,  which,  if  at 
V.  Woehr,  .3  Dem.  2S2.  Notice  of  the  any  time  rocjuircd.  is  to  be  made  to 
:'])T>lication  for  payment  of  a  dis-  the  county  treasurer.  (Matter  rf  Te 
trihutive  share  must  be  given  to  the  Culver.  22  ^lisc.  217:  40  X.  Y.  Supp. 
rtlier  next  of  kin.  (Matter  of  Mur-  820.)  The  consul-general  of  Italy  has 
;ay,  44  App.  Div.  640.)  As  to  pay-  the  right,  under  the  treaty  with  that 
ment  of  shares  of  absentees  to  next  of  country,  upon  giving  a  proper  receipt. 
kin,  see  flatter  of  Sullivan.  51  Ilun,  to  demand  and  receive  the  distributive 
"78.  Where  a  legatee  died  before  the  shares  in  an  estate  belonging  to  per- 
legacy  was  payable  and  no  adminis-  sons  in  his  country  which  have  been 
trator  of  hi^  estate  had  been  ap-  deposited  in  court.  (Matter  of  Tar- 
pointed. —  Held,  that  a  decree  for  pay-  taglio,  12  Misc.  24.5;  n.3  X.  Y.  Supp. 
ment    to   his    next    of    kin.    under    Co.  1121.)      See  avtr.  §  470,  note  45. 

Civ.  Proc,  §§  2747,  2748,  was  not  ap-  24  Co.  Civ.  Proc.  §§  2743.  2811.  An 
))ro))riate.  but  on  an  accounting  by  the  executor  who  has  accounted  and  been 
executor  the  amount  should  be  ordered  discharged  remains  liable  to  account 
paid  into  court.  (Matter  of  Morgan,  to  persons  interested  in  the  estate 
1  Misc.  71;  54  St.  Rep.  236.)  Ad-  who  were  not  made  parties  to  the  ac- 
ministrators  are  not  relieved  from  counting  and  to  refund  them  their 
their  liability  to  the  next  of  kin  for  share  of  moneys  misapplied  by  him. 
the  sums  due  to  each  as  distributive  (Matter  of  Lamb,  10  Misc.  638;  32 
shares  of  the  estate,  by  the  fact  that  X.  Y.  Sui)p.  225.)  The  general  .sub- 
just  before  entry  of  the  decree  upon  ject  of  the  cfTect  of  surrogates'  de- 
final  accounting  thev  paid  the  amount  crees  is  treated  in  c.  XXI,  post. 
'53 


g  1013.  Accountings.  834 

hands  of  the  latter.  But  this  remedy  is  cumulative,  and  does  not 
impair,  in  the  least,  the  remedy  against  the  fund  itself.  Nothing- 
short  of  actual  payment,  or  some  act  of  the  distributee  to  its  preju- 
dice, will  exonerate  the  trust  fund  from  the  claims  of  the  latter. ^^ 
A  surrogate's  decree  on  an  executor's  accounting  does  not  dis- 
charge him  as  executor,  and  terminate  the  responsibilities  of  his- 
sureties,  merely  because  the  will  expressly  gives  the  assets  to  him 
in  trust,  and  the  decree  directs  him  to  retain  the  balance  found  to 
be  in  his  hands,  and  invest  it,  and  keep  it  invested  according  to 
the  trust  expressed  in  the  will.^^ 

25  Clapp  V.  Meserole,  38  Barb.  661 ;  of   the   decree   must   be    to    terminate- 

affd..   1   Abb.   Ct.  App.  Dec.  362.     See  executorial  functions  as  to  this  fund, 

Mosher  v.  Hubbard,   13  Johns.   510.  as  well  as  to  inaugurate  the  functions 

26Clufr  V.   Day,   124  N.  Y.   195;   26  of  a  trustee.     (lb.)     As  to  continuing 

Abb.    N.    C.    300.      To    terminate    his  liability  of  sureties  in  executor's  bond,, 

holding   as  executor,   and  charge   him  see  §  466,  ante. 
thereafter  solely  as  trustee,  the  effect 


CHAPTER  XX. 

GUARDIANSHIP. 


TITLE  FIRST. 

GENERAL    GUARDIANS. 

ARTICLE  FIRST. 

APPOTNT.MK.XT    AND    CiKXERAL    POWERS. 

§  1014.  Concurrent  jurisdiction  of  surrogate  and  other  courts. — 
The  Code  contains  a  general  clause,  giving  the  Surrogate's  Court 
jurisdiction  ''  to  apj)oint  and  remove  guardians  for  infants;  to  com- 
pel the  payment  and  delivery  by  them  of  money  or  other  property 
belonging  to  their  wards ;  and  in  the  cases  specially  prescrihcd  hy 
laiu,^  to  direct  and  control  their  conduct;,  and  settle  their  accounts ;" 
which  jurisdiction  must  be  exercised  in  the  cases^  and  in  the  man- 
ner prescribed  by  statute.^  General  guardians  of  minors  may  be 
appointed  by  the  Supreme  Court,  etc.,  under  the  General  Rules  of 
Practice,  or  by  the  surrogate,  imdcr  the  Code.^  Appointment  in 
the  former  mode  is  regulated  by  General  Rules  52,  53,  and  54.'' 
The  Supreme  Court,  as  the  successor  of  the  Court  of  Chanceiy, 
independently  of  the  Code  and  General  Rules,  acts  as  the  guard- 
ian of  all  infants,  and  this  is  regarded  as  one  of  its  imjiortant 
functions,  and  this  power  of  the  Supreme  Court  is  paranntiint  to 

1  The  italics  conform  to  Morjian  v.  thority  of  a  statute.  (Co.  Civ.  Pioc, 
Hannas  (1.3  Abb.  [N.  S.]  3G1),  and  §  2481,  siibds.  4,  o -.  which  extend  also 
are  a  substitute  for  "as  prescribed  by  to  executors,  administrators,  and  trus- 
law."  in  the  original.  tees.)      See  Thomson  v.  Mott,  .')  Kodf. 

2  Co.    Civ.    Proc,    §    2472.    subd.    7;  574. 

Matter  of  Bolton.  loO  N.  Y.  129.  3  The  power  of  ai)p()intitif:  the 
Amonfj  the  incidental  powers  confer-  guardian  of  an  infant  can  only  he  ex- 
red  upon  a  surrogate,  are  included  the  crcised  by  the  courts  having  autliority 
power  to  enjoin,  by  order,  a  guardian,  in  sucli  cases,  or  by  the  infant's  father 
to  whom  a  citation  or  otlicr  process  or  mother.  (Fullerton  v.  Jackson,  5 
has  been  duly  issued  from  his  court,  Johns.  Ch.  278;  Hoyt  v.  Hilton.  2 
from  acting  as  such,  until  tlie  further  Kdw.  202;  Matter  of  Lichten.stadter, 
order  of  the  court;   and  to  require,  by  5  Dem.  214.) 

order,  a  guardian,  subject  to  the  juris-  •*  Whether    "the    court,"    mentioned 

diction   of   his  court,   to   perform   any  in   Rule   .52.   may  be   any   other   tliaa 

duty  imposed  upon  him.  by  statute,  or  the  Supreme  Court,  qucere. 
by   the    Surrogate's  Court,   under  au- 

[835] 


§§1015,1010.  C  CTAKDiANsiiir.  836 

that  of  the  surrogate;  and  the  fact  that  the  surrogate  lias  ap- 
pointed a  guardian  of  the  person  or  estate,  or  both,  does  not  inter- 
fere with  the  power  of  the  Supreme  Court  to  control  the  custody 
of  the  niinor.^ 

§  1015.  Extent  of  surrogate's  power  to  appoint. — "  The  Surro- 
gate's Court  has  the  like  power  and  authority  to  appoint  a  general 
guardian,  of  the  person  or  of  the  property,  or  both,  of  an  infant, 
which  the  chancellor  had  on  the  31st  day  of  December,  1846."  ^ 
It  has  also  power  and  authority  to  appoint  a  general  guardian,  of 
the  person  or  of  the  property,  or  both,  of  an  infant  whose  father 
or  mother  is  living,  and  to  appoint  a  general  guardian,  of  the 
property  only,  of  an  infant  married  woman. ^ 

§  1016.  What  surrogate  has  jurisdiction. —  The  Code  permits  the 
a])pointment  of  a  general  guardian  f or^  and  on  the  application  of, 
an  infant,  of  the  age  of  fourteen  years  or  upward,  by  the  SuIto- 
gate's  Court  of  the  county  in  which  he  resides;  or  if  he  is  not  a 
resident  of  the  State,  by  the  Surrogate's  Court  of  the  county  in 

5  Wilcox  V.  Wilcox,  14  N.  Y.  575.  The  reason  for  thus  providing,  insterd 
See  Strubbe  v.  Kings  County  Trust  of  making  the  power  coincident  Avith 
Co.,  60  App.  Div.  548;  69  N.  Y.  Supp.  that  of  the  Supreme  Covirt,  is  given 
1092.  It  was  held,  in  the  early  cases,  in  Mr.  Commissioner  Throop's  note  to 
that  the  guardian,  whether  appointed  Co.   Civ.   Proc,   §   2821. 

by  the  surrogate  or  in  any  other  way,  7  Co.  Civ.  Proc,  §  2821;  confirming 

is   deemed   an   officer   of   the   Supreme  Matter  of  Herbeck    ( 16  Abb.   Pr.    [N. 

Court,   within   the    rule    that    he   may  S.]  214) ,  which  held  that  the  husband 

be    summarily    proceeded    against    by  of  a  female  infant,  though  himself  an 

that  court  and  removed,   and  compel-  adult,    does    not,    since    the    ^Married 

led    to    account    there;    and    that    the  Women's  Acts,  acquire  control  of  her 

surrogate    had    not    concurrent    juris-  property    by    marriage,    and    that    the 

diction  with  the  Supreme  Court  to  re-  Surrogate's  Court  has,  therefore,   au- 

move  or  change  a  guardian  appointed  tharity  to  appoint  a  guardian  of  the 

by   that   court,    or    to    compel    such    a  estate    of    a    married    female    infant ; 

guardian  to  account,  either  before  or  and  it  was  intimated  that  an  existing 

after   removal.      See   Disbrow  v.   Hen-  guardianship  of  a  female  infant  is  not, 

shaw,    8    Cow.    349 ;    Ex   p.    Crumb,    2  since  those  acts,  terminated  as  to  her 

Johns.    Ch.    439 ;    Matter   of   Andrews,  property,  by  marriage.      Such   is  now 

1    id.    99;    Matter    of    Dyer,    5    Paige,  the  law  by  statute.      (L.   1890,  c.  272, 

534;   People  ex  rel.  Pruyne  v.  Watts,  §    54.)      It  had   been  previously  held, 

122  N.  Y.   238;    Matter 'of  White.   40  that   the   marriage   of   a   female   ward 

App.  Div.   165;   57  N.  Y.  Supp.  862;  terminated  the  guardianship    (Brick's 

afl'd.,    160    N.    Y.    685.      In    the    last  Estate,     15    Abb.   Pr.     12)  ;     but    this 

case  it  was  held,   that  where  the   Su-  ruling    must    now    be    deemed    super- 

preme  Court,  upon  the  petition  of  the  seded,   so  far   as   guardianship   of   the 

infant,  appointed  the  father  guardian  estate   is    concerned.      The    statute   re- 

of  his  pel  son  and  estate,  it  may,  upon  quires  that  where  the  petitioner   is  a 

notice    to    both,    revoke    the    appoint-  nonresUlmt    married   yeoman,   and   the 

ment,    against   the    wish    and    witliout  petition   relates   to   personal    property 

the  consent  of  the  infant,  and  appoint  only,  it  must  affirmatively  show  that 

a  trust  company  guardian.  the  property  is  not  subject  to  the  con- 

6  That  is,  the  day  before  the  Con-  trol  or  disposition  of  her  husband,  by 
stitution  of  1846  took  effect,  wherebv  the  law  of  the  petitioner's  residence, 
the  Court  of  Chancery  was  abolished.  (Co.  Civ.  Proc,  §§  2822,  2827.) 


s;3' 


GUAKIJIAXSIIII' 


§§  1017,  101  h. 


which  any  of  liis  property,  real  or  personal,  is  situated. '*  The 
jurisdiction  of  the  surrogate  depends  on  the  fact  of  the  residence 
of  the  minor  ^vitlJin  his  county;^  not  on  the  domicile  or  legal  resi- 
dence, but  on  the  actual  residence.^" 

§  1017.  Temporary  g^uardianship. —  The  same  facts,  as  to  resi- 
dence or  location  of  projtcrty,  determine  the  jurisdiction  of  the 
Surrogate's  Court,  to  appr»int  a  general  giiardian  of  an  infant, 
urider  fourteen,^'  hut,  in  such  case,  the  appointment  is  only  tem- 
porary; the  a})plication  must  he  nuide  hy  a  relative,  or  some  other 
person  in  behalf  of  the  infant,  and  the  surrogate  must  nominate, 
as  well  as  apjioint,  the  guardian.^"  On  reaching  the  age  of  four- 
teen years,  the  infant  may,  of  course,  apply,  for  the  appointment 
of  another  guardian,  to  the  surrogate  of  the  county  of  his  then 
residence,  and  such  appointment  will  supplant  the  guardian  pre- 
viously appointed  and  terminate  his  office,  without  the  entry  of  a 
formal  order  to  that  eifect.^^ 

§  1018.  Surrogate's  power  as  affected  by  prior  appointments ■ 

The  Code  permits  proceedings  by  the  surrogate  in  either  of  the 
following  cases:  (1)  Where  a  general  guardian,  such  as  is  ai> 
plied  for,  has  not  been  duly  appointed,  either  by  a  court  of  com- 


8  Co.  Civ.  Proc,  §  2822.  In  Matter 
of  Hosford  (2  Kedf.  108),  it  was  de- 
cided, before  the  present  Code,  tliat 
the  surrogate  liad  not  jurisdiction  to 
appoint  a  guardian  of  the  person  and 
estate  of  a  minor,  resident  in  another 
State,  even  if  liaving  property  here. 
But  see  contra,  Andrews  v.  Town- 
shcnd,  53  N.  Y.  Super.   (J.  &  S.)   522. 

9  Brown  v.  Lynch,  2  Bradf.  214. 
Compare  Dutton  v.  Dutton,  8  How. 
Pr.  yO:  Matter  of  Hubbard,  82  N.  Y. 
90;  Matter  of  Wildberger,  25  Misc. 
582;    55  X.  Y.   Supp.    1135. 

10  Matter  of  Pierce,  12  How.  Pr, 
532;  Matter  of  Rartlett,  4  Bradf.  221; 
Matter  of  Hughes,  1  Tuck.  38.  In  the 
last  case,  it  was  held,  that  a  relative, 
not  being  guardian,  could  not  change 
the  legal  residence,  so  as  to  affect  the 
surrogate's  jurisdiction.  See  S  143«, 
ante. 

n  Matter  of  Daniels,  71  Hun.  105; 
2  1  X.  Y.  Supp.  50(i.  In  that  case  the 
will  of  the  father  of  an  infant  who 
had  resided  in  Connecticut  appointed 
the  child's  maternal  uncle  in  that 
State,  with  whom  she  had  resided  after 
her  mother's  death,  as  guardian:  the 
■will  having  been  set  aside  for  incom- 


petency of  the  testator  the  uncle  sent 
the  cliild  to  its  maternal  grandmother 
in  New  York, —  Held,  that  the  change 
having  been  made  witliout  due  au- 
thority, and  the  child  having  equally 
near  relatives  in  Connecticut,  she  did 
not  become  a  resident  of  New  York, 
and  that  an  order  appointing  a  guard- 
ian in  the  latter  State  should  be  re- 
versed. 

12  Co.  Civ.  Proc.  §  2827.  The  term 
of  oflice  of  a  guardian,  for  an  infant 
under  fourteen,  expires  Avhen  he  at- 
tains the  age  of  fourteen  years.  (Co. 
Civ.  Proc.  §  2828.)  After  attaining 
tliat  age,  he  is  not,  however,  entitled, 
as  of  course,  to  elect  a  new  guardian 
(Matter  of  Nicoll,  1  Johns.  Ch.  25; 
Matter  of  Dyer.  5  Paige.  534)  :  but 
the  guardian  continues  to  retain  all 
his  powers  and  authority,  and  is  sub- 
ject to  all  the  duties  and  liabilities  of 
a  guardian,  until  his  successor  is  aji- 
pointed  and  has  qualified,  or  until  his 
letters  are  revoked:  and  his  sureties 
are  responsible  accordingly.  (Co.  Civ. 
Proc,  §  2837.) 

13  Matter  of  Sullivan.  N.  Y.  LawT., 
Ausr.  1.  1800;  Matter  of  Monell,  id., 
Oct.  28,   1891. 


§1010.  GuARniAxsiii!'.  838 

petent  jurisdiction  of  the  State,  or  by  tlio  will  or  deed  of  his 
father  or  mother,  admitted  to  probate  or  authenticated,  and  re- 
corded, as  prescribed  in  section  2851  of  the  Code.  (2)  U'here  a 
general  guardian,  so  appointed,  has  died,  become  incompetent  or 
disqualified;  or  refuses  to  act;  or  has  been  removed;  or  where  his 
term  of  office  has  expired.^'* 

§  1019.  Nomination  by  infant  over  fourteen. —  If  the  infant  is  of 
the  age  of  fourteen  years  or  upwards,  the  application  must  be  by 
his  or  her  written  petition^  duly  verified,  setting  forth  the  facts 
upon  which  the  jurisdiction  of  the  court  depends,  and  praying  for 
a  decree  appointing  a  general  gaiardian,  naming  him,^^  either  of 
the  person  or  of  the  property  of  the  infant,  or  both,  as  the  case 
requires;  and,  if  necessary,  that  the  persons,  entitled  by  law-  to 
be  cited  upon  such  an  application,  may  be  cited  to  show  cause 
why  such  a  decree  should  not  l)e  made.  The  petition  "  must  also 
state  whether  or  not  the  father  and  mother  of  the  |)etitioner  are 
known  to  be  living.  If  either  of  them  is  known  to  be  li^ang,  and 
the  petition  does  not  pray  that  the  father,  or,  if  he  is  dead,  that 
the  mother,  may  be  appointed  the  general  giiardian,  it  must  set 
forth  the  circumstances  which  render  the  appointment  of  another 
person  expedient ;  and  must  pray  that  the  father,  or,  if  he  is  dead, 
that  the  mother,  of  the  petitioner  should  be  cited  to  show^  cause 
why  the  decree  should  not  be  made."  ^^  The  petition  should  show 
which  of  the  relatives  reside  in  the  county,  and,  also,  the  amount 
of  the  infant's  property  in  this  State,  so  as  to  enable  the  court  to 
fix  the  penalty  of  the  bond.^^  The  surrogate  has  power  to  revoke 
the  appointment  of  a  guardian,  based  on  a  petition  which  omits 
these  particulars.^^ 


14  Co.  Civ.  Proc,  §1  2822.  2827.  ian  he  may  be  pleased  to  nominate. 
Where  the  case  is  within  subcli\-ision  pro\ided  only  that  the  nominee  be,  in 
second,  the  petition  must  pray  that  the  surrogate's  judgment,  a  proper 
the  person  formerly  appointed  general  person  to  execute  the  trust.  The  sur- 
pnardian  may  be  cited,  unless  it  is  rogate  has  a  discretion  to  determine 
shown  that  he  is  dead.  (Co.  Civ.  whether  the  interests  of  the  infant 
Proc.  §  2823.)  will  be  promoted  bj'  the  appointment 

15  Co.  Civ.  Proc,  §  2826.  This  does  oi  any  guardian.  '(Ledwith  v.  Led- 
not  confer  iipon  an  infant  of  fourteen  with.   1   Dem.   lo4.) 

years,   or   upward,    plenary   authority  i^  Co.  Civ.  Prrc.  §  2823. 

to    emancipate    himself,    at    pleasure,  l"  Johnson  v.  Borden,  4  Dem.   30. 

from  parental  control.     The  provisions  i^  Matter     of     Feely.    4     Redf.    306. 

of  that  section  afford  no  support  for  Where   application    for   the   guardian- 

the  claim  that  such  an  infant,  having  ship    of    infants    was    made    by    their 

no  testamentary  or  general  guardian,  maternal   grandmother,    and   the   peti- 

has  an  absolute  right,  even  though  his  tion  did  not  disclose  the  fact  that  the 

parents    are    living,    to    demand    from  paternal  grandfather  was,  at  the  time, 

the  Surrogate's  Court  the  appointment  living  and  residing  in  the  countv.  and 

of  a  guardian,  and  of  whatever  guard-  letters   were   issued   to   the   petitioner 


S39  GUAKDIANSIIIP.  §§  lOl'O,   KJl'l. 

§  1020.  Citation. —  Tlie  Code  contaiiLs  a  clause  to  the  effect  tliat, 
where  it  is  prescrihed  that  a  petition  iimst  pray  that  a  person,  or 
that  creditors,  etc.,  may  be  cited  for  any  purpose,  all  those  persons 
are  necessary  parties  to  the  special  ])roceedino-.^^  By  an  examina- 
tion of  the  foregoing  provisions,  Avith  respect  to  the  contents  of  a 
petition  for  the  appointment  of  a  general  guardian,  it  Avill  appear 
thr.t  a  citation  is  in  some  cases  essential.  In  others,  however,  it 
may  be  dispensed  with.  It  is,  however,  specially  provided  that  a 
citation,  issued  to  the  father  of  the  petitioner,  must  be  served  at 
least  ten  days  before  it  is  returnable. ^"^ 

§  1021.  Notice  to  relatives,  when  discretionary. —  It  is  made  the 
duty  of  the  surrogate  to  ''inquire  and  ascertain,  as  far  as  practi- 
cable, wliat  relatives  of  the  infant  reside  in  his  county ;  and  he 
may,  in  his  discretion,  cite  any  relative  or  class  of  relatives  of  the 
infant,  residing  in  that  county  or  elsewhere,  to  show  cause  why 
the  j)rayer  of  the  petition  should  not  be  granted."  ^^  In  this  re- 
spect, the  surrogate's  course  of  procedure  is  just  as  undefined  by 
statute,  and  just  as  discretionary,  as  that  of  the  Supreme  Court; 
and  having  once  obtained  cognizance  of  the  subject-matter,  by 
the  residence  of  the  minor  and  application  for  guardianship,  his 
jurisdiction  is  as  broad  as  that  of  such  court."  But,  though  notice 
of  the  hearing  to  the  relatives  is  within  the  discretion  of  the  surro- 
gate, yet  it  is  deemed  necessary,  for  the  purpose  of  ha"\dng  the 
rig'hts  of  the  infant  ])roperly  attended  to,"^  and  to  enable  them  to 
ai)]iear,  if  they  think  proper,  not  as  parties,  but  for  the  purpose 
of  giving  the  surrogate  the  requisite  information  as  to  the  value 
of  the  infant's  i)roperty,  and  as  to  the  propriety  of  the  appoint- 
without  notice  to  the  grandfather,  the  20  Co.  Civ.  Proc,  §  282.3.  This 
letters  were  revoked  upon  the  appli-  seems  to  apply  only  where  the  infant 
cation  of  the  latter.  (lb.)  Failure  ])etitions,  i.  c,  where  he  is  over  four- 
to  cite  the  grandfather  of  the  infant,  teen  years.  .See  Co.  Civ.  Proc..  S  2827. 
residing  without  the  State,  is  no  21  Co.  Civ.  Proc,  §§  282;}.  2827. 
ground  for  setting  aside  the  appoint-  See  Ledwith  v.  Ledwith,  1  Dem.  154. 
nient  of  the  infant's  aunt  as  guardian.  This,  and  the  other  provisions  of  sec- 
( Matter  of  Bennett,  24  Week.  Dig.  tion  2823,  apply  "  where  the  petitioner 
23.3.)  is  a  married  woman;   except  that  her 

19  Co.  Civ.  Proc..  §  2.")18.  See  §  80.  husband  must  also  be  cited,  and  that 
ante.  Letters  issued  to  a  general  the  surrogate  may,  in  his  discretion, 
guardian  need  not  show  on  their  face  make  a  decree,  appointing  a  guardian 
that  a  citation  was  issued  to  the  of  her  property,  without  citing  her 
former  general  guardian,  as  the  ab-  father  or  her  mother."  (Co.  Civ. 
sonce  of  such  recital  is  not  proof  that    Proc,  §  2824.) 

tlie    citation    was    not    in    fact    issued        22:Matter   of   Dawson.  3  Bradf.    130. 
and   served.      (Prentiss   v.    Weatherly,        2!  I'nderhill  v.  Dennis,  0  Paige,  202; 
68    Hun,    114:    22    X.    Y.    Supp.    680;    White  v.  Pomcroy,  7   Barb.  G40. 
affU,  144  N.  Y.  707.) 


§  1022.  GuARDJAxsiiip.  840' 

ment  of  the  applicant  or  person  named  in  the  petition."'*  Especially 
is  such  notice  requisite,  where  the  application  is  made  by  a  person 
not  connected  with  the  infant  by  blood  or  affinity.^''  An  omission 
by  the  surrogate  tro  make  proper  inquiries  as  to  who  are  the  rela- 
tives_,  or  to  cause  the  near  relatives  to  be  notified,  is  a  ground  for 
setting  aside  his  appointment.-^ 

§  1022.  Hearing  and  decree. —  "■  Upon  the  return  of  the  citation, 
the  surrogate  must  make  such  a  decree  in  the  premises  as  justice 
requires.  He  may,  in  his  discretion,  hear  allegations  and  proofs 
from  a  person  not  a  party.  Where  a  citation  is  not  issued,  the 
surrogate  must,  upon  the  presentation  of  the  petition^  inquire 
into  the  circumstances.  For  the  purpose  of  such  an  inquiry,  or 
of  an  inquiry  into  the  amount  of  security  to  be  required  of  the 
guardian,  he  may  issue  a  subpoena,  requiring  any  person  to  at- 
tend before  him,  to  testify  respecting  any  matter  involved  therein. 
If  he  is  satisfied  that  the  allegations  of  the  petition  are  true  in 
fact,  and  that  the  interests  of  the  infant  will  be  promoted  by  the 
appointment  of  a  general  guardian,  either  of  his  person  or  of  his 
property,  he  must  make  a  decree  accordingly,  except  that  a  guard- 
ian of  the  person  of  a  married  woman  shall  not  be  appointed.  In 
a  proper  case,  he  may  appoint  a  general  guardian  in  one  capacity,. 
■\\dthout  a  citation;  and  issue  a  citation,  to  show  cause  against 
the  appointment  of  a  general  guardian,  in  the  other  capacity.""' 
Where  a  general  guardian  of  the  property  of  an  infant  is  ap- 
pointed, "  the  surrogate  must  inquire  into  the  infant's  circum- 
stances, and  must  ascertain,  as  nearly  as  practicable,  the  value 
of  his  personal  property,  and  of  the  rents  and  profits  of  his  real 
property."  "^ 

24  Kellinf];er   v.    Roe,    7    Paige,    362;    ter  of  Van  Vranken,  20  St.  Rep.  387.) 
Cozine  v.  Horn,   1    Bradf.    143.  In  Matter  of  Church    (N.   Y.   Law  J., 

25  Morehouse   v.    Cooke,    Hopk.    220.    Nov.   28,    1890),   the   petition   for    the 
26Underhill  v.  Dennis.  9  Paige,  202;     appointment  of  a  guardian  for  an  in- 

Matter  of  Feely,  4  Redf.  300.     Where  fant    under     fourteen     years     of    age, 

a   surrogate   has    appointed   a  general  showed  that  an  aunt,  an  uncle,  and  a 

guardian  of  an  infant,  without  notice  great-uncle  resided  within  the  county, 

to  the  relatives  of  the  infant  residing  — Held,  that  the  omission  to  cite  them 

in   the    county,    and    it    appears    that  was  irregular,  though  not  a  jurisdic- 

the  relatives  would  have  opposed  such  tional    defect.      But    tlie    omission    to 

appointment,    had   notice   been    served  cite  a  person  named  guardian  in   the 

upon    them,    the   Supreme   Court   will,  deceased  father's  will   was  such  a  de- 

npon  application,  remove  such  guard-  feet,     tliough     such     person     had     not 

ian  and  appoint  a  new  one.      (Matter  qualified  or  had  letters  issued  to  hini 

rf    Rickard,    15   Abb.    Pr.    fN.    S.]    0.)  as   a    testamentarv  guardian. 
S.    P.,    Smith    V.    Smith,    2    Dem.    43.         27  Co.  Civ.  Proe.,  §  2825. 
Xotice  need  not  be  gr\'en  to  an  infant        2.s  Co.     Civ.     Proc,     §     2829.       The 

under  fourteen  for  an  appointment  of  original     statute     expressly     directed 

a  general  guardian,  but  notice  should  that,  in  cases  of  application  for  minors 

be  given  to  his  nearest  of  kin.     (]\Iat-  under    fourteen,    the    surrogate    must 


841 


GuAi;i»iA.vsiiii». 


§  1023. 


§  1023.  Infant's  right  of  appointment  not  absolute. —  The  in- 
fant's right  of  appointment  is  not  al)S(»hitc,  wlictlicr  his  parents 
are  living  or  dead.  The  surrogate  must  determine  whether  the 
nominee  is  a  proper  person  to  execute  the  trust."''  If  an  infant 
over  fourteen  years  of  age  neglects  to  nominate  a  person  for  the 
guardianship,  it  seems  that  the  surrogate  has  no  power  to  do  so.^" 
Upon  an  application 'by  a  person  in  behalf  of  an  infant  under 
fourteen  years,  the  surrogate,  as  already  mentioned,  must  nom- 
inate, as  well  as  appoint,  a  temporary  guardian.''^  In  making  the 
appointment,  the  surrogate's  power  and  discretion  are  entirely 
unlimited,  except  by  such  known  and  established  principles  as 
govern  the  conscience  of  all  courts  of  equity,  and  are  not  under 
the  control  of  the  relatives  in  any  respect,'^^  and  his  power  is  to 
be  exercised  in  accordance  with  what  appears  to  be  for  the  best 
interests  of  the  minor,  taking  into  view  not  merely  his  temporary 
welfare,  but  the  state  of  his  affections,  attachments,  his  training, 
education,  and  morals,"^^  and  also  the  expressed  wishes  of  the  de- 
ceased parents.^*  Although  a  father  is  entitled  by  right  of  na- 
ture to  guardianship  of  his  child,  still,  where  the  best  interests  of 
the  child  demand  it,  it  is  the  court's  duty  to  award  the  custody 
to  other  hands.^^     Since  the  Married  Woman's  Act,  there  is  no 


assign  a  day  for  the  hearmg;  but  this 
mipht  be  the  day  on  which  the  peti- 
tion was  presented  if  he  determined 
that  notice  to  the  relatives  need  not 
be  given.  And  this  was  presumed  to 
be  the  case,  where  there  was  nothing 
to  show  that  this  course  was  not  taken. 
(People  V.  Wilcox.  22  Baro.  ITS.) 
29Led\vith  v.  Ledwith.   1   Dem.   1.54. 

30  Sherman  v.  Ballon.  8  Cow.  304. 

31  Co.  Civ.  Proc,  §  2S27. 

32  Matter  of  Dawson,  3  Bradf.   130. 

33  Foster  v.  IMott,  3.  Bradf.  400: 
Smith  V.  Smith,  2  Dem.  43.  The 
mother  of  an  infant  of  ten  years,  and 
also  a  friend  of  its  deceaseu  father, 
entitled  to  a  small  estate,  petitioned 
separately  for  the  guardianshiii  of  his 
person  and  ])roperty.  and  it  apjioared 
that  the  infant  had,  for  three  years, 
resided  with,  and  been  cared  for  by, 
the  latter  petitioner,  to  whom  the 
father  had  informally  intrusted  him: 
that  the  father  had  been  for  several 
years  separated  from  his  wife  for  her 
fault:  and  that  she  was  engaged  in 
a  disreputable  business  while  the 
other  petitioner  was  a  suitable  ]ierson. 
The  surrogate  denied  the  mother's  pe- 
tition. (Burmester  v.  Orth,  5  Redf. 
259.) 


34  Foster  v.  ^lott,  supra;  Underbill 
v.  Dennis,  0  Paige,  202 ;  Bennett  v. 
Byrne,  2  Barb.  Ch.  21G;  Matter  of 
Pierce,  12  How.  Pr.  532:  Cozine  v. 
Horn,  1  Bradf.  143:  Smith  v.  Smith. 
2  Dem.  43.  The  objection  that  the 
surrogate  has  appointed  his  own  rela- 
tive as  guardian  does  not  go  to  the 
jurisdiction.  (Underbill  v.  Dennis.  !> 
Paige.  202.)  See  :\Iatter  of  Van  Wag- 
onen.  (19  Hun.  36.t  :  .r2  St.  Rep.  (500. 

ssCriffin  v.  Sarsficld.  2  Dem.  4; 
Johnson  v.  Borden.  4  id.  30.  Consid- 
erations affecting  the  health  and  wel- 
fare of  a  child  may  justify  a  court  in 
withholding  the  custody  of  it  temi>o- 
rarily,  even  from  its  leiral  guardians; 
and  they  are  so  purely  matters  of 
discretion  with  the  court  of  original 
jurisdiction  that  the  appellate  court 
will  not  review  the  conclusions 
thereon,  unless  some  manifest  error 
or  abuse  of  discretion  is  made  to  ap- 
pear. (Matter  of  Welch.  74  X.  Y. 
200.)  As  to  discretion  of  the  surro- 
gate in  making  the  appointment,  see 
Matter  of  Vandewater.  115  X.  V.  000. 
Letters  of  guardianship  may  be  re- 
fused to  a  father  on  the  ground  that 
his  habits  are  such  as  to  demoralize 
and    endanger   the   safetv   and    future 


§  1023. 


GuAnDIAXSIIII'. 


8-1:2 


objection  to  the  appointment  of  a  mother  who  has  remarried  and 
is  living  with  a  second  husband.^"  Where  the  father  and  mother 
are  both  living,  the  statute  declares  the  latter  "  to  be  the  joint 
guardian  of  her  children  with  her  husband,  with  equal  powers, 
rights,  and  duties,  in  regard  to  them,  with  the  husband.^'^  Th© 
surrogate  is  not  restricted,  in  his  appointment,  to  relatives  of 
the  infant;  he  may  appoint  a  competent  stranger.  But  other 
things  being  equal,  a  relative  will  be  preferred  to  a  stranger.^^ 

The  same  person  may  be  appointed  giiardian  of  an  infant  in 
both  capacities;  or  the  guardianship  of  the  person  and  of  the 
property  may  be  committed  to  different   persons,"''  but   a   joint 


condition  of  the  children.  (Matter  of 
Watson,  10  Abb.  N.  C.  215;  Matter  of 
Eaborg.  3  St.  Eep.  323.)  S.  P.,  Mat- 
ter of  Meech,  1  Connoly,  536.  Under 
ordinary  circumstances,  the  mother, 
after  the  decease  of  the  father,  is  en- 
titled to  the  custcKly  of  her  infant 
children :  but  the  security,  good  con- 
duct, and  well-being  of  the  children 
are  the  important  considerations  to 
he  regarded,  and,  where  those  ends 
can  only  be  best  accomplished  by  de- 
priving the  mother  of  their  custody, 
it  is  the  uniform  practice  of  the  courts 
to  do  so.  (Matter  of  Schroeder.  17 
Week.  Dig.  71.)  The  mother,  in  the 
absence  of  the  father,  has  the  right  to 
influence  and  direct  the  conduct,  resi- 
dence, education,  occupation,  and  as- 
sociates of  her  infant  cliild.  (Matter 
of  Barre.  5  Redf.  64.)  In  a  contest 
between  husband  and  wife  for  the  cus- 
tody of  a  daughter  of  six  and  a  son 
of  five  years,  where  there  is  no  ob- 
jection to  the  mother  personally,  it 
is  for  the  welfare  of  the  children  to 
leave  them  with  her.  An  inquiry  as 
to  the  husband's  ill-treatment  of  the 
mother  is  pertinent  in  such  case. 
(Matter  of  Pray.  60  How.  Pr.  194.) 

•"Jfi  Matter  of  Hermance.  2  Dem.  1. 
The  cases  of  Hollev  v.  Chamberlain  ( 1 
Eedf.  333)  and  Swartwout  v.  Swart- 
wout  (2  id.  52)  are  obsolete  on  this 
subject.  Where  an  infant  of  the  age 
of  fourteen  years,  or  upwards,  peti- 
tions for  the  appointment  of  a  general 
gunrdian.  and  it  appears  that  his 
father  is  a  resident  of  a  distant  State, 
and  that  there  exists  sucli  a  feeling 
of  antagonism  between  the  two  as  to 
induce  the  belief  that  the  petitioner's 
Avelfare  will  be  best  subserved  by  the 
appointment  of  another  person,  the 
■claims    of    the    father    will    be    disre- 


garded.     (Johnson  v.  Borden,  4  Dem. 
36.) 

3"  Laws  1893,  chap.  175,  amending 
2  R.  S.,  chap.  8,  tit.  3,  §  1;  Laws 
1896.  chap.  272,   §  51. 

3S  ;Morehouse  v.  Cooke,  Hopk.  226. 
Xonresident  relatives  are  not  ineligi- 
ble. CMatter  of  Dawson,  3  Bradf. 
130.)  See  Matter  of  Zeller,  25  Misc. 
137.  The  inheritance  of  real  prop- 
erty, by  an  infant,  from  his  father, 
creates  no  preference  in  favor  of  the 
paternal  over  the  maternal  relatives. 
(Underbill  v.  Dennis.  9  Paige.  202.) 
In  a  contest  between  the  stepmother 
and  the  aunt  of  an  infant,  for  letters 
of  guardianship,  where  the  infant  had 
no  property,  and  the  stepmother  had 
nothing  except  what  she  could  earn, 
but  the  aunt  had  a  moderate  income 
for  life,  the  guardianship  was  awarded 
to  the  stepmother,  to  avoid  the  sepa- 
ration of  the  infant  from  a  brother 
in  the  charge  of  the  stepmother,  and 
to  carry  out  the  wish  of  the  infant's 
deceased  father,  (flatter  of  De  Mar- 
cellin,  4  Redf.  299:  affd..  24  Hun, 
207.)  The  sole  executor  of  the  estate 
of  a  deceased  father  is  not  a  proper 
person  to  be  appointed  the  general 
guardian  of  his  orphan  child,  as  it 
might  lead  to  a  gross  wrong.  (Matter 
of  Rickard.  15  Abb.  Pr.  [N.  S.]  6.) 
This  rule  was  reaffirmed  in  Matter  of 
Lane.  X.  Y.  Law  J..  June  6,  1893.  A 
corporation  may  receive  letters  of  gen- 
eral guardianship  of  an  infant's  prop- 
ertv.  (Ledwith  v.  Ledwith,  1  Dem. 
154:  L.  1885,  c.  425;  L.  1900,  c.  552 
[banking  corporations]  ;  L.  1901. 
c.  443.  as  amended  by  L.  1902,  c.  360 
[trust  companies].) 

39  Co.  Civ.  Prcc,  §  2821.     See  Peo- 
ple  V.   Kearney,   31    Barb.   430. 


843  GuAUDiAXsiiii'.  §§  1024-1020. 

guardianship  of  an  infant's  person  should  not  be  inade."***  The 
surrogate  may,  as  a  condition  of  awarding  tlie  custody  of  an  in- 
fant to  an  applicant  for  letters,  require  the  latter  to  permit  access 
to  liis  ward  hy  such  persons  as  the  court  may  designate. ''^ 

§1024.  What  constitutes  appointment. —  A  guar<lian,  like  an 
executor  or  administrator,  gets  no  authority  until  his  letters  are 
•signed  and  delivered,  or,  at  least,  are  ready  for  delivery.  II I.-, 
appointment  results  from  several  steps  and  culminates  and  is 
finished  in  the  delivery  of  the  signed  and  seale(l  letters,  after 
their  record  in  the  guardian's  book,  to  the  guardian.  Entries  in 
the  court's  minutes  do  not  constitute  an  appointment  any  more 
than  an  order  for  judgment,  in  the  minutes  of  the  court,  consti- 
tutes the  judgment.'*" 

§  1025.  Conclusive  effect  of  an  appointment. —  Where  the  peti- 
tion contains  sufficient  facts  to  give  the  surrogate  jurisdiction 
of  the  person  of  the  infant,  and  he  proceeds  regularly  and  ap- 
points a  guardian,  the  appointment  is  valid  until  it  is  reversed  or 
vacated  by  a  direct  proceeding  for  that  ]uir])ose;  and  although 
the  infant  never  resided  in  the  county  of  such  surrogate,  an 
action  to  vacate  the  appointment  cannot  be  maintained.'*'' 

§  1026.  Two  or  more  ^ardians. —  The  trust  of  two  or  more 
;guardians  of  the  same  infant  is,  in  its  nature,  joint  and  several, 
and  they  may  act  separately  or  in  conjunction.  They  are  jointly 
responsible  for  joint  acts,  and  each  is  solely  responsible  for  his 
own  acts  and  defaults,  in  which  the  others  did  not  ])articipate, 
and  the  fact  that  they  gave  a  joint  and  several  bond  to  the  surro- 

40  Matter  of  Arnian,  74  Hun,  19;  26  of  said  child.  (Matter  of  Lindley.  1 
3^.  Y.  Supp.  258:   143  X.  Y.  623.  Connoly.  500;   9   N.  Y.   Supp.  2!)L) 

41  Derickson  v.  Derickson,  4  Dem.  42  Potter  v.  Ogden,  136  N.  Y.  384, 
■295;    s.   c.   as  Matter   of   Derickson,   3  401;   49  St.  Rep.  829. 

How  Pr.  (X.  S.)  21.  But  on  an  ap-  43  Dutton  v.  Dutton.  S  How.  Pr.  99. 
plication  made  by  a  person  other  than  And  see  Matter  cf  Pierce,  12  id.  532. 
the  father  of  an  infant  that  such  In  Matter  of  Sliernian  (X.  Y.  Law  .J., 
person  be  appointed  (ijuardian  of  the  May  31,  1892),  on  an  application  to 
person  of  the  infant  and  a  trust  com-  the  surrogate  of  Xew  York  for  guard- 
pany  guardian  of  the  infant's  estate,  ianship  of  the  person,  it  appeared  that 
the  court  has  no  power  to  grant  the  letters  of  general  guardianship  had 
application  of  tl  "  father  (who  has  already  been  granted  by  the  surrogate 
been  adjudged  an  habitual  drunkard),  of  Saratoga  county,  but  it  was  allei^ed 
that  the  order  of  appointment  sliall  tliat  the  person  to  whom  such  letters 
provide  that  the  guardian  of  the  es-  had  been  issued  had  removed  the  in- 
tate  shall  advi-<e  him  (if  all  matters  f.'int  from  New  York  county,  wlicre  he 
which  may  affect  the  infant's  estate,  resided,  for  the  purpose  of  making'  the 
iind  that  the  guardian  of  the  person  application  in  that  countv.  Held,  that 
.shall  allow  him  to  see  his  child  at  all  the  jurisdiction  of  the  Saratoga  sur- 
suitable  times,  and  shall  consult  with  rogate  could  not  he  questioned  col- 
liim   in  reference  to  the  management  laterally  in  this  proceeding. 


1027. 


GUAKDIANSIIIP 


844r 


e:ate,  with  the  same  sureties,  for  the  discharge  of  tlieir  trust,  does 
not  vary  their  liability.*'*  The  guardianship  of  a  judicially  ap- 
pointed guardian,  as  well  as  of  a  testamentary  guardian,  is 
deemed  an  authority  coupled  with  an  interest;  and  where  two 
guardians  are  appointed,  and  one  of  them  dies,  it  continues  to 
the  survivor.'*^ 

g  1027.  Oath  of  office  and  official  bond. —  The  guardian  must  file 
with  the  surrogate,  before  letters  are  issued  to  him,  an  official 
oath  or  affirmation  to^  the  effect  that  he  will  well,  faithfully,  and 
honestly  discharge  the  duties  of  his  office.**'  A  guardian  of  the 
property  must  also  execute,  and  file  wuth  the  surrogate,  his  bond 
to  the  infant,  for  the  faithful  discharge  of  his  trust,  etc.  ;*^  and 
the  surrogate  has  a  discretion  to  require  an  official  bond  from 
the  general  guardian  of  an  infant's  person.**  The  form  and  con- 
dition of  such  a  bond,  and  the  rules  pertaining  to  its  renewal,  the 
liabilities  incurred  thereunder,  and  actions  thereupon,  have  been 
generally  presented  in  the  chapter  on  official  bonds. *^ 


44  Kirby  v.  Turner,  Hopk.  309.     See 
ante.  §  (502. 

45  People  V.  Byron,  3  Johns.  Cas.  53. 

46  Co.  Civ.  Proc.,  §  2.594. 

47  Co.  Civ.  Proc.,  §  2830;  ante.  §  478. 
As  to  the  form  of  security,  see  Rule 
54  of  the  General  Rules  of  Practice. 
The  surrogate  may  dispense  with  a 
bond,  on  appointment  of  a  trust  com- 
pany as  guardian.  (L.  1885,  c.  425.) 
The  provisions  of  Co.  Civ.  Proc, 
§  2595, —  allowing  the  surrogate  to 
accept  a  less  bond  on  deposit  of  securi- 
ties,—  were  extended  to  the  case  of 
guardians  by  L.  1885.  c.  516.  A  guard- 
ian of  an  infant,  giving  security  upon 
his  appointment  in  one  county,  must 
deposit  a  bond  before  he  can  obtain 
possession  of  his  ward's  estate  in  an- 
other county.  ( Flagg  v.  Harbeck,  0 
Dem.  289;  Rieck  v.  Fish,  1  id.  75.) 
So,  too.  in  case  of  payment  to  a  suc- 
cessor of  a  deceased  guardian,  by  the 
executor  of  the  latter,  of  moneys  in 
the  hands  of  the  first  guardian  at  the 
time  of  his  death.  (Van  Zandt  v. 
Grant,  67  App.  Div.  70.) 

48  Co.  Civ.  Proc.   §  2831. 

49  See  ante.  §  456  et  seq.  See,  also, 
the  following  decisions,  relating  to  re- 
quiring security  from  guardians,  and 
the  liability  of  the  sureties  in  their 
bonds :  Matter  of  Hedges,  1  Edw.  57  ; 
Matter  of  Thorne,  id.  507 :  Ferris  v. 
Brush,  id.  572 :  Genet  v.  Tallmadge,  1 
Johns.   Ch.    561;    People  v.    Byron,   3 


Johns.  Cas.  53;  Muir  v.  Wilson.  Hopk. 
512;  Clark  v.  Montgomerv,  23  Barb. 
464;  Matter  of  Callahan,  1  Tuck.  62; 
Matter  of  Hamlen,  id.  408;  Matter  of 
Patterson,  39  St.  Rep.  849.  An  ac- 
counting by  a  guardian  is  not  a  pre- 
requisite to  an  action  against  the  sure- 
ties upon  his  bond,  in  those  cases  in 
which  the  extent  of  his  liability  has 
been  otherwise  as  definitely  deter- 
mined as  it  could  be  bv  accounting. 
(Girvin  v.  Hickman,  21  Hun,  316.) 
Nor  is  the  issue  and  return  of  an  ex- 
ecution necessary,  where  a  decree  has 
been  made  fixing  the  guardian's  lia- 
bility. (Allen  V.  Kelly,  55  App.  Div. 
454;"^  Van  Zandt  v.  Grant,  67  id.  70.) 
The  appointment  of,  and  the  security 
to  be  given  by,  a  special  guardian  ap- 
pointed to  sell  an  infant's  real  prop- 
erty, are  regulated  by  General  Rules 
57-59.  As  to  the  liability  of  the  sure- 
ties on  such  a  .guardian's  bond,  see 
Center  v.  Finch,  22  Hun,  146.  A 
guardian,  being  insolvent,  his  sureties 
must  be  prosecuted  before  a  motion  is 
made  for  an  attachment  against  him. 
(Matter  of  Callahan.  1  Tiick.  62.)  A 
guardian's  bond  was  ordered  prose- 
cuted when  there  had  been  a  palpable 
breach  of  its  condition,  and  the  guard- 
ian had  died  leaving  no  will,  and  there- 
was  no  administration  of  his  goods  in 
this  State.  CMatter  cf  Hamlen,  1 
Tuck.  408.)  Where,  upon  the  failure 
of  a  general  guardian   to  pay  to  hia 


S45 


GuAUniA-NSllll'. 


§  1028. 


§  1028.  Powers  and  duties  of  guardians. —  Any  person  who  takes 
jxjssessioii  of  an  iniaiit's  prt^perty  takes  it  in  trust  for  the  infant, 
and  will  be  ht-M  To  the  same  degree  of  responsibility  as  if  he  had 
been  formally  appointed  to  the  office  of  guardian."'''^'  Every  gen- 
eral guardian,''^  whether  testamentary  or  appointed,  is  required 
safely  to  keep  the  things  that  he  may  have  in  his  custody  belong- 
ing to  his  ward,  and  the  inheritance,  and  not  to  make  or  suifer 
any  waste,  sale,  or  destruction  of  such  things  or  inheritance,  but 
to  keep  up  and  sustain  the  houses,  gardens,  and  other  appur- 
tenances to  the  ward's  lands,  by  and  with  the  issues  and  profits 
thereof,  or  with  such  other  moneys  of  the  ward  as  are  in  his 
hands;  and  to  deliver  the  same  to  the  ward,  when  he  comes  to 
full  age,  in  as  good  order  and  condition,  at  least,  as  the  guardian 
received  the  same,  inevitable  decay  and  injury  only  excepted; 
and  to  answer  to  his  ward  for  the  issues  and  profits  of  real  estate 
received  by  him  by  a  lawful  account;  and  if  the  guardian  makes 
or  suffers  any  waste,  sale,  or  destruction  of  the  inheritance_,  he 
shall  lose  the  custody  of  the  same  and  the  ward,  and  shall  forfeit 
to  tlie  ward  thrice  the  sum  at  which  the  damages  shall  be  taxed 
by  the  jnry.^" 


Avard  the  amount  fixed  by  the  surro- 
gate's decree,  the  surety  of  the  guard- 
ian is  compelled  to  pay  the  same,  such 
payment  does  not  satisfy  the  decree, 
but  the  surety  is  subrogated  to  all  the 
riglits  of  the  ward  under  the  decree, 
and  to  the  extent  of  the  amount  paid 
by  him  on  account  of  such  decree,  he 
is  entitled  to  issue  execution  against 
the  person  of  the  guardian.  ( Rapp  v. 
Masten.  4  Rcdf.   70.) 

50  Cromwell  v.  Kirk,   1   Dem.  599. 

51  Also,  every  "  guardian  in  socage." 

52  L.  1896,  c.  272,  §  53,  re-enacting 
2  R.  S.  153.  §§  20.  21.  "A  guardian 
i/i  socage  has,  so  far  as  the  exigencies 
of  the  case  at  bar  demand,  the  same 
powers  and  duties  over  his  ward's  es- 
tate as  a  general  guardian.  A  general 
guardian  has  the  power,  and  in  some 
instances  it  is  an  imj)erativo  necessity 
and  duty,  to  apply  personal  property 
cf  his  ward  to  the  payment  of  a  mort- 
gage on  land  to  which  his  ward  suc- 
ceeds. (Banks  v.  Tavlor,  10  Abb.  Pr. 
199:  Ainsworth  v.  Aldrich.  15  Week. 
Dig.  199.)  Ordinarily,  the  adminis- 
trators would  not  be  allowed  the  credit 
of  such  payment,  but,  inasmuch  as 
one  of  them  is  the  guardian  in  socage 
of  the  infants.  1  am  of  the  opinion  that 
so  much  of  their  personal  property  as 


is  a  proportionate  part  of  their  share 
in  the  payment  should  be  allowed. 
The  amount  of  the  contribution  of  the 
life  tenant  and  remaindermen  should 
be  computed  and  the  administrators 
charged  with  the  excess  of  the  in- 
fants' proportion,  with  interest."  (Per 
Ransom,  S.,  in  Matter  of  Farrell,  X. 
Y.  Jjaw  J.,  July  1,  1892.) 

As  to  the  powers  of  a  guardian  in 
respect  to  proportv.  see  Banks  v.  Tav- 
lor. 10  Abb.  Pr.  199:  Matter  of  Rick- 
ard,  15  Abb.  (X.  S.)  fi:  White  v.  Par- 
ker. 8  Barb.  48:  Hassard  v.  Rowe.  11 
id.  22 ;  Swartwout  v.  Oaks.  52  id.  622 ; 
Thacker  v.  Henderson.  63  id.  271  ; 
Poultnev  V.  Randall.  9  Bosw.  232; 
Ilcyt  V."  Hilton.  2  Edw.  202:  Knothe 
V.  Kaiser.  2  Hun.  515:  Willick  v.  Tag- 
gart.  17  id.  511:  Wilcox  v.  ^'an 
Scliaick,  19  id.  279;  Jackson  v.  Sears. 
10  .Tohns.  435:  Genet  v.  Tallmadge.  1 
.lohns.  Ch.  501  ;  Thompson  v.  Brown, 
4  id.  619:  Field  v.  .Schiefrelin.  7  id. 
150:  Copley  v.  O'Xeil.  1  Lans.  214; 
Txiw  V.  Purdv.  2  id.  422;  Bostwick  v. 
Atkins.  3  X."Y.  53;  Chapman  v.  Tib- 
bets.  33  id.  289;  Emerson  v.  Spicer. 
40  id.  594;  affg.  55  Barb.  428:  Torrv 
v.  Black.  58  X.  Y.  185:  revg.  05  Barb. 
414:  Van  Epps  v.  Van  Deusen.  4 
Paige,   04;    Putnam  v.   Ritchie,   6   id. 


§  1029.  GuAKDIAxNSHIP.  84S 

§  1029.  Application  of  infant's  property. —  A  guardian  takes  the 
responsibility  of  eneroaehiiig  upon  the  capital  of  a  trust  fund, 
of  which  his  ward  is  entitled  to  the  income;  he  must  make  out  as 


.300 ;    Ikirtis    v.    Brush,    1    Redf.    448 ;  allows   such   actions   to   be   in   the   in- 

Carman  v.  Cowles,  2  id.  414;  Tony  v.  fant's  name.      (Coakley  v.  Mahar,   3tt 

Frazier,   id.   48G ;    Matter  of  Jackson,  Hun,  1.57.) 

1  Tuck.  71;  De  Peyster  v.  Clarkson,  2  As  to  whether  a  general  guardian 
Wend.  77;  affg.  Hopk.  424;  Pond  v.  may  maintain  an  action  in  his  own 
Curtiss,  7  Wend.  45;  Bayer  v.  Phillips,  name  upon  the  official  bond  of  his  pre- 
17  Abb.   N.   C.   425;    Matter  of  Kopp,  decessor  to  recover  for   the  misapprc- 

2  N.  Y.  Supp.  495 ;  Matter  of  Terry,  priation  of  the  infant's  estate,  see- 
31  Misc.  477.  Perkins  v.  Stimmel,   114  N.  Y.  359. 

A  general  guardian  has  no  author-  As   to   dealings   with   the   ward,   sea 

ity,  even  with  the  consent  of  the  in-  Limburger  v.   Rauch,  2  Abb.   Pr.    (N. 

fant   and   by   authority   of   the    surro-  fe. )    279;   Gale  v.  Wells,   12  Barb.  84;. 

gate,  to  invest  the  funds  of  the  infant  Low  v.   Purdy,   2   Lans.   422 ;    Seaman, 

in   real   property   so   as   to   change   its  v.   Duryea,   UN.  Y.  324;   Evertson  v. 

character   for   the   purpose   of   descent  Evertson,  5  Paige,  644. 

upon   the  death   of  the   infant  during  As    to    purchase    by    guardian    indi- 

minority.      (Matter  of  Bolton,   159  X.  vidually,  section   1G79  only  applies  to 

Y.    129.)      See   Matter   of   Decker,    37  gua.rdia.ns  ad  litem.     See  Boyer  v.  East, 

Misc.  527;   76  N.  Y.  Supp.  315.     Xor  161    N.   Y.   580;    Munsell   v.    Munsell,. 

has    he    power    to    invest   in    trade    or  33    ]\Iisc.    185;    Kullman    v.    Cox,    2(> 

speculation.      (Warren  v.  Union  Bank  App.   Div.   158;    Dugan  v.   Denyse,   13 

of  Rochester,  157  X.  Y.  259.)      Xor  in  id.  214;  O'Donoghue  v.  Boies,  92  Hun, 

bank  stock,  nor  in  a  foreign  corpora-  3;. O'Brien  v.  General  Synod,  etc.,   10- 

tion.      (Matter  of  Decker,  supra.)     As  App.  Div.  605. 

to  investment  of  proceeds  of  sale  under  As    to   the    custody,    residence,    and. 

a  power,  paid  to  the  guardian,  see  L.  support    of    the    ward,    see    Clark    v., 

1901,  c.  166.  Montgomery,  23   Barb.    464;    Elliot  v. 

As  to  demands,  compromises,  and  Gibbons.  30  id.  498 :  Matter  of  Kane, 
suits,  see  White  v.  Parker,  8  Barb.  2  Barb.  Ch.  375 :  Rait  v.  Rait,  1  Bradf. 
48;  Thomas  v.  Bennett,  56  id.  197;  345:  Harring  v.  Coles.  2  id.  349:  Ex- 
Tuttle  V.  Hea\-y,  59  id.  334;  Weed  v.  p.  Dawson.  3  id.  130:  Matter  of  Bart- 
Ellis,  3  Cai.  253;  Hauenstein  v.  KulJ,  lett,  4  id.  221 ;  People  fx  rr/.  Brooklyn 
59  How.  Pr.  24:  Jackson  v.  Sears,  10  Industrial  School  v.  Kearnev,  21  How. 
Johns.  435;  Swarthout  v.  Curtis.  4  X'.  Pr.  74:  Hill  v.  Hanford.  11  Hun,  536; 
Y.  415:  Chapman  v.  Tibbets,  33  id.  Wilcox  v.  Wilcox,  14  X.  Y.  575;  Wood 
289;  Evertson  v.  Evertson,  5  Paige,  v.  Wood,  5  Paige,  596:  Cook  v.  Lee,. 
644;  Voessing  v.  Voessing.  4  Redf.  G  id.  158;  Clark  v.  Clark,  8  id.  152; 
360;  Matter  of  Jackson,  1  Tuck.  71;  Voessing  v.  Voessing.  4  Redf.  360; 
Matter  of  Chittenden,  id.  251 ;  Prentiss  Seiter  v.  Straub,  1  Dem.  264;  Matter 
V.  Weatherly,  68  Hun.  114;  22  X.  Y.  of  Wentz,  9  :\tisc.  240. 
Supp.  680;  affd..  144  X.  Y.  707;  As  to  payment  and  investment  of 
Coughlin  V.  Fay,  68  Hun,  521:  22  X'.  legacies  to  infants,  see  §  792,  ante. 
Y.  Supp.  1095.  As  to  pajnnent  rf  infant's  distribu- 

As    to    imposing    restrictions    upon  tive    share,    to   general    guardian,    see 

ward's  property  bv  contract,  see  Curry  Co.   Civ.   Proc,   §    2746;    §   792,  ante; 

V.  Keil.  19  App.  Div.  375.  id.,   §   2796;    L.    1879,  c.   389;    §   833,. 

A  general  guardian  may  sue  for  ante. 
and  recover  money  receiAed  by  defend-  As  to  appearance  by  general  guard- 
ant  by  collecting  the  rents  and  profits  ian,  in  Surrogate's  Court,  for  infant, 
of  the  land  of  the  ward  (Field  v.  see  Co.  Civ.  Proc.  §  2530:  §  108.  ante. 
SchiffFelin.  7  Johns.  Ch.  150.  154:  As  to  enforcement  of  decree  against 
Thacker  v.  Henderson.  63  Barb.  271;  guardian,  see  Co.  Civ.  Proc,  §  2555; 
Pond  V.   Curtiss.   7   Wend.   45:    White  c.  XXI.  post. 

V.   Parker,   8   Barb.   48,   52:    Chapman  As    to   effect  of   certain    appeals   by- 

V.  Tibbets,  33  N.  Y.  289)  ;  for  this  is  guardian,  see  Co.  Civ.  Proc,  §§  2578, 

not  an  action  relating  to  real  property  2579:  c  XXIV,  post. 
within  Co,   Civ,  Proc,  §   1666,  which 


847 


Glaudia.n.siiu' 


§  1029. 


clear  a  case,  for  the  subsequent  sanction  of  his  course,  as  he 
would  have  been  required  to  do  had  he  ai)])]icd  in  advance  for 
autliority  to  iid(>j)t  it.'"''"  A  iiiianlian  may  bo  allowed,  in  a  jirojici- 
case,  for  necessaries  furnished  to  the  infant  before  his  appoint- 
ment as  guardian/"''*  The  surrogate  may,  upon  the  petition  of 
the  general  guardian,  or  of  the  infant,  or  of  any  relative  or  other 
person  in  his  behalf,  upon  notice  to  such  persons,  if  any,  as  he 
thinks  proper  to  notify,  direct  the  application,  by  the  guardian,, 
of  the  infant's  property,  to  the  su])])ort  and  education  of  the 
infant,  of  such  a  sum  as  he  deems  proper,  out  of  the  income  of 
the  infant's  property;  or,  where  the  income  is  inadequate  for  that 
purpose,  out  of  the  princi])al.''*'  The  rule,  already  referred  to, 
that  in  proceedings  against  executors  or  administrators  to  com- 
pel the  joayment  of  a  legacy  or  distributive  share,  payment  can 
be  decreed  only  where  the  legacy  or  share  is  not  disputed,  has 
no  application  to  the  case  of  a  guardian;  hence,  on  the  applica- 
tion of  a  third  person  for  a  direction  that  a  guardian  pay  for  the 
v\-ard's  board  furnished  under  an  agreement  with  the  guardian^ 
the  fact  that  the  guardian  dis])utes  the  claim  does  not  oust  the 
court  of  jurisdiction  to  make  the  direction.""' 


53  0aklev  v.  Oakley.  3  Dem.  140; 
Matter  of'Wandell,  32  Hun.  545 ;  Mat- 
ter of  Clements,  N.  Y.  Daily  Reg.. 
Sept.  1.  1883.  See  Matter  of 'Plunib. 
52  Hun,  119.  Upon  the  accounting  of 
a  widow  as  general  guardian  of  the 
property  of  her  son,  where  it  appears 
that  she  was  in  moderate  circum- 
stances and  there  is  an  absence  of  any 
facts  indicating  a  purpose  on  her  part 
to  relieve  the  son  and  his  estate  from 
liability  for  the  latter's  support,  she 
is  entitled  to  an  allowance  for  his  past 
maintenance.  (^Matter  of  Winsor,  5 
Dem.  340;  citing  Matter  of  Bostwick, 
4  Johns.  Ch.  100;  Wilkes  v.  Rogers, 
(!  Johns.  5fifi;  Matter  of  Kane.  2  Barb. 
Ch.  375:  Harring  v.  Coles,  2  Bradf. 
349;  Bruin  v.  Knott,  9  Jur.  979; 
Voessing  v.  Voessing.  4  Redf.  3(ifl ; 
Browne  v.  Bedford.  4  Dem.  304:  Fur- 
man  V.  Van  Sise,  50  N.  Y.  435 ; 
Beardslev  v.  Hotchkiss,  90  id.  201  ; 
Hvland  v.  Baxter,  98  id.  010.) 
.  54  Matter  of  Miller,  34  Hun.  207: 
Shepard  v.  Stebbins.  48  id.  247:  17 
St.  Rep.  900:  Matter  of  Ogg,  1  Con- 
noly.  10:  Matter  of  Wright,  id.  281. 
See  Matter  of  Haslehurst.'  4  Misc.  300. 
A  general  guardian  of  a  stepdaughter 
has  a  legal  right  to  contract  with  the 
stepfather    for    her    support,    and    on 


settlement  of  his  accounts  the  guard- 
ian is  entitled  to  be  allowed  such 
reasonable  sum  as  has  been  in  good 
faith  paid  by  him  for  that  purpose. 
(Matter  of  Ackerman,  110  X.  Y.  054; 
s.  c.  with  opinion,  20  St.  Rep.  0()0. ) 
Where  a  ward  boards  in  the  family  of 
her  guardian,  and.  in  fact,  renders 
services  of  value,  those  services  should 
be  allowed  as  a  claim  to  reduce  the 
charges  for  board,  (flatter  of  Clark„ 
30  Hun,  301.) 

55  Co.  Civ.  Proc,  §  2840;  which 
supersedes  decisions  to  the  contrary, 
in  Matter  of  Parker,  1  Barb.  Ch.  154; 
and  Morgan  v.  Ilannas.  13  Abb.  Pr. 
(X.  S.)  301.  In  determining  the 
amount  to  be  ai'.owed.  expenditures 
made  by  the  guardian,  priiu'  to  his  ap- 
|M)intment.  may  he  considered.  (  Hovell 
V.  Xoll,  10  Misc.  540;  31  X.  Y.  Supp. 
439. )  The  Code  does  not  provide  ifor 
an  application  to  the  court  for  the 
payment  of  a  debt  already  incurred 
for  the  infant.  (Welch  v.  Gallagher, 
2  Dem.  40.) 

r>c>]\Iatter  of  Kerwin,  59  Hun,  589; 
37  St.  Rep.  430.  This  case  is  not  an 
authority,  however,  for  the  proposi- 
tion that  the  surrogate  has  jurisdic- 
tion to  order  pa\'ment  of  a  claim  for 
services  rendered  by  a  third  person  in 


^  10;J0.  GuAuuiANsiiu'.  848 

ARTICLE  SECOND. 

ACCOUNTING    OF    GENERAL    GUARDIANS. 

§  1030.  Annual  inventory —  The  supervision  and  control,  which 
surrogates  exercise  over  guardians  to  whom  they  have  issued  let- 
ters, includes,  besides  the  judicial  settlement  of  the  guardians' 
accounts,  on  the  cessation  of  their  office,  another  species  of  ac- 
counting, analogous  to  the  intermediate  accounting  of  executors, 
administrators,  and  testamentary  trustees;  though,  unlike  the 
latter,  guardians'  accounts  are  required  to  be  rendered  and  exam- 
ined at  stated  periods,  so  long  as  they  continue  to  act.'^^ 

"  A  general  guardian  of  an  infant's  property,  appointed  by  a 
Surrogate's  Court,  must,  in  the  month  of  January  of  each  year,  as 
long  as  any  of  the  infant's  property,  or  of  the  proceeds  thereof,  re- 
mains under  his  control,  file  in  the  Surrogate's  Court  the  follow- 
ing papers:  (1)  An  inventory,  containing  a  full  and  true  state- 
ment and  description  of  each  article  or  item  of  personal  property 
of  his  ward,  received  by  him,  since  his  appointment,  or  since  the 
filing  of  the  last  annual  inventory,  as  the  case  requires;  the  A'alue 
of  each  article  or  item  so  received;  a  list  of  the  articles  or  items 
remaining  in  his  hands;  a  statement  of  the  manner  in  which  he 
has  disposed  of  each  article  or  item  not  remaining  in  his  hands; 
and  a  full  description  of  the  amount  and  nature  of  each  invest- 
ment of  money  made  by  him.  (2)  A  full  and  true  account,  in 
form  of  debtor  and  creditor,  of  all  his  receipts  and  disbursements 
of  money,  during  the  preceding  year;  in  which  he  must  charge 
himself  with  any  balance  remaining  in  his  hands,  when  the  last 
account  was  rendered,  and  must  distinctly  state  the  amount  of  the 
halance  remaining  in  his  hands,  at  the  conclusion  of  the  year,  to 
be  charged  to  him  in  the  next  year's  account."  ^'^  With  the  in- 
ventory and  account  so  filed  must  be  filed  an  affidavit,  by  the 
guardian,  or  by  an  agent  or  attorney,  who  is  cognizant  of  the 
facts,  stating,  in  substance,  the  facts,  as  required  by  the  statute.^'* 

oarinfT  for  the  ward's  property  where  ■">'*  Co.  Civ.  Proc,  §  2842.  The  jjuard- 
the  validity  of  the  claim  is  disputed  ian  should  file  an  inventory  as  soon 
by  the  jiuardian.  (Matter  of  Stoehr,  as  his  ward's  property  comes  into  his 
23  X.  Y.  Siipp.  281  ;  s.  c.  as  Hampton  hands.  He  shnuld  also  keep  the  ward's 
V.  Stoehr,  51  St.  Rep.  ofiO.)  money  properly  invested:  slionld  keep 
57  An  infant  ward  may  brinj;  a  suit  the  account  in  a  separate  book,  and 
to  call  his  orirardian  to  account,  or  should  take  and  keep  receipts.  (Mat- 
require  him  to  give  better  security,  if  ter  of  Bushnell.  17  St.  Rep.  813;  4 
the  state  of  the  case  should  call  for  it.  X.  Y.  Supp.  472.) 

(Monell  V.  Monell.  5  Johns.  Ch.  283.)  •''■9  Co.  Civ.  Proc,  §  2843.     "  The  sur- 

As   to    accnuntinor   of   a    aruardian    ap-  ropjate  must  annex  a  copy  of  this  and 

pointed    by    the    Supreme    Court,    see  the     last    section,     to     all     letters     of 

Matter  of  Muller,  2  L.  Bui.  28.  guardianship    of    the    property    of    an 


849  GuAUDiAxsiui'.  §§  10;31,  10:32. 

In  providing  for  annual  accounts,  the  statute  does  not  contem- 
plate the  scillement  of  these  accounts.  These  annual  accounts  are 
intended  to  inform  the  ward  and  the  court  of  the  manner  in  which 
the  guardian  is  discharging  his  trust.  The  ward  or  the  court 
may  act  u])()n  tli(>  information  thus  obtained  to  remove  the  guard- 
ian, or  to  obtain  further  security  for  the  performance  of  his 
duties.  But  there  is  no  provision  of  the  statute  for  a  judicial 
examination  and  settlement  of  the  guardian's  accounts,  at  the 
instance  either  of  the  ward  or  the  giuirdian,  while  the  guardian- 
ship still  continues  and  is  intended  to  continue.*"^ 

§  1031.  Scrutiny  of  annual  inventory  and  account. — -The  surro- 
gate is  required,  in  the  month  of  February  of  each  year,  and 
thereafter,  until  completed,  to  ''  examine  or  cause  to  be  exam- 
ined, under  his  direction,  all  inventories  and  accounts  of  guard- 
ians filed  since  the  first  day  of  February  of  the  preceding  year." 
The  examination  may  be  made  by  the  clerk,  or  by  a  person  speci- 
ally appointed  by  the  surrogate  to  make  it,  who  must,  before  he 
enters  upon  the  examination,  subscribe  and  take,  l)efore  the  sur- 
rogate, and  file  with  the  clerk  of  the  court,  an  oath  faithfully 
to  execute  his  duties,  and  to  make  a  true  report  to  the  surrogate.*'^ 

§  1032.  Remedy,  where  account,  etc.,  not  filed  or  defective —  If 
it  appears,  upon  such  an  examination,  that  the  guardian  has  omit- 
ted to  file  his  annual  inventory  or  account,  or  the  affidavit  relating 
thereto;  or  if  the  surrogate  is  of  the  opinion  that  the  interest  of 
the  ward  requires  that  the  guardian  should  render  a  more  full  or 
satisfactory  inventory  or  account ;  ''  the  surrogate  must  make  an 
order,  requiring  the  guardian  to  supply  the  deficiency,  and  also, 
in  his  discretion,  requiring  the  guardian  personally  to  pay  the 
expense  of  serving  the  order  upon  him.  Where  the  guardian  fails 
to  comply  with  such  an  order,  witliin  three  months  after  it  is 
made;  or  where  the  surrogarc  lias  reason  to  l)elieve  that  suffi- 
cient cause  exists  for  the  guardinirs  reiiicval,  the  surrogate  may, 
in  his  discretion,  appoint  a  fit  and  jii'opcr  ])orson  sjiecial  guardian 
of   the   ward,  for  \\\c  jmrjioso  of  filing  a   ])('tition   in   his  behalf. 


infant  issued  from  this  court."      (lb.)  account   for    moneys   of   the   infant   in 

The  above   atMavit  conforms  to  Wil-  his  hands.     (Matter  of  O'Xeil,  1  Tuck, 

liams  V.  Purdy,  6  Paige.  1G6.  3(i.)     See  flatter  of  Holland  Trust  Co., 

60  Diaper    v.     Anderson.     37     Barb.  76  Hun.  .3-23:   27  X.  V.  Su])p.  087. 

lf)S;  Matter  of  Hawley,  104  X.  Y.  250.  «i  Co.    Civ.    Proc.    §    2844.      See   id. 

8ee  pout,  §  1033.     A  surrogate  cannot  ns  to  appointing  special  examiner, 
■compel  an  attorney  of   a  guardian  to 

54 


§  10-33.  GuAKiJiA.Nbiiii'.  850 

for  the  removal  of  tlie  guardian,  and  prosecuting  the  necessary 
proceedings  for  that  purpose."*'^ 

§  1033.  Judicial  settlement  of  account. —  The  mere  rendering  of 
an  account  l)y  a  guardian  is,  obviously,  not  an  adjudication  of  its 
correctness;  and  althougli  the  statute  makes  provision  for  an  ex- 
amination of  the  annual  inventory  and  account,  and  for  the  filing 
of  additional  ones,  where  those  filed  are  not  sufficiently  full,  or 
not  satisfactory;  yet  the  result  of  this  proceeding  is  not  a  judicial 
determination  which  will  hind  the  parties  concerned.  To  make 
the  accounting  conclusive,  there  must  be  a  citation  or  appearance 
for  the  purpose  of  having  an  adjudication  upon  its  correctness. 
For  this  purpose  the  statute  provides  for  a  "  judicial  settlement  '^ 
of  the  guardian's  account. ^^  A  compulsory  judicial  settlement  of 
the  account  of  a  general  guardian  of  an  infant's  property  may  be 
had  upon  a  petition  in  either  of  the  following  cases:  (1)  By  the 
ward  after  he  has  attained  his  majority.  (2)  By  the  executor  or 
administrator  of  a  ward,  who  has  died.  (3)  By  the  guardian's 
successor,  including  a  guardian  appointed  after  the  reversal  of  a 
decree,  appointing  the  person  so  required  to  account.  (4)  By  a 
surety  in  the  official  bond  of  a  guardian  whose  letters  have  been 
revoked;  or  by  the  legal  representative  of  such  surety.  Citation 
under  this  subdivision  must  be  directed  to  both  the  guardian  and 
the  ward.^^     In  case  of  the  death  of  a  guardian,  the  Surrogate's 

«2Co.  Civ.  Proc,  §  2845.  The  fol-  giiardian."  (Eule  XXI.)  See  Led- 
lowing  rule  is  in  force  in  New  York  with  v.  Union  Trust  Co..  2  Dem.  439. 
county:  "The  surrogate,  on  the  writ-  G3  Co.  Civ.  Proc,  §§  2847,  2849.  The 
ten  certificate  of  the  person  appointed  accounts  of  a  guardian,  as  guardian, 
under  section  2844  of  the  Cede,  to  ex-  cannot  be  settled  in  proceedings  insti- 
amine  the  inventory  and  accounts  of  tuted  for  a  settlement  of  his  accounts 
guardians  filed  in  said  surrogate's  as  an  administrator.  (Banks  v.  Tay- 
office,  that  a  general  guardian  has  lor.  10  Abb.  Pr.  199.) 
omitted  to  file  such  inventory  or  ac-  c-i  The  fourth  was  added  by  L.  1890, 
count,  or  the  affidavit  required  by  sec-  c.  62.  Prior  to  this  amendment,  a 
tion  284.3.  or  that  the  interest  of  the  surety  on  a  guardian's  bond  could  not 
ward  requires  that  the  guardian  cninpel  an  accounting  by  his  principal 
should  render  a  more  satisfactory  in-  (Matter  of  Voelpel.  3  L.  Bui.  79)  : 
ventory  or  account,  will  make  an  order  ror  could  he  move  to  open  the  decree 
requiring  the  guardian  to  supply  the  settling  the  guardian's  account  (Smith 
deficiency:  and  where  it  shall  appear,  a".  Lusk.  2  Dem.  .505)  ;  nor  move  for 
by  the  certificate  of  said  person,  that  relief  on  the  gi-ound  of  fraud  on  the 
the  guardian  has  failed  to  comply  part  of  the  guardian  in  charging  him- 
Avith  such  order  within  three  months  self  with  improper  amounts,  there 
after  its  due  serxice  upon  him.  or  that  being  no  allegation  of  collusion  on  the 
there  is  reason  to  believe  that  suffi-  part  of  the  ward.  (Corbin  v.  West- 
cient  cause  exists  for  the  guardian's  cott.  2  Dem.  559.)  A  conservator  or 
removal,  the  surrogate  will  appoint  a  committee  of  a  lunatic  minor,  ap- 
special  guardian  of  the  ward  for  the  jiointed  in  another  State,  is  not  en- 
purpose  of  filing  a  petition  in  his  be-  titled  to  call  a  guardian  of  a  minor 
half,  and  proseciiting  the  necessary  in  this  State  to  account  for,  and  pay 
proceedings   for   the   removal   of   such  over  to  him,  the  estate  of  the  minor 


851  GUARDIAXSIIIP.  §  1034. 

Court  has  the  same  jurisdiction,  u])oii  the  petition  of  his  successor 
or  of  a  survivinc:  jiuardian  or  of  a  "guardian's  ward,  to  compel  the 
executor  or  aihiiiriistrator  of  the  dccejised  giuirdian  to  account, 
■wliich  it  wouhl  have  had  against  the  decedent,  on  a  revocation 
of  his  k'tters/'^ 

A  compulsory  proceeding  for  an  accounting  by  the  general 
guardian  of  an  infant's  person,  may  be  instituted  by  the  general 
guardian  of  the  infant's  property;  but  upon  the  presentation 
thereof,  proof  must  be  made,  to  the  surrogate's  satisfaction,  that 
the  guardian  so  recpiircd  to  account  has  received  money  or  ])rop- 
erty  of  the  ward,  for  which  he  has  not  accounted ;  or  which  he  has 
not  paid  or  delivered,  to  the  general  guardian  of  the  infant's 
property.^"  For  this  purpose  a  guardian  of  the  estate  only,  is 
deemed  to  be  a  general  guardian. 

§  1034.  Voluntary  accounting  and  discharge  of  general  guardian. 

—  The  guardian  may  himself  petition  for  a  judicial  settlement 
of  his  account,  and  a  discharge  from  his  duties  and  liabilities,  in 
any  case  where  a  petition  for  a  judicial  settlement  of  his  account 
may  be  presented  by  any  other  person  as  prescribed  above,  that 
is,  on  the  ward's  dying,  or  attaining  majority,  or  on  the  revoca- 
tion of  his  letters.  "  The  petition  must  pray  that  the  person  who 
might  have  so  presented  a  petition,  and  also  the  sureties  in  his 
official  bond  of  such  guardian,  or  the  legal  representatives  of  such 
surety,  may  be  cited  to  attend  the  settlement."  ^^  It  is  only  on  the 
happening  of  one  of  the  events  mentioned  that  a  judicial  settle- 
ment can  be  had.  Xo  court  has  jurisdiction,  under  the  Code  or 
other  statute,  to  judicially  settle  a  guardian's  account,  either  on 

in  his   hands.     The  remedy  is  by  ap-  Siipp.  fiOO. )      Where  a  trust  fund  has 

plication  to  the  Supreme  Court.      (Mat-  boon   in   the   hands  of  a  guardian  for 

ter  of  Traznier,  2  Redf.   171.)  many  years,  and  was  .unpaid  and  un- 

C5  Co.     Civ.     Proe.,     §     "ZOOd ;     ante,  acfounted  for  at  the  time  of  liis  death, 

^  921;  Matter  of  Camp.  01   Hun,  204;  there   is  no   presumption  that    it   is  a 

36    N.   Y.    Supp.    1123.      The   executor  part  of  his  estate  in  the  hands  of  his 

or  administrator  of  <a  deceased  general  executor,  so  as  to  entitle  liis  ward  to 

guardian  may  be   required  to  account  an  order,  under  Co.  Civ.  Proc,  §  2tiO(), 

for  the  latter's  admiiiistiation,  imme-  comjiellinfj  sucli  executor  to  pay  to  the 

diately   upon   the   apiioinliiicnl    of   llic  ward    tlie   amount    due   her  from   such 

executor    or    administrator.       (Matter  (rust     fund     in     preference     to     other 

of   Wiley,   55   Him,   248:    20    St.    Rep.  creditors,    without    evidence    tliat    de- 

7S7.)      See  Andrade  v.  Cohen,  32  Hun,  cedent's    assets    in    the    hands    of    his 

225;    Matter   of   Camp,    18   App.   Div.  executor  are  a  part  of,  or  created  bv, 

110;    45   N.   Y.   Supp.    fiOO.      And   the  the  trust  fund.     (Matter  of  Hicks.  170 

successor     may    maintain     an     action  N.  Y.   105;    revcr.   Hicks  v.  Townsend, 

upon   tlie   bond   of   his   predecessor   to  fifi  N.  Y.  Supp.  1028.) 

recover    the    amount    found    due    upon  6'"'  Co.  Civ.  Proc,  §  2848. 

such     accounting.        (Van     Zandt     v.  •!"  Co.  Civ.  Proc.,  §  2840,  as  amended 

Grant,    G7    App.    Div.    70;     73    N.   Y.  1893. 


§§  1035,  103G.  Gi-AKDiANsiiip.  852 

his  own  or  another's   application,    while   the   guardianship   con- 
tinues ;  and  an  attempted  settlement  of  the  kind  is  void.^^ 

§1035.  Procedure  on  judicial  settlement. —  The  manner  of  con- 
ducting the  proceedings,  upon  a  judicial  settlement  of  the  account 
of  a  general  giiardian,  is  precisely  the  same  as  that  prescribed 
under  similar  circumstances  with  respect  to  an  executor  or  ad- 
ministrator.**^  Thus,  upon  the  return  of  a  citation  issued  against 
the  guardian,  unless  he  shows  cause,  or  himself  petitions  for  a 
settlement,  he  is  to  be  ordered  to  account,  and  must  attend  from 
time  to  time  for  that  purpose.  He  must  produce  vouchers  for  ex- 
penditures, except  where  an  executor,  etc.,  w^ould  be  excused  from 
so  doing;  and  the  surrogate  may  require  him  to  make  and  file  his 
account,  and  to  submit  to  examination,  and  may  allow  him  for 
property  perished  or  lost  without  his  fault.  Where  there  are 
two  or  more  wards,  a  separate  account  should  be  filed  for  each.^*' 

§  1036.  Limitation  of  proceeding. —  As  it  is  the  duty  of  a  guard- 
ian to  invest  the  moneys  of  his  ward,  the  fund,  in  contemplation 
of  law,  remains  invested,  and  in  a  situation  at  any  time  to  be  de- 
livered over.  After  the  ward  comes  of  age,  the  guardian  is  to 
be  considered  the  trustee  of  the  ward,  and  until  the  trust  is  re- 
pudiated, or,  in  some  way,  the  guardian  claims  a  title  to  the  fund 
in  defiance  of  the  trust,  there  is  no  beginning  of  the  running  of 
the  Statute  of  Lin;itations.  Hence,  the  fact  that  the  petitioning 
ward  came  of  age  more  than  six  years  l^efore  filing  the  petition 
is  no  ground  for  refusing  to  grant  a  citation.^^     Aside  from  this, 

68  Matter  of  Hawley,  104  N.  Y.  250,  St.  Rep.  767.  In  Matter  of  Lewis 
and  cases  cited.  (36  :\Iisc.   741;   74  X.  Y.  Supp.   460), 

69  Section  2727  and  sections  2733  to  the  proceeding  was  held  barred  after 
2738.  both  inclusive,  and  sections  2741  the  lapse  oi  ten  years.  In  Matter  of 
and  2744  of  the  Code  [now  §§  2727,  Barker  (4  Misc.  40),  it  appeared  that, 
2729,  2730,  and  §  2744],  "apply  to  a  after  coming  of  age,  a  ward  had  a 
guardian  accounting  as  prescribed  in  conversation  wit^  her  guardian  con- 
this  article,  and  regulate  the  proceed-  cerning  the  latter's  accounts,  and  the 
ings  upon  such  an  accounting.  The  guardian  stated  that  she  had  ex- 
accounting  party  must  annex  to  every  pended  the  entire  fund.  The  guardian 
account  produced  and  filed  by  him  had  been  guilty  of  no  fraud  or  con- 
an  afndavit.  in  the  form  prescribed  in  cealment:  the  accounts  had  always 
this  article  for  the  affidavit  to  be  an-  been  open  to  the  inspection  of  the 
nexed  by  him  to  his  annual  inventory  ward,  and  it  was  proven  that  she  was 
and  account.  A  guardian  designated  in  a  measure  familiar  with  their  con- 
in  this  title  is  entitled  to  the  same  tents.  Held,  that  there  was  a  repu- 
compensation  as  an  executor  or  ad-  diation  of  the  Irust  relation,  and  that 
ministrator."     (Co.  Civ.  Proc.  §  2850.)  the   Statute   of   Limitations   began    to 

70  Matter  of  Bostwick,  N.  Y.  Law  J.,  run  against  the  ward  from  that  time. 
Feb.  3,   1893.  But    query,   whether    the    relation    ex- 

71  ]Matter  of  Camp,  50  Hun,  388;  21  isting  between  guardian  and  ward 
St.  Eep.  308;  and  same  case,  in  a  sub-  after  the  latter  had  attained  majoritv 
sequent  proceeding,  126  N.  Y.  377;  37  was   not   such   a    trust   as   not   to  be 


'81 


Gl-AKItiA-NSUII' 


§  10..7, 


tlio  practice  in  equity  was  to  allow  a  ward  one  year's  time  to  in- 
vestigate the  guardian's  accounts ;  on  the  ground  that  when  he 
first  conies  of  age  he  is  still  too  nuu-h  under  the  influence  of  the 
guardian  td  jjrotcct  himself.'" 

^  1037.  Subject-matter  of  accounting. —  The  surrogate's  author- 
ity to  com])el  a  giiartliau  tn  account  is  limited  to  an  account  of 
his  proceedings  under  the  power  given  liim  liy  his  letters;  and  is 
commensurate,  in  fact,  Avith  acts  or  neglects  of  duty  occurring 
during  the  period  of  his  official  authority,  and  cannot  be  extended 
hack  to  previous  transactions,  e.  g.,  to  a  claim  for  money  received 
liy  him,  before  his  appointment,  from  a  foreign  guardian  of  the 
ward,  with  directions  to  appropriate  it  to  his  benefit,  but  which 
remained  in  his  hands  at  the  time  of  liis  ap])ointment."'^  Xeither 
can  the  guardian  be  allowed  for  services  rendered  for  the  ward 
before  he  was  appointed  guardian;  and  a  promise  of  the  ward 
to  pay  for  them,  made  after  he  became  of  age,  does  not  make 
•them  projier  matters  of  charge  on  such  accounting.''*  Ibit,  under 
the  statute,  the  surrogate  is  authorized  to  ascertain  the  quantity, 
quality,  and  condition  of  the  ward's  property  in  the  liand>  of 
the  guardian,  and  to  decree  and  adjudce  the  tim(»  when,  the 
persons  to  whom,  and  in  what  manner  it  shall  be  paid  or  delivered 
over.'^     Interest  is  chargeable  in  the  accounts  of  a  guardian,  upon 


afTootod  hy  llio  Statute  of  Limitation"^, 
nor  any  bar.  by  analofry.  to  the  statute. 
See  Matter  of  \ii~n  Derzee,  7-3  Hun. 
.^.S2:  20  N.  Y.  Siipp.  121.  A  ward 
may.  by  conduet  af*^  r  reaehinff  nia- 
joritv.  ratify  an  illegal  investment, 
■flatter  of  Klnnek,  3.3  :Mise.  207:  fi8 
X.  Y.  Rupp.  020.) 

"2  Matter  of  Van  Home.  7  Paipe, 
40 :  Douglas  v.  Low,  30  Hun.  497. 
The  last  case  was  an  action  to  set 
aside,  for  fraud,  the  surrogate's  de- 
cree on  the  puardian's  accountinfx:  the 
fratid  alle<red  beinfj  tliat  the  i)hiiii1i(T. 
the  ward,  was  induced  to  autliori/.e  an 
attorney  to  appear  for  him  and  con- 
!-ent  to  a  discharfre.  and  that  there 
was  fal.se  and  frauduhmt  evidence 
jjiven.  The  complaint  was  held  good, 
on   demurrer. 

"Rait  V.  Itait.  1  I'.radf.  345.  See 
Matter  of  iMumb.  24  Misc.  240;  53 
N.  Y.  Supp.  5S8 :  ^fatter  of  :\Iulii{ran, 
0  Misc.  540:  27  N.  Y.  Supp.  435. 

74  Clowes  V.  Van  Antwerp.  4  "Barb. 
410.  Taxes  paid  on  ward's  property, 
■without  his  knowledge,  after  he  be- 
came  of   age   are   noli   to   be    included 


in  the  account.      (Matter  of  Kopp.  17 
St.   Rep.  8.32.) 

75  Seaman  v.  Durvea.  10  Rarl).  523: 
afTd..  11  N.  Y.  324.  "  But  a  Surrogate's 
Court  has  no  power  to  direct  a  gen- 
eral guardian  to  pay  over  to  the  ward 
a  sum.  to  the  possession  of  which  the 
guardian  is  personally  entitled,  as  life 
tenant,  the  interest  of  the  ward  being 
merely  that  of  remainderman:  and 
the  fact  that  the  guardian  has  lost 
the  money  will  not  confer  jurisdiction 
to  make  such  direction.  f^Fatter  of 
Cajup,  120  N.  Y.  .377:  37  St.  Rep.  707.) 
\\'ithout  tlie  guardian's  consent,  the 
surrogate  has  not  jurisdiction  to  de- 
duct the  gross  value  of  his  life  in- 
terest and  to  direct  the  payment  of 
the  balance.  (lb.)  As  to  allowance 
for  payments  for  legal  services  for  the 
estate,' see  Rait  v.  Rait.  1  Rradf.  345; 
Matter  of  Becker,  37  Misc.  527:  76 
N.  Y.  Supp.  315:  for  proceedings  to 
obtain  possession  of  the  ward,  flatter 
of  Cram.  50  Ajip.  Div.  170:  ()7  X.  Y. 
Supp.  054:  afTd..  100  X.  Y.  040:  Mat- 
ter of  Pruyne.  08  Anp.  Div.  5S4 :  73 
X.  Y.  Supp.  859;  and  for  the  support 


§  1038. 


Guardianship. 


854 


the  same  principles  that  have  heretofore  been  explained  in  re- 
spect to  the  accounts  of  executors  and  administrators,  except  that 
he  is  not  entitled  to  the  same  exemption  for  considerable  sums 
kept  in  hand,  on  account  of  the  exigencies  peculiar  to  the  settle- 
ment of  an  estate  which  is  subject  to  large  debts  and  claims.  The 
court  has  power  to  allow  to  a  guardian  necessary  expenditures 
made  for  the  support  of  the  infant  even  before  the  guardian  was 
appointed,  especially  where  he,  being  the  parent,  was  unable  to 
support  the  ward  himself. ^^ 

§  1038.  Expenses  and  compensation. —  The  Eevised  Statutes  pro- 
vided that  guardians  should  be  allowed  for  their  reasonable  ex- 
penses, and  the  same  rate  of  compensation  for  their  services  as 
provided  by  law  for  executors  ;^^  and  this  was  construed  as  re- 
ferring, not  to  the  old  rate  of  compensation  fixed  by  the  original 
Kevised  Statutes,  but  to  the  rate  of  commissions  allowed  to 
executors  and  administrators  by  subsequent  amendments  of  the 
law."^     The  section  of  the  Revised  Statutes  cited  was  repealed  in 


and  education  of  the  ward  by  the 
parent's  labor,  see  Harring  v.  Coles, 
2  Bradf.  340:  Matter  of  Kane,  2  Barb. 
Ch.  37.5:  Matter  of  Parker,  1  id.  154. 
And  see  also  Matter  of  Wilber,  27  Misc. 
53:  57  N.  Y.  Supp.  942;  Matter  of 
Klunck,  33  Misc.  267 ;  68  N.  Y.  Supp. 
629.  The  guardian's  giving  the  ward 
an  opportunity  to  examine  his  books, 
and  informing  her  from  time  to  time, 
after  she  came  of  age,  of  the  balance,  is 
not  a  settlement  of  the  accounts. 
(Rapalje  v.  Hall,  Sandf.  Ch.  399.) 
One  who  was  substituted  as  guardian, 
on  removal  of  another,  gave  a  receipt 
to  the  surrogate,  admitting  that,  as 
guardian  of  the  minor,  he  had  re- 
ceived from  the  surrogate  a  certain  sum 
of  money, —  Held,  tliat  it  was  compe- 
tent for  him,  on  his  accounting,  to 
prove  that  the  receipt  was  given  for 
certain  contracts  for  the  purchase  of 
lands,  which  were,  in  fact,  worth  less 
than  the  sum  specified  in  the  receipt. 
(White  V.  Parker,  8  Barb.  48.)  Where 
the  guardian,  after  the  ward  attained 
his  majority,  had  a  settlement  with 
him.  and  assigned  a  mortgage  to  the 
ward  for  the  amount  found  dvie,  and 
the  ward  gave  a  receipt  that  he  had 
received  the  assignment  of  the  mort- 
gage "  as  equivalent "  to  the  amount 
found  due, —  Held,  that,  upon  the  ac- 
counting of   the   guardian,   the  surro- 


gate had  no  jurisdiction  to  try  the 
question  of  the  validity  of  the  settle- 
ment, and  that  upon  the  question  of 
the  acceptance  of  the  mortgage  by  the 
ward,  in  satisfaction  of  the  amount 
due  him,  the  receipt  was  conclusive, 
and  could  not  be  contradicted  by  parol 
evidence.  (Downing  v.  Smith,  4  Redf. 
310.)  See  also  Matter  of  Gill,  3  Hun, 
20.  In  IMatter  of  Pruvne  (68  App. 
Div.  584:  73  N.  Y.  Supp.  859).  a  re- 
siduary legatee,  who  was  guardian  of 
testator's  infant  child,  was  directed 
to  establish  a  trust  fund  in  favor  of 
such  child,  which  was  never  done,  the 
personal  estate  being  insufficient.  The 
guardian  remained  in  possession  of 
the  realty  as  residuary  legatee,  and 
regarded  the  trust  fund  as  invested 
tlierein.  Held  not  entitled  to  credit 
in  his  account  for  taxes  paid  on  the 
trust  fund  as  guardian. 

76]Matter  of  Wright.  1  Connoly,  281 ; 
22  St.  Rep.  83:  4  N.  Y.  Supp.  343, 
and  cases  cited.  See  also  Matter  rf 
Ogg,  1  Connolv,  10:  20  St.  Rep.  867; 
Matter  of  Busimell,  17  id.  813;  Welch 
V.   Gallagher.   2    Dem.   40. 

"  2  tC:  S.  153,  §  22 ;  Matter  of  Car- 
man. 21  St.  Rep.  254;  4  N.  Y.  Supp. 
690. 

TSFolev  V.  Eagan,  13  Abb.  Pr.  (N. 
S.)  361,  *n.  And  see  Dakin  v.  Dem- 
ming,  6  Paige,  95. 


855 


GuAKDlAN^illli', 


§§  lu:J'j,  iuiu. 


1880;'^  but  by  tlie  amendment  of  section  2850  of  the  Code,  in 
1882,  it  was  declared  that  a  general  guardian  is  entitled  to  the 
same  compensation  as  an  executor  or  administrator.*'' 

§  1039.  Extra  services. —  A  guardian  will  not  be  allowed,  any 
more  than  an  administrated",  an  extra  compensation  for  services, 
although  not  strictly  within  the  line  of  his  duties.  Thus,  where 
the  guardian  is  an  attorney  and  counselor-at-law,  he  cannot  charge 
for  professional  services  rendered  in  the  affairs  of  his  ward,  or 
where  he  is  a  mechanic,  he  cannot  charge  for  repairs  made  by 
him,  but  is  restricted  to  the  statutory  allowance.  Xeither  an 
order  of  a  surrogate,  l)efore  the  services  are  rendered,  directing 
tlie  performance  thereof,  and  fixing  the  extra  compensation,  nor  an 
(^rdoi-  ratifying  and  allowing  it,  will  legalize  the  charge.^^ 

§  1040.  Computation  of  commissions. —  The  amount  of  commis- 
sions can  only  be  determined  upon  the  judicial  settlement  of  the 
guardian's  accounts,  and  this  can  be  had,  as  we  have  seen,  only 
when  the  ward  becomes  of  age,  or  the  guardianship  is  otherwise 
terminated,  and  a  new  guardian  is  appointed,  or  the  ward  dies.*" 


79  L.   1880.  c.  245. 

80  In  a  case  wliere  an  executor  would 
be  refused  commissions. —  c.  r/..  jualad- 
minisiration — a  general  guardian  will 
Ix"  denied  compensation.  (Matter  of 
Kopp,  17  St.  Rep.  8:52.)  S.  P..  Mat- 
ter of  Bushnell,  id.  813.  In  an  action 
for  a  settlement  of  a  guardian's  ac- 
counts in  the  Supreme  Court,  an  al- 
lowance of  .$2.50  as  and  for  the  ex- 
penses of  the  accounting  were  allowed. 
(Matter  of  Carman,  ,si//>r«.)  Such  ex- 
penses are  not  in  the  nature  of  costs 
and   allowance    in   an    action    at   law. 

( lb. )  \Micre.  however,  objections  to 
the  accounts  are  justified,  the  estate 
of  the  ward  should  not  be  charged 
with  the  expenses  of  the  proceeding 
(Matter  of  Frank,  1  App.  Div.  39; 
s.  c.  as  ^Matter  of  Schneider,  .30  N.  Y. 
Supp.  072)  :  but,  on  the  contrary,  the 
guardian  is  chargeable  with  costs. 
(Matter  of  Decker,  37  Misc.  527;  76 
N.  Y.  Supp.  315.) 

81  Morgan  v.  Hannas.  49  X.  Y.  667. 
See  8  55(i.  ante. 

82  Matter  of  Ilawley,  104  N.  Y.  2.50. 
A  guardian  is  entitled  to  conuuissions 
■on  amounts  received  by  him  after  the 

ward  has  arrived  at  full  age  and  be- 
come entitled  to  the  possession  of  the 
fund,  until  his  duties  are  terminated 
by  a   final  judicial  settlement  of  his 


accounts,  (Hawley  v.  Singer,  3  Dem. 
589,)  While  a  Surrogate's  Court  has 
no  power  to  open  and  reconsider,  on 
the  ground  of  legal  error,  an  adjudi- 
cation already  made,  still,  where  full 
commissions  have  been  inadvertently 
awarded  on  a  fund  as  received  and 
paid  out,  when  in  truth  it  had  been 
received  and  not  paid  out.  such  a 
tribunal  may,  in  a  subsequent  account- 
ing, take  cognizance  of  the  fact,  and 
decline  to  award  half  commissions 
again  for  paying  out.  lib.)  As  to 
whether  a  testamentary  guardian, 
who  is  also  executor,  is  entitled  to 
charge  double  commissions  upon  the 
priiK  ipal  of  the  ward's  estate,  see  Mat- 
ter of  Hawley,  104  X.  Y.  250.  It 
seews.  however,  that  if  such  double 
commissions  are  allowable,  they  may 
be  charged  upon  the  value  of  ))roperty 
which  the  testator  directed  jiot  to  be 
sold,  but  to  be  divided  by  the  execu- 
tor.s  and  given  to  the  legatees.  (lb.) 
On  a  rehearing  before  the  surrogate 
by  direction  of  the  Court  of  Appeals, 
the  claim  to  commissions  on  the  stock 
was  allowed.  (Hawley  v.  Sin!.rer,  5 
Dem,  82,)  The  surrogate  also  held 
that  where  commissions  have  been  al- 
lowed a  giuirdian  by  the  surro^'ate,  in 
proceedings  in  which  the  guardian  has 
acted  in  complete  good  faith,  but,  as 


§  1041.  GUAKDIANSIIIP.  85G 

As  in  tlie  case  of  executors  and  administrators,  the  commission 
is  computed  on  money  received  and  paid  out.  Wliere  the  guard- 
ian has  received  money,  but  has  not  paid  it  out  otherwise  than  by 
turning  it  over  to  his  successor,  or  has  paid  out  money  which  he 
did  not  receive,  except  by  succeeding  to  the  trust  turned  over  to 
liiin  by  a  predecessor,  he  is  only  aUowed  half  commissions,  u})on 
the  same  i)rinciple  which  has  been  explained  in  a  previous  chapter 
on  accounting  by  executors  and  administrators.  In  other  words, 
he  is  to  be  paid  a  full  commission  only  on  moneys  which  he  has 
actually  both  received  and  paid  out,  not  upon  portions  of  the  fund 
which  may  have  come  into  his  hands  in  the  form  of  an  invest- 
ment previously  made  by  a  predecessor,  or  wdiich  he  turns  over,  as 
a  part  of  the  trust  fund,  to  his  successor  in  the  trust. '^^  But 
where  a  temporary  guardian  is  not  removed,  or  does  not  volun- 
tarily resign,  but  his  retiring  from  office  is  at  the  instance  of  the 
ward,  after  her  reaching  fourteen  years  of  age,  who  petitions  for 
the  appointment  of  a  successor,  he  is  entitled  to  full  commissions 
upon  the  entire  principal  of  the  fund  handed  over  to  his  successor.®* 

§  1041.  Commissions  on  annual  statement. —  As  the  gi;ardian  is 
required  by  law  to  render  annual  accounts,  he  may  be  allowed  full 
commissions  on  each  annual  account  rendered  by  him ;  and,  at  his 
final  accounting,  he  may  be  allowed  interest  on  the  balances  due 
him  on  his  annual  accounts.*^  But,  on  accoimting  periodically,  he 
should  be  allowed,  upon  the  first  annual  statement,  or  passing 
of  his  accounts,  one-half  commissions  upon  all  moneys  received 
by  him,  other  than  principal  received  from  investments  made  by 
him,  and  half  commissions  on  all  moneys  paid  out  by  him,  other 
than  moneys  invested  or  reinvested  by  him  in  securities,  leaving 
the  residue  of  his  half  commissions  to  be  computed  upon  the  fund 
which  has  come  to  his  hands,  and  which  remains  invested  or  un- 
expended at  the  time  of  the  accounting,  for  future  adjustment 
when  expended,  or  when  finally  accounted  for;  and,  upon  subse- 
quent statements,  half  commissions  should  be  computed  in  the 
same  manner,  upon  all  sums  received  as  interest  or  income,  or  as 
further  additions  to  the  capital  of  the  estate,  since  the  last  ac- 

is    siibspquently     ascertained,    wrong-        S5  Mororan  v.  Hannas.  49  K  Y.  667 ; 

fully  and  under  a  void  aocountinsr.  the  s.  e.  more  fully.   13  Abb.  Pr.    (N.  S.) 

fourt   will   not.  upon   subsequently  al-  .Tfil  :     revp..    iii    efTeot,    .39    T5arb.    20. 

lowing  such  guardian  his  proper  eom-  S.   P..  Matter  of  Bell.   X.   Y.  Law  J.. 

missions,    charge    him     with     interest  Feb.    IG.    1893.       Compare    ^Vfatter    of 

upon  the  sums  previously  allowed.  Decker.  37  Misc.  .527  :   76  N.  Y.  Supp. 

83  Foley  V.  Egan,  13  Abb.  Pr.  (X.  31,5.  As  to  annual  rests  in  trustees' 
S.)    361.  note.  accounts,  see  ante,  §  1001. 

84  Phillips  V.  Lockwood,  4  Dem.  299. 


857  GuAKDiA.Nsiiii'.  §§  1042-1044. 

counting,  and  half  commissions  upon  all  sums  expended  except  as 
investments.***^ 

ARTICLE  THIRD. 

RESIGNATION   OF   GUAKDlAXSj   AND  REVOCATION   OF  LETTERS. 

§1042.  Petition  of  guardian. —  A  guardian,  whether  appointed 
by  will  or  deed,  or  solely  by  letters  issued  by  a  Surrogate's  Court, 
may,  at  any  time,  present  to  the  Surrogate's  Court  a  petition,  set- 
ting forth  the  facts  upon  which  the  application  is  founded,  and 
praying  that  his  account  nuiy  be  judicially  settled  ;  that  a  decree 
may  thereupon  be  made,  revoking  his  letters,  and  discliarging  him 
accordingly;  and  that  the  ward  nuiy  l)e  cited  to  show  cause  why 
such  a  decree  should  not  be  made.  The  surrogate  may,  in  his  dis- 
cretion, entertain  or  decline  to  entertain  the  application.^^  If  he 
entertains  it,  he  must  issue  a  citation,  as  prayed  for  in  the  pe- 
tition ;  and  he  may  also  require  notice  of  the  application  to  be  given 
to  such  other  persons,  and  in  such  a  manner  as  he  deems  proper.*® 

§  1043.  Proceedings  on  return  of  citation. —  "  Upon  the  return 
of  the  citation,  a  guardian  ad  litem  for  the  ward  must  be  ap- 
pointed ;  and  the  surrogate  may  also,  in  his  discretion,  allow  any 
jierson  to  appear  and  contest  the  application,  in  the  interest  of 
the  ward.  Upon  the  hearing,  the  surrogate  must  first  determine 
whether  sufficient  reasons  exist  for  granting  the  prayer  of  the  pe- 
tition. If  he  determines  that  they  exist,  and  that  the  interests 
of  the  ward  will  not  be  prejudiced  by  the  resignation  of  the  guard- 
ian, the  surrogate  must  make  an  order  accordingly,  and  allow- 
ing the  petitioner  to  account,  for  the  purpose  of  being  dis- 
charged." *^ 

§  1044.  Decree  for  discharge,  on  accounting,  etc. —  Upon  the 
guardian's  fully  accounting,  and  paying  all  money  which  is  found 
to  be  due  from  him  to  the  ward,  and  delivering  all  books,  papers, 
and  other  property  of  the  ward  in  his  hands,  either  into  the  Sur- 
rogate's Court,  or  in  such  a  manner  as  the  surrogate  directs,  a 
decree  may  be  made,  revoking  the  petitioner's  letters,  and  discharg- 

86  Matter  of  Kellopcr.  7   Paijre.  265.  S7  Co.    Civ.     Proc.    SS     28.3o.    28.50. 

See    Matter    of    Decker,    supra.       The  In    case    of   a    puardian    appointed    by 

guardian's  omisf>ion  to  claim  comniis-  will  or  deed,  the  application  nuist  be 

sions   is  no   reason    why  he  should  be  made  to  "  the  Surrogat.e"s  Court,  hav- 

deprived  of  them,  when  a  strict  legal  ing    jurisdiction    to    require    security 

claim,    e.    g.,    for     interest,     is     made  from  him."      (Co.  Civ.  Proc,  §  2859.) 

against  him.  which  he  did  not,  at  the  See  id..  §  285.3. 

time  of   sucli   omission,   expect  would  88  Co.  Civ.  Proc,  §  2836. 

be  made.      (Rapalje  v.  Hall,  1  Sandf.  89  Co.  Civ.  Proc,  §  2836. 
Ch.  399.) 


§  1045.  GUAKDIA-XSILIP.  858 

ing  liim  accordingly.^'^  Notwithstanding  such  discharge  of  a 
guardian,  his  successor  or  the  ward  may  compel  a  judicial  settle- 
ment of  his  account,  as  heretofore  mentioned,^^  "  in  the  same  man- 
ner and  with  like  effect,  as  if  the  decree  discharging  him  had  not 
been  made.  With  respect  to  all  matters  connected  with  his  trust, 
his  sureties  continue  to  be  liable,  until  his  account  is  judicially 
settled  accordingly."  ^^  This  proceeding  by  the  retiring  guard- 
ian to  settle  his  account  is  tentative  only  and  the  decree  entered 
therein  should  merely  declare  the  balance  due,  without  any  direc- 
tion as  to  its  payment.  His  successor  or  ward  may  compel  an- 
other judicial  settlement  of  his  account  as  though  no  decree  had 
been  made.^' 

§  1045.  Grounds  for  removing  guardian. —  The  following  are 
specified  in  the  Code,^^  as  causes  for  removal  of  a  general  guard- 
ian, by  the  surrogate :  "  1.  Where  the  guardian  is  disqualified 
by  law,  or  is,  for  any  reason,  incompetent^^  to  fulfill  his  trust. 
2.  Where,  by  reason  of  his  having  wasted  or  improperly  applied 
the  money  or  other  property  in  his  charge,  or  invested  money  in 
securities  unauthorized  by  law,  or  otherwise  improvidently  man- 
aged or  injured  the  real  or  personal  property  of  the  ward,  or  by 
reason  of  other  misconduct  in  the  execution  of  his  office,  or  his 
dishonesty,  drunkenness,^*'  improvidence,  or  want  of  understand- 


so  Co.   Civ.   Proc,    §   28.36.     The   de-  04  Co.  Civ.  Proc,  §  2832. 

cree  is  conclusive.      ( Matter  of  Hood.  93  It     was     held,     in     Damarell     v. 

90  N.  Y.  512.)     As  to  advances  to  the  Walker    (2  Redf.   198),  that  the  "  in- 

Avard.  in  excess  of  income,  see  Smith  competency,"    for    which    a    surrogate 

V.  Bixby,  5  Redf.  196;   Kelaher  v.  Me-  may  remove  a  guardian,  has  relation 

Cahill,  26  Hun,  148.  not    merely   to    the   mental    condition 

91  See  §  103.3,  ante.  Formerly,  the  and  moral  status  of  the  guardian,  but 
personal  representatives  of  a  deceased  the  court  might  take  into  considera- 
guardian  <iould  not  be  called  iipon  to  tion  the  relative  social  and  pecuniary 
account  by  the  Surrogate's  Court  on  position  of  the  guardian  and  the  in- 
petition  of  the  ward.  (Farnsworth  v.  fant,  as  affecting  the  interests  of  the 
Oliphant,  19  Barb.  30.)  latter  in  respect  of  nurture,  care,  edu- 

92  Co.  Civ.  Proc,  §  2837.  As  to  cation,  and  safety.  Insolvency  is  a 
personal  liability  of  a  guardian  for  cause  of  removal.  (Matter  of  Cooper, 
the  costs  of  an  accounting,  see  Crom-  2  Paige,  34.)  In  respect  to  what  con- 
well  v.  Kirk,  1  Dem.  .599;  flatter  of  stitutes  incompetency,  consult  also 
Frank,  1  App.  Div.  39 ;  Matter  of  the  rules  applicable  to  executors 
Decker,  37  Misc.  527;  76  N.  Y.  Supp.  and  administrators.  {Ante,  §  429, 
315.  rt  scr/.) 

93  Matter  of  Wright,  2  Connoly,  96  Matter  of  Moore.  18  Week.  Dig. 
108;  20  N.  Y.  Supp.  86.  Where  it  42.  A  guardian  who  has  become  so 
appears  that  the  desire  for  the  sub-  intemperate  as  to  be  occasionally  in- 
stitution of  another  guardian  is  mu-  sane  should  be  removed,  and  his  wife, 
tual,  and  that  the  interests  of  the  being  subject  to  his  control,  is  an 
ward  will  be  promoted  by  so  doing,  equally  improper  person  to  manage 
the  court  will  apportion  the  costs  of  the  esta'te.  (Kettletas  v.  Gardner,  1 
proceedings  to  that  effect  between  the  Paige,  488.) 

guardian  and   ward,      fib.) 


S59 


Glakdia.xsiiii', 


§  1040. 


ing,  he  is  unfit  for  the  due  execution  of  his  ofHce."^  3.  AMiere  he 
has  willfully  refused,  or,  without  good  cause,  neglected,  to  obey 
any  lawful  direction  of  the  surrogate,  contained  in  a  decree  or 
an  ordci',  or  any  provision  (if  law,  relating  to  the  discharge  of  his 
duty.  4.  Where  the  grant  of  letters  to  him  was  obtained  by  a 
false  suggestion  of  a  material  fact.^**  5.  Where  he  has  removed, 
or  is  about  to  remove,  from  the  State.  C.  In  the  case  of  the  guard- 
ian of  the  jierson,  where  the  infant's  welfare  will  be  promoted  by 
the  appointment  of  another  guardian."  ^^  The  surrogate  will  not 
revoke  letters  of  guardianship  unless  one  of  these  grounds  is  shown, 
even  though  it  would  seem  to  be  for  the  best  interests  of  the  infant 
to  do  so.^  Hence,  a  neglect  to  file  an  annual  inventory,  unless  in 
<iisobedience  of  an  order  requiring  it,  is  not  ground  for  removing 
the  guardian.^ 

§  1046.  Application  for  removal,  how  and  by  whom  made. — "  The 
ward,  or  any  relative  or  other  person  in  his  behalf,  or  the  surety 
■of  a  guardian,  may,  at  any  time,  present  to  the  Surrogate's  Court 
a  written  petition,  duly  verified,  setting  forth  the  facts,  and  pray- 
ing for  a  decree,  revoking  letters  of  guardianship,  either  of  the 
person,  or  of  the  property,  or  both ;  and  that  the  guardian  com- 


O'Whpre  a  guardian  of  an  infant 
■wile  sold  property  to.  tne  infant's  hus- 
band and  took  baci<  a  mortgage  from 
the  two,  the  eourt  eancoled  the  security 
and  removed  the  guardian.  (Matter 
of  Cooper,  2  Paige,  34.)  See  also 
Matter  of  O'Neill.   1    Tuck.  .34. 

98  To  justify  a  revocation  of  letters 
■of  administration  or  of  general  guard- 
ianship, upon  the  ground  that  the 
same  were  "  obtained  by  false  sugges- 
tion of  a  materiiil  fact"  (under  Co. 
<'iv.  Proe.,  §  268o,  subd.  4;  §  2832, 
subd.  4),  it  must  be  made  to  appear 
that  the  suggestion  was  made  to  tlie 
tribunal  by  which  the  letters  were 
granted.  It  is  r.ot  enough  to  show 
fiilse  representations  to  a  party  to 
tlie  proceeding  for  the  purpose  of  in- 
•ducing  his  consent  to  the  granting  of 
such  letters.  (Corn  v.  Corn,  4  Dem. 
394;  s.  c.  as  Estr.te  of  Corn,  3  How. 
Pr.  [N.  S.]  357;  9  Civ.  Proe.  Rep. 
•243. )  See  O'Brien  v.  Neubert,  3  Dem. 
l.'>6;  Proctor  v.  \v'anmaker,  1  Barb. 
Ch.  302.  The  words  "  in  his  behalf." 
in  this  section,  refer  to  ''  the  ward," 
and  not  to  "  any  relative ;  "  the  inten- 
tion of  the  section  being  to  enable  any 
person  to  apply  for  a  revocation  of 
letters  of  guardianship,  as  where  no 


relative  of  the  infant  is  willing  to 
make  the  application.  As  to  whether 
a  suppression  of  facts  is  equivalent 
to  "  a  false  suggestion  of  a  material 
fact,"  under  subdivision  4  of  that  sec- 
tion, quan-e.  (Boiling  v.  Coughlin,  5 
Rodf.  110.)      See  ante.  §  433. 

9!>  The  expressed  preference  of  the 
wards  for  a  particular  person  (e.  (j., 
a  maternal  aunt),  and  the  likelihood 
that  a  lack  of  harmony  would  ensue 
from  a  contest  between  themselves  and 
the  present  guardian  of  their  persons, 
if  justifying  a.  bcliet  tliat  the  welfare 
of  the  infants  requires  it.  warrant  a 
substitution  of  guardians.  (flatter 
of  Byrnes,  N.  Y.  Law  J..  Oct.  25. 
1890.) 

1  Corn  V.  Corn,  supra.  A  testa- 
mentary guardian  cannot  be  removed 
on  the  ground  that  a  member  of  his 
family  nas  an  evil  influence  upon  the 
ward;  for  the  statute  only  prescribes 
removal  in  case  oi  Tuisconduct  in  tlie 
execution  of  the  trust  rendering  the 
guardian  unfit.  ( Mackay  v.  Fuller- 
ton,  4  Dem.  153;  s.  c.  as  Matter  of 
King,  2   How.  Pr.   fX-  S.]   307.) 

2  Ledwith  v.  Union  Trust  Co.,  8  Dem. 
439. 


§§  1047-104!)  GuARDIA^'8iIIP.  860 

plained  of  may  be  cited  to  show  cause  why  such  a  decree  should 
not  be  made."  ^  Upon  the  presentation  of  the  petition,  "  the  sur- 
rogate must  inquire  into  the  matter ;  and,  for  that  purpose,  he 
may  issue  a  subpoena  to  any  person,  requiring  him  to  attend  and 
testify  in  the  premises.  If  the  surrogate  is  satisfied  that  there  i& 
probable  cause  to  believe  that  the  allegations  of  the  petition  are 
true,  he  must  issue  a  citation  to  the  guardian  complained  of."  ^ 

§  1C47.  Temporary  suspension  of  guardian. —  Upon  issuing  the 
citation,  "  the  surrogate  may,  in  his  discretion,  make  an  order 
suspending  the  guardian,  wholly  or  partly,  from  the  exercise  of 
his  powers  and  authority,  during  the  pendency  of  the  special  pro- 
ceeding. A  certified  copy  of  an  order  so  made  must  accompany 
the  citation,  and  be  served  therewith ;  but,  from  the  time  when 
it  is  made,  the  order  is  binding  upon  the  guardian  and  upon  all 
other  persons,  without  service  thereof,  subject  to  the  exceptions 
and  limitations  prescribed  in  "  the  Code,^  with  respect  to  a  de- 
cree revoking  letters.® 

§  1048.  Proceedings  on  return  of  citation. —  Upon  the  return  of 
the  citation,  if  the  material  allegations  of  the  petition  are  estab- 
lished, the  surrogate  is  required  to  make  a  decree  revoking  the 
guardian's  letters  accordingly;  except  that  where  the  basis  of  the 
application  for  removal  is  the  giiardian's  alleged  refusal  or  neg- 
lect to  obey  a  direction  as  to  his  duty,  or  the  fact  that  letters  have 
been  obtained  by  false  suggestion,  the  surrogate  must  dismiss  the 
proceedings,  under  the  like  circumstances  and  upon  the  like  terms, 
as  prescribed  in  sections  2686,  2687,  of  the  Code,  where  a  similar 
complaint  is  made  against  an  executor  or  administrator.^  A  mere 
allegation  in  the  petition  of  conclusions  of  fact,  though  it  may- 
be sufficient  to  give  the  surrogate  jurisdiction  to  issue  the  citation, 
is  not  enough  to  justify  judicial  action,  and  the  petition  should 
be  dismissed,  unless  the  guardian  appears  and  ansAvers  without 
objection.® 

§  1049.  Decree  revoking  letters. —  The  revocation  of  letters  is 
effected  by  a  decree  of  the  Surrogate's  Court,  to  that  effect.     It 

3  Co.  Civ.  Proe.,  §  2832.  the  same  time  to  pay  a  gross  sum  tO' 

4  Co.   Civ.   Proc.   §   2833.      The   ex-  the   infant,    to   be    disbursed   by   him.. 
tent    of    the    inquiry    is    entirely    dis-  (Matter  of  Plumb,  52   Hun,   119.) 
c-retionary     with     him.        (Matter     of  7  Co.   Civ.   Proc.,   §   2833. 

Plumb.  21    St.  Rep.    107.)  8  Matter  of  Plumb,  21   St.  Eep.   107. 

■T  In  §8  2603,  2004.     See  §  448,  ante.  In  that  case,  no  objection  being  made 

6  Co.    Civ.    Proc,    §    2834.      And   see  to    the    form    of    the    petition.^  Held, 

id.,    §    2481.   subd.   4;    ante,    §    .52.     A  that  the  obiection  was  waived,  and  an 

surrogate  has  no  power  to  suspend  a  order  of  reference  was  affirmed. 

general   guardian,    and  direct   him   at 


861  CJLAUl.lA.NSllll'.  §  1050. 

Avill  follow,  of  course,  where  a  guardian  is  removed  for  any  of  the 
causes  previously  mentioned  in  this  chapter;  so,  where  he  fails 
to  renew  his  official  bond,'^  or  where  he  resigns  and  is  discharged. 
Upon  tlic  entry  of  the  decree  of  revocation,  the  guardian's  powers 
K'case ;  and  the  surrogate  may,  thereby,  direct  him  to  account,  and 
pay  and  deliver  over  money  or  property  of  the  estate;  but  previous 
acts,  in  good  faith,  are  protected. ^^  The  surrogate  may,  thereupon, 
appoint  a  successor,  "  as  if  the  letters  had  not  been  issued,"  and  the 
powers  of  such  successor,  as  to  compelling  accounting,  etc.,  are  pre- 
seril)('(l."  The  guardian's  powers  are,  of  course,  revoked  by  his 
•death ;  and  the  surrogate  has,  thereupon,  the  same  jurisdiction,  on 
the  petition  of  his  successor,  or  of  a  surviving  guardian,  or  of  the 
ward,  etc.,  to  compel  the  decedent's  representative  to  account  for 
and  deliver  over  the  trust  property,  which  is  in  his  possession  or 
under  his  contml,  which  he  would  have,  as  against  the  decedent,  if 
his  letters  had  been  expressly  revoked.^"  An  appeal  from  a  decree 
revoking  the  letters  does  not  stay  its  execution,  and  the  same  rule 
applies  where  the  decree  removes  or  suspends  a  guardian. ^"^ 

TITLE  SECOA^D. 

FOKEIGX    GUARDIAXS    AXD    ANCILLARY    LETTERS. 

§  1050.  Foreign  guardianship. —  The  appointment  of  a  guardian 
for  the  person  or  the  ])ro})erty  of  an  infant  is  an  act  of  jurisdic- 
tion dependent  upon  the  situation  of  the  person  or  the  property 
within  the  territory  of  the  State,  not  upon  the  fact  of  citizenshi])." 
In  the  absence  of  any  statutory  sanction  to  foreign  guardianships, 
money  due  to  an  infant  cannot  be  legally  collected  by  a  guardian, 
judicially  appointed  in  another  State  from  that  where  the  col- 
lection or  payment  is  to  be  made.^^  Thus,  a  guardian  appointed 
out  of  the  State  is  not  entitled  to  receive,  from  executors  or  ad- 

9  Co.  Civ.  Proc,  §§  2599,  2601;  rooted  by  the  siirroorate.  in  thp  exorcise 
?  462,  ante.  of  the  authority  oonforrod  by  Co.  Civ. 

10  Co.  Civ.  Proc.  §§  260.3:  Phillips  Proo.,  §  2606. "  to  pay  the  fund  into 
A".  Liebniann,  10  A]ip.  Div.  128:  41  court,  as  porniittod  under  section  260.'], 
X.  V.   Supp.   1020.  and   not   to   pay   it    over   to   the    wird 

11  Co.    Civ.    Proc.    §    260.).      In   Poo-  without  providiiifi  for  the  payment  of 
pie    V.    \\anislov    (lo    Abb.    Pr.    ,323),  claims.       (Matter    of    Hicks.    .''.4    App. 
it  was  hold,  that  the  surrojiate  mijrht  Div.  .182:  (\i>  X.  Y.  Supp.  1028.) 
appoint   the   successor   without   rojrard  i"?  Co.  Civ.  Proc.  §  2.583. 

to   whether    the   ward   resided,    at    the         14  McTxiskey  v.   Reid.   4   Bradf.    334. 

time,  in  the  surrojiate's  county.  See  ^fatter  of  ITosford.  2  Redf.  168. 

12  Co.  Civ.  Proo..  §  2606.  See  ante,  i".  MoLoskey  v.  Peid,  supra.  And 
§§  923a,  1044.  Upon  the  coniinp;  of  see  Trimble  v.  Dzieduzyiki,  57  How. 
age  of  a  ward  whoso  jreneral  truardian  Pr.   208. 

has   died,   his   executor   should   be   di- 


^§  lo.")!,  1052.  GuARDiAA-siiip.  862- 

ministrators  here,  the  portion  of  the  infant/^  or  to  be  recognized 
bv  the  courts  of  this  State.^^ 

^  1051.  Petition  for  ancillary  letters,  where  infant  resides  in  the 
United  States. — The  Code,^^  however,  provides  that  "  where  an  in- 
fant, who  resides  without  the  State  and  within  the  United  States, 
is  entitled  to  property  within  the  State,  or  to  maintain  an  action 
in  any  court  thereof,  a  general  guardian  of  his  property,  who 
has  been  appointed  by  a  court  of  competent  jurisdiction,  within 
the  State  or  Territory  where  the  ward  resides,^^  and  has  there 
given  security,  in  at  least  twice  the  value  of  the  personal  prop- 
erty, and  of  the  rents  and  profits  of  the  real  property,  of  the  ward,, 
may  present,  to  the  Surrogate's  Court  having  jurisdiction,  a  writ- 
ten petition,  duly  verified,^*^  setting  forth  the  facts,  and  praying 
for  ancillary  letters  of  guardianship  accordingly.  The  petition 
must  be  accompanied  with  exemplified  copies  of  the  records  and 
other  papers,  showing  that  he  has  been  so  appointed,  and  has  given 
the  security  required"  as  above;  which  must  bo  authenticated  in 
the  mode  prescribed  in  the  Code,^^  for  the  authentication  of  rec- 
ords and  papers,  upon  an  application  for  ancillary  letters  testa- 
mentary, or  ancillary  letters  of  administration. 

§  1052.  Same ;  where  infant  resides  in  foreign  country. —  Where 
an  infant  resides  within  a  foreign  country,  and  is  entitled  to  per- 
is Aiorrell  V.  Dickey,  1  .Johns.  Ch.  to  the  surrogate  for  an  order  directing 
153;  Williams  v.  Storrs,  fi  id.  .3.53:  the  city  chamberlain  to  pay  to  him 
McLoskey  v.  Reid.  supra.  Where  the  money,  deposited  to  the  credit  of  the 
English  Court  of  Chancery,  when  re-  infants  pursuant  to  a  decree  of  the 
fusing  to  award  the  custody  of  the  surrogate.  Held,  the  payment  would 
minor  to  the  American  guardian,  de-  not  be  ordered  until  original  or  an- 
creed  that  the  guardian  should  trans-  ciliary  letters  were  obtained  here, 
mit  tne  income  of  the  minor's  prop-  18  Co.  Civ.  Proc,  §  2838. 
erty  to  England,  to  be  disposed  of  19  Where  a  nonresident  father,  hav- 
under  the  direction  of  that  court,  the  ing  taken  out  letters  of  guardianship 
surrogate  refused  permission  to  the  in  another  State,  of  n  infant  residing 
guardian  to  transmit  the  funds  in  this  State,  petitioned  for  ancillary 
abroad.  (Matter  of  Dawson.  3  Bradf.  letters  of  guardianship  here,  the  ap- 
130.)  And,  in  Matter  of  Bi  illey  (1  plication  was  denied  on  the  ground 
Tuck.  422),  the  surrogate  declined  to  that  the  original  letters  were  not 
order  pa\mient  of  a  legacy-  to  a  for-  granted  within  the  State  where  the 
eign  guardian,  though  the  tvill  pro-  ward  resided.  (Gritfin  v.  Sarsfield,  2 
vided    that  money  or   property   which  Dem.   4.) 

might,    under   it,   become  vested   in   a  20  A  petition  verified  by  an  attorney 

minor,  might  be  delivered  to  any  for-  of  the   foreign   guardian,  where   tuere> 

eign    guardian, —  a    guardian    h  ving  is   no   proof   of   the   power   of   the   at- 

heen  appointed  for  the  infant  legatee  torney  to  act.  other  than  his  own  dec- 

in  this  State.  laration.  is  not  suthcient.      (Matter  of 

I'West  V.  Gunther,  3  Dem.  38G.    In  \\  hitieniore,  1   Connoly,  15.5;   9  N.  Y. 

>ratter  of  Hanneman    (N.  Y.  Law  .1..  Siipp.  29G. ) 

Anril    11,   1890),  the  attorney  in  fact  ^i  In   §   2704,  as  amended  1897. 
of  a  foreign  general  guardian  applied 


863  GiAicDiANsiiii'.  g§  lO.'vJ,  HJ54. 

sonal  property  within  this  State,  or  to  maintain  an  action  or  a 
special  })roceeding  here  rcf^pecting-  such  property,  a  general  guard- 
ian of  his  j)r()2)erty,  authorized  to  act  as  such  within  llic  fDrcign 
country  where  the  ward  resides,  may  ai)ply  to  the  Surrogate's 
Court  of  the  county  where  such  personal  property  or  any  part 
thereof  is  situated,  for  ancillary  letters  of  guardianship  on  the 
personal  estate  of  the  infant.  The  person  so  authorized  must 
present  a  verified  petition,  setting  forth  the  facts,  and  accompany 
it  with  the  exemplified  copies  of  the  records  and  other  papers 
showing  his  appointment;""  or,  where  he  has  not  been  appointed 
by  any  court,  with  other  proof  of  his  authority  to  act  as  such 
guardian,  in  the  foreign  country,  and  also  with  proof  that,  pur- 
suant to  the  laws  of  that  country,  he  is  entitled  to  the  possession 
of  the  ward's  personal  estate. 

§  1053.  Decree  granting  letters. —  Where  the  surrogate  is  satis- 
fied, upon  the  pajxTs  ])rcsonte(l,  that  the  case  is  within  the  stat- 
ute, "  and  that  it  will  be  for  the  ward's  interest  that  ancillary 
letters  of  guardianship  should  be  issued  to  the  petitioner,  he  may 
make  a  decree  admitting  the  exemplified  copies  of  the  foreign 
letters  to  be  recorded,  and  granting  ancillary  letters  accordingly. 
Such  a  decree  may  be  made  without  a  citation  ;  or  the  surrogate 
may  cite  such  persons  as  he  thinks  proper,  to  show  cause  why  the 
prayer  of  the  petition  should  not  be  granted.  But  before  the  an- 
cillary letters  are  issued,  the  surrogate  must  inquire  whether  anj 
debts  are  due  from  the  ward's  estate  to  residents  of  the  State ;  and,, 
if  so,  he  must  require  payment  thereof."  "^ 

§  1054.  Security  by  ancillary  guardian. — "\Miere  the  foreiirn 
guardian  appointed  within  the  Ignited  States  has  given,  in  the 
foreign  jurisdiction,  "security"'*  in  at  least  twice  the  value  of  the 
personal  property,  and  of  the  rents  and  profits  of  the  real  prop- 
erty of  the  Avard,"  ancillary  letters  are  issued  to  him  here  T/ithout 
securitv  and  without  oath  of  office.     But  in  the  case  of  a  a'uardian 


22  Co.  Civ.  Proc,  §  2S3S,  as  amended  lilicato.   under    the    iirinei])al    seal    of 

1897.      (L.    1807.   p.  402.)      "Exempli-  the  department    of  foreifxn    afFairs.   or 

tied    copies    of    the    records.     •     •      »  f\^^    department    of    justice    of    sudi 

must  ho  authenticated  by  th*^  seal   of  country,  attested  hy  the  siirnature  or 

the   court,   or   ofTicer,  by   which   or   1)V  seal  of  a  United  States  •  diisul."     (lb.) 
whom  such   foreip;n  Cfnardian  was  ap-         2.*!  Co.   Civ.    l*roc      S    28150. 
pointed,     or     the     officer     havintj     the         24  In  ^^lattcr  of  Fitdi    (3  Redf.  4.>7 ) . 

custody  of   the   seal   or   of  the   record  the  foreijjn  sriiardian  1iad  entered  into 

thereof,  and  the  signature  of  a  judfre  a    mere    covenant,    witli    sureties,    not 

of    such    com-t,    or    the    signature    of  under   seal,   for   the   faithful   perform- 

such   officer   and   of  me  clerk  of  such  ance  of  his  trust.      Held,   insufficient, 

court    or    officer,    if    ony;    and    must  See  Matter  of  Cordova,  4  Redf.  G6. 
be   further  authenticated  bv  the  cer- 


:gg  1055,  1U5G.  GuAKiJiAA-.siiu',  86-i 

appointed  in  a  foreign*  country,  giving  of  security  is  not  a  condi- 
tion precedent  to  a  grant  of  ancillary  letters. ^^ 

§  1055.  Powers  of  ancillary  guardian  of  property. —  Ancillary 
letters  authorize  the  person  to  whom  they  are  issued  to  demand 
and  receive  the  personal  property,  and  the  rents  and  profits  of  the 
real  property,  of  the  ward ;  to  dispose  of  them  in  like  manner  as 
£L  domestic  guardian  of  'the  j^roperty ;  "  to  remove  them  f  rcnn  the 
State;  and  to  maintain  or  defend  any  action  or  special  proceed- 
ing in  the  ward's  behalf."  If  the  letters  are  issued  on  the  petition 
of  a  guardian  appointed  in  a  foreign  country,  they  authorize  the 
person  appointed,  "  to  demand  and  receive  the  jDcrsonal  estate  of 
the  ward,  and  to  dispose  of  it  in  like  manner  as  a  guardian  of 
property  appointed  [as  above],  and  to  maintain  or  defend  any 
action,"  etc.  But  in  neither  case  do  such  letters  authorize  him 
''  to  receive,  from  a  resident  giiardian,  executor,  or  administrator, 
or  from  a  testamentary  trustee,  subject  to  the  jurisdiction  of  a 
Surrogate's  Court,  money  or  other  property  belonging  to  the  ward, 
in  a  case  where  letters  have  been  issued  to  a  giiardian  of  the  in- 
fant's property,  from  a  Surrogate's  Court  of  a  county  within  the 
State,  upon  an  allegation  that  the  infant  was  a  resident  of  that 
county;  except  by  the  special  direction,  made  upon  good  cause 
shown,  of  the  Surrogate's  Court  from  which  the  principal  letters 
were  issued ;  or  unless  the  principal  letters  have  been  duly  re- 
voked." 26 

§  1056.  Foreign  guardianship  of  the  person. —  The  extent  to 
wliieh  the  court  will  recognize  the  authority  of  a  judicially  ap- 
pointed foreign  guardian  over  the  person  of  the  ward,  when  brought 
within  our  jurisdiction,  is  a  matter  within  the  discretion  of  the 
court,  to  be  exercised  in  view  of  the  circumstances  of  the  case,  and 
with  due  regard  both  to  the  doctrines  of  comity  and  the  interests 
of  the  infant  on  our  soil.^^ 


25  Co.  Civ.  Proc,  §  2840.     See  Mat-  guaraian  of  a  nonresident  infant,  with 

ter  of  Hunt.  24  Civ.   Proc.  Rep.  2.39 ;  a  view  to  the  removal  of  the  latter's 

f)8  St.  Rep.  828.  property  from  the  State,  except  upon 

Sfi  Co.  Civ.  Proc  §  2840.     This  sec-  the  application  of  such  foreign  guard- 

tion    applies    to    letters    issued    before  ian  himself,  and  unless  it  appears  that 

September  1.   1880.  "by  a  Surrogate's  the    removal    of    the    ward's    property 

•Court  of  the  State,  to  a  guardian  ap-  out  of  this  State  will  not  conflict  with 

pointed  by  a   court  of  another   State,  the  ward's  ownership. 

or  a   Territory  of  the  United   States,  27  Compare  Xiigent  v.  Vetzera,  L.  R.. 

iipon  a  presentation  of  an  exemnlified  2  Eq.  704:  McLoskey  v.  Reid.  4  Bradf. 

transcript    of    the    record    of    his    ap-  .334 :    Matter  of  Biolley,  1  Tuck.  422 ; 

pointment."     (Co.  Civ.  Proc,  §  2841.)  Townsend   v.    Kendall.'  4    Minn.    412: 

It  was  said,  in  the  :Matter  of  Fitch   (3  .Tohnstone  v.   Bcattie,    10   Clark   &   F. 

Tledf.   4.57).   that   letters  of  guardian-  114. 

ship   will   not  be   issued   to   a   foreign  , 


865  GrAKDiAxsiiii-,  §>^  1057,  1058. 

§1057.  Revocation  of  ancillary  letters. —  Altlionij;li  the  Code 
(l(Hs  not  expressly  aiitlioi'izc  tlie  riAocat  ion  of  ancillarv  letters,  vet 
sueli  j)o\ver  exists,  and  will  he  exercised  when  facts  are  subse- 
quently ])roscnte(l  sliowin^-  that  the  wai'd's  interests  will  Ije  ])nt  in 
jeopardy  by  perniittin*^  their  continuance,  and  this,  althouiih  the 
principal  letters  have  not  been  revoked.  In  determining  the  ])ro- 
])riety  of  investments  by  a  foreign  guai'dian,  for  the  ])urp(jse  of  an 
application  for  sucli  revocation,  the  laws  of  this  State,  and  the 
rules  establisbed  by  our  courts,  affecting  the  cf)ntrol  and  manage- 
ment of  trust  funds,  must  govern,  and  not  those  of  the  State  of 
the  guardian's  residence.^' 

TITLE  THIRD. 

GUARDIANS  BY  WILL  OR  DEED. 

§  1058.  Appointment  by,  and  for,  whom. —  The  power  of  a  par- 
ent to  appoint,  by  deed  or  will,  a  guardian  of  his  infant  children 
does  not  exist  in  the  absence  of  a  statute  conferring  it ;  and  the 
Legislature  may  define,  limit,  and  regulate  the  authority  of  guard- 
ians, and  may  prescribe  the  conditions  under  which  it  shall  be 
exercised.  The  statutes  of  this  State,  in  reference  to  testamen- 
tary guardians,  relate  exclusively  to  domiciliary  guardianshi])  un- 
der wills  or  deeds  of  residents  of  this  jurisdiction."*^  The  statu- 
tory provision  authorizing  the  father  of  a  minor  unmarried  child 
to  appoint,  by  deed  or  last  will,  a  guardian  for  its  custody  and 
tuition  during  minority  or  for  any  less  time,  and  authorizing  the 
mother  to  nmke  such  appointment,  in  like  manner,  in  case  of  the 
failure  of  the  father  to  do  so,  and  of  his  death, ^*^  was  radically 
changed  by  the  Legislature  of  189.3,  by  which"''^  a  married  woman 
was  constituted  and  declared  to  be  the  joint  guardian  of  her  children 
with  her  husband,  with  (upuil  powers,  rights,  and  duties  in  regard 

28  .Johnson  v.  .Tohnson,  4  Doni.  9.3.  under  tho  Revised  Statutes.  (Thom- 
29WuesthofF  V.  Gerniania  Life  Ins.  son  v.  Tliomson.  .5.5  How.  Pr.  4!U ; 
Co..  107  X.  Y.  .580.  Fitzjrerald  v.  Fitzgerald.  24  Hun. 
•W  2  R.  S.  1.50,  §  1.  as  amended  L.  .370.)  For  eases  under  the  former 
1871.  e.  32;  L.  1888,  e.  454.  The  see-  statute,  see  Ruppert's  Estate.  1  Turk, 
tion  of  the  aet  (L.  1802,  o.  172.  §  fi)  480;  People  v.  Boioe.  30  Barb.  .307; 
which  declared  that  no  man  should  People  v.  Wanisley.  1;5  Abb.  Pr.  323. 
<'reate  a  testamentary  guardian  for  his  For  the  common-law  rule,  see  Fuller- 
child  unless  the  mother,  if  living,  ton  v.  .Tackson.  ;5  .Johns.  Ch.  278: 
should  signify  her  consent  thereto  in  Hoyt  v.  Hilton.  2  Fdw.  202. 
writing,  was  repealed  by  T..  1871,  31 L.  1893.  c.  175.  In  1890,  this  act 
c.  32.  It  was  intended  to  dispense  was  repealed  and  its  provision^*  car- 
wit  h  the  consent  of  the  mother,  and  ried  into  the  l')omcstic  Relations  Law 
1n  reinstate  the  father  in  his  unquali-  •  (L.  1896,  c.  272.  §  51). 
tied    right    to    appoint,    as    it    existed 

55 


§  1U5U,  GuAKDiAxsiiip.  86a 

to  tlicni  witli  tlie  lnis})and.  Upon  the  death  of  either  father  or 
inoth(>r,  the  surviving  parent,  whether  of  full  age  or  a  minor^ 
of  a  child  likelv  to  be  born,  or  of  any  living  child,  nnder  the  age 
of  twenty-one  years  and  unmarried,  was  authorized  by  deed  or 
last  wnll,  duly  executed,  to  dispose  of  the  custody  and  tuition  of 
such  child  during  its  minority,  or  for  any  less  time,  to  any  per- 
son or  persons.  Formerly,  a  married  woman  could  not  appoint  a 
guardian  of  her  child,  the  issue  of  her  marriage  with  her  living 
husband  f^  and  the  fact  that  the  marriage  had  been  dissolved  by 
a  decree  of  divorce  made  no  difference.^^  But  now  the  right  of 
adoption  is  a  joint  right;  neither  parent  has  the  exclusive  right 
of  appointment  while  the  other  is  living,^*  even  with  the  consent 
of  the  latter.^^  The  "  child  "  may,  it  seems,  include  an  adopted 
child,^*'  but  a  testator  cannot  appoint  a  guardian  of  another  per- 
son's child,  e.  g.,  his  grandchild,  as  such.^^ 

§  1059.  Powers  and  duty  of  guardian. —  Where  there  are  no 
words  indicating  the  duration  of  the  guardianship,  it  is  to  be  in- 
ferred it  was  intended  to  create  a  guardianship  for  the  whole 
period  of  the  child's  minority.^®  The  power  of  appointment  is  not 
confined  to  the  guardianship  of  either  the  person  or  of  the  prop- 
erty of  the  child,  if  it  have  any  property.  The  appointee  is 
vested  with  the  powers  and  is  subject  to  the  duties  of  guardian 
of  such  child,  with  respect  of  its  custody,  support,  maintenance, 
and  education,  out  of  the  estate,^^  and  of  the  custody  and  manage- 
ment of  the  personal  estate,  and  i:)rofits  of  the  real  estate ;  and  is 
valid  and  effectual  against  every  other  person  claiming  the  cus- 
tody or  tuition  of  such  minor,  as  guardian  in  socage  or  other- 
wise f^  and  is  not  defeated  by  a  subsequent  appointment  by  the 

32  Beardsley  v.  Hotchkiss,  96  N.  Y.  4  Bradf.  3.34 ;  Rieck  v.  Fish,  1  Dem. 
201.  79:  Matter  of  Moody,  2  id.  024;  Toler 

33  Griffin  v.   Sarsfield,  2  Dem.  4.  v.  Landon,  3  id.  337.     As  to  the  effect 
3-i  Matter   of   Howard,   5   Misc.   293;     of   an    indorsement   upon   a   certificate 

Matter  of  Zwickert,  id.  272 :  2()  N.  Y.  of  benefit  insurance,  directing  payment 
Supp.  773;  Matter  of  Alexandre,  2.5  to  a  person  as  guardian,  see  Arm- 
Civ.  Proc.  Rep.  42;  3.5  X.  Y.  Supp.  strong  v.  Warren,  83  Hun,  217;  31  N. 
6.58:  ]\Iatter  of  Schmidt,  77  Hun,  201;  Y.  Supp.  66.5. 

28  X.  Y.  Supp.  350.  38  :\ratter  of  Reynolds,   11   Hun.  41. 

35  ^Matter  of   Schmidt,  supra.  As  to  what  language  in  a  will  amounts 

3C  See  §   815,  ante.  to  an  appointment  of  a  guardian,  see 

37  Matter  of  Lichtenstadter,  5  Dem.  Corrigan    v.    Kiernan.    1    Bradf.    208 ; 

214.      Xexcrthelcss,    a    provision    in    a  Hagerty  v.  Hagerty,  9  Hun,  175. 

will  attempting  to  appoint  a  guardian         30  Clark    v.    Montgomery,    23    Barb. 

of  grandcliildren    may   be   effectual    as  404. 

creating  the   person   a   trustee  of  the        40  L.  1896,  c.  272,  §  52,  re-enacting 

legacy    bequeathed    to    them,    and    the  2  R.  S.  150,  §§  2,  3.     The  persons  who 

surrogate  may  direct  payment  thereof  are     to     be     deemed     "  guardians     in 

to  him.     (lb.)     See  McLoskey  v.  Reid,  socage"  are  specified  in  1  R.  S.  718, 


867  Glai:ijia.\!S1iip.  §  lOGO. 

siirrogate.^^  lie  may  take  the  custody  and  charge  of  the  tuition 
of  such  minor,  and  may  maintain  all  proper  actions  for  the  wrong- 
ful taking  or  detention  of  the  minor,  and  shall  recover  damages 
in  such  actions  for  the  benefit  of  his  ward.  He  shall  also  take  the 
custody  and  management  of  the  personal  estate  of  such  minor  and 
the  profits  of  his  re,al  estate,  during  the  time  for  which  such 
disposition  shall  have  been  made,  and  may  bring  such  actions  in 
relation  thereto  as  a  guardian  //(-  socage  might  by  law.^^  Where 
two  persons  are  named  in  a  will  as  "  joint  giuirdians  "  of  the  per- 
son and  estate  of  the  minor,  and  one  of  them  refuses  to  act,  all 
the  rights  and  powers  created  by  the  appointment  become  vested 
in  the  other  guard i an. ^^ 

§  1060.  Prerequisites  to  authority  to  act. —  The  Code"*"*  forbids  a 
person  to  exercise,  within  the  State,  any  power  or  authority,  as 
guardian  of  the  person  or  property  of  an  infant,  by  virtue  of  an 
appointment  contained  in  the  will  of  the  infant's  father  or  mother, 
being  a  resident  of  the  State,  and  dying  after  September.  1,  1880, 
"  unless  the  will  has  been  duly  admitted  to  probate,'*^  and  recorded 
in  the  proper  Surrogate's  Court,  and  letters  of  guardianship  have 
Ixcii  issued  to  him  thereupon;  or  by  virtue  of  an  appointment 
contained  in  a  deed  of  the  infant's  father  or  mother,  being  a  resi- 
dent of  the  State,  executed  after"  the  same  date,  "unless  the 
deed  has  been  acknowledged  or  proved,  and  certified,  so  as  to 
entitle  it  to  be  recorded,  and  has  been  recorded  in  the  ofiice  for 
recording  deeds  in  the  county,  in  which  the  person  making  the 
ai)i)ointinent  resided,  at  the  time  of  the  execution  thereof.  Where 
a  deed  containing  sndi  an  ai)])ointment "is  not  recorded,  within 
three  months  after  the  death  of  the  grantor,  the  person  appointed 


§§  5,  7.     See  Fununn  v.  Van  Sisc.  .'jiJ  45  it  was  said,  in  2  Kent "s  Comm.  225, 

K.  Y.  435.  tliat  a  will  merely  appointinf;  a  testa- 

41  People  ex  rel.  Brooklyn  Industrial  nicntary  guardian  need  not  be  proved. 
Seluol  V.  Kearney.  ;n  iVarb.  4oO;  1!)  'Hiere  'was  then  no  statutory  pro- 
How.  l*r.  493;  21  ul.  74.  The  appoint-  vision  on  this  point.  The  mere  tiling, 
nient  of  a  testamentary  guardian  with  the  surrogate,  of  a  duly  authen- 
operates  to  prevent  the  appointment  tieated  will,  admitted  to  probate  in 
of  a  guardian  by  the  surrogate,  upon  another  State  will  not  entitle  the  ap- 
the  petition  of  tiie  infant,  after  he  has  ])ointec  therein  named,  to  letters  of 
reaehed  the  age  of  fourteen  years,  guardianship.  The  foreign  will  must 
(.Matter  of  Reynolds,  11  Hun,  4i.)  lirst    be   admitted    to    probate   here    in 

■i^Jj.  1890.  e"  272.  §  52.  the  manner   pointed  out  by  the  Code. 

43  Matter  of  Reynolds,  supra.  (Matter  of  Mehler.  X.  Y.  Law  J..  .June 

44  Co.  Civ.  Proc"..  S  2851.  This  see-  23,  1S92.)  J^-tters  of  guardianship 
tion  is  not  applicable  to  an  ai)point-  should  not  issiu>  to  a  nonresident 
ment  made  before  September  1.  1880.  alien,  though  appointed  by  will.  (Mat- 
( Matter  of  Sehroeder.  65  How.  Pr.  ter  of  Taylor.  3  Redf.  259:  Matter  of 
194.)     See  also  L.  189C,  c.  272,  §  51.  Zeller,  25  Misc.    137.) 


§§  1061,  1062.  GuAKDIA^-SIIIP.  868 

is  presumed  to  have  renounced  the  appointment ;  and  if  a  guardian 
is  afterward  duly  appointed  bv  a  Surrogate's  Court,  the  presump- 
tion is  conchisive." 

§  1061.  Oath  of  testamentary  guardian;  letters;  renunciation. — • 
Where  a  will,  containing  the  appointment  of  a  guardian,  is  ad- 
mitted to  probate,  the  person  appointed  must,  within  thirty  days 
thereafter,  take  the  oath  of  office;"*''  "otherwise  he  is  deemed  to 
have  renounced  the  appointment.  But  the  surrogate  may  extend 
the  time  so  as  to  qualify,  upon  good  cause  showm,  for  not  more 
than  three  months.'*^  And  any  person  interested  in  the  estate 
may,  before  letters  of  guardianship  are  issued,  file  an  affidavit 
setting  forth,  with  respect  to  the  guardian  so  appointed,  any  fact 
which  is  made  by  law  an  objection  to  the  issuing  of  letters  testa- 
mentary to  an  executor."  '^^  A  person  appointed  guardian  by 
will  may,  at  any  time  before  he  qualifies,  renounce  the  appoint- 
ment by  a  wa'itten  instrument,  under  his  hand,  filed  in  the  surro- 
gate's office.'*^ 

§  1062.  Requiring  security  from  testamentary  guardian. —  In  the 
case  of  a  guardian  appointed  by  will  or  by  deed,  "  the  infant,  or 
any  relative  or  other  person  in  his  behalf,  may  present,  to  the 
Surrogate's  Court  in  which  the  will  was  admitted  to  probate;  or 
to  the  Surrogate's  Court  of  the  county  in  which  the  deed  v.'as 
recorded;"  a  petition,  setting  forth  any  fact,  "respecting  the 
guardian,  the  existence  of  which,  if  it  was  interposed  as  an  ob- 
jection to  granting  letters  testamentary  to  a  person  named  as 
executor  in  a  will,  would  make  it  necessary  for  such  a  person  to 
give  a  bond,  in  order  to  entitle  himself  to  letters ;  and  praying 
for  a  decree,  requiring  the  gTiardian  to  give  security  for  the  per- 
formance of  his  trust."  Upon  the  presentation  of  such  a  petition, 
and  proof  of  the  facts  therein  alleged,  to  the  satisfaction  of  the 
surrogate,  he  must  issue  a  citation  accordingly.  "  Upon  the  re- 
turn of  the  citation,  a  decree  requiring  the  guardian  to  give  secu- 
rity may  be  made,  in  the  discretion  of  the  surrogate,  in  a  case 


46  As   prescribed   in   Co.   Civ.   Proc.,  tinjjencv,    he    is    deemed    to    liave    re- 

§  2.594.     See  ante,  §  300.  nounced.      (lb.) 

•iTThat  is,  three  months  from  the  48  Co.  Civ.  Proc.,  §  28.52.  Sections 
probate  of  the  will.  (Matter  of  Con-  2(i.30  to  2038  of  the  Code,  both  in- 
stantine,  22  St.  Rep.  883.)  Where  elusive,  apply  to  such  an  affidavit  and 
the  appointment  is  to  take  effect  upon  to  the  proceedings  thereupon.  (lb.) 
the  happening  of  a  contingency,  un-  49  Co.  Civ.  Proc.  §  28.52.  This  pro- 
less  he  qualifies  within  the  required  vision  is  inapplicable  to  the  case  of  a 
time,  after  the  happening  of  the  con-  will   proved  before   September   1.1880. 

(Geoghegan  v.  Foley,  5  Redf.  501.) 


869  GuAKiiiANsiiii'.  §§  1063-1065. 

where  a  person  so  named  as  execntor  can  entitle  himself  to  let- 
ters tcstanipntary  onlv  hy  givinj^  a  bond  ;  but  not  otherwise."  ^ 

^  1063.  Requiring  inventory  and  account  to  be  filed Uj^on  the 

petition  of  the  ward,  or  of  ;iiiy  rcdative  or  orlior  person  in  Ins 
behalf,  the  Surrogate's  Court  having  jurisdiction  to  require  secu- 
rity, as  above  mentioned,  "  may,  at  any  time,  in  the  disorotion 
of  the  surrogate,  make  an  order,  requiring  a  guardian,  appointed 
by  will  or  by  deed,  to  render  and  file  an  inventory  and  account, 
in  tlie  same  form,  and  verified  in  the  same  manner,  as  the  inven- 
tory and  account  required  to  be  filed  annually  l)y  a  guardian  ap- 
pointed by  a  Surrogate's  Court."  ^^  The  order  may  also  require 
such  an  inventory  and  account  to  be  filed,  in  the  month  of  January 
of  each  year  thereafter."" 

§  1064.  Judicial  settlement  of  account. —  The  Surrogate's  Court 
may  also  compel  a  judicial  settlement  oi  the  account  of  the  guard- 
ian, in  any  case  where  it  may  compel  a  judicial  settlement  of  the 
account  of  the  general  guardian;  and  the  proceedings  to  procure 
such  a  settlement  are  the  same  as  if  the  guardian  had  been  ap- 
pointed l)y  the  court.  By  the  amendment  of  1891,  the  guardian 
was  authorized  to  petition  voluntarily  for  a  judicial  settlement  of 
his  account,  and  a  discharge  from  his  duties  and  liabilities,  in  any 
case  where  he  may  be  compelled  to  account,  as  above. ^^ 

ij  1065.  Effect  of  decree. —  A  decree,  made  upon  the  judicial  set- 
tlement of  the  account  of  a  guardian  appointed  by  will  or  by  deed, 
or  the  judgment  rendered  upon  appeal  from  such  decree,  has  the 


50  Co.  Civ.  Proc,  §  2853.  An  order  elusive,  apply  to  such  an  inventory 
of  the  surrogate  denying  the  applica-  :ind  aeeouut/and  to  the  tiling  tlu-rcof, 
tion  for  the  appointment  of  the  guard-  as  if  the  guardian  had  been  appointed 
ians  designated  in  a  will,  on  the  by  the  Surrogate's  Court.  See  ante, 
objection  taken  that  they  were  non-  §  1030.  So,  also,  section  284(3  of  the 
residents  of  the  State,  and  that  their  Code  (direction  as  to  infant's  main- 
pecuniary  circumstances  were  such  tenance),  applies  to  a  guardian  ap- 
that  they  could  not  furnish  adequate  pointed  by  will  or  deed  with  the  same 
security, —  Held,  not  authorized;  if  effect  as  if  such  guardian  had  been 
the  bond  offered  was  not  large  enougli  mentioned  in  said  section,  and  the 
he  should  ])r('seribe  the  amount  and  proceedings  therein  prescribed  mav  be 
kind  of  bond  to  be  given,  and  \ipon  had  in  the  case  of  any  such  guardian 
their  giving  it,  he  is  bound  to  issue  in  the  same  manner  as  if  he  wen'  a 
letters  of  guardianship,  pursuant  to  general  guardian.  (lb.,  as  amended 
Co.    Civ.    Proc,    §    2852.      (Matter   of  1890.)      See  ante,  §  1020. 

Welsh,   50   App.   Div.    189;    63   N.   Y.        53  Co.  Civ.  Proc,  §  2850.  as  amended 

Supp.  737.)  1891.    Sections  2733  to  2737,  inclusive. 

51  Co.  Civ.  Proc,  §  2855.  and  sections  2741   and  2744.  are  made 

52  Co.  Civ.  Proc.  §  2855.  Sections  applicable  to  this  p.'oceedinf^.  See 
2842   to    2845   of   the   Code,    both    in-  §§  833,  1035,  ante. 


§§  lOGG-1068.  Guardianship.  870 

same  force  as  a  judgment  of  the  Supreme  Court  to  the  same 
effect.-'" 

§  1066.  Compensation. —  A  guardian  appointed  bv  %nll  or  deed 
is  declared  to  be  entitled  to  the  same  compensation  as  a  general 
guardian  a])pointed  by  the  court. ^'^ 

§  1067.  Removal  of  testamentary  guardian. —  The  Surrogate's 
Court  may,  upon  the  petition  of  the  ward,  or  of  any  relative  or 
other  person  in  his  behalf,  remove  a  guardian,  by  will  or  deed,  in 
any  case  where  a  testamentary  trustee  may  be  removed;^*'  and 
the  proceedings  are  the  same  as  for  the  removal  of  a  testamentary 
trustee.  Where  a  citation  is  issued,  upon  a  petition  for  the  re- 
moval of  such  a  guardian,  he  may  be  suspended  from  the  exer- 
cise of  his  powers  and  authority,  as  if  he  had  been  appointed  by 
the  Surrogate's  Court.^^  An  order  of  removal  will  be  revoked, 
at  any  time,  on  its  appearing  that  the  cause  justifying  the  removal 
no  longer  exists,  the  guardian  being  otherwise  a  suitable  person.^^ 

§  1068.  Resignation  and  appointment  of  successor. —  The  guard- 
ian may  be  allowed  to  resign,  by  the  Surrogate's  Court  having 
jurisdiction  to  require  security  from  him.  The  proceedings  for 
that  purpose  and  the  effect  of  the  decree  thereon  are  the  same 
as  where  a  general  guardian's  letters  are  revoked.  If  the  resign- 
ing or  removed  guardian  was  sole  guardian,  a  successor  may  be 
appointed  by  the  court,  unless  such  appointment  would  contra- 
vene the  express  terms  of  the  will  or  deed.^^ 

54  Co.  Civ.  Proc,  §  2857.  Redf.  198.)      The  fact  that  a  will,  by 

55  Co.  Civ.  Proc,  §  2856,  as  amended  which  a  guardian  is  appointed  for  an 
1891.  A  sum  of  money  given  by  the  infant  child  of  the  testeitor,  had  been 
will  for  services  to  be  rendered  by  the  admitted  to  probate,  there  having  been 
guardian,  is  not  a  legacy,  and  if  the  no  contest  on  the  question  of  testa- 
person  designated  does  not  act  as  mentary  capacity,  will  not  preclude 
guardian  he  is  not  entitled  to  receive  the  court  from  passing  upon  the  ques- 
it.  (Matter  of  Brigg,  39  App.  Div.  tion  of  the  testator's  mental  condi- 
485;  57  N.  Y.  Supp.  390;  affd.,  165  tion,  on  a  subsequent  application  to 
N.  Y.  673.)      See  §  1,  ante.  remove  the  guardian.      (lb.)      The  Su- 

50  He  can  be  removed  only  upon  the  preme  Court  has  authority  to  remove 

grounds   which    would    justify   the   re-  a    testamentary   guardian    (Matter   of 

moval     of     a     testamentary     trustee.  Watson,  10  Abb.  N.  C.  215;  Matter  of 

(Matter   of    King,    8    Civ.    Proc.    Rep.  Waldron,  13  Johns.  418;  People  cj;  reZ. 

159,  n. ;  2  How.  Pr.  [N.  S.]  307;  affd.,  Brush  v.  Brown.  35  Hun,  324:  Matter 

4   St.    Rep.    570;    42   Hun,   007.)      See  of  \Yelch,  74  N.  Y.  299),  and  the  pro- 

§  449,  ante.    Misconduct  of  the  guard-  ceeding   for   that   purpose   may  be   in- 

ian'.s   son   toward   the   ward,    not   con-  stituted  by  petition.      (Matter  of  Liv- 

nived     at     or     countenanced     by     the  ingston,  34  N.  Y.  555 ;  Wilcox  v.  Wil- 

guardian,  is  not  sufficient  ground  for  cox,    14   id.   575;    Matter   of  King,   42 

such  removal.      (Mackav  v.  Fullerton,  Plun,  007.) 

4    Dem.    153.)       Before 'the   Code,    the  57  Co.  Civ.  Proc,  §  2858. 

surrogate  had  power  to  remove  a  tes-  58  Damarell  v.  Walker,  supra;  Mat- 

tamentary  guardian  on  grounds  which  ter  of  Raborg,  3  St.  Rep.  323. 

will  warrant  the  removal  of  a  general  59  Co.  Civ.  Proc,   §§   2859,  2860. 
guardian.       (Damarell    v.    Walker,    2 


CHAPTER  XXL 

SURROGATES'     DECREES:      THEIR     EFFECT     AND 
ENFORCEMENT. 


TITLE  FIEST. 


COLLATERAL    IMPEACIIMI-:XT    OF    SUKROGATES      IJECREES, 

§  1069.  Conclusive  effect  of  surrogates'  decrees. —  The  doctrine  of 
estoppel  by  former  judgment  is,  of  course,  apjdicaljle  to  surro- 
gates' decrees,  except  so  far  as  the  statute  has  expressly  defined 
the  extent  of  the  evidential  eifect  of  such  decrees,  or  has  limited 
tlie  operation  thereof  to  particuhn-  persons.  It  should  be  re- 
marked, in  the  first  place,  that  decrees  which  admit  wills  to  pro- 
bate, grant  letters  testamentary  or  of  administration,  direct  the 
sale  of  real  projierty  to  ])ay  debts,  am],  finally,  such  as  judicially 
settle  the  accounts  of  legal  re])resentatives,  testamentary  trustees, 
and  guardians,  and  direct  a  distribution  of  the  surplus,  are  of 
the  nature  of  judgments  //(  rem  as  distinguished  from  those  m 
personam.  They  are  judicial  declarations  of  the  state  and  condi- 
tion of  some  particular  thing  or  subject-matter,  by  a  court  of  ex- 
clusive, or  at  least  of  peculiar,  jurisdiction;  they  are  not  founded 
on  a  proceeding  against  a  ]HU"son  or  persons,  as  such,  but  against 
the  thing  or  subject-matter  itself,  and  hence  the  general  rule,  that 
they  are  conclusive  against  the  whole  world,  and  not  merely 
against  the  parties  or  their  privies,  as  in  the  case  of  judgnncnts 
//(  personam;  provided,  always,  that  the  court  had  competent  au- 
thority to  make  them,  and  that  notice,  either  actual  or  con- 
structive, was  given  of  the  proceeding  in  which  they  were  pro- 
nounced. Statutes  which  declare  the  effect,  as  evidence,  of  cer- 
tain classes  of  decrees  will,  of  course,  supersede  the  general  rule, 
whenever  the  evidential  effect  of  that  class  of  decrees  is  called  in 
question,  the  rule  being  that  when  there  is  such  a  statute,  a 
decree  is  conclusive  only  so  far  as  it  is  made  so  by  the  statute.' 
The  statutes  declaring  the  effect,  as  evidence,  of  certain  decrees 
in  Surrogates'  Courts  will  be  mentioned  here,  witli  some  illustra- 


1  T?ank     of     Pou^hkeepsie    v.     Hasbrouck,  6  N.  Y.  216.  and  cases   infra. 

[871] 


§1070.  Surrogates'  Decrees:  872 

tions  of  their  application  to  particular  facts  and  circumstances, 
but  Avithont  any  attempt  to  encompass  the  whole  of  this  branch 
of  the  law  of  estoppel.^ 

i^  1070.  Effect  of  probate  decree,  as  to  personalty —  The  Revised 
Statntes  provided  that  "  the  prol)ate  of  any  will  of  personal  prop- 
erty taJven  by  a  surrogate  having  jurisdiction,  shall  be  conclusive 
evidence  of  the  validit^^  of  such  will,  unless  such  probate  be  re- 
versed on  appeal  or  revoked  by  the  surrogate,  or  the  will  be  de- 
clared void  by  a  competent  tribunal.""'  By  the  Code  of  Civil 
procedure,  this  provision  is  made  to  read  as  follows :  "  A  decree 
admitting  to  probate  a  will  of  personal  property,  made  as  pre- 
scribed in  this  article  [?'.  e.,  article  first  of  title  third  of  chapter 
eighteen],  is  conclusive,  as  an  adjudication,  upon  all  the  questions 
determined  by  the  siirrogate  pursuant  to  this  article,  until  it  is 
reversed  upon  appeal,  or  revoked  by  the  surrogate;  except  in  an 
action  brought  under  section  2653a  of  this  act  to  determine  the 
validity  or  invalidity  of  such  will ;  and  except  that  a  determina- 
tion made  under  section  2624  [/.  e.,  upon  the  construction,  valid- 
ity, or  effect  of  a  disposition  of  personal  property,  if  any,  made 
by  the  surrogate  upon  the  probate],  is  conclusive  only  upon  the 
petitioner  and  each  party  who  was  duly  cited  or  appeared;  and 
every  person  claiming  from,  through,  or  under  either  of  them."  * 

According  to  the  interpretation  given  the  former  statute,  "  the 
validity "  of  the  will,  of  which  the  probate  was  evidence,  had 
reference  only  to  the  due  execution  of  the  instrument,  and  the 
freedom  and  competency  of  the  testator, —  because  those  ques- 
tions marked  the  limit  of  the  surrogate'sj'urisdiction.^     The  dif- 

2  The  eA'idential  effect  of  certain  de-  Vanderpoel  v.  Van  Valkenbiirph,  6  N. 
crees,  such,  for  instance,  as  that  wiven  Y.  190:  Campbell  v.  Logan,  2  Biadf. 
by  Co.  Civ.  Proc,  s  2552,  to  a  de-  90:  Bailey  v.  Hilton.  14  Hun,  3. 
cree  directing  payment  by  a  repre-  4  Co.  Civ.  Proc,  §  2626.  as  amended 
.sentative  to  a  creditor,  legatee,  or  dis-  1807.  In  an  action  under  section 
tributee.  or  permitting  a  judgment  2r)5.3a,  the  decree  is  presumptive, 
creditor  to  issiie  execution,  has  been  merely,  of  the  due  execution  and  valid- 
mentioned  elsewhere  under  the  head  ity  of  the  will.  The  term  '"  probate  " 
of  the  proceeding  in  which  they  were  is  not  employed  by  the  Code  of  Civil 
granted.  Procedure  in  a  concrete  sense ;  accord- 

3  2  R.  S.  61,  §  29.  This  provision  ingly,  this  section  prescribes  the  effect 
was  held  not  modified  by  the  subse-  of  a  decree,  and  not  of  the  probate,  as 
quent  statute  ( L.  1837,  c!  460,  §  18),  in  the  Revised  Statutes.  As  to  the 
which  made  the  provision  of  2  R.  S.  effect  of  the  decree  of  a  probate  court 
58,  §  15.  relating  to  reading  wills  of  in  another  State,  see  Matter  of  Law, 
real  property  in  evidence,  applicable  56  App.  Div.  454;  67  N.  Y.  Supp. 
to   wills   of   personal    property.      (Van  857. 

derpoel  v.  Van  Valkenburgh.   6  N.  Y.  ^>  See  Waters  v.  Cullen.  2  Bradf.  354. 

190.)       See    Colton   v.    Ross,    2    Paige,  Prior     to     the    enactment    of     section 

396:    Bogardus   v.    Clark,    4    id.    623;  2653a    it  was  held  that   ,1  claim   that 

Morrell  v.  Dickey,   1  Johns.  Ch.    153;  a  will  of  personal  property,  which  has 


873  TjiKHfi  Effect  and   K.nfokckmknt.  §  1071. 

ference  in  phraseology'  will  not  jnstifv  giving  any  other  meaning 
to  the  present  statutory  provision, —  the  factum  of  the  will  still 
being  the  only  issne  in  a  probate  proceeding,  strictly  so-called/' 
So,  the  effect  given  to  the  former  statute,  that  tiir-  probate  was 
conclusive  upon  everybody,  and  not  merely  upon  parties  to  the 
probate  and  those  clainiing  under  them,  is  the  same  as  that  given 
to  the  provision  of  the  present  Code.  The  only  exception  made 
is  in  respect  to  an  adjudication  upon  "  the  construction,  validity, 
nnd  eifect "  of  wills,  which  may  now  be  made  by  the  same  decree 
which  admits  the  will  to  probate;  as  to  which  last  adjudication 
the  decree  is  conclusive  only  on  the  petitioner  and  parties  duly 
cited,  or  who  appeared,  and  those  claiming  under  them.  Upon 
the  question  of  the  factum  of  the  instrument,  the  decree  is  con- 
clusive against  the  wdiole  world,  with  the  single  exception  speci- 
fied in  the  statute.  The  clause  in  the  former  statute  which  de- 
dares,  in  eifect,  that  a  will  may,  notwithstanding  probate,  be 
declared  void,  in  matter  of  substance,  ''by  a  competent  tribunal," 
is  omitted  from  the  latter  statute,  as  superfluous;  but  while  the 
validity  of  particular  provisions  of  a  will  may  still  be  litigated, 
notwithstanding  the  probate  of  the  instrument,  yet,  if  that  ques- 
tion was  adjudicated  by  the  decree  of  probate,  the  decree  is  con- 
clusive, except  on  appeal,  on  the  petitioner  and  each,  party  cited,  or 
who  appeared,  and  every  person  claiming  from,  through,  or  under 
either  of  them,  and  on  those  only.'  It  seems  that  a  wnll  which, 
has  once  been  rejected,  may,  at  the  instance  of  one  not  a  party  to 
the  original  proceeding,  be  again  presented  for  probate  and  the 
question  of  its  proper  execution  and  validity  determined.^ 

§  1071.  Effect  of  decree,  as  to  realty. —  In  respect  to  the  effect 
of  probate  of  wills  of  real  estate,  the  Revised  Statutes  distin- 
guished between  two  classes  of  cases,  viz.:  (1)  "Where  one  or  more 
of  the  subscribing  witnesses  to  the  will  were  examined  upon  the 


been  admiltod  to  probate,  was  obtained  direct  or  collateral  proceedinfr  by  an 
by  undue  influence  and  fraudulent  adjudication  of  invalidity,  by  a  corn- 
representations,  must  be  litifirated.  and  ])etent  tribunal.  ]?ut  a  declaration 
the  instrument  assailed  as  invalid  on  that  the  will  is  void,  made  by  such  a 
that  account,  in  the  first  instance  in  tribunal,  as  contemiilated  by  the  stat- 
the  Surrofjates'  Courts.  (Smith  v.  utc,  does  .\()t  reverse  the  probate,  but 
Hilton.  oO  Hun.  23() ;  IH  St.  Rep.  340;  operates  to  supersede  it:  because  the 
2  N.  Y.  Supp.  820.)  To  same  effect  declaration  is  based  upon  the  :  ubstan- 
are  Anderson  v.  Appleton.  48  Hun.  tial  illejrality  of  the  provisions  of  the 
.534:  Clark  v.  Fisher,  1  Paige.  171;  will.  (Bogardus  v.  Clark,  4  Paige, 
Walter  v.  Fowler,  85  N.  Y.  G21 ;  Ha-  G23.) 
gerty  v.  Andrews,  94  id.   105.  8  Matter  of  Tilden.  5t)  App.  Div.  277. 

«See  §  254,  ante.  See   Corley    v.    McElmcel,    149    N.    Y. 

"Assuming    that     the     )ir(>]>ate    was  228,  235. 
regular,    it    can    be    overthrown    in    a 


■§  1071.  Surrogates'  Decrees:  874 

probate;  and  (2)  where  it  satisfactorily  appeared  that  all  the  sub- 
scribing witnesses  were  dead,  insane,  or  nonresidents  of  the  State, 
and,  according^ly,  other  proof  than  their  examination  was  received. 
In  the  first  class  of  cases,  besides  providing  that  the  will,  in 
dorsed  with  the  surrogate's  certificate  of  proof,  might  "  be  read 
in  evidence  without  further  proof  thereof,"  ^  the  statute  declared 
that  the  record  of  such  will  in  the  surrogate's  book,  or  an  ex- 
emplification thereof,  "  shall  be  received  in  evidence  and  shall 
be  as  effectual  in  all  cases  as  the  original  will  would  be,  if  pro- 
duced and  proved,  and  may  in  like  manner  be  repelled  by  con- 
trary proof."  ^'^  In  the  second  class  of  cases,  the  will  was  to  be 
deposited  with  the  surrogate,  and  does  not  appear  to  have  been 
invested  with  any  evidential  character;  but  it  was  declared  that 
the  record  of  the  proofs  and  examinations  taken  on  the  probate, 
or  the  exemplifications  of  such  record,  "  shall  be  received  as  evi- 
dence upon  any  trial  or  controversy  concerning  the  same  will, 
after  it  shall  have  been  proved,  on  such  trial  or  controversy,  that 
the  lands  in  question  therein  have  been  uninterruptedly  held 
under  such  will  for  the  space  of  twenty  years  before  the  com- 
mencement of  the  suit  in  which  such  trial  or  controversy  shall 
be  had;  and  shall  be  of  the  same  force  and  effect  as  if  taken  in 
open  court  upon  such  trial  or  in  such  controversy."  ^^  Under 
these  provisions,  the  utmost  effect  of  the  probate  was  to  make  it 
■equivalent  merely  to  that  of  acknowledging  or  proving  the  exe- 
cution of  a  deed.  The  evidence  was  not  conclusive.  ^^  And 
where  none  of  the  subscribing  witnesses  were  examined  upon  the 
probate,  the  effect  of  the  record,  or  exemplification  of  the  record 
of  the  proofs,  was  still  further  circumscribed  by  requiring  it  to 
be  supplemented  by  proof  of  twenty  years'  adverse  possession 
under  the  will.  This  somewhat  extended  examination  of  the  i-ule 
nnder  the  Revised  Statutes  has  been  made  because  it  is  believed 
that  the  meaning  of  the  portions  of  the  present  Code  upon  the 
same  subject  can  be  fully  apprehended,  if  at  all,  only  by  a  comi- 
parfson  with  the  statutes  upon  which  they  are  based. 

The  Code  provides,  that  "  a  decree,  admitting  to  probate  a  will 
of  real  property,  made  as  prescribed  in  this  (ISth)  article,  estab- 
lishes, presumptively   only,   all  the   matters   determined   by   the 


» See    Co.    Civ.    Proc,    §    2629,    for  2.3.5.     See  Bogardus  v.  Clark.  4  Paige, 

the  counterpart  of  this  provision,  and  G23 ;   Harris  v.  Harris,  26  N.  Y.  433. 

§  247,  ante.  As  to  effect  of  probate  under  L.  1870, 

10  2  R.  S.  .58,  §   15.  c.  .359,  §   11,  see  Bensen  v.  Manhattan 

112  R.   S.  59,  §    18.  R.   Co.,    14  App.    Div.    442;    43   N.   Y. 

12  Jackson  v.  Rumsey,  3  Johns.  Ca«.  Supp.   914. 


S75  TnKiu  Effect  and  E.xfokckmk.xt,  §  1071. 

surrogate,  pursuant  to  tliis  article,  as  against  a  party  who  was 
■duly  cited,  or  a  person  claiming  from,  tlirougli,  or  under  him; 
or  upon  the  trial  of  an  action,  or  the  hearing  of  a  special  pro- 
•ceediiig,  in  which  a  controN'orsy  ai'ises  concerning  the  will,  or 
where  the  decree  is  ])rodnced  in  evidence,  in  favor  of  or  against 
a  jierson,  or  in  a  case  specified  in  this  section,  the  testimony  taken 
in  the  special  proceeding,  wherein  it  was  made,  may  l)e  read  in 
evidence,  with  the  same  force  and  effect  as  if  it  was  taken  upon 
the  trial  of  the  action,  or  the  hearing  of  the  special  proceeding, 
wherein  the  decree  is  so  ])roduced."  ^^  It  confirms  the  former 
rule,  in  so  far  as  it  makes  the  decree  presumptive  only.-''*  Its  true 
interpretation  appears  to  us  to  be  a  matter  not  entirely  free  from 
difficulty,  although  the  revisers'  note  refers  to  it  as  based  on  the 
isection  of  the  Revised  Statutes,  above  quoted,  "  without  material 
•change."  Inasmuch  as  the  only  opportunity  to  apply  the  doc- 
trine of  presumptive  evidence  seems  to  be  in  the  course  of  a 
litigation,  we  construe  the  effect  of  this  provision  to  be  — 

First,  to  make  the  surrogate's  decree  granting  probate  of  a  will 
of  real  property,  presumptive  evidence  of  the  due  execution  of 
the  will  and  of  the  freedom  and  competency  of  the  testator,  in 
any  action  or  special  proceeding,  as  follows:  (a).  As  against  one 
who  was  duly  cited  to  attend  the  probate,  or  a  person  claiming 
from,  through,  or  under  him;  at  any  stage  of  the  proceedings, 
iind  in  whatever  manner  a  (question  nuiy  arise,  upon  which  the 
•evidence  is  available  to  his  adversary,  {b)  As  against  any  other 
person ;  upon  the  former  trial  or  hearing,  where  such  person  seeks 
to  impugn  the  will  in  any  of  the  particulars  above  specified;  and 


!■'!  Co.  Civ.  Proc,  §  2G27,  as  must  be!  admitted  to  probate  as  "  a 
amended  1881,  the  amendment  consist-  will  valid  to  pass  real  property." 
ing  in  omitting  the  words  "  where  it  means  an  instrument  duly  executed 
is  proved  that  the  real  property  in  which  undertakes  in  terms  to  convey 
question  has  been  uninterruptedly  that  species  of  property.  The  court's 
held,  under  the  will,  for  at  least  decision  probating  a  will  in  those 
twenty  y«'ars  before  the  action  was  terms  has  not  the  elTect  of  an  adjudi- 
-commenced  or  the  special  proceeding  cation  as  to  the  validity  of  the  de- 
instituted," —  which  followed  the  vises  in  the  will.  (Matter  of  Mer- 
words  "concerning  the  will."  riam,  1.3(5  N.  Y.  58;  48  St.  Rej).  807.) 

n  Xorris  v.  Norris.  (),"3  How.  Pr.  324 ;  To  tlie  same  effect,  Corlev  v.  McElmeel, 

Thorn  V.  Sheil,  1.")  Abb.  Pr.   (N.  S.)  81.  14!)    X.    Y.    228;    43    X.' E.    Rep.    ()28. 

The  record  of  the  will  is  presumptive  Compare   X'aylor    v.    Brown,    32    Misc. 

evidence  only  to  its  due  execution  and  2!)8 ;    Baxter   v.    Baxter,    70   Hun,   98; 

the  mental  capacity  and  freedom  from  27  X".  Y.  Supp.  834 ;  Rankin  v.  Janes, 

restraint   of   the   testator,   not   of   the  10    App.    Div.    400;    41    X\    Y.    Supp. 

validity    of    a    devise    therein    in    any  1129;  Bowen  v.  Sweeny.  30  Hun.  :^'^'^■. 

tribunal  where  the  title  to  the  realty  '^^^  X.  Y.  Supp.  400:   affd.,   1.54  X.  Y. 

mav   be    in    issue.      The    provision   of  780. 
Co.'  Civ.    Proc.,    §    2G1G,   that   the   will 


§§1072,1073.  Surrogates'  Decrees:  87a 

Secondly,  to  allow  the  testimony  taken  upon  the  probate  to  be 
read  in  support  of  the  decree,  in  either  case. 

The  policy  of  the  law  is  measurably  obscure;  and  its  resem- 
blance to  the  pre-existing  regulations  is  not  striking. 

v;  1072.  Effect  of  letters  testamentary,  etc.,  as  evidence. —  Except 

as  bft^rcen  different  letters  on  the  same  estate,  letters  testamen- 
tary, letters  of  administration,  and  letters  of  guardianship  "  are 
conclusive  evidence  of  the  authority  of  the  person  to  whom  they 
are  granted,  until  the  decree  granting  them  is  reversed  upon 
appeal,  or  the  letters  are  revoked."  ^^  Surrogates'  Courts  have 
sole  and  exclusive  jurisdiction  over  the  subject  of  granting  letter.5 
testamentary,  and  of  administration,  and,  as  a  part  of  that  juris- 
diction, have  power  to  determine,  upon  sufHcient  evidence,  the 
facts  upon  which  their  action  must  rest.^*^ 

§  1073.  Conclusive  effect  of  judicial  settlement  of  representatives* 
accounts. —  The  Code  declares  that  "a  judicial  settlement  of  the 
account  of  an  executor  or  administrator,  either  by  the  decree  of 
the  Surrogate's  (^ourt,  or  upon  an  appeal  therefrom,  is  conclusive 
evidence,  against  all  the  parties  who  were  duly  cited  or  appeared, ^''^ 
and  all  persons  deriving  title  from  any  of  them  at  any  time,  of 
the  following  facts,  and  no  others:  (1)  That  the  items  allowed 
to  the  accounting  party,  for  money  paid  to  creditors,  legatees,  and 
next  of  kin.  for  necessary  expenses,  and  for  his  services, ^^  are  cor- 
rect. (2)  That  the  accounting  party  has  been  charged  with  all 
the  interest  of  money  received  by  him,  and  embraced  in  the 
account,  for  which  he  was  legally  accountable.  (3)  That  the 
money  charged  to  the  accounting  party,  as  collected,  is  all  that 


lij  Co.  Civ.  Proc,  §  259k  See  tion  beintr  that  the  affidavit  Avas  taken 
Leonard  v.  Columbia  Steam  Nav.  within  the  limits  of  his  jurisdiction- 
Co.,  84  N.  Y.  48;  Abbott  v.  Curvan.  08  See  Skelton  v.  Scott.  18  Hun.  375; 
id.  665:  Brown  v.  Landon.  .30  Hun,  Lowman  v.  Elniira.  etc.,  R.  Co..  8.5- 
57;  4  Civ.  Proc.  Rep.  11;  Sullivan  v.  Hun,  188:  32  X.  Y.  Supp.  579;  Morc- 
Tioga  R.  R.  Co.,  7  St.  Rep.  637;  12  v.  Finch.  65  Hun.  404:  20  N.  Y.  Supp. 
Civ.  Proc.  Rep.  301.  In  Crosier  v.  164:  Czech  v.  Bean,  35  Misc.  729:  72 
Cornell  Steamboat  Co.   (27  Hun,  215),  N.  Y.   Supp.  402. 

it  appeared  that  a  petition  for  letters  IG  Bolton    v.    Schriever.    135     X.    Y. 

of  administration   was   verified  before  65.     The  subject  of   impeaching  judg- 

"  J.  P.  C,  Xotary  Public."     Xo  sepa-  ments,  for  the  court's  lack  of  jurisdic- 

rate   affidavit  of   verification   was    ap-  ti(m    to   grant    it.    is    mentioned    on    a 

pended.    but   a    jurat,    thus :     "  Sworn  subsequent  page. 

before   me."    etc.      It    did    not    appear  17  As  to   those  not  cited,  the  repre- 

whether  the  notary  was  for  the  county  sentative    remains    liable    to    account, 

of   the    surrogate   who    issued    the    let-  (Matter   of   Lamb,    10    Misc.    638:    32 

ters.      Held,    that   the   jurisdiction    of  X.    Y.    Supp.   225.) 

the  surrogate  to  grant  the  letters  on  18  Matter  of  Prentice.  2rt   App.  Div. 

such   a  verified   petition   could  not   be  209:    49   X'.    Y.   Supp.    353:    affd.,    16* 

impeached    collaterally,    the    presump-  N.  Y.  568.. 


877 


TiiKiit  Effect  asd  Exfokcfment. 


§  1074. 


was  collectible,  at  the  time  of  the  settlement,  on  the  debts  stated 
in  the  account.  (4)  That  the  allowances  made  to  the  accounting 
])arty,  for  the  decrease,  and  the  charges  against  him  for  the  in- 
crease, in  the  value  of  property,  were  correctly  made."  ^^ 

§  1074.  Application  of  statute. —  In  the  first  place,  observe  that 
the  ul)jcL't  i»f  the  statute  was  ti)  make  certain  facts  final  after  they 
should  1)0  adjudged  by  the  surrogate,  as  against  creditors  and 
others,  in  favor  of  the  executors  or  administrators,  as  ftur1i.~"  Con- 
sequently, the  decree  is  not  .a  bar  to  an  action  brought  for  the 
enforcement  of  a  trust  of  Avliich  the  accounting  parties  become 
trustees,  ex  mnleficio,  "where  the  matter  was  not  embraced  in  the 
accounts,  and  the  question  was  not  litigated  on  th.e  settlement. ^^ 
Othenvise,  however,  where  the  matters  in  dispute  were  passed 


19  Co.  Civ.  Proc.  §  •2742.  The  orifr- 
inal  of  this  provision  (2  R.  S.  94, 
^  65)  did  not  cure  defeets  in  the  juris- 
diction of  the  subjeot-matter  of  the 
settlement:  the  decree  being  not  con- 
clusive, even  in  the  resf^ects  enumer- 
ated, as  to  a  claim  of  which  the  sur- 
rojrate  had  not  jurisdiction.  (Tucker 
V.  Tucker,  4  Abb".  Ct.  App.  Dec.  428.) 
See  Brown  v.   Brown.  .5.3  Barb.  217. 

20  Bunk  of  Pouglikeepsie  v.  Has- 
brouck.  0  N.  Y.  210.  In  that  case, 
the  payee  of  a  note  of  the  intestate 
had  pledged  it,  but  concealing  this 
fact,  he  claimed  payment  frcm  tlie  ad- 
ministrator, representing  that  it  was 
lost,  and  the  administrator  paid  him, 
and.  upon  his  final  accounting,  had  it 
allowed  to  himself,  upon  the  distribu- 
tion. Held,  that  the  payee,  who  had 
not  presented  the  demand,  nor  ap- 
peared before  the  surrogate,  was  en- 
titled to  proceed  against  the  estate, 
or  to  recover  the  money  from  the  ad- 
ministrator, as  received  to  his  use. 
As  to  the  effect  of  the  decree  upon 
the  right  of  the  executor  to  recover 
an  excessive  payment  on  account  of  a 
legacy,  see  Undcrhill  v.  Bmlwell.  IS 
App.'  Div.   .3G1  :   40  X.   Y.  Supp.  22. 

21  Fulton  V.  ^Vhitney.  OG  N.  Y.  r)4S. 
YoT  a  case  where  the  decree  was  held 
not  to  be  a  bar  to  an  action,  by  lega- 
tees who  were  not  parties  to  the  ac- 
counting, to  obtain  a  construction  of 
the  decedent's  will,  and  in  effect  to 
review  the  deterinination  of  the  surro- 
gate, .see  Fislier  v.  B;inta.  fifi  N.  Y. 
468.  See  also  Matter  of  Gall,  42  App. 
Div.  2.55 ;  50  X.  Y.  Supp.  254.  Where, 
by  its  terms,  the  decree  was  not  final. 


but  assets  remained  in  the  hands  of 
the  accounting  party  which  he  was 
directed  by  the  decree  to  thereafter 
use  diligence  to  collect,  a  party  to  the 
proceeding  is  not  concluded  by  the  de- 
cree, in  an  action  brought  by  him  to 
enforce  a  claim  against  the  decedent. 
It  is  not  necessary  for  him  to  show  in 
such  an  action  that  anything  has  been 
or  might  have  been  since  collected,  al- 
though this  inquiry  may  become  nec- 
essary, when  an  enforcement  of  the 
judgment  is  attempted.  (Sheldon  v. 
Sheldon,  .3.3  St.  Bcj).  754:  11  X.  Y. 
Supp.  477.)  So,  where  the  accounting 
is  by  co-representatives,  the  decree  is 
no  bar  to  an  action  by  one  against  the 
other,  for  a  debt  due  by  the  latter  to 
the  estate,  and  which  did  not  enter 
into  the  accounting.  ( Wurts  v.  .Ten- 
kins.  11  Barb.  546.)  See  Merritt  v. 
Merritt,  33  Misc.  230:  07  X.  Y.  Supp. 
188.  Where  both  of  two  representa- 
ti\es  were  cited  to  account,  but  one 
of  Ihcm  assumed  to  act  alone,  and 
alone  accounted  and  was  treated  by 
the  court  as  accounting  for  the  whole 
estate: — Held,  that  this  was  a  fin:il 
settlement  of  the  whole  estate,  and  not 
a  partial  settlement  of  the  accounts  of 
onlv  one  of  its  representatives.  (  Peo- 
ple'v.  Townsend,  37  Barb.  520.)  See 
Matter  of  Valentine.  22  X.  Y.  Supp. 
105.  A  decree  directing  executors  to 
transfer  to  themselves  as  trustees  the 
corpiifi  of  the  trust  estate  is  conclu- 
sive as  an  adjudication  of  the  exist- 
ence of  the  trust.  (Matter  of  Garth. 
10  App.  Div.  100;  41  X.  Y".  Supp. 
1022.)  See  Brown  v.  Wheeler,  53 
App.  Div.  6. 


§  lOT-i.  SuKKOGATEs'  Deckkks  :  878 

upon  by  the  docrce.^^  The  decree^  and  the  formal  discharge  con- 
tained in  it,  relate  only  to  his  accounts  up  to  that  period;  other 
assets  may  be  realized,  and  new  liabilities  incurred  f^  and  where, 
on  the  accounting,  a  creditor  does  not  take  his  share  of  the  fund, 
the  representative  retains  it  in  his  capacity  as  such.^^  In  the  second 
place,  a  party. to  an  accounting  is  bound  to  exhaust  the  remedies 
afforded  by  that  proceeding,  and  any  relief  which  the  court  might 
or  ought  to  have  granted^  cannot  afterward  be  obtained,  by  action,, 
in  another  court.^''  Thus  a  claim  that  an  administrator  was 
chargeable  upon  certain  notes  made*by  him  and  held  by  the  estate 
at  a  greater  rate  of  interest  than  he  paid  thereon,  cannot  be  raised 
after  a  judicial  settlement  of  the  account  at  which  the  claim  could 
have  been  raised.^^  But  a  party  is  not  concluded  as  to  a  matter 
which  Avas  not  properly  before  the  court  and  not  made  the  basis 
of  any  decision,  e.  g.,  the  construction  of  a  will  as  to  real  property, 
where  the  accounting  deals  only  with  personalty.^'  In  the  next 
place,  Avhere  several  successive  accountings  are  had,  each  based 
upon  the  one  preceding,  the  validity  of  each  previous  accounting 
being  unchallenged  by  any  objection,  the  last  decree  is  binding 
and  conclusive  as  to  the  validity  of  those  preceding  it.^^  But  the 
rule  of  estoppel  by  a  former  accounting  does  not  apply  I'oyond 
the  question  of  the  funds  di-iributed,  and  consequently  one  set  of 

22  Shimmel  v.  Morse,  57  App.  Div.  A  final  decree  against  an  administra- 
434;  distinguishing  Fulton  v.  Whit-  tor,  adjudging  money  in  his  hands  t.o 
ney,  supra.  See  Rhodes  v.  Caswell,  41  be  due  and  j)ayable  to  parties  entitled. 
App.  Div.  229;   58  N.  Y.  Supp.  470.  runs    against    him    personally    and    de 

23  Matter  of  Hovt,  160  N.  Y.  607;  bonis  propriis.  (Lanev  v.  Laney,  47 
55  X.  E.  Rep.  282;  Matter  of  Doheny,  St.  Rep.  99;  19  N.  Y.  Supp.  518.)  So, 
70  App.  Div.  370 ;  75  N.  Y.  Supp.  24.  too,  an  execution  upon  such  decree. 
Tlie  last  ease  dealt  with  the  eonclusivo  (Matter  of  Waring,  7  Misc.  502:  28 
effect  of  a  decree  settling  the  accounts  N.  Y.  Supp.  393 ;  Matter  of  Quacken- 
of  temporary  administrators  upon  bos.  38  ^lise.  66.  See  §  468,  ante. 
their  subsequent  accounting  as  trus-  25 1.aney  v.  Laney,  47  St.  Ren.  99: 
tees  under  the  will.  19  X.  Y.   Sur.p.  518.     But  see  IMatter 

24  Paff  V.  Kinney,  1  Bradf.  1 ;  :\ra-  of  Whitbeck,'  22  Misc.  494 ;  50  X.  Y. 
honey  v.  Bernhard,  45  App.  Div.  499.  Supp.   932. 

In  that  case.  Barrett,  J.,  said:  "It  26  Matter  of  Gilbert,  104  X.  Y.  200. 
is  true  that  when  executors,  under  a  27  Corse  v.  Chapman,  lo3  X.  Y.  466 ; 
purrogate's  decree  upon  their  account-  Washbon  v.  Cope,  144  id.  287 ;  6S 
ing,  turn  over  to  themselves,  as  trus-  St.  Rep.  716;  Trustees  of  Amherst 
tees,  the  balance  of  the  estate  found  College  v.  Ritch,  151  X.  Y.  282.  Com- 
to  be  in  their  hands,  it  is  tantamount  pare  Matter  of  Perkins,  75  Hun,  129; 
to  a  dischai-ge  with  respect  to  the  26  X.  Y.  Supp.  958 :  Brown  v.  Wheeler^ 
property  so  turned  over.  But  the  ex-  53  App.  Div.  6 :  65  X.  Y.  Supp.  436. 
ecutorial  functions  are  not  absolutely  28  Matter  of  Tilden.  98  X.  Y.  434; 
terminated  thereby;  and  we  cannot  at  Matter  of  Douglas.  60  App.  Div.  64; 
fill  agree  to  the  appellant's  proposi-  69  X.  Y.  Supp.  687 :  ^Matter  of  Union 
tion  that  thus  'the  executors  be-^-Tvo  Trust  Co.,  65  App.  Div.  449.  See  Mat- 
ron-existent.' They  were  in  legal  in-  ter  of  Clapp,  30  Misc.  395;  63  X.  Y. 
tendment  discharged  pro  tanto.''  Com-  Supp.  1090. 
pare    Paff    v.    Kinney,    5    Sandf.    380. 


879 


Til  Kill    EfKKCT     A.Mt     KXKOHCKMKNT, 


?j   1075. 


legatees  is  not  preehulcd  ])y  the  former  decree  from  seeking  an 
equalization  of  funds  not  distrilmted,  so  as  to  correct  an  error  of 
law  made  on  the  former  iirnccediiio,  althongh  the  effect  would  be 
to  protect  tlie  trustee  from  personal  loss.^ 

.  §  1075.  As  to  payments  to  creditors  and  others The  decree  es- 
tablishes not  only  the  f^ict  that  the  pavments  were  made,  l>ut  that 
they  were  rightfully  made.  The  validity  of  the  debt,  and  the  right 
of  th(^  party  to  whom  it  is  ])aid,  are  adjudged,  as  well  as  the  fact 
of  payment.'"'  Hence  a  judgment  creditor,  who  was  a  party  to 
the  aci'ouuting,  is  l)arr('d  by  the  decree  from  hi'inging  thereafter 
a  creditor's  suit  to  impeach  as  fraudulent  the  settlements  made  by 
the  representative,  and  embraced  in  the  accotmt.^^  So,  also,  a 
decree  settling  the  accounts  of  exectitors  and  charging  them  with 
a  certain  mortgage  which  they  are  declared  to  hold  in  trust  for 
certain^  ])urposes  directed  by  the  Avill,  directing  payment  of  the 
interest  thereon  to  the  beneficiaries  under  the  trust,  estops  not 
only  the  beneficiaries,  vrho  Avere  parties  to  the  proceeding,  from 
sid)so(piently  questioning  the  propriety  of  the  transactions  by 
which  the  trustees  became  possessed  of  such  mortgage,^^  but  as 
well  the  exectitors,  from  seeking  to  evade  tbeir  liability  to  ac- 
count.^^  And  the  same  principle  aiijilies  to  a  decree  confirming  a 
sale  of  lands  under  a  power,  and  directing  distribution  of  the- 
proceeds.^'* 


29Bo\vditch  V.  Avraiilt,  G.3  Hun.  23; 
17  X.  V.  Supp.  281  :   128  X.  Y.  222. 

••{"Wright  V.  Meth.  Epis.  Church, 
Hoffm.  202:  Altnian  v.  Hofeller,  152 
N.  Y.  498. 

31  Rose  V.  Le\vi>-.  .3  Lans.  32n.  Tho 
allo\vanc-e  mado  by  a  surrogate,  for 
tlie  costs  and  counsel  fees  on  an  ac- 
counting, is  not  conclusive  in  an  a^*- 
tion  by  the  attorney,  to  recover  for 
his  services  and  dislnirsements.  (My- 
gatt  V.  Wilcox,  1  Lans.  55;  iiffd..  45 
X.  V.  30(). )  Wnere  money  has  been 
])aid  upon  an  erroneous  decree  which 
is  afterward  reversed,  the  paj'or  may, 
after  demand  and  refusal,  maintain 
an  action  to  recover  tiie  amoimt  paid. 
(Sclioley  V.  Halsey,  72  N.  Y.  578.)  A 
decree  settling  an  account,  which  in- 
cludes a  bill  only  partly  paid,  protects 
the  accounting  i)arly  only  as  to  that 
so  paid.  (flatter  of  White,  6  Dem. 
375.)  An  interested  party  who  was 
present  at  an  accounting,  in  the  ab- 
sence of  proof  to  the  contrary,  will 
be  presumed  to  have  knowledge  of  the 


presence  of  items  in  the  account,  in 
the  distribution  of  its  balance,  of 
which  he  is  a  participant.  (Robinson 
V.  Robinson,  2  St.  Rep.  G66.)  A  de- 
cree ujion  an  accounting  adverse  to  a 
claim  is  a  bar  to  a  subsequent  action 
thereon.  (Baldwin  a'.  Smith.  01  Hun. 
230:  36  X.  Y.  Supp.  150;  Sexton  v. 
Sexton.  04  .App.  Div.  385;  72  X.  Y. 
Supp.  213.) 

;!2  Matter  of  Denton,  103  X.  Y.  607  ; 
:\Iatter  of  Hawley.  100  id.  206:  Ells- 
worth V.  Hinton,  47  Hun,  625.  See 
Matter  of  Willets,   112  X.  Y.   289. 

•i-i  Kager  v.  Brenneman.  47  App.  Div. 
63 :  62  N.  Y.  Supp.  339. 

■■■■i  Burkard  v.  Crouch,  169  X.  Y. 
399;  Shinimel  v.  Morse,  57  App.  Div. 
434;  .Mutual  Life  Ins.  Co.  v.  Schwaner. 
36  Hun.  373:  alTd.,  101  X.  Y.  681; 
Rhodes  v.  Caswell.  41  A\)\i.  Div.  229: 
58  X.  Y.  Supp.  470.  As  to  the  appli- 
cation of  the  doctrine  of  equitable  es- 
toppel to  prevent  impeachment  of  de- 
crees genera  11  v.  see  Matter  of  Lvman» 
14    Misc.   352";    36    X.   Y.    Supp."  117; 


§§107(3,1077.  Surrogates'  Decrees:  880 

§  1076.  Sureties  concluded. —  The  sureties  on  the  accounting 
party's  bond  are  nut  necessary  jjarties  to  the  judicial  settlement  of 
their  principal's  accounts,  and  are  not  usually  actual  parties;  but, 
in  the  absence  of  fraud,  or  collusion^  they  are  concluded  by  the 
decree,  for,  by  the  terms  of  their  contract,  they  are  privy  to  the 
proceeding.^^  The  decree  is  conclusive  as  evidence  only.^"  Sure- 
ties upon  an  administration  bond,  as  well  as  the  principal,  are  es- 
topped from  questioning  the  authority  of  the  surrogate  to  grant 
the  letters,  or  the  liabilities  of  the  sureties  for  the  acts  of  their 
principal,  in  the  execution  of  his  duties  as  administrator,  or  the 
order  made  by  the  surrogate  fixing  his  liability;^'  nor  will  they 
be  allowed  to  question  the  jurisdiction  for  a  defect  in  the  order 
removing  their  principal. ^^  A  decree  discharging  an  adminis- 
trator and  his  sureties  is  assailable  by  any  party  aggrieved,  either 
by  motion  to  set  it  aside  or  by  proceedings  on  appeal ;  and  in 
neither  case  is  it  necessary  that  the  sureties  have  notice  of  the 
proceedings.^^ 

§  1077.  Direct  impeachment  of  decrees. —  It  may  be  well  to  re- 
peat, that  the  doctrine  of  estoppel,  whether  statutory  or  otherwise, 
has  no  application  to  a  proceeding  instituted  for  the  express  pur- 
pose of  revoking  or  modifying  the  decree  in  the  court  which 
granted  it,  or  to  appeals  theref  rom.^*^  One  of  the  incidental  powers 
conferred  upon  Surrogates'  Courts  is  the  power  to  open,  vacate, 
modify,  or  set  aside  their  own  decrees  —  a  power,  however,  which 
can  only  be  exercised  "  in  a  like  case  and  in  the  same  manner  as  a 
court  of  record  and  of  general  jurisdiction  exercises  the  same 
powers."  ^^     As  a  general  rule,  where  an  account  of  an  executor 

Duryea  v.  Mackey.  1.51  X.  Y.  204;  Wil-  38  Harrison  v.  Clarke,  20  Hun,  404 

liams  V.   Whittell.   69  App.   Div.   340:  •';!>  Deobold  v.  Oppermann,   111  N.  Y 

74  X.  Y.  Supp.  820;   Bover  v.  Decker,  531;   20  St.  Rep.  81. 

5  App.  Div.  623 ;  40  X.  Y.  Supn.  469 :  40  Campbell  v.  Logan,   2  Bradf.   90 

:Matter    of    Irvin,    24    Misc.    353;     53  Kerr  v.  Kerr,  41    X.   Y.   272;    Post  v 

N.  Y.  Supp.  715.  Mason,  26  Hun,   187;   affd.,  91   X.  Y 

"5  See  §  469,  ante.  539. 

»6See   Hood   v.   Hayward,    48   Hun,  4i  Co.   Civ.   Proc,   §   2481,   subd.   6 

330;   124  X.  Y.  1;  Wright  v.  Fleming.  Matter   of   Richardson,   81    Hun,   425; 

12   id.   469;    Stiles  v.    Burch.  5  Paige,  30  X.  Y.   Supp.   1008.      See   §§   ^2.  54 

132;    Altman   a'.    Hoffeller.    152   X.   Y.  ei    acq.,    ante.      The    power    which    a 

498 ;    Martin    v.    Hann.    32    App.    Div.  surrogate    has    to    set    aside    a    decree 

602;   53   X.  Y.  Supp.   186.  which  he  had  no  power  to  make  (Vree- 

ST  Field  V.  Van  Cott,  15  Abb.  (X.  S.)  dcnburg  v.  Calf,  9  Paige,  128),  is  to  be 

349;   People  v.  Falconer.  2  Sandf.  81;  distinguished  from  his  general   power 

Cadwell    v.     Colgate.     7     Barb.     253;  to  grant  new  trials.      (People  v.  Jus- 

Thayer  v.  Clark,  4  Abb.  Ct.  App.  Dec.  tices,  etc.,   1   Johns.   Cas.   180.)      Sur- 

391  :    Scofield  v.    Churchill.   72   X.   Y.  rogates'   Courts  have  always  had   the 

565;   Keegan  v.   Smith.   60  App.  Div.  power  to  reopen  a  decree  settling  an 

168;    70  X.  Y.   Supp.   260.  account     to     correct     a     mistake,     by 


■881 


TiiKiu  Effkct  and  Exfokc  I•;.Ml•;^■l• 


§  1077. 


has  been  judicially  settled,  it  may  be  presumed  that  he  has  ac- 
counted for  all  property  that  came  into  his  hands;  and  a  party 
who  seeks  to  compel  a  further  accounting;  should  present  a  clear 
case  before  the  application  will  he  granted.^"  It  is  said  that  the 
power  of  a  surrogate  to  open  a  decree  made  ijy  him  should  be 
cautiously  exercised,  and  not  simply  for  the  ])ur])Ose  of  reviewing 
his  decision;  and  his  discretinn  in  I'csjjcct  thereto  is  reviewaljle  on 
appeal.  Laches,  in  moving-  to  o{)en  the  decree,  may  be  the  gT(uin<I 
of  refusing  the  application. ■*''     ^^'here  the  decree  has  been  alhrmerl 


aincndment, —  e.  g.,  to  require  a  fur- 
llier  account,  in  respect  to  a  sum  re- 
ceived by  the  accounting  party,  with 
which  he  had  charged  liiniself  at  less 
tlian  the  real  amount.  (Sipperly  v. 
15aucus,  24  N.  Y.  46. )  But  see  Matter 
cf  Mount,  27  Misc.  411;  59  X.  Y. 
."^upp.  176.  The  causes  for  which  sur- 
rogates' decrees  may  be  vacated  under 
section  2481  are  analogous  to  tliose 
envimerated  in  sections  1282  and  1283, 
and  governed  by  the  limitation  im- 
posed therein,  except  where  fraud  and 
collusion  are  made  the  ground  of  the 
:;pplication.  In  the  latter  cases,  tliose 
limitations  have  no  application.  ( ]Mat- 
ler  of  Tilden,  98  X.  Y.  434;  with 
opinion  below,  1  How.  Pi'.  [X.  S.] 
-109;  Melchcr  v.  Stevens,  1  Uem.  123; 
j\[atter  of  Hender.3on,  157  N.  Y.  423; 
Matter  of  Flynn,  136  id.  287;  49 
St.  Eep.  388.)  A  notice  to  vacate  a 
decree,  on  the  ground  that  the  de- 
cision does  not  state  the  facts  and  con- 
clusions separately,  cannot  be  allowed 
after  the  expiration  of  one  year  from 
its  filing.  (Matter  of  Hosdra,  4  Misc. 
37:  23  X.  Y.  Supp.  840.)  Heirs  who 
were  not  parties  to  an  accounting  can- 
not .  have  the  decree  opened  on  the 
ground  that  the  account  may  be  used 
against  them  under  section  1848. 
(Matter  of  McCunn,  15  St.  Rep.  712.) 
The  fact  that  one  of  the  next  of  kin 
of  a  testator  was  not  cited  in  pro- 
ceedings for  probate  is  "  sufficient 
cause"  within  Co.  Civ.  Proc.  §  2481. 
for  opening  the  decree  of  probate  as 
to  such  next  of  kin.  ( Matter  of 
Odell,  1  Misc.  390;  23  X.  Y.  Supp. 
143;  Matter  of  Harlow,  73  Hun,  433; 
26  X.  Y.  Supp.  409.)  So,  too,  as  to 
one  who,  though  cited,  was  sick  and 
had  no  knowledge  of  the  hearing. 
Matter  of  Traver,  9  ^lisc.  621;  30  X. 
Y.  Supp.  851.)  But  otherwise  as  to 
one  not  required  to  be  cited,  where 
the  decree  refused  probate.  ( Matter 
of    Tilden,    56    App.    Div.    277.)       A 

56 


creditor  of  the  estate  who  has  pre- 
sented his  claim,  may  procure  a  de- 
cree opening  the  final  settlement  of 
the  account  of  the  admini.-trator,  ob- 
tained without  notice  to  him,  and 
thereupon  proceed  against  the  admin- 
istrator, withcut  making  lieneficiaries 
of  the  estate  parties,  though  they  have 
received  their  shares.  ( Matter  of 
Gall,  47  App.  Div.  490;  02  X.  Y. 
Supp.  420.)  See  Matter  of  Killan,  66 
App.  Div.  312;  72  X  Y.  Supp.  714. 
The  petition  and  account  of  an  exec- 
utor are  in  the  nature  of  pleadings, 
and,  when  projjerly  verified,  the  state- 
ments contained  in  the  accounts  are, 
unless  questioned,  to  be  regarded  as 
true;  a  decree  will  not  be  set  aside, 
tiierefore.  on  motion,  for  failure  to 
])rove  facts,  when  they  are  there  suf- 
ficiently stated.  ( Matter  of  Baity.  2 
Connoly,  485.)  See  §  1081,  post,  notes 
59  and  CO.  A  decree  upon  an  accoiint- 
ing  may,  however,  be  vacated  because 
of  a  false  statement  by  the  adminis- 
trator, in  his  petition  therefor,  that  he 
was  the  husband  and  sole  next  of  kin, 
without  revoking  his  letters  of  admin- 
i>tration.  (Matter  of  Patterson.  146 
X.  Y.  327:  60  St.  Hep.  039.) 

42  Matter  of  Soutter.  105  X.  Y.  514. 
See  :\ratter  of  McManus.  35  Misc.  678; 
72  X.  Y.  Supp.  409.  A  decree  should 
I'ot  be  opened  for  the  purpose  of  in- 
cluding in  the  account  disbursements 
made  after  it  was  filed.  (Matter  of 
Arkeiil)urgh,  38  App.  Div.  473:  50  X. 
Y.  Supp.  523.) 

43  Story  V.  Da\-ton,  22  Hun.  450: 
Strong  \.  Strong.'S  Redf.  477;  Matter 
of  Salisbury,  0  X.  Y.  Supp.  932: 
Decker  v.  Elword,  3  Sup.  Ct.  ( T. 
&  C.)  48;  Yale  v.  Baker.  5  id.  10. 
After  the  lapse  of  years, —  in  this  case 
nine, —  a  surrogate's  decree  should  not 
be  opened  for  an  alleged  mistake,  ex- 
cept upon  clear  evidence.  (Matter  of 
Devo.  30  Hun.  512.)  S.  P..  Matter  of 
Waack,  5  X.  Y.  Supp.  522:   Matter  of 


§  1078. 


Surrogates'  IOecrees: 


882 


upon  appeal,  and  remitted  by  that  court  for  further  proceedings^ 
the  surrogate  cannot  open  the  decree  and  grant  a  rehearing  for 
alleged  error  in  law,  but  must  give  eifect  to  the  judgment  of  the 
appellate  coui-t.'*'* 

g  1078.  When  decree  may  be  impeached  collaterally. —  The  con- 
clusive eli'ect  of  a  decree  necessarily  depends  upon  the  power  of 
the  court  to  pronounce  it.  A  decree,  which  transcended  the  juris- 
diction of  the  court  to  make,  may  be  attacked  in  all  courts,  either 


Stevens,  6  id.  G35.  The  application 
to  vacate  the  decree,  if  based  on  the 
infancy  of  the  party  applying,  or  the 
existence  of  irregularities  in  the  course 
of  the  proceeding,  should,  if  two  years 
have  expired  from  the  entry  of  the 
decree,  be  made  within  one  year  after 
the  minor  arrives  at  the  age  of 
twenty-one  years.  (Matter  of  Tilden, 
98  N.  Y.  434.)  The  time  to  appeal 
from  a  surrogate's  decree  having  ex- 
pired, it  seems  that  an  error  in  sub- 
stance cannot  be  corrected  therein  by 
him,  on  motion.  (Matter  of  Seaman, 
03  App.  Div.  49;  67  N.  Y.  Supp.  376; 
Matter  of  Coogan,  27  Misc.  563 ;  .59 
N.  Y.  Supp.  111.)  See  Matter  of 
Cook,  68  Hun.  280:  22  X.  Y.  Supp. 
969.  In  ]klatter  of  Baker  (X.  Y.  Law 
J.,  July  15,  1892),  the  decree  which 
directed  the  fund  in  question  to  be 
distributed  by  the  executor  was  made 
without  notice  to  the  attaching  cred- 
itor. Subsequently,  a  motion  was 
made  by  the  executor  on  notice  to  all 
the  parties  in  interest  to  modify  said 
decree  by  striking  out  such  direction 
and  providing  for  the  deposit  of  the 
fund  in  a  trust  company  to  await  the 
determination  of  the  conflicting  claims 
of  the  attaching  creditor  and  the  other 
claimant  of  the  fund.  This  was  denied. 
An  application  was  then  made  by  the 
attaching  creditor,  and  the  sheriff 
holding  the  attachment,  to  have  their 
right  of  claim  to  the  money  attached 
determined,  and  for  leave  to  intervene 
for  the  purpose.  Per  Ransom,  S. : 
"As  the  attachment  was  issued  prior 
to  the  entry  of  the  decree,  I  have  con- 
cluded to  open  the  decree  for  the  pur- 
pose of  hearing  the  parties  respecting 
the  disposition  of  the  fund  in  con- 
troversy, although  I  am  not  at  all 
.satisfied  that  the  same  relief  could 
not  be  gi\ien  without  disturlnng  the 
decree.  (Russell  v.  Ruckman.  3  E.  D. 
Smith,  427.  428.)  I  was  previously 
of  the  opinion  that  I  did  not  have 
the  power  which  I  am  now  exercising, 


but  further  consideration  of  the  sub- 
ject has  convinced  me  that  I  was  in 
error.  (Co.  Civ.  Proc.^  §  655,  subd. 
1 ;  O'Brien  v.  Glenviile  Wool  Co.,  50 
N.  Y.  134;  Russell  V.  Ruckman,  S!<pra/ 
Hall  V.  Brooks,  89  X.  Y.  33;  Baker 
V.  Brown.  64  Hun,  627 ;  Backus  v. 
Kimball,  27  Abb.  X.  C.  364,  365.)" 
See  Matter  of  Pierson.  19  App.  Div. 
478;  46  X.  Y.  Supp.  557.  A  decree 
settling  an  executor's  account  will  not 
be  opened  and  modified,  upon  the  ap- 
plication of  the  executor,  on  the 
ground  that  he  included  in  his  ac- 
count a  sum  which  was  not  assets, 
wliere  it  appears  that  he  had,  in  fact, 
received  such  sum  with  knowledge  of 
all  the  facts,  and  his  mistake,  if  any, 
was  one  of  law.  (Matter  of  Watts,  2 
Connoly,  415.)  S.  P.,  Matter  of  Beach, 
3  Misc.  393;  24  X.  Y.  Supp.  717;  Mat- 
ter of  Monteith.  27  Misc.  163;  58  X. 
Y.  Supp.  379.  Where  executors  dis- 
tributed, in  kind,  assets  consisting  of 
things  in  action,  guaranteeing  their 
collection,  and  subsequently  had  a 
final  accounting  and  distribution  of 
the  remainder  of  the  estate, —  Held, 
that  the  decree  on  the  accounting 
should  not  be  opened  on  account  of  a 
loss  on  the  things  in  action,  but  the 
parties  concerned  must  resort  to  the 
guaranty.  (Redmond  v.  Ely,  2  Bradf. 
175.) 

^4Reed  v.  Reed,  52  X.  Y.  651.  See 
Matter  of  Westerfield,  61  App.  Div. 
413:  70  X.  Y.  Supp.  641.  After  an 
appeal  has  been  perfected  from  the 
decree  settling  the  account,  the  surro- 
gate has  no  power  to  open  the  decree 
and  send  the  issues  back  to  the  ref- 
eree for  further  testimonv.  (^Matter 
of  May.  6  X.  Y.  Supp.  357;  24  St. 
Rep.  888.)  But  an  affirmance  of  the 
decree  does  not  deprive  persons  inter- 
ested, who  were  not  parties  to  the 
appeal,  or  the  right  to  have  the  decree 
set  aside  for  fraud.  (Matter  of  Hodg- 
man.  82  Hun,  419;  31  X.  Y.  Supp. 
263.) 


883  TiiKii;  Effect  and  ExFORCf:MEXT.  §  1079. 

directly  or  collaterally,  as  Leing-  void  for  want  of  jurisdiction.'"'' 
Before  a  surrogate  can  acc^uire  jurisdiction  of  the  sul)ject-iiuitter, 
the  statute  requires  that  certain  facts  must  exist,  such  as  the  death 
of  a  person  whose  estate  is  sought  to  l)e  adnnuistcreKl,  or  his  resi- 
dence in  the  county  of  the  surrogate,  on  the  location  of  as.'*ets  in 
that  county.  The  statute'**'  provides,  that  "  the  Surrogate's  (/ourt 
obtains  jurisdiction  in  every  case,  by  the  existence  of  the  jurisdic- 
tional facts  prescribed  by  the  statute,  and  by  the  citation  or  ap- 
pearance of  the  necessary  ])arti('s."  If,  by  tlic  nonexistence  of  any 
jurisdictional  fact,  the  court  had  not  jurisdiction  of  the  subject- 
matter,  his  decree  is  not  merely  voidable,  subject  only  to  be  re- 
versed on  appeal  or  by  a  direct  proceeding  for  that  puq>ose,  ])Ut 
it  is  absolutely  void,  and  no  riglits  can  be  founded  thereon.''' 

$<  1079.  Evidence  of  jurisdictional  facts. —  When  the  authority 
of  a  surrogate's  decree  is  attacked  in  a  collateral  pi'oceeding,  for 
want  of  jurisdiction  over  the  subject-matter,  or  the  parties,  alle- 
gations of  the  jurisdictional  facts  in  the  petition  or  pleadings  upon 
which  the  decree  or  order  is  based,  are  evidence  of  the  existence 
of  those  facts;  and  a  recital  in  a  decree  of  the  due  citation  of  the 
necessary  parties  is  presum]itive  proof  thereof.*^  The  rule  is 
stated  to  be,  that  ''  when  certain  facts  are  proved  to  a  court  or 
officer,  having  only  special  and  limited  jurisdiction,  as  a  ground 
for  issuing  process,  and  there  is  a  total  defect  of  evidence  as  to 
any  essential  fact,  the  process  will  be  void ;  but  where  the  proof 
has  a  legal  tendency  to  make  out  a  proper  case,  in  all  its  parts, 
for  issuing  the  process,  then,  although  the  ])roof  may  be  slight 
and  inconclusive,  the  process  will  be  valid  until  set  aside  by  a 
direct  proceeding  for  that  purpose."  ^^  In  the  one  case,  the  court 
acts  without  authority;  in  the  other,  it  only  errs  in  judgment  upon 
a  question  properly  before  it  for  adjudication.''*'^     Tn  granting  a 

4.''>  See  Washhon  v.    Cope,   144  N.  Y.  jnslicc's    jiuliriiicnt.    ]\Iullin,    J.,   writ- 

28";  <>;?  St.  Kep.  TKi:  Matter  of  Ann-  iiip    the    ojiinioii    of    the    court,    said: 

.stroiiff,  72  App.  Div.  2S(').  "  \\'lieii      in      special      proceed incr.s      in 

4<>  Co.  Civ.   Proc,   S  2474.  courts    or    before    ofTicers    of     limited 

47  Dakin  v.  Denuuiiifr.   (>  Paige,  flo ;  jurisdiction,    they  are   required   to  as- 

Tucker    v.    Tucker,    4    Abb.    Ct.    App.  certain    a    particular    fact,    or    to    ap- 

Dec.  428 ;  Diullev  v.  .Mayliew,  3  N.  Y.  point  persons  to  act  in  such  proceed- 

9;    Van  Deusen  v.  Sweet.  51    id.  .378;  ings.  liavinp  pecxiliar  qualifications,  or 

Roderigas  v.  East  River  Savings  Inst.,  occupying    some    peculiar    relation    to 

70   id.   310.  and  cases    infra.  tiie  jjartios  or  tlie  subject;   such  acts, 

4K  Co.  Civ.  Proc.  S  2473.  wlien   done,   are   in    the   nature  of  ad- 

•*!!  Sta])les   V.   Fairchild,   3   1\.   Y.   41  judications   wliich.   if  erroneous,  must 

(per    .lewett.    Ch.    J.)  ;    S.    P.,    Potter  be  corrected  bv  a  direct  proceeding  for 

V.  Ogden.   13G  N.  Y.  384,  396.  that    purpose:"    and,    if    not    corrected, 

•'»OIn    Potter    v.    Piudy     (29    N.    Y.  the  subsequent  proceedings  whicli  rest 

106),    which   was   an   appeal    from   a  upon  them  are  not   affected,  however 


§  1079. 


Surrogates'  Decrees 


884: 


citation  upon  a  verified  petition  which  alleges  all  the  necessary 
jurisdictional  facts  which  the  statute  requires  in  the  j)articular 
case,  the  surrogate  acts  judicially,  and  the  rule  is,  therefore,  that 
his  jurisdiction  thus  adjudged  hy  him  cannot  l)e  impeached  col- 
laterally. It  can  be  attacked  only  directly  in  a  proceeding  for 
that  purpose,  or  by  appeal.  In  one  case,  though  by  an  equally 
divided  court,  it  was  held  that,  where  letters  of  administration 
were  issued  by  a.  surrogate,  upon  due  statutory  proof  of  the  death 
of  the  person,  administration  of  whose  estate  was  applied  for,  and 
it  afterward  turned  out  that  such  person  was  not  dead  at  the 
time^  a  debtor  of  the  alleged  intestate  was  protected  in  paving  the 
debt  to  the  administrator  so  appointed.^^  And  so,  inasmuch  as 
the  surrogate,  upon  probate  proceedings,  has  jurisdiction  and  is 
bound  to  inquire  whether  decedent  was  an  inha.bitant  of  his  county 
at  the  time  of  his  death,  his  decision  that  such  was  the  case  can- 
not, in  the  absence'  of  fraud  or  collusion,  be  questioned  col- 
laterallv.^2 


erroneous  such  adjudication  may  be." 
And  see  Bunistead  v.  Read,  31  Barb. 
G61:  Bolton  v.  Brewster,  32  id.  389; 
:\Ionell  V.  Denison,  17  How  Pr.  401  ; 
Miller  v.  Brinkerhoff,  4  Den.  119; 
People  V.  Sturtevant,  9  N.  Y.  263,  and 
cases  infra.  "  There  is  no  branch  of 
the  law  more  difficult  of  solution  than 
to  define  when,  and  under  what  cir- 
cumstances the  proceedings  of  inferior 
as  well  as  superior  courts  may  be  at- 
tacked, and  when  they  are  a  protec- 
tion to  persons  acting  under  them. 
*  *  *  There  are  some  general  rules 
that  are  well  settled ;  one  is  that  the 
proceedings  of  courts,  especially  of 
limited  jurisdiction,  may  be  attacked 
collaterally  for  want  of  jurisdiction 
over  the  subject-matter ;  another  is 
that  if  the  court  or  officer  has  juris- 
diction of  the  subject-matter,  then  the 
exercise  of  that  jurisdiction,  however 
irregular  or  erroneous,  is  conclusive 
until  reversed."  (Per  Church,  Ch.  J., 
Pioderigas  v.  East  River  Savintrs  Inst., 
76  X.  Y.  316.)  See  Matter  of  Farnam, 
75  id.  187;  Matter  of  Hood,  90  id. 
512;  Post  V.  Mason,  26  Hun.  187; 
Woodward  v.  James.  16  Abb.  N.  C.  246. 
51  Roderigas  v.  East  River  Savings 
Bank,  63  N.'  Y.  460.  revg.  48  How.  Pr. 
166.  This  decision  has  given  rise  to 
no  little  discussion,  and  the  conclu- 
sions arrived  at  have  not  been  alto- 
gether concurred  in.  But  it  is  to  be 
sustained  by  the  peculiar  language  of 


our  statute  conferring  the  jurisdiction. 
Dr.  Wharton  (Evidence,  "§  810)  ob- 
serves that  the  decision  assumes  that 
the  surrogate  had  jurisdiction,  wliich, 
he  says,  could  not  be,  "  unless  under  a 
peculiar  and'  local  statute,"  if  there 
was  no  deceased  person  to  be  admin- 
istered to  And  this  was  the  ground 
of  the  decision.  Earl,  J.,  expressly 
states  that  "  as  my  conclusion  in  this 
case  is  based  upon  the  construction  of 
tlie  statutes  of  this  State  resjulating 
the  jurisdiction  and  proceedings  of 
Surrogates'  Courts,  decisions  of  other 
States,  made  under  statutes  not  the 
same,  can  furnish  us  little  aid."  The 
authorities  are  uniform  that,  at  com- 
mon law,  the  jurisdiction  of  surrogates 
is  confined  to  granting  administration 
upon  the  estates  of  deceased  persons, 
and  if  a  person  is  alive,  the  letters  are 
an  absolute  nullity.  (Jochumsen  v. 
Suffolk  Bank.  3  Allen.  87;  Allen  v. 
Dundas,  3  T.  R.  125:  Griffith  v.  Fra- 
zier,  8  Cranch,  9.)  And  see  a  learned 
note  by  Judge  Redfield,  in  Am.  Law 
Reg.,  April,  1876,  p.  212;  ante,  §  342. 
52  Bolton  y.  Schriever,  135  N.  Y.  65; 
47  St.  Rep.  870.  That  Avas  an  action 
of  ejectment  for  land  in  New  YorV 
city,  plaintiffs  claiming  as  heirs-at- 
law  of  one  under  whose  will,  proved 
before  the  surrogate  in  New  York 
county,  in  1841,  defendant  made  title 
as  dcvispp,  plaintiffs  maintaining  th^t 
the    testator    was    not    a    resident    of 


885  TiiKii;    Kkfkct  and   Knfokckmknt.      §§  10.>(J,  KJ^l. 

i;  1080.  The  decree  must  be  a  judicial  act. —  It  is  always  com- 
])ot('iit  for  a  Jiarty  to  show,  in  iiiii)eacliiiitMit  <»f  the  decree,  that,  as 
a  matter  of  fact,  the  .surrogate  did  not  exercise  his  judgment  in 
the  matter;  that  he  never  acted;  that  liis  seal  is  a  forgery/"'  and 
that  bhmk  letters,  signed  and  .sealed,  had  been  stolen,  etc.;  in 
fact,  any  jurisdictional  defect,  which  does  not  impeach  the  surro- 
gate's decision,  may  be  shown,  to  avoid  the  force  and  effect  of 
the  decree.  It  Avas  accordingly  held,  that  where  a  petition  for 
letters  of  administration,  though  alleging  all  the  necessary  juris- 
dictional facts,  was  not  presented  to  the  surrogate  personally,  that 
lie  never  saw  the  petitioner,  and  never,  in  fact,  acted  upon  the 
petition,  and  had  no  actual  knowledge  of  it,  nor  of  the  issuing  of 
the  letters,  but  the  petition  was  received  by  a  clerk  in  the  office, 
who  filled  up  and  issued  a  blank  Avhieh  had  been  signed  by  the 
surrogate  and  left  with  him,  and  attached  the  seal, —  the  letters 
were  absolutely  void.  The  act  of  the  clerk  was  not  the  act  of  the 
suiTogate,  and  judicial  power  cannot  be  delegated.''*  To  render 
a  decision  of  the  surrogate  on  a  jurisdictional  fact  conclusive, 
therefore,  it  nmst  appear  that  he  decided  upon  })roofs  presented 
to  him  by  the  party  applying  for  process.  If  it  appears  by  the 
record  that  no  proof  was  presented — e.  g.,  where  the  petition  for 
administration  alleged  the  death,  "  upon  the  best  of  the  knowl- 
edge, information,  and  belief"  of  the  petitioner  —  the  letters  is- 
sued thereon  are  void;  such  an  allegation  is  not  "  proofs'  within 
tlic  meaning  of  the  statute. ^^ 

!<  1081.  Burden  of  proof  of  jurisdictional  facts. —  Where,  in  a 
collateral  proceeding,  a  surrogate's  decree  is  set  up  as  a  ground  of 
right,  or,  on  the  other  hand,  is  impeached  for  want  of  jurisdiction, 
the  burden  of  proving  jurisdiction  on  the  one  hand,  or  want  of 
jurisdiction  on  the  other,  is  upon  the  party  so  claiming  under,  or 
impeaching,  the  decree.^''     The  rule  has  always  been,  that,  pruna 

Now    York    county;    that    he    died    in  (Per    Peekham,    J.)       See    Conant    v. 

Columbia  county,  and  that  the  surro-  Wripht,  19  Misc.  321;  44  X.  Y.  Supp. 

pale  of  the  former  county  had  no  ju-  727. 

risdiction    to    take   proof    of   the    will  •'■>-i  \Vms.    on    Exrs.    480,    and    cases 

or  issue  letters  testamentary  thereon;  cited. 

—  Held,  that  it  was  for  the  surrofjate  •''>-4  Roderifras   v.   East  River   ."^^avinps 

to  determine  the  fact   of  inhabitancy,  Tnst..   7<>   N.   Y.   :?ltl.     An<l  see  Powell 

before  adiuittinjr   the  will    to   probate,  v.  Tuttle.   .'?  id.   39t) ;   Kceler  v.   Frost, 

and  (hat  his  decision  could  not  be  at-  22  IJarb.  400. 

tacked   c(diaterally.     "  \Ve   do   not    in-  •"'  Kcxlcrijras   v.    East    River   Savin-rs 

tend    by    (his    decision    to    attack    the  Inst.,   .iitpra. 

principle  or  to  shake  the  authority  of  •'iO  ^Velch  v.  X.  Y.  Cent.  R.  R.  Co.,  .").3 

the  first  Roderipas  case    (supra) ,'  for  X..  Y.   filO;    Belden   v.    Meeker.   47    id. 

we  simply  say  it  is  not  necessary  to  307 ;   Westervelt   v.  \Vestervelt,  46   N. 

here    go    so   far    as   that    case  goes."  Y.  Super.    (J.  &  S.)   298* 


1081. 


SuRROGATKs'    DlX'RKES 


88G 


facie,  the  recitals  in  the  record  were  evidence  of  tlie  existence  of 
the  necessary  jurisdictional  facts,  and  that  proof  of  want  of  juris- 
diction, outside  the  record,  was  only  adniissibh'  where  there  was 
no  record  of  any  proof  of  such  facts  luivino-  l)cen  adduced  before 
the  surrogate,  or  where  evidence  was  ofl'ered  to  show  that  juris- 
diction over  the  parties  was  not  acquired.^'  In  otlier  words,  if 
the  facts  necessary  to  give  the  surrogate  jurisdiction  appear  to 
have  been  alleged  in  a  duly  verified  petition  or  answer  used  in  the 
proceeding  before'  him,  and  it  also  appears  that  the  necessary  par- 
ties Avere  duly  cited  or  appeared,  then,  "  in  the  absence  of  fraud  or 
collusion,"  the  jurisdiction  is  conclusively  proved,  Avhenever  the 
question  is  raised  coUateraUy.^^  This  rule  applies  only  where  the 
decree  is  collaterally  impeached.  It  does  not,  of  course,  apply  to 
a  proceeding  brought  directly  for  the  purpose  of  revoking  or 
7nodifying  a  decree.  The  surrogate  has  always  had  authority  to 
open  a  decree  which  he  had  no  power  to  make,"^  or  which  was 
entered  by  default,  in  consequence  of  a  mistake  or  accident  de- 
priving a  party  of  a  hearing.^^ 


57  Substantially  the  same  rule  is  no^v 
declared  by  statute,  which  provides 
that  "  -where  the  jurisdiction  of  a  Sur- 
rogate's Court  to  make,  in  a  case 
specified  in  [section  2472  of  the  Code] 
a  decree  or  other  determination,  is 
drawn  in  question  collaterally,  and 
the  necessary  parties  were  duly  cited 
or  appeared,  the  jurisdiction  is  pre- 
sumptively, and,  in  the  absence  of 
fraud  or  collusion,  conclusively,  es- 
tablished, by  an  allegation  of  the  ju- 
risdictional facts,  contained  in  a  writ- 
ten petition  or  answer,  duly  verified, 
used  in  the  Surrogate's  Court.  The 
fact  that  the  parties  were  duly  cited 
is  presumptively  proved,  by  a  recital 
to  that  effect  in  the  decree."  (Co. 
Civ.  Proc,  §  2473.)  As  to  proof  «//- 
unde  the  record,  see  Van  Deusen  v. 
Sweet,  51  N.  Y.  378;  Hard  v.  Ship- 
man,  6  Barb.  621,  625.  A  surrogate 
should  not  allow  his  record  proceed- 
ings before  him  to  be  impeached  by 
affidavits.  (Matter  of  Luce,  17  Week. 
Dig.  35.)  A  writ  of  prohibition  should 
not  l:>e  granted  to  restrain  a  surrogate 
from  taking  proof  of  a  will  where  the 
petition  for  proof  stated  the  facts  nec- 
essary to  confer  jurisdiction,  but  ob- 
jection was  thereafter  made  that  de- 
cedent was  a  resident  of  another 
county.  The  presentation  of  the  peti- 
tion gave  the  surrogate  jurisdiction  of 
the  subject-matter,  and  the  objection 


raised  an  issue  which  the  surrogate 
had  power  to  determine  as  incident  to 
the  subject-matter,  and  his  decision  if 
erroneous  could  be  reviewed  on  appeal, 
but  not  assailed  collaterally.  (People 
V.  Surrogate  of  Putnam  Co..  36  Hun, 
218:  16  Abb.  X.  C.  241.)  Beams  v. 
Gould  (77  X.  Y.  455)  was  a  decision 
under  L.    1870,  c.  359,  now  abrogated. 

58  Harrison  v.  Clark,  87  X.  Y.  572 ; 
Kelly  V.  West.  80  id.  139:  Beams  v. 
Gould,  77  id.  455.  For  illustrations, 
see  Matter  of  Harvev,  3  Redf.  214: 
Sheldon  v.  Wright.  5  'X.  Y.  497  :  Far- 
ley V.  McConnell.  52  id.  6.30:  affg.  7 
Lans.  428  :  Vanderpoel  v.  Van  Valken- 
burgh,  6  X.  Y.  190:  Matter  of  Kellum, 
50  id.  298:  Colton  v.  Ross,  2  Paige, 
396:  Beers  v.  Shannon,  12  Hun,  161; 
Hov.-ard  v.  Moot,  64  X.  Y.  262:  affg. 
2  Hun.  475;  Wetmore  v.  Parker,  52 
X.  Y.  450:  affg.  7  Lans.  121;  .Jackson 
V.  Robinson,  4  Wend.  436:  Sullivan  v. 
Fosdick,  10  Hun,  173:  Johnston  v. 
Smith.  25  id.  171. 

59  Vreedenburg  v.  Calf,  9  Paige, 
128;  Campbell  v.  Logan,  2  Bradf.  90; 
Kerr  v.  Kerr,  41  S".  Y.  272.  See 
Melcher  v.  Stevens,  1  Dem.  123. 

60  Co.  Civ.  Proc,  §  2481,  subd.  6; 
Pew  V.  Hastings,  1  Barb.  Ch.  452; 
Harrison  v.  McMahon,  1  Bradf.  283 ; 
Dobke  V.  McClaran,  41  Barb.  491. 
And  see  ante.  §  1077.  The  power  of  the 
surrogate  under  Co.  Civ.  Proc,  §  2481, 


S87  Their  Effect  and  Enforcement.      §§  1082,  10S3. 

§  1082.  Jurisdiction  of  parties. —  Tliongh  tho  court  had  juris- 
diction of  the  subject-inatter,  its  decision  binds  only  those  wlio 
were  properly  before  it,  either  actually  or  constructively,  and  this 
ground  of  objection  to  the  decree  may  be  taken  in  any  proceeding 
where  it  is  brought  in  question.  The  adjudication  by  the  surro- 
gate is  conclusive  as  to  all  strangers,  and  as  to  all  parties  in  interest 
who  were  before  the  court  upon  the  adjudication;  and  citation  or 
appearance  of  the  necessary  parties  is  presumptively  proved  by  a 
recital  to  that  effect  in  the  decree.  But  a  decree  is  not  absolutely 
void  because  all  the  necessary  parties  were  not  cited  or  did  not 
appear.  Thus,  where  the  suiTOgate  had  jurisdiction  of  the  sub- 
ject-matter before  him,  but  subsequently  discovered  persons  in- 
terested, who  were  entitled  to,  but  did  not  have,  notice,  because 
their  existence  was  denied  by  the  petition,  his  decree  was  held 
not  void,  but  only  inoperative  as  to  the  interest  of  those  not 
served.*'^  It  should  be  remarked  here,  however,  that  while  juris- 
diction of  the  subject-matter  once  acquired  is  retained  throughout 
all  the  proceedings,  from  the  time  letters  are  issued  to  the  final 
distribution  of  the  residue,  and,  in  tlii.s  vicAv,  the  record  is  a  con- 
tinuous record;  yet,  in  respect  to  the  jurisdiction  of  persons,  the 
rule  is,  that  it  must  be  acquired  anew  in  each  particular  proceed- 
ing which  is  to  divest  any  title  or  change  the  character  of  the 
title,  or  ascertain  and  settle  the  respective  rights  of  the  pei-sons 
interested.  The  failure  to  give  the  notice  required  by  law,  in  any 
such  case,  to  the  persons  interested  is  not  (as  in  proceedings  at 
common  law  where  jurisdiction  has  once  been  acquired)  a  mere 
irregularity  which  can  he  corrected  on  motion. 

§  1083.  Irregularities  and  omissions  not  jurisdictional. —  It  has 
always  been  liold  tliar  mere  irregularities  in  the  proceeding  could 
not  be  urged  in  a  collateral  proceeding,  and  this  rule  has  been  de- 
clared by  the  Code  of  Civil  Procedure;  which  provides,  that  ''  an 
objection  to  a  decree  cr  other  determination,  founded  upon  an 
omission  therein,  or  in  the  papei's  upon  which  it  was  founded,  of 
the  recital  or  proof  of  any  fact  necessary  to  jurisdiction  which 
actually  existed,  or  tho  failure  to  take  any  intermediate  proceed- 

"  to  open,  vacate,  modify  or  set  aside,  of  Cohoes,  74  N.  Y.  3S7  ;  Matter  of 
or  to  enter  as  of  a  former  time,  a  Tildoii,  08  id.  4.34.) 
decree  or  order,"  is  limited  to  cases  <'i  ]?ailey  v.  Stewart.  2  Redf.  -ili. 
of  ''fraud,  newly-discovered  evidence.  And  see  Brick  v.  Brick,  (iti  N.  Y.  144. 
clerical  errors,  or  otlier  sniTicient  A  siirrojrate's  decree  having  been  ad- 
cause."  And  the  words  "  otlier  suf-  judfjed  void,  by  the  Supreme  Court, 
fioient  cause  "  must  be  interpreted  to  it  is  superduous  for  the  surrogate  to 
mean  causes  of  like  nature  with  those  vacate  it.  (Matter  of  Espie,  2  Redf. 
specifically  named.     (McGaffin  v.  City  445.) 


§  1084.  Surrogates'    Decrees:  888- 

ing  required  by  law  to  be  taken,  is  available  only  upon  appeal. 
But,  for  the  better  protection  of  any  party,  or  other  person  in- 
terested, the  Surrogate's  Court  may,  in  its  discretion,  allow  such 
a  defect  to  be  supplied  by  amendment."  ^^  Thus  irregularities  in 
serving  the  citation,^'^  or  omission  to  take  a  bond  with  two  or  more 
sureties,*^  or  in  the  proper  penalty ,^^  are  not  jurisdictional  defects, 
exposing  the  proceeding  to  collateral  impeachment.  So  the 
-manner-  prescribed  by  statute  of  exercising  a  power  is  not  juris- 
dictional, except  in  respect  to  statutory  prescriptions  as  to  the 
mode  of  acquiring  jurisdiction.  As  a  regulation  of  practice,  when, 
the  surrogate  has  acquired  jurisdiction,  a  statute  is  modal,  and 
does  not  affect  the  power  of  the  officer.^®  jS^either  a  literal  nor 
technical  construction,  inconsistent  with  the  general  purpose  of 
the  law  or  well-established  principles  affecting  the  administration 
of  estates  and  the  operation  and  execution  of  wills,  should  be 
given  to  the  statutes  which  only  affect  the  mode  of  procedure  in 
the  Surrogate's  Court. 

TITLE  SECOND. 

PROCEEDIXGS  TO  ENFORCE  DECREES  UNDER  THE  REVISED  STATUTES. 

§  1084.  Remedy  by  attachment  and  execution  against  the  person. — 
A  decree  or  order  may  award  a  sum  of  money  to  be  paid  by  a  party, 
into  court  or  to  some  person,  or  it  may  direct  the  perfonnance  of 
some  other  act.  The  methods  of  enforcement  under  the  present 
Code  differ  in  these  two  classes  of  cases;  as  they  did,  also,  under 
the  foraier  statutes. ^'^  To  throw  light  upon  the  changes  made  by 
the  scheme  adopted  in  the  Code,  it  will  be  useful  to  examine  the 
mode  of  enforcing  decrees  and  other  determinations  of  Surrogates'' 
Coiui-s  under  each  system. 

Before  the  adoption  of  the  Code  of  Civil  Procedure,  the  surro- 
gate had  power  to  enforce  all  la^^-ful  orders,  process,  and  decrees 
of  his  court,  by  attachment  against  the  persons  of  those  who  neg- 
lected or  refused  to  comply  ^nth  such  orders  and  decrees,  or  to 

62  Co.  Civ.  Proc,  §  2474.  This  sec-  does  not  render  the  order  void.  (Mun- 
tion  is  an  adoption  of  L.  1870.  c.  3.50.  dorff  v.  Wangler,  44  X.  Y.  Super.  [J. 
§   1.  which  limited  the  rule,  however,    &  S.l   49.5.) 

to  the  Surrogate's  Court  of  New  York        66  Hartnett    v.    Wandell.    60    X.    Y. 
countv.  .340:    affg.   Alexander's   Will,    16  Abb. 

63  Wetmore  v.  Parker,  52  X.  Y.  4.50;     Pr.    (X.   S.)    9. 

Pryer  v.  Clapp.  1  Dem.  387.  gt  The  rules  established  bv  the  Codo 

64  Bloom  V.  Burdick.  1  Hill.  130.  appl.v.  by  its  terms,  only  to  a  special 

65  Lawrence  v.  Parsons.  27  How.  Pr.  proceedinfr  commenced  on  or  after  the 
26.  Mere  error  in  the  amount  di-  1st  day  of  September.  1880.  (Co.  Civ. 
reeled  to  be  paid  by  an  administrator  Proc.,  §  3347,  subd.  11.) 


889  'riiKiij  Effect  and   K.\foijck.\ik.\t.  J<  1()s4. 

execute  swoh  process;  wliicli  attachments  were  required  tf)  he  in 
form  similar  to  that  used  by  tJic  court  of  chancery  in  analogous 
cases.*'*^  Thii  extoiided  to  orders  and  (U-erees  for  the  payment  of 
money,  as  well  as  to  those  for  the  delivery  of  specific  property, 
or  the  performance  of  other  "specific  acts;  and  it  extended,  also,  to 
decrees  against  guardians.""  This  jxnver  was  not  derived  from 
the  Statute  of  Contempts  applicable  to  courts  of  record,^"  hut 
existed  independently  of  it.  Certain  sections  of  the  Statute  of 
Contempts  were,  it  is  true,  apjtlicahle  to  proceedings  in  a  Surro- 
gate's Court  ;"^  but,  in  exercising  the  power  above  mentioned,  the 
court  did  not  proceed  by  virtue  of  that  statute,  and  could  not,  for 
the  benefit  of  tlie  injured  party,  fine  for  a  contempt,  for  mere 
nonpayment  of  money  adjudged  due  by  a  decree,  and  then  com- 
mit for  the  nonpayment  of  the  fine.'^  The  power  was  that  of 
chancery,  which  was  exercised  by  an  attachment  commanding  the- 
sheriff  to  bring  the  person  charged  before  the  surrogate,  to  answer 
for  his  alleged  misconduct.  The  party  charged  might  be  allov.ed 
to  give  bonds  to  appear.  Upon  the  return  of  the  attachment,  if 
he  did  not  exonerate  himself,  the  surrogate  might  make  an  order 
that  lie  comply  with  the  decree  or  order  in  question,  and  that  he 
be  taken  and  kept  in  custody  until  he  did  -so,  and  paid  the  fees, 
unless  sooner  discharged  according  to  law. 

Upon  this  order,  a  precept  or  waiTant  might  be  issued  to  the 
sheriff,  under  the  seal  of  the  surrogate,  commanding  him  to  talc 
the  body  of  the  person  charged,  and  keep  him  in  custody  until 
he  paid  the  money  or  performed  the  other  acts  specified.  It  was 
proper  that  the  warrant,  as  w^ell  as  the  rule  or  order,  should  show 
the  failure  to  pay,  or  do  the  other  act  required  ;  but  this  was  not  re- 
garded as  essential,  if  it  appeared  by  the'other  proceedings."^  It  was 
settled  that,  on  a  settlement  of  accounts,  the  surrogate  had  power 
to  adjudge  the  balance  due,  and  decree  its  payment;  and  that  this 
decree  could  be  enforced  again^^t  the  person.  But  it  remained  a 
question  whether  the  proper  final  process  was  a  commitment  as  for 
a  contempt,  or  a  precept,  or  an  execution.'*  This  question, 
whether  a  person  taken  under  final  process,  for  nonpayment  of 
money  adjudged  due  by  a  decree,  was  to  be  deemed  committed  for 

68-2   T5.   S.   221.   §   6.  subd.   4:   Dun-  71  Watson  v.  Nelson,  supra. 

ford  V.  Weaver,  84  N.  Y.  445;  21  Hun,  ~2Jh. 

340.  73  Seaman  v.   Durvea.   10  Barb.  fj.lO ; 

69  Seaman  v.  Durvea,  11  X.  Y.  .*^24.  affd..  11  N.  Y.  324.' 

70  Matter  of  Watson.  5  Lans.  460;  74  See  Watson  v.  Nelson.  f.O  N.  Y. 
s.  0.  in  Ct.  App.,  Watson  v.  Nelson.  n^G.  545;  Seaman  v.  Durvea.  11  id. 
en   N.  Y.  536;   Seaman  v.  Duryea,  10  324. 

Barb.  ,'532. 


:§  1084.  SuKKOGATEs'  Decrees:  890 

contempt,  and,  therefore,  to  be  kept  in  close  cvistodj,  or  whether 
he  was  to  be  deemed  taken  as  npou  an  ordinary  execution  again^st 
the  person,  and,  therefore,  entitled  to  the  jail  liberties,  and  to  be 
<lischarged  from  imprisomnent  under  the  statute,  was,  for  a  time, 
left  in  doubt  by  the  authorities.'^  The  confusion  in  the  cases 
arose  in  part,  at  least,  from  not  observing  the  principle  that  the 
power  to  issue  process  against  the  person  in  this  court  did  not  de- 
pend solely  on  the  Statute  of  Contempts,  but  existed  independently 
of  it;  the  requisite  question  in  each  case  being,  whether  it  was  one 
of  commitment  for  contempt^  or  merely  a  process  in  the  nature  of 
an  execution  against  the  person.^^  It  was  settled  that,  where  a 
party  "vvas  adjudged  to  have  in  his  possession  a  specific  sum  of 
money,  and  that  he  should  pay  it  over,  and  he  refused  to  do  so, 
the  disobedience  was  a  contempt,  and  the  prisoner  was  not  entitled 
to  the  liberties.  And  it  was,  at  length,  explicitly  declared  that 
where  the  surrogate's  decree,  rendered  against  an  executor,  ad- 
judged payment  by  him  of  a  sum  of  money  generally,  to  a  person 
entitled  to  a  share  of  the  estate,  and  he  failed  to  pay  it,  the  proper 
process  was  an  execution  against  the  body,  in  the  form  prescribed 
by  the  Court  of  Chancer)^,  upon  which  the  defendant  was  entitled 
to  the  jail  liberties.'^^  And  if  the  payment  of  money  generally 
was  directed  "  by  an  interlocutory  order,  a  precept  of  commitment, 
which  was  equivalent  to  an  execution  in  a  civil  action,"  was  the 
appropriate  process,  and  the  defendant  would  be  entitled  to  the 
jail  liberties  thereupon. ^^    The  remedy,  by  process  in  the  nature  of 

'5  See    INIatter    of    Watson,    5    Lans.  the   latter   was   authorized   to   impose 

466.  upon   the  former   a   fine,   and   commit 

76  People  V.  Cowles,  3  Abb.  Ct.  App.  him  to  close  custody  for  nonpayment 
Dec.  .507;  which  was  the  case  of  a  re-  thereof;  and,  it  was  held,  that  an  arl- 
fusal,  by  a  judgment  debtor,  to  obey  ministrator  might  be  conunitted  to 
an  order  made  in  supplementary  pro-  close  custody  upon  an  attachment  for 
ceedings,  that  she  apply,  to  the  satis-  disobedience  to  a  decree  requiring  him 
faction  of  a  judgment,  a  sum  of  money  to  pay  over  a  fund  shoicn  to  he  in  his 
belonging  to  her,  which  it  was  duly  possession.  In  that  case,  on  the  re- 
found  that  she  had  in  her  onssession.  turn   of  the  attachment,  the  adminis- 

77  Watson  V.  Nelson,  69  N.  Y.   5.36.  trator  appeared,  and,  in  answer  to  in- 

78  lb.  The  adjudication,  in  this  terrogatories,  alleged  that  he  had  the 
case,  was  that  the  appellant  had  no  fund  in  hand,  but  had  not  paid  it 
standing  in  the  Court  of  Appeals,  over  pursuant  to  the  decree,  because 
whereupon  the  appeal  was  dismissed;  there  were  rival  claimants  to  it.  From 
but  the  court  took  occasion  to  express  the  language  of  the  opinion  of  the 
its  opinion  upon  the  merits,  as  above.  Court  of  Appeals,  in  Watson  v.  Nelson 
In  People  v.  Marshall  /  Abb.  N.  C.  (supra),  it  does  not  clearly  appear 
380).  the  rule,  indicated  by  the  Court  that  the  aggrieved  party  was  not  en- 
of  Appeals,  as  above  stated,  was  ex-  titled  to  an  attachment  to  bring  the 
plained  to  be  that  a  mere  failure,  on  <h'linnnont  before  the  court,  but  it  was 
the  part  of  a  representative,  to  pay  a  said  that  a  commitment  to  close  cus- 
debt  adjudged  due  by  a  surrogate's  tody  was  improper.  The  court  re- 
decree,  was  not  a  contempt  for  which  marked,  "We  must  hold  the  form  of 


«91 


Their  Eftkct  axd  Exforcemkxt. 


§  1085 


attachment,  was  applicable,  therefore,  to  all  classes  of  orders, 
whothor  requirino^  the  payment  of  money  or  the  doing  of  any  other 
thint;'.  It  "vvas  the  only  remedy  for  disobedience  to  orders  otlier 
than  those  requiring  the  payment  of  money,  with  one  exception^ 

to  wit,  orders  reqiiirinc"  tlic  rotimi  of  an  invontorv. 

§  1085.  Remedy  by  action  on  the  bond. —  On  the  other  hand, 
orders  and  dccreos  for  the  payment  of  money  might  be  enforced 
by  execution,  and  by  action  upon  the  official  bond  of  a  defaulting 
representative,  as  well  as  by  attachment, —  the  remedy  by  at- 
tachment, and  that  by  execution  or  action  on  the  bond,  being  dis- 
tinct.'^   Where  a  party  elected  to  proceed,  in  the  first  instance,  by 


ocmmitmcnt  to  liave  been  unauthor- 
ized." But,  in  Matter  of  Sherry  (7 
Abb.  N.  C.  300),  the  surrogate  of 
New  York  county,  citing  the  case  in 
ttie  Court  of  Appeals,  refused  to  issue 
an  attachment  tor  nonpayment  of 
money  adjudged  to  be  paid  by  a  de- 
<ree,  saying:  "  If  the  petitioner  shall 
1)0  able  to  show  that  the  executor  actu- 
nUy.  and  not  constructively,  had  suf- 
ficient funds  in  hand,  applicable  to  the 
])aym{'nt  of  ))etitioner's  allowance,  at 
tlie  date  of  decree,  then  he  will  have 
.a  prima  facie  case  for  attachment  for 
cortenipt,  and  only  then." 

79  See  Saltus  v.'  Saltus,  2  Lans.  9 ; 
Sherwood  v.  Judd,  3  Bradf.  419.  The 
only  case  presented  by  the  Revised 
Statutes,  as  originally  adopted,  where 
the  surrogate  was  authorized  to  direct 
tlic  ])rosecution  of  an  executor's  or  ad- 
ministrator's bond,  was  tlio  refusal  of 
the  executor  or  administrator  to  make 
and  return  an  inventory,  and  his  con- 
sequent removal  (2  R.  S.  85,  §  21): 
though  it  was  also  provided  that  obe- 
<licnce  to  an  order  requiring  an  execu- 
tor or  administrator^  to  render  an  ac- 
cou7it  might  be  enforced  in  the  same 
manner  as  an  order  to  return  an  in- 
ventory, and  the  same  proceedings 
might  be  liad  to  attacli  tlie  disol)edient 
party,  and  his  letters  might  l)e  revoked 
■"  with  like  elTect  as  in  those  cases." 
It  may  be  doubted  whether  this  latter 
])rovisi(m  furnished  any  warrant  for 
-an  order  directing  the  prosecution  of 
the  bond,  on  a  mere  removal  for  de- 
fault in  rendering  an  account.  With 
a  view,  apparently,  of  vemedying  the 
deiect,  the  Legislature  immediatelv 
passed  an  act  (  L.  IS.'IO.  c.  320.  §  23) 
providing  that,  in  case  of  tlie  neglect 
'  T  refusal  of  an  administrator  to  per- 


form any  decree  '"  for  rendering  an  ac- 
count, or  upon  a  final  settlement,  or 
for  the  payment  of  any  debt,  legacy 
or  distributive  share,"  the  surrogate 
might  cause  the  bond  to  be  prose- 
cuted, and  might  apply  the  moneys 
collected  as  directed  by  the  decree. 
But  this  statute  would  seem  to  have 
contemplated  only  the  case  of  a  decree 
for  the  payment  of  money,  and  not  a 
decree  for  the  performance  of  any 
other  act,  such  as  the  rendering  an 
account,  etc.  In  1837  and  1840,  a 
further  and  cumulative  remedy  (see 
People  v.  Guild,  4  Den.  551)  was  fur- 
nished, for  disobedicTice  to  an  order 
for  the  payment  of  money,  by  permit- 
ting the  docketing  of  such  order  in  the 
county  clerk's  olHce,  and  the  issue  of 
execution  thereon,  and  authorizing,  in 
case  of  its  return  unsatisfied,  an  ac- 
tion on  the  bond.  ( L.  1837,  c.  400. 
§  65;  L.  1844,  c.  104,  §§  1,  2.)  But 
neither  of  these  statutes  gave  the 
privilege  of  prosecuting  the  bond 
merely  upon  the  revocation  of  letters 
for  refusal  or  neglect  to  render  an  ac- 
count, or  to  do  anything  else  than  pay 
money.  The  result,  therefore,  was. 
that  the  only  cases  in  which  tlie  bord 
of  an  executor  or  administrator  would 
be  ordered  to  be  prosecuted  were:  (  1  ) 
where  there  was  a  revocation  of  letters 
lor  refusal  or  neglect  to  return  an  in- 
ventory; and  (2)  where  there  was 
neglect  or  refusal  to  obey  an  order 
directing  the  payment  of  money.  Two 
courses  were,  aciordingly.  tipen  to  the 
party  desiring  to  enforce  a  decree  for 
tho  paymei  t  of  money.  He  might,  on 
proof  of  the  ncmpaymcnt  as  directed 
l)V  the  decree,  apply  to  the  surrogate 
for  an  order  that  the  bond  lie  prose- 
cuted  as   provided   by   the   sUitute   of 


§§1080,1087.  Surrogates'   Dkckees:  892 

action  upon  the  representative's  official  bond,  it  "was  necessary  ta 
liiitisfy  the  surrogate  that  the  representative  had  refused  or  omitted 
to  perform  a  decree  in  proceedings  for  an  account,  or  upon  a  final 
settlement,  or  for  the  payment  of  a  debt,  legacy,  or  distributive- 
share.  Thereupon  the  surrogate  might  cause  the  bond  to  be  prose- 
cuted;  and  he  was  required  to  apply  the  moneys  collected,  in 
satisfaction  of  the  decree,  in  the  same  manner  as  they  ought  to 
havf  been  applied  by  such  executor  or  administrator.^*^ 

g  1086.  Execution  against  property. —  Where  the  party  elected  to 
proceed  by  execution,  in  case  of  nonpayment,  before  proceeding 
against  the  sureties,  he  might  apply  to  the  surrogate  for  a  certifi- 
cate, stating  the  amount  of  the  debt  and  costs  directed  to  be  paid 
by  the  decree.  This  certificate,  being  filed  with  any  county  clerk, 
was  entered  on  the  docket  of  judgments,  and  was  enforceable  by 
execution,  as  if  it  were  a  judgment  of  the  County  Court. ^^  If  the 
execution  was  returned  unsatisfied,  the  surrogate  might  assign  th& 
bond  to  the  creditor  or  applicant,  who  could  bring  an  action  in  his 
own  name,  as  assignee,  and  recover  the  amount  awarded  him  by 
the  surrogate's  decree. ^^  This  remedy  might  be  had  against 
guardians. ^'^ 

§1087.  Action  on  the  decree. —  Finally,  an  action  might  be 
brought  on  a  surrogate's  decree,  to  compel  payment  of  any  sum 
thereby  adjudged  to  be  due ;  but  it  would  be  barred  by  the  Statute 
of  Limitations,  unless  commenced  within  six  years,  as  the  court 
was  not  a  court  of  record.®"* 


1830   {supra)  ;  oi'  he  might,  under  the  own   name,    as   assignee   of   the   bond, 

^statutes    of    1837    and    1844    {supra),  and   recovered   only   what   was   due   to 

file   the   decree   in    the    county   clerk's  him.       (Baggott  v.   Boulger,    2    Duer, 

office,  and  issue  an  execution  thereon,  160.) 

and  tlien,  in  case  of  its  return  unsatis-  80  2  R.  S.  116,  §  19a,  inserted  by  L. 

fied.   he  might  apply  to  the  surrogate  1830.  c.   320,  §  23. 

to  have  the  bond  assigned  to  him  for  «i  L.  1837.  c.  460,  §§  63.  64. 

the      purpose      of     being     prosecuted.  ^2  See   Baggott  v.    Boulger,   2   Duer, 

These  remedies   were  cumulative,   and  KiO;  Thayer  v.  Clark,  4  Abb.  Ct.  App. 

it   was   discretionary   with   the   party  Dec.  391. 

Avhether  he  would  proceed,  in  the  lirst  8.3  2  R.  S.   1.52,  §   9. 

instance,  by  execution  on  the   decree,  84  Paif  v.  Kimiey,  1  Bradf.  1,  where 

or  immediately  by  action  on  the  bond,  it  was  lield,  that  the  court,  not  being 

If  the  latter  course  was  adopted,  the  a  court  of  record,  although  its  decree 

action  on  the  bond  was   instituted  in  wouhl  form  the  basis  of  an  action  at 

the  name  of  the  people,  under  the  di-  law.  yet   a   suit  on   it,  unless  brought 

rection  of  the  surrogate,  by  whom  the  within    six   years,   was   barred   by   the 

moneys   collected   were   to    be   applied.  Statute  of  Limitations.     But  see,  now,. 

(People   v.   Townsend.   37    Barb.   520;  npon  this  point.  Co.  Civ.  Proc,  §§  37S 

People  v.  Laws,  3  Abb.  Pr.  4.50.)      In  and  382,  subd.  7. 
the  other  case,  the  party  sued  in  his 


893  TiiKiii  Effect  and  Exkokcemkxt.      g,^  1088-1090. 

TITLE  THIRD. 

PROOEEUIX(iS    TO    KXKOKCK    DKCltKES    UXDER   THE    CODE. 

§  1088.  Different  kinds  of  orders. —  The  adjudications  made  or 
entered  in  writing  by. the  surrogate,  in  proceedings  before  him, 
iire  either  intermediate  orders,  or  decrees  —  also  termed  final 
orders.  It  is  essential  to  their  validity  that  they  should  be  signed 
by  the  surrogate  ;^^  and  it  is  required  that  they  be  recorded  in  the 
proper  books.***"  The  final  determination  of  the  rights  of  the  par- 
ties to  a  special  proceeding  in  the  Surrogate's  Court  is  styled,  in- 
differently, a  final  order  or  a  decree.**^  A  direction  of  the  court, 
made  or  entered  in  writing,  and  not  included  in  a  decree,  is  styled 
iin  order.^^ 

§  1089.  Enforcement  of  intermediate  or  interlocutory  orders. — 
It  is  provided  that  any  order,  other  than  a  final  order  or  decree, 
may  be  enforced  in  like  manner  as  a  similar  order,  made  by  the 
Supreme  Court  in  an  action  ;  and  the  costs  are  the  same  as  upon 
such  an  order,  and  may  be  collected  in  like  manner.^^  The  surro- 
gate has  i)ower  to  punish  any  person  for  a  contempt  of  his  court, 
oivil  or  criminal,  in  any  case  where  a  court  of  record  may  punish 
a  person  for  a  similar  contempt,  and  in  like  manner.^*^ 

§  1090.  Order  for  costs.— Motion  costs  awarded  cannot  be  col- 
lected Ijy  contempt  proceedings,  but  the  order  awarding  them  may 


85  MeNaughton  v.  Chave,  5  Abb.  N.  writ  of  certinrnri.  in  this  case,  the 
C.  225.  order  was   reversed   and   the    prisoner 

86  See  Co.  Civ.  Proc.,  §  2498.  was  discharged  on  the  ground  that  the 

87  Co.  Civ.  Proc,  §  25o0.  For  what  commitment  was  detective.  ( People 
are  orders  and  what  final  decrees,  see  ex  rel.  Jones  v.  Davidson,  .'i.5  Hiin. 
:Malu'r  of  McMastcr.  10  St.  Rep.  240;  471.)  The  refusal  of  one  of  the  ac- 
14  Civ.  Proc.  Rep.   105.  counting  trustees,  on  the  hearing,   to 

88  Co.  Civ.  Proc,   §   2556.  answer  (lucstions  put  to  him,  in  In-lialf 

89  Co.   Civ.   Proc,   §   2556.  of   a   beneficiary,    for    the   purpose   of 

90  Co.  Civ.  Proc,  §  2481,  subd.  7.  showing  impropriety  of  an  investment. 
See  Matter  of  Odell,  6  Dem.  344.  For  as  to  which  no  specific  objection  has 
the  proceedings  to  inflict  such  punish-  been  filed,  is  not  a  contempt  punish- 
ment, see  Co.  Civ.  Proc,  §  2266  ct  seq.  able  as  such.  (Roln^rt  v.  Morgan.  4 
Thus  he  has  jurisdiction  to  impose  a  Dem.  148.)  A  representative  who 
fine  upon  a  witness  committed  for  con-  fails  to  appear  as  directed,  and  show 
tempt  in  refusing  to  testify,  not  ex-  cause  why  a  collateral  inheritance  Ui\. 
oeeding  the  amount  of  costs  and  ex-  should  not  be  imposed  ujkui  the  estate, 
penses,  and  .$250  besides.  (Matter  of  is  punishable  as  for  a  contempt. 
Jones.  6  Civ.  Proc.  Rep.  250.)  On  ( :\ratter  of  Pelton,  32  St.  Rep.  924.) 
appeal    from   the   order    dismissing    a 


§  1001. 


SUKKOGATES'    DeCKEES 


894r 


be  enforced  by  execution"^  or  a  stay  of  proceedings.^^  But  pay- 
ment of  costs  awarded  against  a  party  by  final  decree,  e.  g.,  a  de- 
cree granting  probate,  may  be  enforced  by  attachment.''*^ 

§  1091.  Enforcement  of  decrees  or  final  orders. — As  regards  the 
method  of  enforcement,  decrees  may  be  divided  into  such  as  di- 
rect (1)  the  payment  of  a  sum  of  money,  or  (2)  the  performance 
of  some  other  act,  or  (3)  both.  The  general  plan  of  the  Code,  for 
enforcing  decrees  of  the  several  descriptions,  may  be  stated  as 
follows : 

1.  A  decree  for  money  may  be  docketed  with  the  county  clerk 
in  any  county  of  the  State,  and  thereupon  it  becomes  a  lien  upon 
the  real  property  of  the  debtor  in  that  county,  in  like  manner  a& 
if  it  were  a  judgment  of  the  Supreme  Court.  An  execution 
against  the  debtor's  property  may  be  issued,  out  of  the  Surrogate's 
Court,  to  the  sheriff  of  any  county  where  the  decree  is  so  docketed. 
If  such  an  execution  is  returned  wholly  or  partly  unsatisfied,  sup- 


»i  Matter  of  Lippincott,  5  Dem.  299. 
"A  person  shall  not  be  arrested,  etc., 
for  the  nonpayment  of  costs  awarded 
otherwise  than  by  a  final  judgment  or 
a  final  order  made  in  a  special  pro- 
ceeding instituted  by  State  writ,  ex- 
cept where  an  attorney,  counselor,  or 
other  officer  of  the  court,  is  ordered 
to  pay  costs  for  misconduct  as  such, 
or  a  witness  is  ordered  to  pay  costs  on 
an  attachment  for  nonattendance." 
(Co.  Civ.  Proc.  §  15.)  Wliere  the 
leave  granted  is  to  issue  execution 
against  decedent's  real  propertj",  the 
provision  of  Co.  Civ.  Proc,  §  2.552, 
making  "'  an  order  permitting  a  judg- 
ment creditor  to  is.sue  an  execution," 
etc.,  conclusi^■«  evidence  of  assets,  is 
inapplicable:  but  if  the  administrator 
is  directed  to  pay  costs,  which  he  omits 
to  do,  he  is  guilty  of  disobedience  to  a 
decree  directing  the  payment  of  money, 
—  which  is  conclusive  evidence  of  as- 
sets, under  that  section, —  and  he  is 
amenable  to  commitment.  An  admin- 
istrat  r,  in  such  a  case,  by  alleging 
that  he  has  no  assets  of  the  estate, 
shows  no  cause  why  he  should  not  be 
punished  for  disobedience;  for  nan 
fonstat  that  he  has  not  squandered  the 
same.  Co.  Civ.  Proc,  §  15,  does  not 
protect  him  from  arrest  for  nonpay- 
ment of  such  costs.  (Gillies  v.  Kreu- 
der,  1  Dem.  349.) 

92  See  Co.  Civ.  Proc.  §  779.  In  Sco- 
field  V.  Adriance  (2  Dem.  486),  the 
surrogate    held   that    section    779    did 


not  apply  to  Surrogates'  Courts,  but, 
the  .same  surrogate  held  otherwise  in 
the  subsequent  case  of  Matter  of  Lip- 
pincott (5  Dem.  299).  See  Co.  Civ. 
Proc.  §  2556. 

93  In  Matter  of  Dillon  (N.  Y.  Law 
•J.,  April  1,  1892),  it  was  held,  that  in 
the  absence  of  a  direction  in  the  de- 
cree that  the  executor  pay  the  costs,, 
he  could  not  be  punished  for  contempt. 
"An  order  may  be  presented  directing- 
the  executor  to  pay  the  costs  awarded 
lo  the  special  guardian  by  the  decree 
admitting  the  will  to  probate.  Should 
the  executor  fail  to  obey  this  direction,, 
an  application  may  then  be  made  to 
punish  him  for  contempt,  when  his 
liability  will  be  determined.  The  in- 
solvency of  the  estate  will  be  no  de- 
fense to  such  an  application,  as  the 
special  guardian's  claim  is  preferred 
as  an  expense  of  administration ;  and 
if  there  are  available  assets,  tlie  exec- 
utor must  apply  the  same  to  payment 
thereof."  Where  an  executor  is  di- 
rected by  a  decree  admitting  a  will  to 
probate,  to  pay  a  certain  sum  therein 
awarded  as  stenographer's  fees,  he  may 
set  up  the  nonexistence  of  assets  as  a 
reason  why  he  should  not  be  punished 
for  contempt  in  disobeying  the  decree. 
( ^Matter  of  Davidson.  5  Dem.  224; 
Matter  of  Monell,  28  Misc.  308;  59  N. 
Y.  Supp.  981.)  Failure  to  pay  an 
amount  allowed  a  special  guardian  by 
and  under  a  decree  is  punishable. 
( Matter  of  Kurtzman,  2  St.  Rep.  65o. ) 


895  TiiKiit  Kffkct  and   Kmoki  kmk.nt.      >i,^  loni'/.  10'.tL\ 

plementary  proceedings  may  be  instituted  as  in  an  action,  or  step^ 
may  be  taken  to  punish  the  delinqaent  for  contempt ;  and,  if  he  is. 
an  executor,  administrator,  or  guardian,  the  issuing  of  an  execu- 
tion is  not  a  necessary  preliminary  to  the  contempt  proceedings. 
Finally,  if  the  debtor  is  an  official  who  has  given  a  bond,  an  ac- 
tion thereupfin  may  be  maintained  pari  passu  with,  or  in  lieu  of,, 
any  of  the  foregoing  remedies. 

2.  A  decree  directing  the  performance  of  an  act,  other  than 
tIic  ])aymciit  of  money,  is  to  be  enforced  by  serving  a  certified  copy 
on  the  person  required  to  obey  it,^^  and  thereafter  punishing  him 
for  contempt  if  he  ''  refuses  or  tviUfuUy  neglects  to  obey  it." 

3.  As  to  a  decree  of  the  third  class,  the  methods  of  enforcement 
mentioned  under  the  two  foregoing  heads  are  respoctivcly  ap- 
plicable to  its  different  portions.  It  is  proposed  to  discuss  these 
propositions  in  detail. 

§  1091a.  Docketing  decree  for  money. —  Wliere  a  decree  directs 
the  payment  of  money  into  court  or  to  a  person  designated,  the 
surrogate  or  the  clerk  is  required  to  furnish  a  transcript,  which 
may  be  filed  in  the  county  clerk's  office,  and  docketed  in  the  ap- 
propriate docket-book  of  judgments ;  and  such  docketing  has  the 
same  force  and  effect,  and  the  lien  thereof  may  be  suspended  or 
discharged,  and  the  decree  may  be'  assigned  or  satisfied,  in  the 
same  manner  and  with  like  effect  as  a  judgment.^^  This  provision, 
as  to  satisfying  decrees,  applies  to  all  decrees,  whether  docketed  or 
not ;  they  must  be  satisfied  as  if  they  were  judgments.^ 

§  1092.  Money  decree  enforced  in  first  instance  by  execution. — 
Where  the  decree  directs  the  payment  of  money,  by  a  person  other 
than  a  delinquent  representative,  guardian,  or  trustee,^*  the  party 

'•>i  Sudlow  V.  rinc'kney,  1  Dem.  lo8.  that  the  satisfaction  of  such  a  decree 
!*5  Co.  Civ.  Proc,  $  I'^riS;  ante,  8  (iiXJ.  is  now  to  I)e  evidenced  in  like  manner 
Like  the  corresponding,'  provision  of  as  an  ordinary  judjiuient,  thus  super- 
1lie  original  statute,  the  section  quoted  sedinij  the  necessity  for  a  surrogate's 
is  ol)viously  intended  to  oive  a  means  certificate,  above  mentioned, 
of  securing  and  enforcing  payment  of  96  flatter  of  Wilcox,  1  Misc.  o.i :  21 
tlic  decree;  and  the  docketing  does  not  X.  Y.  Supp.  780.  An  administrator 
take  from  its  character  as  a  decree  of  may  maintain  an  action  in  equity  to 
the  Surrogate's  Court,  nor  interfere  have  a  decree  against  his  estate  de- 
with  an  .a])peal  therefrom  as  such  clared  satisfied,  and  to  recover  his  ad- 
( Davies  v.  Skidmore,  'i  Ilill.oOl.  See  vances  made  to  the  person  in  whose 
(^o.  Civ.  Proc.  §  '2(i84)  :  but  the  ruling  favor  the  decree  was  made.  In  tliis 
that  the  creditor,  under  the  decree,  manner  he  may  get  the  benefit  of  his 
may  pursue  a  remedy  by  execution,  counterclaim  for  matters  of  which  the 
and  by  attachment  against  the  person,  Siirrogate's  Court  could  not  take  cog- 
simultaneously  (Townsend  V.  Whitnev,  nizance.  (Barker  v.  Laney,  7  App. 
7.')  X.  Y.  42o:"affg.  1;J  ?Tun.  9.3).  seems  Div.  352;  40  X.  Y.  Supp.  00.) 
to  be  abrogated.     It  will  be  observed  9"  Co.  Civ.  Proc.,  §  2555,  subd.  4. 


§  iUUo.  SuKKOGATEs'   Deckees  :  89G 

in  whose  favor  it  is  made  must  proceed,  in  tlie  first  instance,  by 
an  execution  against  the  debtor's  property,  in  analogy  to  the  method 
of  enforcing  an  ordinary  money  judgment.^^  The  Code  provides 
that  a  decree,  directing  the  payment  of  money,  may  be  enforced 
])y  an  execution  against  the  j^roperty  of  the  party  directed  to  make 
the  payment.  The  execution  must  be  issued  by  the  surrogate,  or 
the  clerk  of  the  Surrogate's  Court,  under  the  seal  of  the  court,  and 
must  be  made  returnable  to  the  court.  In  all  other  respects,  the 
provisions  of  the  Code,  relating  to  an  execution  against  the  prop- 
erty of  a  judgment  debtor,  issued  upon  a  judgment,  and  the  pro- 
ceedings to  collect  it,  apply  to  an  execution  issued  from  the  Surro- 
gate's Court,  and  its  collection  f^  the  decree  being  for  that  pur- 
pose regarded  as  a  judgment,  except  that  the  proceedings  supple- 
mentary to  an  execution,  "  if  founded  upon  such  a  decree,  must 
be  taken  as  if  the  decree  was  a  judgment  of  the  County  Court,  or, 
in  the  city  of  Xew  York,  of  the  Supreme  Court. ^  ITnless  the  de- 
cree has  been  docketed,  the  execution  is  irregular  and  will  be  set 
aside.^ 

§  1093.  Decrees  enforced  by  proceedings  for  contempt. —  Where  a 
decree  directs  the  performance  of  an  act,  other  than  the  payment 
of  money ;  or  where  an  execution  against  property  on  a  money 
decree  has  proved  unavailing,  i.  e.,  is  returned  unsatisfied ;  or 
where  the  debtor  is  a  representative  or  guardian,  and  the  surro- 
gate deems  it  proper  to  do  so ;  the  enforcement  may  be  by  serving 
a  certified  copy  on  the  party  required  to  pay  or  perform,   and 

98  Matter    of    Dissosway,    91    X.    Y.  a  new  date  for  the  startino:  of  the  five- 

235;  Union  Trust  Co.  v.  Gage,  6  Dem.  year   limitation   on   the   issuing   of   an 

3.58;   People  v.  Riley,  25  Hun,  587.  execution. 

93  In  People  ex  rel.  Sackett  v.  Wood-  l  Co.  Civ.  Proe.,  §  2554,  as  amended 
bury  (70  App.  Div.  416;  75  X.  Y.  1805.  Execution  issues,  of  course,  and 
Supp.  230),  it  was  held,  that  a  decree  leave  of  the  surrogate  is  not  necessary, 
^finally  settling  an  administrator's  ac-  (.Joel  v.  Ritterman,  2  Dem.  242;  Pey- 
eount,  and  directing  him  to  pay  a  cer-  ser  v.  Wendt,  id.  221.)  See  Matter 
tain  sum  to  a  distributee,  or  to  the  of  Dissosway,  91  X.  Y.  235.  It  is  only 
Surrogate's  Court,  being  within  the  in  cases  of  judgments  entered  in  other 
cognizance  of  that  court,  and  a  final  courts,  against  the  representatives, 
determination  of  the  rights  of  the  that  the  surrogate's  leave  to  issue  ex- 
parties,  was  within  the  statute,  and  ecution  is  necessary.  See  §  G77  et 
was  governed  by  section  1377,  requir-  .s'y/.,  ante. 

ing  that,  after  the  lapse  of  five  years  2  Dissosway  a'.  Hayward,  l.Dem.  175. 

from  the  entry  of  a  judgment,  notice  See  Co.  Civ.  Proc,  §  13G5.     An  execu- 

of  an  application  for  execution  thereon  tion  issued  upon  a  surrogate's  decree, 

must  be  served  on  the  adverse  party,  directing  an  executor  to  pay  a  legacy, 

and,   therefore,   mandamus   would    not  is    not    open    to    objection    because    it 

lie   to   compel    the    surrogate   to   issue  runs  against  the  executor  personally, 

execution  thereon  before  the  service  of  (Peyser  v.  Wendt.  2  Dem.  221  :   ilat- 

such  notice.     It  was  also  held  in  that  ter  of  Waring.  7  Misc.  502:   28  X.  Y. 

case,  that  the  docketing  of  the  decree  Supp.  393:   Matter  of  Quackenbos,  38 

with  the  county  clerk  did  not  establish  Misc.  GG.) 


•897  'riiiaii    Ki'i-ECT   AM)    Km  ()i{<  i;.\ii;.\-i'.  §  I'i'.U. 

thereafter,  in  ease  of  refusal  or  luillful  neglrcl  to  rihoj  il ,  '•  Ijy 
punisliin<>;  him  for  a  contempt  of  court."  The  provision  of  the 
Code  applies  to  a  j)oi'tion  of,  as  well  as  to  an  ciitii-c,  ilccree."^ 
Where  the  service  of  a  certified  cojn-  of  the  decree  is  iiiftiVctiial, 
and  resort  is  had  to  contempt  proceed insis,  they  are  ol)viously  to 
l)f  ciiiidiichMl  in  ilic  niaiiiicr  prescrihed  in  the  Code,  with  i-c-jx-ct 
to  "  proceedings  to  punish  a  conteni})t  of  court,  other  than  a  crim- 
inal contemj)t."  "*  It  is  not  within  the  scope  of  this  work  to  uive 
the  details  of  the  practice,  where  such  a  course  is  pursued,  hut 
it  is  important  to  note  what  provision  is  made  for  final  process 
against  the  person  of  one  against  whom  a  decree  has  been  rendered 
in  a  Surrogate's  Court. 

§  1094.  Final  process  against  the  person. —  Thei-e  is  no  provision 
in  the  Code  authorizing  the  issuing  of  an  execution  against  the 
"person,  upon  a  surrogate's  decree.  As  already  noted,  "  an  execu- 
tion against  the  property"  is  allowed  u])on  a  duly  docketed  de- 
cree for  money,  and  this  may  he  followed  by  sujiplementary  pro- 
ceedings; but  where  the  person  is  proceeded  against,  ihe  method 
presci'ibed  is  by  service  of  a  certified  copy  of  the  decree  on  the 
person  against  whom  it  is  rendered,  and  thereafter,  "  by  punish- 
ing him  for  a  contempt  of  court."  An  execution  against  property 
having  been  returned  unsatisfied,'*  if  the  court  is  satisfied,  by 
affidavit,  that  a  personal  demand  has  been  made,  and  that  pay- 
ment has  been  refused  or  neglected,  it  may  issue,  without  notice, 
a  warrant  to  commit  the  oifender  to  prison,  until  the  sum  of  money 
-and  the  costs  and  expenses  of  the  proceeding  are  paid,  or  until  he 
is  discharged  according  to  law.® 

3  Co.  Civ.  Proc,  §  255."),  subds.  1-4.  ville,  1.54  X.  Y.  115:  47  X.  E.  1086; 
The  proceedin<j  by  attaclinient.  under  Matter  of  Feehan,  36  Misc.  614;  7.J 
the  Revised  Statutes,  was  superseded  X.  Y.  Supp.  1126.) 
by  this  section,  under  wliich  a  surro-  iCo.  Civ.  Proc,  §  2266  et  srq. 
gate  may  by  order  ])unisli  for  contempt  •'>  Except  in  the  case  provided  for  by 
a  refusal  or  wilful  nci^'-lect  to  obey  his  Co.  Civ.  Proc.  §  2555,  subd.  4.  While 
decree;  and  the  section  applies  to  the  the  surrogate  may  enforce  a  decree 
case  of  an  executor  whose  trust  was  directinfj  the  payment  of  money  under 
created,  and  whose  wrongful  acts  in  subdivision  4,  by  contempt  proceedings, 
the  trust  were  done  before  this  statute  without  an  execution,  it  is  discretion- 
went  into  operation,  but  who  was  ary  with  him  whether  or  not  to  require 
called  to  account  thereafter.  (Matter  an  execution  to  l)e  first  issued  against 
of  Snyder,  34  llun.  302;  103  X.  Y.  the  executor's  property ;  and  ordinarily 
178.)  On  this  point,  see  I'nderhill  v.  that  course  should  be  pursued.  (  Mat- 
Xichols.  4  Redf.  318:  Woodhouse  v.  Icr  of  Kellinger.  2  McCarty.  68.) 
Woodhouse,  5  id.  131:  -loel  v.  Ritter-  "Co.  Civ.  Proc,  §  2268.  A  demand 
man,  id.  136.  Xoncompliance  with  a  upon  an  executor  to  pay  "the  balance 
surrogate's  decree  directing  the  pay-  du'  mi  a  decree,  inf'  for  costs,"  i>  in- 
ment  of  costs  only  is  not  punishable  sulVicient  as  a  foundation  to  puni-h 
as  a  contempt.      (Matter  of   Humfrc-  the  executor  as  for  contempt  in  failing 

57 


§  1095. 


SUKKOGATES'     DkCREES  : 


89a 


ij  1095.  Order  to  show  cause,  etc. —  Ordinarily,  however,  an  or- 
der to  show  cause,  or  a  warrant  of  attachment,^  will  be  issued  as 
a  j)reliniinary,  and  a  hearing  Avill  be  had.^  Thereupon,  if  the  de- 
cision is  adverse  to  the  executor,  the  court  must  make  a  final  order, 
directing  that  he  be  "  punished  by  fine  or  imprisonment/'  or 
both,  as  the  nature  of  the  case  requires.^  The  case  supposed  is 
within  the  section  of  the  Code  which  requires  the  court  to  im- 
pose upon  the  offender  a  fine  sufficient  to  indemnify  the  aggrieved 
party,^'*  and  imprisonment  is  to  follow  until  the  fine  is  paid.^^ 
It  is  not  sufficient,  to  protect  the  party  against  proceedings  and 
punishment  under  this  section,  to  show  that  an  action  ma}',  on 
general  principles,  be  maintained  for  the  same  cause,  but  it  must 
be  shown  to  be  a  case  where  the  law  has  specially  prescribed  an 
action  as  the  means  of  redress.^^  x\nd  if  he  shows  that  an  appeal 
will  be  taken  from  the  decree,  which  may  result  in  a  reversal,  ho 
should  not  be  punished  until  the  time  to  appeal  has  expired.^^ 
And  the  delinquent  will  not  be  allowed  to  excuse  nonpayment,  by 


to  pay  such  balance.  (Matter  of  Fee- 
hairs' Estate,  36  Misc.  614;  73  N.  Y. 
Supp.  1126.) 

T  Co.  Civ.  Proc,  §  2269. 

8  Co.  Civ.  Proc,  §  2280.  Appearance 
by  an  attorney  is  equivalent  to  a  per- 
sonal service  of  the  order  to  show 
cause.  (Austen  v.  Variari,  16  App. 
Div.  337;  44  N.  Y.  Supp.  599.)  An 
executor  cannot  be  regularly  adjudged 
in  contempt  for  failure  to  make  pay- 
ment as  required  by  a  decree  settling 
his  accounts,  until  the  time  of  an  ad- 
A-erse  party  to  appeal  from  the  decree 
has  been,  cut  off  by  the  expiration  of 
thirty  days  after  service  of  a  copy  of 
the    decree    and    notice    of    its    entry. 

(Matter  of  Kavanagh,  10  N.  Y.  Supp. 
899. ) 

9  Co.  Civ.  Proc,  §  2281.  "A  war- 
rant of  commitment  must  issue  accord- 
ingly "  ( lb. )  ;  except  that  where  the 
proceeding  is  by  order  to  show  cause, 
instead  of  by  warrant  of  attachment, 
the  offender  may  be  committed  upon 
a  certified  copy  of  the  order,  without 
further  p?-ocess.  (Id..  §  2283.)  Upon 
appeal  the  only  question  is  whether  the 
court  had  jurisdiction.  (Matter  of 
Pve,  18  App".  Div.  .306:  40  X.  Y.  Supp. 
.-^50:  affd..  154  X.  Y.  77.3.) 

10  Co.  Civ.  Prcc,  §  2284. 

n  Co.  Civ.  Proc,  §  2285;  Matter  of 
McMaster,  14  Civ.  Proc  Rep.  195:  s.  c. 
as  Matter  of  Bernhard.  16  St.  Rep.  241; 
Matter  of  Prout,  19  id.  318.    Where  a 


trustee  has  been  adjudged  to  be  guilty 
of  a  contempt,  because  of  a  failure  to 
y)ay  over  moneys  received  by  him  as 
trustee,  pursuant  to  an  order  made 
upon  an  accounting,  the  court  may  im- 
pose as  a  fine  the  amount  which  he  has 
rec?ived  and  failed  to  pay.  and  direct 
him  to  be  imprisoned  until  he  shall 
pay  the  fine.  (^Matter  of  Morris,  4.5 
Hun,  107.)  In  that  case,  the  order 
adjudging  the  trustee  guilty  of  con- 
tempt because  of  a  failure  to  pay  over 
moneys,  expressly  adjudicated  that  his 
misconduct  "  was  calculated  to  and 
did  defeat,  impair,  impede,  and  preju- 
dice a  right  or  remedy  of  the  peti- 
tioner,"' and  the  evidence  upon  the  ref- 
erence supported  that  conclusion;  — 
Held,  sufficient  as  an  adjudication  of 
injurv  within  section  2284.  In  !Mat- 
ter  of  Snyder  (34  Hun,  302),  the  ex- 
ecutor was  adjudged  to  be  in  contempt 
for  refusing  to  pay  over  moneys  as 
(i.rected  by  the  decree  on  his  account- 
ing, and  was  fined  and  committed  till 
p  .yment,  it  appearing  that  before  the 
accounting  lie  had  lost  in  his  private 
business  the  funds  of  the  estate,  and 
had  conveyed  his  real  property  to  his 
wife  to  be  out  of  the  reach  of  his 
creditors.  Followed.  ]\Iatter  of  Kurtz- 
man,  2  St.  Rep.  055. 

12  Matter  of  Morris.  45  Hun,  167. 

13  Matter    of   Arkenburgh,    15    Misc^ 
416;   38  X.  Y.  Supp.   178. 


SO!) 


TlIKIli     KfFECT    AM)     K.MOltCKMK.NT. 


§   1000. 


a  plea  of  his  jirior  fraudnlent  misappropriation  of  the  wliole  es- 
tate or  fund,  and  his  consequent  inability  to  pay.  His  neglect  to 
})ay,  under  such  cii-cumstances,  is  a  "  willful  neglect,"  and  is 
punishable  as  a  contempt.^'* 

i<  1096.  Discretion  of  the  court. —  The  extraordinary  power,  to 
enforce  decrees  for  tiie  ])aynient  of  money  by  j)unishing  (hdin- 
quent  parties  for  c<iiitcin])t,  should,  ho\v<'ver,  be  exercised  in  con- 
formity to  the  liberal  spirit  of  the  legislation  on  the  subject  of 
imprisonment  for  del)t.^'''  When  the  surrogate  is  asked  to  imprison 
for  contempt  one  who  is  shown  to  ha\'e  disobeyed  a  decree  of  his 
court,  he  is  not  l)ound  to  grant  the  application  as  of  course,  hut 
should  grant  or  deny  it  in  his  sound  discretion. ^*^     Although  mere 


14  Joel  V.  llitterman,  5  Redf.  130, 
and  oases  supra. 

15  Ferguson  v.  Cumniings,  1  Dfin. 
433. 

l'i:\Iattpr  of  liattle.  5  Dein.  447:  10 
St.  Hej).  KiT:  13  Civ.  Proc.  Hop.  27. 
In  that  raso.  the  surrogate  cited  and 
applied  Cochrane  v.  Ingersoll,  73  X.  Y. 
()13:  Doran  v.  Dempsev.  1  Bradf.  490: 
Parke  v.  Parke.  18  Hun.  400;  Stro- 
bridge  v.  Strobridge.  21  id.  288;  Mat- 
ter of  Snyder.  34  id.  312;  afTd..  103 
N.  Y.  178";  iiauous  v.  Stover,  89  id.  1. 
In  Hosack  v.  Rogers  (11  Paige.  003). 
the  chancellor  affirmed  a  refusal  of 
the  vice-chancellor  to  enforce  by  at- 
tachment his  decree  against  an  execu- 
tor to  pay  a  debt  due  from  the  testa- 
tor, it  appearing  that  the  executor  had 
improvidcnt'y  invested  and  lost  the 
fund.  "  Bui  the  case  might  have  been 
different,"  said  the  chancellor,  "had 
it  been  a  mere  interlocutor7  order  di- 
lecting  a  trustee,  icho  admitted  the 
irust  funds  to  be  actually  in  his  pos- 
session, or  under  his  control,  to  bring 
the  same  into  court  for  safe-keeping."' 
In  Seaman  v.  Duryea  (11  X.  Y.  32S), 
which  was  an  action  for  false  impris- 
onment under  a  surrogate's  attach- 
ment against  a  guardian,  for  neglect 
to  pay  the  amoinu  found  due  to  the 
ward  on  an  accounting,  it  does  not 
appear  whether  the  guardian  had  the 
I)os<ession  of  the  fund.  The  decision 
in  this  case  is  stronglv  dissented  from 
in  :\ratter  of  Bingham  (32  Yt.  329 
[18.>91).  which  held  that  the  decree 
was  strictly  a  diht.  and  notliing  more. 
In  Doran  v.  Dempsey  (1  Bradf.  490 
flS.'Jl]),  the  surrogate  refused  an  at- 
tuhment  against  an  executor,  for 
nonpayment  of  a  legacy   (after  execu- 


tion on  the  decree  had  been  returned 
unsatisfied),  it  ajjpearing  that  the  ex- 
ecutor had  no  means  of  paying.  "  The 
commitment  is  one  which  places  the 
party  in  close  imprisonment,  and  I 
have  certainly  no  inclination  to  exe- 
cute the  law  in  that  way,  against  a 
person  who  does  not  comply  with  the 
decree,  because  he  cannot  comply  with 
it.  Xor  do  I  see  that  justice  or  olRcial 
duty  requires  me  to  exercise  that 
power  in  a  case  of  sheer  inability  to 
pay."'  (lb.)  The  surrogate  did  not 
decide,  however,  that  he  had  not  the 
requisite  power.  In  flatter  of  Frear 
(1.5  Abb.  Pr.  3.50  [1803]),  a  guardian, 
in  answer  to  a  motion  for  an  attach- 
ment against  him,  for  neglect  to  pay 
to  the  ward  a  sum  decreed,  alleged 
that,  since  his  appointment,  he  had 
met  with  reverses  and  was  insolvent 
and  imable  to  pay.  and.  moreover,  that 
the  sureties  on  his  bond  had  not  been 
j)rosecutcd.  The  surrogate  directed  an 
assignment  of  the  bond,  for  prosecu- 
tion against  the  sureties,  "and  if  this 
prove  unavailing  to  recover  the  money, 
1  will  then  entertain  the  question  of 
an  allachnient."'  In  Saltus  v.  Saltus 
(2  Lans.  9  [18701),  an  attachment 
was  issued,  although  it  did  not  ajipear 
that  an  execution  had  been  issued  on 
the  decree.  In  Matter  of  Woodhead 
(1  Ttick.  92  [18081),  the  surrogate. 
1  hough  remarking  that  tlie  court 
would  not  j)unish  an  innocent  inability 
to  pay,  with  imprisonment,  yet  held 
that  where  an  executor  had  mingled 
the  assets  of  the  estate  with  his  own 
funds,  antl  had  so  maladministcMcd 
them  as  to  cojnmit  a  fraud  upon  the 
creditors,  he  could  not  plead  such  in- 
nocent inability  to  pay.  and  a  creditor 


§§  1097,  1098. 


Surrogates'  Decrees 


900 


inability  to  obey  sucb  direction  at  the  time  it  is  sought  to  enforce 
it  should  not  suffice  of  itself  to  shield  the  executor  from  commit- 
ment/^ yet  if  it  appears  that  the  case  is  one  in  which  if  the  respond- 
ent were  in  actual  confinement  for  disobedience  to  the  decree,  his 
application  for  discharge  would  commend  itself  to  the  court,  the 
court  may  deny  the  original  application  for  imprisonment.^** 

ij  1097.  Service  of  attachment. —  A  warrant  of  attacliment  must 
be  directed  to  the  shcrift"  of  the  surrogate's  county ;  and  that  ofiieer 
may  execute  it  in  any  county  of  the  State,  and  is  required  to  con- 
vey the  person  arrested  to  the  place  where  it  is  returnable. ^^  The 
liability  of  a  sheriif  or  other  ministerial  officer  for  a  default  in 
executing  or  returning  a  mandate  issued  by  a  surrogate,  is  governed 
by  general  provisions  applicable  to  all  courts  of  record,^^  and  the 
special  provision  of  the  former  statute^^  on  that  subject  has  been 
repealed  without  any  other  substitute. 

!$  1098.  Commitment  with  benefit  of  jail  liberties. —  It  was  held, 
under  the  Revised  Statutes,  that  a  commitment  to  close  custody 
was  improper,  and  that  the  proper  process  was  an  execution  against 


was  entitled  to  the  remedy  by  attach- 
ment. In  Matter  of  Timpson  ( 15  Abb. 
Pr.  [N.  S.]  230  [1872]),  the  executor 
admitted  that  he  had  converted  to  his 
own  use  the  trust  funds  since  the  de- 
cree was  made,  and  the  whole  was  lost, 
and  he  had  no  power  to  pay.  The 
surrogate  granted  an  attachment.  In 
Eugg  V.  Jenks  (4  Dcm.  10.5),  the  ex- 
ecutor was  indebted  to  the  testator  at 
the  time  of  his  death,  and  at  the  time 
of  his  accounting  was  solvent  and  able 
to  pay  the  same,  but  subsequently  be- 
came insolvent  and  unable  to  pay  the 
sum  found  due  by  the  decree,  which 
had  never  lieen  docketed; — Held,  he 
could  not  be  punished  for  contempt  in 
failing  co  pay  the  sum  so  found  due, 
especially  where  the  legatee  who 
sought  to  enforce  the  payment  was  a 
co-executor  who  knew  that  the  claim 
existed  simply  in  the  form  of  the  orig- 
inal indebtedness  at  the  time  of  ren- 
dering the  account,  and  permitted  the 
matter  to  so  stand,  taking  no  steps  to 
enforce  the  decree  or  even  to  docket  it 
as  a  judement  until  after  the  insol- 
vency. In  Matter  of  Schweibert  (25 
Misc.  464;  55  N.  Y.  Supp.  049),  the 
executor  was  directed  to  make  pay- 
ment of  the  distributive  share  of  a 
minor  legatee  to  his  general  guardian 
to  be  appointed,  but  no  appointment 


was  made  for  five  years,  meanwhile 
the  executor  made  advances  to  the  per- 
son appointed,  for  the  benefit  of  the 
minor,  as  he  had  done  prior  to  the 
decree.  Held,  upon  a  motion  to  pun- 
ish the  executor  for  contempt  on  his 
refusal  to  pay  over,  on  the  ground 
he  had  no  funds,  that  he  was  entitled 
to  be  credited  with  the  sums  paid, 
with  interest  from  the  date  of  the 
guardian's  appointment,  and  should 
be  ordered  to  pay  the  balance,  with 
interest  from  that  date.  Where  an  at- 
torney for  an  executor  knew  that  a 
decree  against  the  executor  was  un- 
satisfied in  part,  and  procured  it  to 
be  satisfied  of  record,  the  executor  will 
not  be  punished  for  contempt  unlc.  s 
he  was  actually  pri\-y  to  such  unau- 
thorized satisfaction.  QIatter  of  Fee- 
han,  .36  Misc.  614:  73  X.  Y.  Supp. 
1126.) 

ifi  :\Iatter  of  Davidson.  5  Dem.  224 ; 
Gillies  V.  Kreuder.  1  id.  349;  Mat- 
ter of  Kurtzman.  2  St.  Rep.  655;  Mat- 
ter of  Waring.  1  App.  Div.  29;.  36 
X.  Y.   Supj).  529,  and  cases  aiipra. 

is:vrattor  of  Snvder,  103  X.  Y.  178; 
34  Hun,  302 ;  Matter  of  Battle,  5  Dem. 
447;  Matter  of  Steinert,  29  Hun,  301. 

19  Co.  Civ.  Proc,    §  2515. 

20  Co.  Civ.  Proc,  S§  100-107. 

21  2  R.  S.  223,  §  9. 


901  TlIElK    El' FKCV    AM)    Exi-OKrEMKNT.  ?'    10!)S. 

tlie  person,  in  tlio  form  proscribed  hj  the  court  of  chancery,  upon 
wliicli  the  defendant  was  entith'd  to  the  jail  liberties.^"  And  this 
ruk'  is  followed  in  proceedings  under  the  Code  of  Civil  Procedure.^ 
The  sheriff  has  no  riglit  to  release  the  person  in  custody,  except 
on  his  giving  an  undertaking  as  provided  in  section  2277  of  the 
Code.2^ 

22  Watson  V.  Nelson,  69  N.  Y.  536.  which  the  latter  turned  over  to  the 
Compare  People  v.  Cowles,  3  Abb.  Ct.  clerk  of  the  Siirro<,'ate"s  Court.  Held, 
App.    Dec.   507.      See   S    1084.   ante.  that   neither  of  these  ollicers  had  au- 

23  Baker  v.  Baker  23  Hun,  350;  thority  to  receive  tlie  money.  The 
Meyers  v.  Becker,  29  id.  507;  People  clerk  was  ordered  to  return  tie  money 
V.  Riley,  25  id.  587;  Matter  of  Amer-  to  the  sherifT.  the  nurrnrrate  saying 
man.   3   St.   Rep.   356.  that   the   rights   of   the   parties   in   re- 

24  Tn  Matter  of  Callan  (N.  Y.  Law  gard  to  the  money  must  be  settled  in 
J.,  Dec.  8,  1891),  the  sheriff  accepted  another  tribunal. 

a  deposit   of  money   in   lieu  of  bail, 


CHAPTER  XXII. 

COSTS    IN    SURROGATES'    COURTS. 


TITLE  FIRST. 

KULES   FORMERLY  PREVAILING. 

§  1099.  Before  the  Code. —  Before  the  adoption  of  the  eighteenth, 
chapter  of  the  present  Code,  the  subject  of  costs  in  Surrogates' 
Courts  was  involved  in  great  confusion.  That  act  has  established 
uniform,  brief,  and  intelligible  rules  in  respect  to  the  matter.  The 
power  of  Surrogates'  Courts  to  award  costs,  like  that  of  other 
courts,  is  purely  statutory.^  Neither  the  common-law  courts,  nor 
the  chancellor,  had  any  power,  independently  of  the  statute,  to 
award  costs  to  be  paid  by  one  party  to  another,  or  out  of  a  fund 
in  court.^  The  Revised  Statutes  were  the  first  legislation  on  the 
subject  of  costs  in  Surrogates'  Courts.^ 

§  1100.  Costs  in  contested  cases. —  The  statute  provided  that  in 
all  cases  of  contest  before  a  Surrogate's  Court,  the  court  might 
award  costs  to  the  party  in  the  judgment  of  the  court  entitled 
thereto,  to  be  paid  to  either  party  by  the  other,  personally,  or  out 
of  the  estate  which  was  the  subject  of  the  controversy.*  The  Code 
of  Procedure  had  no  application  to  this  subject,^  and  costs  in  these 
courts  (except  in  Xew  York  county)  were  regulated  by  the  Re- 
vised Statutes  until  the  adoption  of  the  present  Code  of  Civil 
Procedure.  But  the  Revised  Statutes,  while  authorizing  an  award 
of  costs,  did  not  fix  the  rate,  and  it  was  only  in  1837^  that  the 

1  Matter  of  Bailey,  47  Hun.  477:  Wend.  3G3:  Lee  v.  Lee.  30  Barb.  172; 
Fernbac'her  v.  Feinbacher,  4  Dem.  227;  Devin  v.  Patchin.  2fi  X.  Y.  441.  449; 
Walton  V.  Howard,  1  id.  103;  Du  Bois  :Matter  of  Gates.  2  Redf.  144;  Noyes 
V.  Brown,  id.  317;  Halsey  v.  Van  v.  Children's  Aid  Society,  10  Hun, 
Amringe,  6  Paige,  12 ;  Shultz  v.  Pul-  289.  An  order  awarding  costs  was 
ver,  3  id.  182;  Burtis  v.  Dodge,  1  Barb,  coram  non  judice,  and  void.  (Reid  v. 
Ch.    77;    Lee   v.    Lee,    39    Barb.    172;  Vanderhevden.  .5  Cow.  719.) 

Devin  v.  Patchin.  20  X.  Y.  441 ;  Mat-  4  2  R.  S.  223,  §  10.  And  see  2  R.  S. 
ter  of  Gates,  2  Redf.  144;  Matter  of  (13,  §  39,  as  to  award  of  costs  in  pro- 
Mace.  4  id.  325.  ceedings  to  revoke  probate  on  allega- 

2  Downing    v.    Marshall,    37    N.    Y.  tions. 

380.  And  see  Seaman  v.  Whitehead,  ^  See  Devin  v.  Patchin,  26  X.  Y. 
78  id.  306.  441. 

3  Shultz  V.  Pulver,  3  Paige,  182;  11        «  L.  1S37,  c.  4G0,  §  70. 

[9021 


003  Costs  ix  Sukuogatks'   Coukts.  §  1101. 

Logislatnro  aiitliorizod  tlio  taxation  of  costs  at  the  rate  then  al- 
lowed for  similar  services  in  the  Common  Pleas.^  Costs  could  not 
be  awarded  in  excess  of  the  rate  thus  fixed,  nor  could  allowances 
be  made  to  a  party  or  to  counsel,  to  be  paid  personally  or  out  of 
the  estate,  even  upon  the  consent  of  the  parties  to  the  proceed- 
ing;® and  if  the  representative  ])aid  allowances  thus  decreed,  the 
amount  would  not  be  allowed  him  as  a  credit  on  his  accounting/'* 
Although  the  statute  gave  the  surrogate  power  to  award  costs,  to 
be  paid  "  by  the  other  party,  personally,"  yet  this  power  was  not 
exercised  against  a  party  who  had  contested  in  good  faith,  and 
on  reasonable  grounds,  although  unsuccessfully.^'^  In  matters  of 
accounting,  costs  were  awarded  to  the  accounting  party  so  far 
as  he  was  free  from  fault ;  and  as  to  inquiries  growing  out  of  al- 
leged breaches  of  trust,  costs  were  awarded  against  him,  where 
the  objections  were  sustained. ^^ 

g  1101.  Costs  in  uncontested  cases. —  Under  the  Revised  Stat- 
utes, costs  could  be  awarded  in  "  cases  of  contest "  only.  Under 
later  statutes,  power  was  given  to  the  surrogate  to  award  costs, 
in  certain  cases  where  there  was  no  contest,  as  in  a  proceeding  to 
compel  the  filing  of  an  inventory,  or  an  account,  by  a  representa- 
tive, etc.,  where  the  surrogate  might,  in  his  discretion,  charge  the 
representative  or  guardian  personally  with  the  costs.^" 


7  See  2  R.  R.  630.  §  27,  for  Common  any  party,  whether  successful  or  not. 
Pleas  fees.  This  statute,  except  with  and  to  as  many  as,  in  the  surro- 
reference  to  Surrogates'  Courts,  be-  gate's  judgment,  were  entitled  thereto, 
came  obsolete  in  1840.  (L.  1840,  ( Noyes  v.  Children's  Aid  Society.  7<» 
c.  .380,  §  40.)  See  \Yestern  v.  Ro-  N.  Y.  481,  disapproving,  on  this  point, 
maine,  1  Bradf.  37:  Willcox  v.  Smith,  10  Hun,  2^^n,  and  overruling  Lee  v. 
26  Barb.  316:  Devin  v.  Patchin,  26  X.  Lee,  39  Barb.   172.) 

Y.  441:  Matter  of  Gates,  2  Redf.  144.  lo  2  R.  S.  223,   §   10.     Thus,  it  was 

8  Halsey  v.  Van  Amringe,  6  Paige,  held,  that  one  who  found  a  will  which 
12;  liurtis  v.  Dodge,  1  Barb.  Ch.  77:  he  was  interested  to  establish,  and 
Xoyes  V.  Children's  Aid  Society,  10  which  he  propounded  for  probate. 
Hun,  289,  and  cases  supra.  In  Devin  should  not  be  personally  charged  with 
V.  Patchin  (supra),  a  surrogate  had  costs  of  the  contestants,  though  a 
directed  certain  amounts  to  be  paid  to  revocation  was  shown  and  probate  re- 
counsel  representing  different  parties,  fused.  (Matter  of  Criswold,  15  Abb. 
bj'  way  of  allowances  for  their  ser-  Pr.  299.)  In  Matter  of  Gno-;cberry 
vices,  in  the  contest  before  him  for  (.)2  IIow.  Pr.  310),  it  was  held,  that 
letters  of  administration.  On  appeal,  costs  of  the  establishment,  by  an  ap- 
though  these  orders  were  not  appealed  ])licant  for  letters  of  admini>tration, 
from,  the  Court  of  Appeals  took  occa-  of  relationship  to  the  decedent,  should 
sion  to  notice  them,  and  to  declare  be  allowed,  if  at  all,  on  the  Hnal  ac- 
that    they    were    unauthorized    and    il-  counting. 

legal,  and  that  Surrogates'  Courts  were  n  See  Ray  v.  Van  Hook.  9  How.  Pr. 

not  the  almoners  of  deceased  persons.  427:  (Jrillith  v.  Beecher.  10  Barb.  432: 

!>  Matte-  of  Gates.  2  Redf.   144.     In  Willcox  v.  Smith.  26  id.  316:  Dunfoi-d 

Willcox   V.    Smith    (26    Barb.   316),   it  v.   Wea\t>r,  84   X.   V.   44.'». 

was  held,  that  costs  could  be  awarded  12  L.   18(17,  c.  722,  §  8.     The  statute 

to  a  party  only,  and  not  to  his  conn-  regulating    commissions    provided    for 

seL      But   thev   might   be   awarded   to  allowance  of  such  sum,  for  counsel  fee 


^§  11U2,  11U3.   C08TS  IX  SUKROGATES'  CoURTS.  904 

§  1102.  Costs  in  New  York  county.—  h\  1870,  the  surrogate  of 
Xew  \  urk  county  acijuiri'd  authority  to  grant  allowances,  in  lieu 
of  costs  to  counsel,  in  any  ])roceecling  before  him,  in  the  same 
manner  as  was  then  prescribed  by  the  Code  of  Procedure  in  civil 
actions,^^  The  only  effect  of  this  authorization  was  to  fix  the 
maximum  amount  which  could  be  allowed  in  any  case,  and  to 
prescribe  the  basis  for  calculating  that  amount  ;^^  otherwise  the 
rules  established  under  the  Revised  Statutes  continued  to  govern 
—  e.  g.,  that  allowance  might  be  made,  in  a  proper  case,  to  an 
unsuccessful  party. 

TITLE  SECOXD. 

COSTS     UNDER.     THE     CODE 

SUBDIVISION  1. 

AWARD    OF    COSTS. 

§1103.  General  provisions  of  the  Code,  inapplicable.- — The  gen- 
eral provisions  of  the  present  Code,  in  respect  to  the  award  and 
enforcement  of  payment  of  costs  fixing  the  amount  thereof  and 
giving  or  compelling  security  therefor, ^^  have  no   application  to 

on  the  final  accounting,  as  the  surro-  executor's  accounting,  the  allowance  to 
gate  miglit  deem  reasonable.  (2  R.  S.  the  special  guardian,  as  well  as  to  the 
93,  §  .58,  as  amended  L.  18G3,  c.  3G2,  attorneys  for  the  general  guardian, 
§  8.)  But  this  allowance  was  to  be  should  be  paid  out  of  the  estate,  when 
made  to  the  accounting  party  himself;  the  other  allowances  are  charged  to 
he  was  allowed  to  charge  the  estate  the  same.  (Gunning  v.  Lockman, 
for  such  counsel  fee  as  he  had  been  supra.)  Compare,  generally,  Down  v. 
obliged  to  pay,  limited,  however,  by  McGourkey,  15  Hun,  444 ;  Hurd  v. 
the  rate  prescribed  by  the  act.  (Sea-  Warren,  IG  id.  622.  On  an  account- 
man  V.  Whitehead,  78  X.  Y.  306;  ing,  at  the  instance  of  a  creditor,  the 
Noyes  v.  Children's  Aid  Society,  70  statutory  allowance  of  5  per  cent,  was 
id.  481.)  In  Matter  of  Walsh  ( 1  L.  to  be  computed  on  the  amount  of  the 
Bui.  63 ) ,  it  was  held,  that  there  was  creditor's  recovery,  not  on  tlie  amount 
no  precedent  for  an  allowance  in  lieu  of  the  estate.  (Browning  v.  Vander- 
of  costs, —  and  that  no  such  allowance  hoven,  4  Abb.  X.  C.  166;  5.5  How.  Pr. 
could  be  made, —  where  a  creditor  ap-  97.) 

plied,  upon  citation  to  the  next  of  kin,  15  Co.  Civ.  Proc,  c.  21,  tit.   1-3.     A 

for  letters  of  administration  upon  the  Surrogate's    Court    has    no    authority, 

estate  of  an   intestate,   and  the  party  therefore,    to    require    a    party    to    a 

cited   at  once   appeared   and  took  out  special   proceeding   therein   to   furnish 

letters.  security   for    the    paj'ment   of    his    ad- 

laL.  1870,  c.  359,  §  9.  versary's  costs.      (Loesche  v.  Griffin,  3 

14  Gunning  v.  Lockman,  3  Redf.  273;  Dem.  358.)      The  statute  in  regard  to 

4  Abb.  X.   C.    173.     Where  several  at-  giving  security  for  costs  (2  R.  S.  620), 

torneys    represented    the    interests    of  which  applied  only  to  courts  of  record^ 

one    infant    in    a    proceeding,    it    was  was  held   not   to   apply  to  the   Surro- 

held,  that  only  one   allowance  should  gate's    Court    in    an   application    by    a 

be  granted  to  all.  and  that  the  amount  creditor,  etc.,  to  compel   the  executor 

should  be  properly  apportioned  among  to   pay  out   of  the   fund   in   his   hands 

them.     And  although  an  infant   party  (Westervelt    v.    Gregg,     1     Barb.     Ch. 

had   a  general   guardian,  yet  where   a  469)  ;  and  such  is  still  the  rule.      (Co. 

special  guardian  was  appointed  on  the  Civ.  Proc,  §  3347,  subd.  13.)      So,  too, 


905 


Costs   i.\    Slui^xjatks'   Colicis. 


§  1104. 


Surrogates'  Courts.^''  Those  tribunals  are  governed,  in  these  par- 
ticulars, by  certain  sections  applicable  only  to  them,  and  designed 
to  remove  the  obscurity  and  doubt  heretofore  prevailing  upon  the 
S'ubject,  while  conferring  upon  surrogates,  both  in  respect  to  tiic 
award  and  amount  of  costs,  a  discretion  obviously  desirable,  in 
view  of  the  complexity  of  interests  of  litigants  before  them,  and 
the  multifarious  character  of  (niostions,  which,  from  time  to  time, 
arc  prcs'ented  to  thorn  for  adjudication.  The  provisions  of  the 
present  Code  supersede  all  tluise  a])Ove  recited,  although  uumy 
of  the  ])riiiciples  enunciated  in  the  decisions  cited  have,  doubtless, 
a  bearing  upon  the  existing  statute.^'' 

§  1104.  Award  of  costs  by  intermediate  order. —  The  surrogate 
may  award  costs  either  ( 1  )  by  an  intermediate  or  interlocutory 
order,  or  (2)  by  a  final  order,  otherwise  termed  a  decree.  Where 
the  surrogate  makes  or  enters  in  Avriting  a  direction  not  included 
in  a  decree,  i.  e.,  "  an  order,''  the  awarding  or  denial  of  costs 
thereby  is  the  same  in  case  of  a  similar  order  made  by  the  Su- 
preme Court  in  an  action  ;^^  in  other  words,  costs  may  be  denied, 
or  awarded  either  absolutely  or  to  abide  the  event,  to  any  party, 
ill  tlu'  discretion  of  the  court. ^'^  Where  aw^arded,  such  costs  may 
bo  collected  "  in  like  manner  "  as  if  awarded  in  an  action  in  the 
Supreme  Court. ^"  Whether  a  matter  is  to  be  determined  by  an 
order  or  by  a  decree,  must  of  course  depend  u])on  the  character 
of  the  proceeding  in  which  it  is  required  to  be  made.  Thus,  the 
denial  of  an  application  to  open  a  decree  is  properly  incorporated 


will)  roforoneo  to  that  provision  of  the 
Code  ( S  .'^27S )  by  which  an  attorney 
for  a  |)hiin1ilf  who  may  be  required  to 
file  seonritv.  is  liable  for  costs.  (Mat- 
ter of  Kasoh,  26  Misc.  4,59;  55  N.  Y. 
Supp.  434. ) 

l«Co.  Civ.  Proc,  §  3347.  siibd.  13. 

IT  The  repeal  in  1880  of  the  Act  of 
1870,  {jiviiiiT  ])owers  to  the  surrofjate 
of  the  county  of  New  York,  "  to  prant 
allowance  in  lien  of  costs.'"  jjiven  by 
the  former  act.  did  not  affect  a  pro- 
coed  in?  pendintj  at  the  time  the  re- 
pealinjj  act  took  effect.  (Matter  of 
Weston,  fll  N.  Y.  502;  overrnlinfr  Mat- 
ter of  Sexton.  1  Dem.  3.)  See  ^Matter 
of  Cray,  27  Ilun,  461.  It  is  a  peneral 
principle,  however,  that  the  reco\-vry 
of  costs  is  controlled  as  to  items  and 
rate  of  compensation,  at  least,  by  the 
statutes  in  force  at  the  time  the  ri<,'ht 
to  costs  accrues,  or  at  the  time  of 
taxation.  (Supervisors,  etc.  v.  Brisrcrs, 
3  Dem.  173;  Van  Valkenbur<:li  v.  Van 


Alen.  1  How.  Pr.  86;  Ooodenow  v.  Liv- 
ingston, id.  232 ;  Taylor  v.  Gardner,  4 
fd.  67:  Holmes  V.  St.  John,  id.  66.) 
It  is  held,  accordingly,  that  the  regu- 
lations of  tlie  Code  of  Civil  Procedure, 
as  to  costs  in  Surrogates'  Courts,  ap- 
ply to  proceedings,  though  commenced 
before  September  1.  ISSO.  where  the 
decree  was  not  settled  until  after  that 
date.      (Matter  of  Mace.  4  Kedf.  32.">. ) 

18  Co.  Civ.  Proc.  §  2.").")6;  Matter  of 
Miles.  5  Redf.  110. 

19  See  Co.  Civ.  Proc.  §  32.36;  Law- 
ton  V.  Green.  64  X.  Y.  326;  Concklin 
V.  Tavlor.  68  id.  221.  But  upcm  an  ac- 
counting, if  no  oi)jcctions  are  filed, 
and  flic  account  i'^  found  correct,  no 
allowance  should  be  made  to  rounstrl 
representing  legatees  or  next  of  kin. 
(Osborne  v!  Mc Alpine.  4  Redf.  1.)  See 
l^Iafter  of  Wellinir.  51  App.  Div.  355; 
64  N.  Y.  Supp.   1025. 

2ns^e  Co.  Civ.  Proc,  §  2556.  See 
§  1090.  ante. 


§§1105,1100.      Costs  in  Surrogates'  Courts.  906 

in  an  order,  and  not  in  a  decree;  and  the  maximnm  allowance 
of  costs  thereupon  is  ten  dollars  and  the  necessary  disbursements.^^ 
But  an  application  for  leave  to  issue  an  execution  is  a  special  pro- 
ceeding, and  not  a  motion ;  and  if  the  application  is  contested, 
the  petitioner  is  entitled  to  seventy  dollars  costs,  and  if  uncon- 
tested, to  twenty-five  dollars.^^ 

§  1105.  Order  dismissing  proceedings. —  Where  the  surrogate 
dismisses  a  proceeding  by  a  person  interested  in  an  estate  or  fund, 
to  compel  an  executor,  administrator,  or  other  trustee  to  renew  his 
official  bond,  upon  a  compliance  with  the  demand,  he  is  required 
to  make  the  decree  upon  such  terms  as  to  costs,  as  justice  re- 
quires.^^  But  it  seems  there  is  no  statutory  authority  to  award 
costs  on  a  dismissal  of  a  proceeding,  e.  g.,  for  a  settlement  of  ac- 
counts —  for  want  of  jurisdiction  of  the  subject-matter.^* 

§  1106.  Costs  on  decree  or  final  order. —  An  award  of  costs  in  a 
■decree  is  in  the  discretion  of  the  surrogate,  except  in  one  of  the 
following  cases,  in  which  they  are  of  right,  to  wit : 

"  1.  Where  special  directions  respecting  the  award  of  costs,  are 
contained  in  a  judgment  or  order,  made  upon  an  appeal  from 
the  surrogate's  determination,  or  upon  a  motion  for  a  new  trial 
of  questions  of  fact  tried  by  a  jury ;  in  either  of  which  cases  costs 
must  be  awarded  according  to  those  directions. 

''  2.  When  a  question  of  fact  has  been  tried  by  a  jury ;  in  which 
case,  unless  it  is  within  the  foregoing  subdivision,  the  decree  must 
award  costs  to  the  successful  party. 

"  3.  When  the  decree  is  made  upon  a  contested  application  for 
probate  or  revocation  of  probate  of  a  will,  costs,  payable  out  of 
the  estate  or  otherwise,  shall  not  be  awarded  to  an  unsuccessful 
contestant  of  the  will,  unless  he  is  a  special  guardian  for  an  in- 
fant, appointed  by  the  surrogate,  or  is  named  as  an  executor  in  a 
paper  propounded  by  him  in  good  faith  as  the  last  will  of  the 
decedent;  but  the  surrogate  may  order  a  copy  of  stenographer's 
minutes  to  be  furnished  to  the  contestant's  counsel,   and  charge 


21  Pease  v.  Egan,  3  Dem.  .320.  decedent's  estate  directly  to  the  coun- 

22  Matter  of  Taylor,  8  Civ.  Proc.  sel  of  parties  litigant ;  and  such  a  de- 
Hep.  453.  feet  in  the  order  is  not  cured  by  the 

23  Co.  Civ.  Proc.,  §  2599.  But  on  a  fact  that  it.  in  form,  granted  costs  to 
proceeding  to  determine  whether  the  the  parties  and  not  to  their  attorneys, 
bond  of  an  administratrix  afforded  (Walton  v.  Howard,  1  Dem.  103,  and 
adequate  security  to  the  creditors,  etc.,  cases  cited.) 

of    the    estate,    the   surrogate   cannot  24  Bunnell  v.  Ranncy,  2  Dem.  327. 
award  costs  or  allowances  out  of  the 


i)07  Costs  ix  Sfruooatrs'  Courts.  §  1107. 

the  expenses  thereof  to  the  estate,  if"  he  shall  be  satisfied  that  the 
contest  is  made  in  good  faith."  ^^ 

§  1107.  Special  direction  of  appellate  court. —  The  foregoing  first 
«nbdivisi(in  is  to  bo  read  in  coiiiicction  with  section  25^9,  which 
provides  tliat  the  appellate  court,  on  an  appeal  from  a  surrogate's 
order  or  decree,  "  may  award  to  the  successful  party  the  costs 
of  the  appeal;  or  it  may  direct  that  they  abide  the  event  of  a 
new  trial,  or  of  the  subsequent  proceedings  in  the  Surrogate's 
Court.  In  either  case,  the  costs  may  be  made  payable  out  of  the 
•estate  or  fund,  or  personally  by  the  unsuccessful  party  as  directed 
l3y  the  appellate  court ;  or,  if  such  a  direction  is  not  given,  as 
<lirected  by  the  surrogate."  This  does  not  mean  that,  if  the  ap- 
pellate court  fails  to  award  appeal  costs,  the  surrogate  may  do  so; 
but  it  means  that  if  the  appellate  court  does  award  costs,  and 
gives  no  direction  whether  the  same  shall  be  paid  out  of  the  estate 
or  fund,  or  by  the  unsuccessful  party,  the  surrogate  may  exercise 
liis  discretion  in  the  particulars  wherein  the  appellate  court  has 
failed  to  exercise  its  o^^^l.^'^  The  surrogate  has  no  power  to  award 
■costs  in  an  appeal  proceeding,  where  the  appellate  court  has  re- 
fused to  award  them,^'  or  has  made  no  direction  as  to  costs. ^^ 


25  Co.  Civ.  Proc,  §  2558.  The  sur-  is  to  include  costs  of  such  court  only, 
rogate  has  no  power  to  award  costs  yet  if  it  assumes  to  deal  with  the 
to  a  party  not  before  him  in  the  pro-  whole  subject,  and  reccrftcs  the  judg- 
•ceeding.  (Matter  of  Gates,  2  Redf.  nieni  appealed  from  with  costs,  that 
144.)  includes    all    the    costs    of   all    the    in- 

26  Matter  of  Hatten,  6  Dcm.  444;  17  ferior  courts.  (Martha  v.  Curley.  92 
St.  Rep.  774.  But  the  fact  that  the  N.  Y.  359;  Matter  of  Hood.  .'JO  Hun, 
Appellate  Division,  upon  an  appeal  472. )  An  executor  who  takes  an  un- 
irom  a  decree,  has  charged  the  costs  successful  appeal  to  avoid  a  personal 
of  that  appeal  upon  the  contestants  liability  may  be  charged  personally 
personally  presents  no  reason  why  the  with  the  costs.  (Pittman  v.  Johnson, 
surrogate  should  change  his  original  .S5  Hun,  .38:  15  Abb.  X.  C.  472.)  For 
award  of  costs  aiid  charge  them  the  rules  in  regard  to  costs  of  ajipeal, 
against     the     contestants     personallv.  under    the   old   Code,   before   lS(i2.    see 

(Matter  of  Seagrist,  8  App.  Div.  298;  Brockwav    v.    Jewctt.    10     Barb.    590; 

40   N.   Y.    Supp.    940.)      The   question  Slierman"  v.  Youngs.  (5  How.  Pr.   318; 

whether  costs  of  an  appeal  should  be  Willcox  v.  Smith,  2()  Barb.  31(i;  Whit- 

■charged  upon  executors  personally  or  beck  v.  Patterson.  22  id.  83:  Yan  Pelt 

upon  the  estate,  should  l)e  determined  v.   Yan   Pelt.    10   How.   Pr.   299.     And 

upon    motion   in   the    Supreme   Court  tiiose  after   1802,   see  ilorgan  v.   Mor- 

wiiere  the  action  was  brought,  and  not  gan.    39    Barb.    20.      And    those   under 

upon  their  accounting  before  the  sur-  the  Revised  Statutes,  see  2  R.  S.  018, 

rogate.       (HarrinL'ton    v.    Strong.    49  §   35,  and   Stagg  v.  Jackson.    1    X.  Y. 

App.  Div.  39:  03  N.  Y.  Supp.  257.)  200. 

27Schell  V.  Hewitt.  1   Dcm.  249.     As         28:Matter  of  Bull.    1    Connoly.   395; 

to  costs  on  awarding  a  .lurv  trial  in  a  22    St.    Rep.    880.      In    that    case,   the 

probate  case,  by  the  General  Term,  see  proponent   was   not   allowed    the   costs 

f^utton  V.  Ray.  72  X.  Y.  482.     While  and    disbursements    necessary   for   the 

it  may  be  assumed  that  when  an  ap-  preparation    of    the    appeal,    such    as 

pellate  court  awards  costs,  the  elTect  printing  the  case  and  points,  nor  sten- 


§§1108-1110.      Costs  in  Surrogates'   Courts.  908 

§  1108.  Costs  on  a  new  trial. —  On  the  grant  of  probato,  on  a 
new  trial  granted  hy  the  appellate  court,  on  appeal  from  a  decree 
refusing  probate,  no  costs  of  contest  will  be  awarded  for  services 
on  the  second  trial.  For  the  purpose  of  awarding  costs  and  allow- 
ances, the  former  decree  v^'ill  be  taken  as  the  basis,  and  such  ad- 
ditional compensation  awarded  for  services  on  the  new  trial  as 
the  proof  may  warrant,  and,  in  addition,  the  per  diem  allowance 
for  the  trial.2'' 

§  1109.  Jury  trials.. —  The  second  subdivision  of  section  2558  re- 
fers to  a  trial  by  jury  of  a  question  of  fact  ordered  by  the  surrogate 
in  a  proceeding  for  the  disposition  of  real  property  to  pay  debts,"* 
and  not  to  one  ordered  by  the  appellate  court,  on  appeal  from  the 
probate  decree.^^  The  costs  of  the  former  proceeding  are  awarded 
a  preference,  in  payment,  from  the  proceeds  of  sale.^^  It  will  be 
noted  that  the  appeal,  in  that  proceeding,  may  he  from  an  order 
of  the  Surrogate's  Court,  since  the  surrogate  may  grant  the  new 
triaL^^ 

§  1110.  Proponent's  costs  on  contested  probate. —  The  proponent 
of  a  paper  for  probate,  if  he  is  named  therein  as  executor,  and 
takes  the  proceeding  in  good  faith,  is  entitled,  as  of  right,  to  costs^ 
whether  the  paper  is  or  is  not  admitted  to  probate.  This,  it  will 
be  noticed,  does  not  give  a  proponent,  other  than  the  executor,  a 
right  to  costs  in  case  of  a  refusal  of  probate.^'*  Parties,  though 
not  proponents,  who,  having  several  interests,  appear  in  support 
of  the  ^yill  by  separate  attorneys  may  be  awarded  costs. ^^  An 
executor  who  in  good  faith,  but  unsuccessfully,  opposes  an  appli- 
cation to  revoke  the  probate  of  the  will  under  which  he  received 
letters,  and  to  have  admitted  to  probate  an  alleged  later  will,  is 
within  the  equity  of  the  statute  and  is  entitled  to  costs. ^^     If  the 

ographer's    fees,    for    minutes    ordered  Eohron.   55   App.   Div.    147:    07   N.  Y. 

for  preparing  the  case  on  appeal.     See  Siipp.  18.) 

Matter  of  Baldwin.  30  Misc.    169:    03         29  :\Iatter  of  Darragh.  N.  Y.  Law  J., 

N.  Y.  Supp.  727.    Where  the  Appellate  Jan.   14,  1890. 

Division    reversed    an    order    of    the        30  Co.   Civ.  Proc.  §  2549. 

surrogate    "  with    costs,"    simply,    the        31  Matter  of  Bull,  supra. 

surrogate    has    no    power    to    tax    dis-         32  Co.    Civ.    Proc.    §    2793,    subd.    4. 

bursements     also.       Co.     Civ.     Proc,  The  costs,  when  awarded,  are  the  same 

§§  3251,  3256,  apply  to  actions  and  not  as    the    taxable    costs    in    an    action. 

to   orders   of   the   surroijate.      (^Matter  (Co.  Civ.  Proc,  §  2560.) 

of  Steencken,  58  App.  Div.  85;   68  K         33  Co.  Civ.  Proc.   §  2548. 

Y.   Supp.  4-*4.)      So,  too,  after  affirm-         34  Collyer  v.  CoUyer.  4  Dem.  53;   17 

ance  of  a  decree  judicially  settling  the  Abb.  N.  C.  329.     See  Matter  of  Foils, 

accounts    of    a    testamentary    trustee,  71   Hun,  492:   24  N.  Y.  Supp.   1052. 

the    surrogate    has    no    authority    to        35  Matter  of  Lasak,  1  Connoly,  486; 

make    a    decree    allowing    the    trustee  7  N.  Y.  Supp.  2 :  23  Abb.  N.  C.  54. 

the  expenses  of  the  appeal  and  attor-        36  Bertine  v.  Hubbell,  1  Dem.  335. 

neys'   fees   thereon.      (Matter   of   Mc- 


S09 


Costs  ix  Surrogates'  Courts.     §§  1111,1112. 


■executor  named  in  a  paper,  cither  prior  or  subsequent  to  the  one 
offered  for  pr(jbate,  contests  the  (jne  so  (jffered,  and  seeks  to  defeat 
the  probate,  by  establishing  the  will  in  which  he  is  named,  he  i- 
cntitlcd  to  costs,  if  acting  in  good  faith,  though  he  fail.  But  such 
contesting  executor  who  acts  as  his  own  counsel  in  the  procee«l- 
ings  is  not  entitled  to  costs  as  of  right.*'*'  The  application  for  i)ro- 
bate  must  have  been  "  contested."  Where  the  next  of  kin,  after 
cross-examination  of  the  witnesses  offered  by  the  proponent,  with- 
drew their  objections  and  the  will  was  admitted,  the  case  is  not 
one  of  contest. ^^ 

§  1111.  Special  guardian's  compensation. —  An  allowance  to  a 
special  guardian,  who  is  an  unsuccessful  contestant  of  a  will  of- 
fered for  probate,  must  be  fixed  by  the  surrogate,  and  inserted  in 
the  decree;  and  cannot  be  allowed  on  ex  parte  application  without 
notice,  after  the  decree  has  been  entered.^®  An  allowance  for  the 
guardian's  attendance  before  the  appellate  court,  on  appeal  from 
a  decree  to  which  he  is  a  party,  cannot  be  made  by  the  surrogate, 
in  the  absence  of  any  direction  to  that  effect  by  the  appellate 
tribunal.'**' 

§  1112.  Costs  to  contestant  in  probate  proceeding^.- —  While  the 
court  may,  in  its  discretion,  award  costs  to  an  unsuccessful  contest- 
ant, if  it  find  that  his  contest  was  in  good  faith,  he  is  not  bound  to 
-do  so.^^     On  the  other  hand,  the  contestant  mav,  in  the  discretion 


37Whelplev  V.  Lodcr,  1  Dem.  .368. 
382;  Allen  v.  Public  Adm'r.  1  Bradf. 
■221;  Arthur  v.  Nelson.  1  Dem.  XM. 
348;  Matter  of  Valentine.  9  Abb.  N. 
C  31.3. 

38  So  held  under  2  R.  S.  223,  §  10. 
(Peck  V.   Peck.   23   Hun,   312.) 

•■»  Matter  of  Budlonjj.  33  Ilun.  23.5; 
100  X.  Y.  203.  See  Forster  v.  Kane.  1 
Dem.  fi7;  Matter  of  Robinson.  IfiO  N. 
Y.  448 ;  Matter  of  Rasch".  2(>  :\Tisc.  4nS). 
Sections  2.'5.58  (subd.  3).  2550,  2.501, 
3250.  Co.  Civ.  Proc.  limit  the  amount 
of  costs  and  disbursements  which  may 
be  awarded  to  a  puardian  od  Ufcm, 
«ven  thoujjh  he  has  in  pood  faith  con- 
tested the  probate,  to  $70.  and  .$10  for 
<>ach  additional  day  more  than  two 
days  occupied  in  the  trial  or  hearinfj. 
and  the  disbursements  which  may  be 
taxed  in  an  action.  (Matter  of  Tracv, 
18  Abb.  X.  C.  242:  Matter  of  Rup- 
paner,  7  App.  Div.  11:  30  X.  Y.  Supp. 
763.)  Railroad  fares,  hotel  bills,  the 
fees  of  associate  counsel,  and  the  ex- 


penses of  dictation,  etc.,  cannot  be  al- 
lowed, for  the  statute  does  not  author- 
ize them  to  be  charged  ujion  the  estate. 
Such  expenses,  if  payable  at  all.  can 
be  charged  only  against  the  property 
of  the  infant.  (lb.;  Matter  of  Farm- 
ers' Loan  &  Trust  Co..  49  App.  Div. 
1:  03  X.  Y.  Supp.  227.)  Where  the 
estate  of  the  infant  is  not  taxable 
under  the  transfer  tax,  no  allowance 
can  be  made  to  his  special  puardian. 
aiatter  of  Post,  5  App.  Div.  113:  38 
X.  Y.  Supp.  977.) 

•ioSchell  V.  Hewitt,  1  Dem.  249; 
Matter  of  Bull,  supra.  And  see  §  112. 
ante.  On  a  settlement  of  an  executor's 
accounts,  an  allowance  to  the  guardian 
is  proper,  and  must  be  fixed  before 
entry  of  decree:  it  cannot  be  changed 
on  appeal.  (Matter  of  Marshall.  10 
St.  Rep.  150.) 

•»  .\Iatter  of  Mondorf.  110  X".  Y. 
450:  Matter  of  Willett,  6  Dem.  4.35; 
17  St.  Rep.  776. 


§  1113.  Costs  in  Sukkogates'  Courts.  910 

of  the  court,  be  personally  charged  with  proponent's  costs. ^^ 
AVhether  costs  awarded  in  a  probate  proceeding  should  be  charged 
personally  against  the  unsuccessful  contestants  or  out  of  the  es- 
tate of  the  decedent,  rests  in  the  sound  discretion  of  the  surrogate^ 
and  the  rule  is  that  a  defeated  contestant  should  be  charged  with 
costs  where  his  resistance  has  been  wanton  or  malicious  or  clearly 
unfounded,  but  not  where  a  resistance  is  based  upon  what,  from 
his  standpoint,  may  bave  seemed  proper  and  necessary  in  the  in- 
terests of  justice,  and  for  the  due  protection  of  his  rights.^^  If 
the  contest  is  successful,  it  is  usual  to  award  costs  to  the  contestant^ 
though  not  as  a  matter  of  right. ^*  Several  parties  interested  in 
contesting  the  probate  have  a  right  to  employ  separate  counsel 
to  protect  their  several  interests,  and  it  is  discretionary  with  the 
surrogate,  as  in  other  courts,  to  grant  costs  to  the  several  con- 
testants.^'"' 

§  1113.  Contested  application  for,  or  revocation  of,  letters. —  On 
a  contest  over  a  grant  of  letters  of  administration,  the.  court  has 
discretion  to  grant  or  to  withhold  costs.  Where  there  is  a  fair 
justification  for  the  contest,  costs  out  of  the  estate  may  be  granted 
to  the  unsuccessful  contestant  ;'*®  or  Avhere  there  is  want  of  good 
faith  he  may  be  charged  personally  with  the  costs. ^'^     So.  where 


42  Matter  of  Whelan,  6  Dem.  425;  ter  of  Kivlm's  Will,  37  Misc.  187:  74 
Matter  of  Seafrrist.    1   App.  Div.  6L5;  N.  Y.  Supp.  937.) 

37   N.   Y.   Supp.  406;    Matter  of  Low-  45  Collyer    v.    Collyer,    4    Dem.    .53. 

man.  1  Misc.  43:  22  N.  Y.  Supp.  10.5.5.  See  Hauselt  v.  Vilmar.  70  N.  Y.  630. 

43  ]\Iatter  of  Henry,  5  Dem.  272.  In  The  former  statute,  which  authorized 
flatter  of  Tacke  (1  Connoly,  119),  the  the  surrogate  to  award  costs  "to 
contest  of  a  will  was  instituted  and  the  party  in  his  judgment  entitled 
carried  on  without  any  reasonable  thereto,"  did  not  prevent  him  from 
grounds  by  the  contestant,  instigated  awarding'costs  to  more  than  one  party 
by  one  G.,  whose  son  appeared  as  at-  on  a  side.  (Xoyes  v.  Children's  Aid 
torney  for  the  contestant  in  the  pro-  Society.  70  N.  Y.  481.)  Tlie  object  of 
cecding  but  took  no  active  part  therein,  tlie  third  subdivision  of  section  2.558  is 
the  proceeding  being  really  conducted  stated  in  the  commissioner's  note  to 
bv  Gr.,  who  was  not  a  lawyer,  and  had  be  "  to  check  the  vastly  increasing 
great  influence  over  his  young  and  in-  number  of  cas'es  wherein  wills  are  con- 
experienced  son,  the  nominal  attorney,  tested  on  slight  grounds,  the  contest- 
The  contestant  was  charged  with  the  ants  relying,  if  the  estate  is  large,, 
maximum  amount  of  costs  and  taxable  upon  procuring  allowance  for  costs 
disbursements  cf  the  contest.  which  will  indemnify  them  against  the 

44  ;Matter  of  Munter,   19  Misc.  201:  expense  of  the  litigation." 

44   X.   Y.   Supp.   605.      See   Matter   of  4G  Matter   of   Page.    107   X.   Y.   266, 

Bogart.    46  App.    Div.    240:    61    N.  Y.  271. 

Supp.  671.     But  where  objections  were  47  Matter  of  Clark.  15  X.  Y.   Supp. 

filed  without  any  intent  to  protect  any  3"0.    The  right  of  an  estate  to  recover 

interest  of  -the  contestant,  but  merely  costs  charged  against  a  contestant  of 

to  cause  annoyance  to  the  proponent,  the  right  of  administration  is  not  lost 

and  the  will  would  have  been  refused  by  their  payment  out  of  the  estate,  by 

prrbate  without  any  contest,  no  costs  consent  of  all  parties  pending  an  ap- 

will  be  allowed  the  contestant.     (Mat-  peal,  and  execution  may   issue   there- 


911 


Co.sTs   IX   Sli{K<»(;ati;s'   ("oiins 


1  [. 


the  reckless  and  careless  conduct  of  a  representative  has  made 
the  institution  of  a  proceeding  for  his  removal  imperative  lie 
should  be  personally  charged  with  the  costs  of  that  proceeding."*^ 
But  an  allowance  of  costs  to  Ijoth  parties  in  such  a  j)roceeding  is 
unwarranted."*" 

g  1114.  Costs  of  accounting  proceeding. —  The  granting  of  cost.s 
to  an  accounting  party,  where  there  is  a  contest,  is  discretionary 
both  in  respect  to  indemnity  to  him,  and  to  charging  the  estate,  or 
the  accounting  party  personally."''"  Where  a  reference  was  ren- 
dered necessary  by  tlie  failure  <tf  liis  attorney  to  ex])lain  to  the 
S}3ecial  guardian,  when  so  requested  by  him,  items  of  the  account- 
ing, which  were  afterward  found  on  the  reference  to  be  erroneous, 
and  where  the  reference  had  l)een  very  much  prolonged  and  de- 
layed through  the  neglect  of  himself  and  his  attorney,  the  entire 
cost  of  the  proceeding  will  be  charged  upon  the  accounting  party 
personally. ^^  On  the  other  hand,  where  o])jections  to  an  account 
are  filed,  not  in  good  faith,  the  court  will  charge  the  costs  of  the 
accounting  to  the  objectors  personally,  and  the  same  will  be  col- 
lected by  deducting  the  amount  from  their  respective  shares. ^^ 


for.  after  affirmance.  (Matter  of 
Bartlflt.   18  Week.   Dijr.   65.) 

48  Matter  of  Stanton.  1  Connoly,  108. 

■*!•  Matter  of  Engelbreeht.  15  App. 
Div.  541;  44  X.  Y.  Supp.  551. 

5«:\ratter  of  Collamer.  5  St.  Rep.  lilO. 

51  Matter  of  Williams.  1  Connoly, 
99.  When  executor  persoVially  charged 
with  costs.  See  Ferris  v.  Disbrow,  22 
Week.  Dig.  3.30;  Bnckland  v.  Gallup, 
40  Ilun,  Gl  ;  Ketclnim  v.  Ketchum,  4 
Cow.  87;  Matter  of  Woodard.  13  St. 
Rep.  1(51;  Matter  of  ^tattliewson.  8 
App.  Div.  8;  40  N.  Y.  Supp.  140:  Mat- 
ter of  Cahriel.  44  App.  Div.  (i23. 
Wheie  thei'e  is  a  dispute  as  to  whether 
a  particular  fund  is  assets,  and  deci- 
sion is  made  in  favor  of  distributees, 
the  costs  of  the  proceedings  are  charge- 
able asjainst  the  administrator  indi- 
viduallv.  (Matter  of  :\lu11.  10  St.  Rep. 
f!81  ;  :i[atter  of  Manhardt.  17  App. 
Div.  1;  44  X.  Y.  Supp.  830.)  An  ad- 
ministrator is  not  personally  charge- 
al)le  witli  costs  because  he  has  been 
cliarged  with  interest  on  moneys  held 
by  him,  where  he  has  prepared  his  ac- 
count in  good  faith.  (Walker  v.  Dow, 
0  Dem.  2()5.)  On  the  settlement  of  an 
administrator's  accounts,  the  adminis- 
trators of  decedent'r  wife,  of  whose 
estate  decedent  had  been  administra- 
tor, appearing  for  the  purpose  of  de- 


fending decedent's  bond,  are  not  enti- 
tled to  costs  out  of  decedent's  estate 
(Matter  of  Reed.  12  St.  Rep.  139); 
nor  is  the  representative  of  a  deceased 
surety  entitled  to  costs  upon  the  set- 
tlement of  tlie  accounts  of  the  admin- 
istrator of  the  principal.  ( Matter  of 
Bailey,  47  Hun,  477.)  The  allowance 
of  costs  in  favor  of  an  administratrix, 
against  the  sureties  ou  the  bond  of  her 
co-administrator,  whose  misap])lica- 
tion  of  funds  the  sureties  endeavored 
unsuccessfully  to  charge  lier  with  lia- 
L'ilitv  for, —  sustained.  (flatter  of 
Adaius,  51  App.  Div.  019;  04  X.  Y. 
Supp.  591;  affd.,  100  X.  Y.  023.) 
The  costs  of  an  accounting  of  an  ex- 
ecutor or  trustee  who  has  be?n  re- 
moved or  resigns  should  be  borne'  by 
liim  and  camiot  be  charged  against 
the  estate.  (Matter  of  Bevier.  17 
Misc.  480;  41  X.  Y.  Supp.  208.) 
Where  an  objection  to  accounts  of  ex- 
ecutors of  a  deceased  guardian  wa.s 
justilied.  the  estate  of  the  infant 
should  not  be  charged  with  the  costs 
of  the  proceeding.  (Matter  of  Frank. 
1  App.  Div.  39;  siih  iwm.  Matter  of 
Schneider.  30  X"^.  Y.  Supp.  972:  suh 
tinm.  >ratter  of  ^fetz^er  v.  Schneider, 
72  St.  Rep.  75.) 

•"'2  Matter    of    Sellinir.    0    Dem.    428. 
The    surrogate    has    no    authority    to 


§1115  Costs  iic  Sirkogatks'   Courts.  912 

Where  a  disputed  claim  against  the  estate  is  submitted  to  the 
surrogate  for  determination,  under  section  1822,  the  allowance 
or  disallowance  of  costs  to  the  claimant  is  in  the  discretion  of  the 
surrogate ;  such  discretion  is  to  be  exercised  within  the  limits,  as 
to  amount,  of  section  25G1,  and  he  is  to  be  controlled  by  the  prin- 
ciples applicable  to  actions  at  law  against  estates.^^ 

§  1115.  Allowing  counsel  fees  and  expenses. —  In  addition  to  the 
surrogate's  general  power  to  award  costs  to  a  party,  the  Code  pro- 
vides that  he  '"  may,  in  his  discretion,  allow  to  an  executor,  ad- 
ministrator, guardian,  or  testamentary  trustee,  upon  a  judicial 
settlement  of  his  account,  or  on  an  intermediate  accounting  re- 
quired by  the  surrogate,  such  a  sum  as  the  surrogate  deems  rea- 
sonable, for  his  counsel  fees  and  other  expenses,  not  exceeding 
ten  dollars  for  each  day  occupied  in  the  trial,  and  necessarily  occu- 
pied^^  in  preparing  his  account  for  settlement,  and  otherwise  pre- 
paring for  the  trial.^*"  Costs  and  such  per  diem  allow^ances  for 
legal  services  as  are  necessary  will  be  allowed,^''  but  only  to  the 
accounting  party,  and  can  be  properly  made  to  such  a  party  only 
in  so  far  as  the  labor  of  preparation  was  demanded  by  the  best 
interests  of  the  estate  concerned.^'      The  authority  given   to  the 

grant  additional  allowances  to  legatees  section   3254,    see   Riggs   v.   Cragg,   26 

or     remaindermen    who,     on     the    ac-  Hun,  89. 

counting,    have   not   succeeded    in    sur-         »6  Matter  of  Halsey,   13  Abb.  N.  C. 

charging  the  account  or  securing  dis-  353.     A  per  diem   allowance  for  time 

allowance  of  items,      (flatter  of  Well-  occupied  in  preparing  for  trial  is  only 

ing,  51  App.  Div.  355;  64  N.  Y.  Supp.  allowed     in  '  accounting     proceedings. 

1025.)      Costs  will  be  charged  person-  (Matter  of  Aaron,  5  Dem.  362.)      This 

ally   against   the    administrator   of    a  allowance  is  not  intended  to  compen- 

life    beneficiary    of    a    trust    fund,    in  sate  him  for  his  personal  services,  but 

possession  thereof,  who  raised  techni-  simply     to     secure     legal     assistance, 

cal  objections  against  the  claims  of  the  (Matter  of  Peyser,  5  Dem.  244.)    Costs 

remaindermen.      (Matter   of   Post,    30  on  an  accounting  can  only  be  allowed 

Misc..  551;     64    X.     Y.     Supp.     369.)  where    counsel    is    employed.       Where 

53  Matter    of    Ingraham,     35     ilisc.  the  accounting  party  prepares  his  own 

577;    72    X.   Y.    Supp.    62;    Matter   of  account  vrithout  counsel,  although  he 

Coonlej',  38  Misc.  219.  is  himself  a  lawyer,  he  is  not  entitled 

s-i  Occupied  bv  whom.     See  Walton  to  costs.      (Valentine's  Estate,  9  Abb. 

V.  Howard,  1  Dem.  103.  X.    C.    313.)        An    executor    removing 

55  Co.  Civ.  Proc,  §  2562,  as  amended  from  the  State  without  settling  his  ac- 

1881.      See   §   559,  ante.     See  Brown's  counts  is  not  entitled  to  an  allowance 

Accounting,  16  Abb.  Pr.    (X.  S.)    457;  of  his  expenses  upon   returning  to  do 

Van  Xesfs  Estate,  1  Tuck.   130;  Val-  so.      (Matter   of   Xockin,    15    St.    Rep. 

entine  a\  Valentine,  2  Barb.  Ch.  430;  731.) 

Drake    v.    Price,    5    X.    Y.    4.30;    aflFg.         5T  Matter  of  Weeks,  5  Dem.  194.     In 

7  Barb.  388;   Holley  v.  S.  G.,  4  Edw.  that   case,   two  co-executors,   who   dif- 

284.     As  to  what  is'"  a  judicial  settle-  fered  respecting  matters  appertaining 

ment,"    see   ^.latter   of   Miles,    5    Redf.  to  tlie  execution  of  their  trust,  which 

110.     As  to  how  far  the  court  on  ap-  might    have    been    satisfactorily    pre- 

peal  will  reverse  a  decree  which  grants  sented    in    one    proceeding,    filed    sepa- 

an   allowance   exceeding   the   limit    in  rate    accounts    of    their    transactions. 


D13 


Costs  is   Slkk<><;ati;s'   ('oiuts. 


§111«3. 


surrogate  to  allow  counsel  fees  and  expenses  upon  rendering  his 
decree,  in  no  way  limits  bis  authority  to  allow  as  a  credit  in  the 
account,  a  sum,  in  excess  of  the  statutory  limit,  paid  by  the  ac- 
counting party  to  his  counsel  for  services  in  respect  to  his  account- 
ing, where  it  appears  that  services  beyond  the  ordinary  preparation 
of  the  account,  or  for  trial,  were  rendered,  and  were  necessary.^** 
The  allowance  of  costs,  etc.,  should  be  to  the  party,  and  not  to 
bis  counsel  or  attorney.^**  A  per  die7n  allowance  for  time  occupied 
in  preparing  for  trial  is  permissible  only  in  accounting  proceed- 
ings."^^  Such  allowance  is  not  intended  to  compensate  the  account- 
ing party  for  his  personal  services  in  sucb  preparation,  but  is  to 
enable  him  to  secure  legal  assistance  and  advice  wben  needed  for 
putting  the  account  into  proper  form.^^ 

§1116.  Costs  of  decree,  how  and  by  whom  payable. —  "Except 
where  special  provision  is  otherwise  made  by  law,  costs,  awarded 
by  a  decree,  may  be  made  payable  by  tbe  party  personally,®^  or 
out  of  the  estate,  or  fund,  as  justice  requires ;  but  costs,  other  than 
actual  expenses,  cannot  be  awarded  to  be  paid  out  of  an  estate 
or  fund  which  is  less  than  one  thousand  dollars  in   amount  or 


each  of  which  was  contested  and  re- 
ferred, with  substantially  the  same  re- 
sults that  would  have  been  accom- 
plished had  the  controversy  arisen  in 
respect  of  the  account  first  filed; — 
Held,  that  neither  executor  nor  any  of 
the  other  parties  could  recover  costs 
or  counsel  fees  out  of  the  estate  in 
bntii  proceedings.  Where  an  executor 
has  kept  his  accounts  in  such  an  ir- 
regular and  disorderly  manner  that 
very  many  days  are  required  in  the 
preparation  of  his  accounts  for  judi- 
cial settlement,  in  the  hearing  there- 
upon the  surrogate  will  only  allow 
him  for  his  expenses  in  preparing  such 
account  upon  the  basis  of  the  time 
which  would  have  been  required  if  his 
accounts  liad  been  kept  in  the  proper 
manner.  (Matter  of  Wilcox,  11  Civ. 
Proc.  Rep.  llo,  13G.)  To  same  effect, 
O'Rcillv  V.  Meyer.  4  Dem.   Kil. 

5S  Matter  of' Smith,  20  Abb.  X.  C. 
.56;  33  St.  Rep.  9-29;  19  Civ.  Proc. 
Rep.  302:  12  N.  Y.  Supp.  88.  In  Mat- 
ter of  Young  (X.  Y.  I^aw  .T.,  Apr.  25, 
1891),  it  appeared  from  the  accoimts, 
supported  by  vouchers,  that  the  ad- 
ministrators had  credited  themselves 
with  .$3.50,  or  $175  in  each  case,  for 
general  services,  including  preparation 

58 


of  the  accounts.  The  surrogate  al- 
lowed their  disbursements  on  the  ac- 
counting proceeding,  but  refused  costs. 

59  Walton  V.  Howard,  1  Dem.  103; 
s.  c.  as  Matter  of  Withers,  2  Civ.  Proc. 
Rep.  102;  :McMahon  v.  Smith,  20  Misc. 
305;  45  X.  Y.  Supp.  063:  revd.,  on 
other  points,  24  App.  Div.  25:  Matter 
of  Crane,  08  id.  355:  74  X.  Y. 
Supp.  88;  :Matter  of  Welling,  51  App. 
Div.  355;  04  X.  Y.  Supp.  1025.  The 
costs  of  an  accounting  by  an  executor, 
etc.,  have  no  place  in  the  account  filed 
in  that  procccdinci,  as  they  must  first 
be  fixed  by  the  decree.  Chargi>s  for 
coiuisel  fees,  paid  on  the  accounting, 
should  be  separately  stated  and  ac- 
companied with  an  affidavit  showing 
conformity  to  Co.  Civ.  Proc.  §  2502. 
(Hayward   v.   Hewlett.   5   Redf.   330.) 

Cit'Matter  of  Aaron.  5  Dem.  302. 

fil  Matter  of  Peyser.  5  Dem.  244. 

c-2ln  Matter  of"  Curry  (47  St.  Rep. 
307;  19  X.  Y.  Supp.  728).  the  execu- 
tor refused  to  pay  costs  out  of  the  es- 
tate, as  directed  by  a  decree,  admit- 
ting the  will  to  probate: — Held,  that 
the  surrogate  was  justified  in  direct- 
ing him  to  pay  such  costs  out  of  the 
estate,  together  with  costs  of  the  mo- 
tion. pcrsonalUj. 


§§  1117,  1118.     Costs  in  Sukkouates'   Courts.  Dl-i 

value."  *'"'  The  amount  or  value  of  an  estate  is  not  the  balance  left 
after  payment  of  funeral  expenses,  debts,  and  expenses  of  admin- 
istration, but  the  gross  amount  thereof,  at  the  time  of  the  owner's 
death,  with  any  increase  up  to  the  time  of  accounting.*'*  The  sur- 
rogate has  no  power  to  direct  a  temporary  administrator  to  pay 
costs,  out  of  the  estate,  of  a  special  proceeding  for  the  probate  of 
an  alleged  will.^^  The  decree  in  such  case  should  award  costs  and 
provide  for  their  payment  by  the  person  to  whom  letters  should 
thereafter  be  granted.^® 

SUBDIVISION^  2. 

AMOUNT    OF    COSTS. 

§  1117.  Amount  of  costs  of  intermediate  order. —  The  amount  of 
costs,  where  awarded  by  an  intermediate  order,  are  the  same  as 
npon  a  similar  order  made  by  the  Supreme  Court  in  an  action  f~ 
I.  e.,  in  general,  a  sum  fixed  by  the  court,  not  exceeding  ten  dol- 
lars, besides  necessary  disbursements  for  printing  and  referee's 
fees,  to  each  party  to  whom  costs  are  awarded  f^  although  it  is 
provided  that  "  upon  a  motion  for  a  new  trial,  npon  a  case,"  in  the 
Supreme  Court,  etc.,  in  an  action,  the  sums  allowable  are  same 
as  upon  an  appeal  to  the  Appellate  Division.^^ 

§1118.  Costs  and  disbursements  awarded  by  decree. —  In  all 
cases,  except  where  a  question  of  fact  has  been  tried  by  a  jury, 
and  except  costs  of  appeal,  ''  the  surrogate,  upon  rendering  a  de- 
cree, may,  in  his  discretion,  fix  such  a  sum,  to  be  allowed  as  costs, 
in  addition  to  the  disbursements,  as  he  deems  reasonable,  not  ex- 
ceeding, w'here  there  has  not  been  a  contest, "°  twenty-five  dollars, 
or    where    there    has  been    a    contest,    seventy    dollars ;    and,    in 


63  Co.  Civ.  Prop.,  §  2557.     See  Mat-  him  (Matter  of  Parish.  29  Barb.  027), 

ter  of  Van  Kleeck,  2  Connoly,  14;   20  yet    such    consent    would    not    justify 

N.  Y.  Supp.  85.  such  an  order.      (Matter  of  Badser.  3 

64Chalker  v.   Chalker,   5   Redf.   480.  L.  Bui.  71,  and  cases  cited.) 

65  Matter    of   Aaron,    5    Dem.    362;  nr  Co.  Civ.  Proc,  §  2556. 

McGovern    v.    McGovern,    50    N.    Y.  &s  See  Co.  Civ.  Proc,  §   3251.  subd. 

Super.    (J.  &  S.)    390.     See  Durvea  v.  3,  paragraph  ninth. 

Mackey.  151  X.  Y.  204.                  "  69  See  Co.  Civ.  Proc,  §   3251.  subd. 

6^  The  surrogate  cannot  order  a  tern-  3,     paragraph     eighth,     and    subd.     4. 

porary  administrator  to  pay  the  costs  See  also  Co.  Civ.  Proc,  §  2481.  subd. 

allowed    to    the    several    parties    by    a  6,    and    §§    2548,    258S.      But    see    id., 

decree  awarding  letters  of  administra-  §  2561. 

tion.     Such  costs  are  not  debts  due  to  "i  See  Matter  of  Rylance,   25   Misc. 

the  creditors  of  decedent,  nor  expenses  283;   55  N.  Y.  Supp.  433,  as  to  Avhat 

of   the  temporary  administrator's  trust,  is    a    "contest."      See    flatter    of    Ho- 

and  while  the  offer  and  consent  of  all  garty,  62  App.  Div.  79;  70  N.  Y.  Supp. 

the  parties,  by  their  attorneys,  to  the  839. 
pajTnent  thereof  by  him  miglit  protect 


015 


Costs  l^'   Sukkooates'   Col'kts. 


§1118. 


addition  thereto,  where  a  trial  or  hearing  upon  the  merits  before 
tlie  surrogate  necessarily  occupies  more  than  two  days,  ten  dol- 
lars for  each  additional  day ;  and  where  a  motion  for  a  new  trial 
is  made  before  the  surrogate,  if  it  is  granted,  seventy  dollars ;  if 
it  is  denied,  forty  dollars."  "^  Costs,  when  awarded  by  a  decree, 
include  all  disbursements  of  the  party  to  whom  they  are  awarded, 
which  might  be  taxed  in  the  Supreme  Court. '^  The  sum  allowed 
for  costs  must  be  fixed  by  the  surrogate,  and  inserted  in  the  de- 


cree 


73 


Ti  Co.  Civ.  Proc,  §  2561.  See  Mat- 
ter of  Miles,  5  Kedf.  110.  Section 
2561  is  equally  applicable  to  a  hearing 
before  a  referee  appointed  by  the  sur- 
rogate as  to  a  hearing  before  the  sur- 
rogate in  person;  but  the  section  does 
not  contemplate  or  empower  any  al- 
lowance for  days  on  which  an  adjourn- 
ment occurs  witliout  any  actual  hear- 
ing. (Matter  of  Clark,  21  Week.  Dig. 
5(i3.)  See  .Matter  of  Col  lamer,  5  St. 
Eej).  19(i.  Xo  greater  sums  than  those 
specified  in  the  statute  can  be  allowed. 
(Matter  of  Ilitchler,  25  Misc.  309; 
55  N.  Y.  Supp.  G42.) 

72  Matter  of  Bender,  86  Hun,  570; 
33  N.  Y.  Supp.  907  ;  Matter  of  Hitch- 
ler,  25  Misc.  369 ;  55  X.  Y.  Supp.  642. 
For  the  taxable  disbursements  in  the 
Supreme  Court,  see  Co.  Civ.  Proc, 
§  3256.  In  Matter  of  Hamer  (X.  Y. 
Law  J.,  June  10,  1891),  the  surrogate 
allowed  the  proponent  .$1.50  for  each 
party  served  with  citation  within  the 
county  of  New  York,  it  appearing 
from  his  affidavit  that  the  maximum 
sum  allowed  by  law  to  the  sheriff 
would  be  reasonable.  He  also  allowed 
for  each  party  served  outside  of  the 
county  of  Xew  York  and  witliiii  the 
State  of  Xew  York,  the  sum  of  .$1,  and 
mileage  from  the  courthouse  of  the 
county  wherein  the  citation  was 
served,  as  provided  by  section  3307 
of  the  Code.  As  to  taxing  stenogra- 
pher's fees  bv  consent,  see  Matter  of 
Willett,  6  Dem.  435:  17  St.  Rep.  776, 
780:  Matter  of  Maritch,  29  Misc.  270: 
Matter  of  Kngell)recht,  15  App.  Div. 
541:  44  X.  Y.  Supp.  551.  As  to  ref- 
eve's  fees,  see  flatter  of  Hurd.  6 
,Mise.  171;  26  X.  Y.  Supp.  893:  Matter 
of  Santos,  31  Misc.  76  (termination  of 
reference  under    8§    1019,   2546). 

V3  Co.  Civ.  Proc,  §  2559.  The 
-•'mount  involved  is  to  be  considered  in 
allowances,  and  counsel  accepting  re- 
tainers in  litigations  of  small  estates 
will  be  limited  in  their  fees.      (Matter 


of  Jones,  28  Misc.  599 ;  59  N.  Y.  Supp. 
1020.)  Where  there  has  been  a  con- 
test before  the  surrogate  it  is  in  his 
discretion  to  fix  such  a  sum,  not  ex- 
ceeding $70,  as  he  deems  reasonable 
to  be  allowed  as  costs  in  addition  to 
disbursements,  and  he  may  further  al- 
low the  sum  of  $10  for  each  day  in 
excess  of  two  spent  on  the  trial,  and 
the  surrogate's  order  is  conclusive  on 
the  question,  (flatter  of  X'iles,  34  St. 
Rep.  720:  12  X.  Y.  Su|)p.  157.)  In 
X"ew  York  county,  the  following  rules 
are  in  force :  "  Whenever  a  party  to  a 
decree  shall  deem  himself  entitled  to 
costs,  the  same  will  be  considered  and 
determined  by  the  surrogate  on  two 
days'  notice  of  adjustment,  to  be 
served  upon  the  opposing  party,  with 
the  items  of  costs  and  disbursements 
to  which  the  party  may  deem  himself 
entitled  at  the  time  of  the  settlement 
of  the  decree,  which  disbursements 
shall  be  duly  verified,  both  as  to  their 
amount  and  necessity;  and  at  the 
same  time  and  on  like  notice,  the  sur- 
rogate will  pass  upon  any  additional 
allowance  to  be  made  to  an  executor, 
administrator,  guardian,  or  testamen- 
tary trustee,  upon  a  judicial  settlement 
of  his  account :  whicli  notice  of  adjust- 
ment and  allowance  sliall  V)e  accom- 
panied by  an  affidavit  setting  forth  the 
number  of  days  necessarily  occupied 
in  the  trial  or  hearing,  the  number  of 
days  necessarily  occupied  in  prepar- 
ing an  account  for  the  settlement  and 
in  the  preparation  for  trial,  the  time 
occupied  on  eacli  day  in  the  rendition 
of  services,  and  their  nature  and  ex- 
tent in  detail.  In  ease  such  trial  shall 
have  been  had  before  a  referee,  the 
time  Tiecessarily  occupied  in  such  trial 
before  him  may  be  shown  by  a  certifi- 
cate of  such  referee.  The  afTidavit  of 
disbursements,  time  engaged  in  trial 
and  in  preparing  the  account,  and  for 
trial,  mav  be  controverted  bv  affi- 
davit."     (Rule  XXll.  Mar.   16, 'iSSS.) 


§1119. 


Costs  in  Sukrooates'   Courts. 


916 


§  1119.  Costs  of  appeal. —  The  Code  contains  the  following 
clause :  "  The  costs  of  an  appeal,  where  they  are  awarded  in  a 
Surrogate's  Court,  are  the  same  as  if  they  were  awarded  in  the 
Supreme  Court."  "^  Although  this  provision  is  not  altogether 
clear,  yet,  since  the  rule  seems  plainly  to  be  that  costs  of  an  appeal 
are  always  awarded,  if  at  all,  by  the  appellate  court,  we  construe 
the  clause  quoted  as  in  eifect  declaring  that  where  costs  of  an  ap- 
peal from  a  decree  or  order,  made  in  a  special  proceeding  insti- 
tuted in  a  Surrogate's  Court,  are  awarded,  the  amount  thereof  is 
the  same  as  if  the  special  proceeding  were  one  instituted  in  the 
Supreme  Court.  This  construction  is  made  clear  by  an  amend- 
ment (1881)  of  section  3240,  by  which  it  is  provided  that  costs 
in  a  special  proceeding,  instituted  in  a  court  of  record,  or  upon 
an  appeal  in  a  special  proceeding,  taken  to  a  court  of  record, 
where  the  costs  thereof  are  not  specially  regulated  in  this  act,  may 
be  awarded  to  any  party,  in  the  discretion  of  the  court,  at  the 
rates  allowed  for  similar  services,  in  an  action  brought  in  the 
same  court,  or  an  appeal  from  a  judgment  taken  to  the  same  court, 
and  in  like  manner.^'' 


"  Wherever  any  person  shall  appear 
in  support  of  the  will  propounded  un- 
der section  2617  of  the  Code,  such  per- 
son shall  not  thereby  become  entitled 
to  recover  any  costs  on  the  probate  of 
said  will,  unless  it  shall  appear  to  the 
satisfaction  of  the  surrogate  that  the 
interest  of  said  pa;rties  was  not  suffi- 
ciently represented  and  prosecuted  by 
the  executor  named  in  the  will,  and  his 
counsel."      (Rule  VI,  Mar.   16,   1888.) 


74  Co.  Civ.  Proc.   §  2560. 

75  See  Matter  of  Simpson.  26  Hun, 
4.59;  Cole  v.  Terpenning,  27  id.  Ill; 
Schell  V.  Hewitt,  1  Dem.  249.  Infant 
respondents  on  an  appeal,  appearing 
by  an  attorney  other  than  that  of  the 
adult  respondents,  are  entitled,  on 
an  affirmance,  to  a  separate  bill  of 
costs.  (Savage  v.  Gould,  60  How.  Pr. 
25.5.) 


CHAPTER  XXIIL 

PROBATE    AND     REVOCATION     OF     PROBATE    OF 

HEIRSHIP. 


TITLE  FIRST. 

PROBATE    OF    IIEIKSHIP. 

§  1120.  In  general. —  The  difficulty  which  may  attend  the  ju- 
dicial determination  of  questions  of  heirship,  including  the  ascer- 
taining of  who  are  entitled  to  succeed  to  an  intestate's  real  estate, 
gave  occasion  to  a  statute^  which  provided  means,  by  a  proceeding 
before  the  surrogate,  for  obtaining  presumptive  evidence  of  the 
facts,  as  to  the  persons  who  constitute  the  heirs-at-law  of  a  deceased 
person.  The  act  has  been  revised  in  the  Code,  and  amended  in 
various  particulars,  chiefly  by  prohibiting  a  continuance  of  the 
proceedings,  in  case  a  contest  arises,  and  by  j^roviding  for  a  revo- 
cation or  modification  of  the  decree  of  probate.  We  are  not  aware 
that  this  mild  remedy  has  been  availed  of,  or  received  judicial 
construction. 

§  1121.  Of  what  estates  heirship  provable —  The  special  proceed- 
ing may  be  instituted"  with  respect  to  the  estate  of  a  person,  seized 
in  fee  of  real  property  within  the  State,  who  dies  intestate,  or 
without  having  devised  his  real  property  to  specific  persons.^ 
"  The  word,  '  intestate,'  signifies  a  person  who  died  without  leav- 
ing a  valid  will ;  but  where  it  is  used  with  respect  to  particular 
property,  it  signifies  a  person  who  died  without  effectually  dis- 
posing of  that  property  by  will,  whether  he  left  a  will  or  not." 

§  1122.  Who  may  proceed,  and  before  what  court. —  The  heirs  of 
the  decedent  or  any  of  them,  or  any  persou  deriving  title  from 
or  through  such  heirs  or  any  of  them,  may  apply  to  the  Surrogate's 

1  L.  1873,  c.  552;  amended  L.  1874,  the  heirs  of  testator,  f^ed  qu.,  if  it 
c.  127.  should   bo    to   any   other   class,   by   its 

2 Co.  Civ.  Proc,  §  2fi54.  generic  appellation. 

3  As  where  a  devise  is,  in  terms,  to        ■*  Co.  Civ.  Proc,  §  2514,  subd.  1. 

[917] 


§  1123  Probate  of  Heirship.  918 

Court  who  has  acquired  jurisdiction  of  the  estate;^  or,  if  no  Sur- 
rogate's Court  has  acquired  such  jurisdiction,  then  to  the  Surro- 
gate's Court  of  the  county  where  the  real  property,  or  any  part 
thereof,  is  situated.^  The  application  must  be  made  by  "  a  writ- 
ten petition,  duly  verified ;  describing  the  real  property ;  setting 
forth  the  facts  upon  which  the  jurisdiction  of  the  court  depends  • 
and  the  interest  or  share  of  the  petitioner,  and  of  each  other  heir 
of  the  deceased,  in  the  real  property ;  and  praying  for  a  decree 
establishing  the  right  of  inheritance  thereto,  and  that  all  the  heirs" 
of  the  decedent  may  be  cited  to  attend  the  probate  of  that  right."  * 
The  citation  must  set  forth  the  name  of  the  decedent  and  of  the 
petitioner ;  the  interest  or  share  which  the  petitioner  claims ;  and 
a  brief  description  of  the  real  property.^  Any  heir  of  the  dece- 
dent, who  has  not  been  cited,  may,  nevertheless,  appear  at  the  hear- 
ing; and  thereby  make  himself  a  party  to  the  special  proceed- 
ing. But  this  provision  does  not  affect  a  right  or  interest  of  such 
a  person,  unless  he  becomes  a  party. ^" 

§1123.  Hearing;  dismissal;  evidence. —  "Upon  the  return  of 
the  citation,  the  surrogate  must  hear  the  allegations  and  proofs 
of  the  parties.  If  it  appears  that  there  is  a  contest,  respecting 
the  heirship  of  a  party,  or  respecting  the  share  to  which  a  part}^ 
is  entitled,  as  an  heir  of  the  decedent,  the  surrogate  must  dismiss 
the  proceedings.  If  there  is  no  such  contest,  he  must  inquire  into 
the  facts  and  circumstances  of  the  case.  The  petitioner  must  es- 
tablish, by  satisfactory  evideiice,^^  the  fact  of  the  decedent's  death ; 
the  place  of  his  residence  at  the  time  of  his  death ;  his  intestacy, 
either  generally,  or  as  to  the  real  property  in  question ;  the  num- 
ber of  heirs  entitled  to  inherit  the  property  in  question ;  the  name, 
age,  residence,  and  relationship  to  the  decedent,  of  each ;  and  the 
interest  or  share  of  each  in  the  property."  ^^ 

"  The  surrogate,  where  these  facts  are  established,  must  make 
a  decree,  describing  the  property,  and  declaring  that  the  right-  of 
inheritance  thereto  has  been  established  to  his  satisfaction,  in 
accordance  with  the  facts,  which  must  be  recited  in  the  decree."  ^^ 


5  Probably  by  a  grant  of  letters,  or  8  Co.  Civ.  Proe.,   §   2054. 

by   the   institution    of   an    application  9  Co.  Civ.  Proc,  §§  2654,  2655. 

therefor.     See  Co.  Civ.  Proc,  §§  2475-  lo  Co.  Civ.  Proc,  §  2655. 

2477.  11  Compare   Co.   Civ.   Proc,    §   2661, 

6 Co.  Civ.  Proc,  §  2654,  as  amended    and  §§   185,  342,  ante. 

1892.  12  Co.  Civ.  Proc,   §  2656. 

7  See   Co.   Civ.   Proc,   §   2518;    §   75  13  Co.  Civ.  Proc,  §   2656. 
et  seq.,  ante. 


919  Probatk  of  liEiiisiiip.  §§  1124-112G. 

§1124.  Effect  of  decree;  recording  of  copy. —  An  exemplified 
copy  of  the  decree  of  probate,  "  and  of  the  proofs  taken  thcre- 
uponj-*  may  be  recorded  in  the  office  of  the  clerk,  or  of  the  register, 
as  the  case  requires,  of  each  county  in  which  the  real  property  is 
situated,  as  prescribed  by  law  for  recording  a  deed,  and,  from  the 
time  when  the  exemplifications  are  so  recorded,  the  decree,  or  the 
record  thereof,  is  presumptive  evidence  of  the  facts  so  declared 
to  be  established  thereby."  ^^ 

TITLE  SECOND. 

REVOCATION"    OF    PROBATE    OF    HEIRSHIP. 

§  1125.  Who  may  apply  and  when. —  In  addition  to  the  general 
provision,  that  a  surrogate  may  open,  vacate,  modify,  or  set  aside, 
or  enter,  as  of  a  former  time,  a  decree  or  order  of  his  court ;  or 
grant  a  new  trial  or  a  new  hearing  for  fraud,  newly-discovered 
evidence,  clerical  error,  or  other  sufficient  cause,  which  powers  are 
exercised  only  in  a  like  case  and  in  the  same  manner  as  a  court 
of  record  and  of  general  jurisdiction  exercises  the  same  powers, ^^ 
the  Code  contains  special  regulations  as  to  setting  aside,  in  wh(de 
or  in  part,  a  decree  made  in  this  proceeding.  Any  person  other 
than  a  party  to  the  special  proceeding  for  probate,  or  the  heir, 
devisee,  or  assignee  of  such  a  party,  may  make  an  application  for 
the  revocation  or  modification  of  the  decree.-'^  The  application 
for  revocation,  etc.,  may  be  made  at  any  time  within  ten  years 
after  a  decree  establishing  the  right  of  inheritance  is  made,  ''  to 
the  court;"  i.  e.,  the  court  which  rendered  the  decree. ^^  The  ap- 
plication must  be  made  by  a  written  petition,  duly  verified,  show- 
ing that  the  petitionef  "  has  a  right,  titl(\  or  interest  in  the  real 
property,  or  a  part  thereof,  which  is  injuriously  affected  by  the 
decree;  stating  that  the  decree  is  erroneous  in  some  material  par- 
ticular, specified  therein,  and  praying  that  the  decree  may  he  set 
aside  or  modified  in  tliat  particular,  and  that  all  the  persons,  whose 
heirship  was  established  by  the  decree,  may  be  cited  to  show  cause 
why  the  ]u-ayer  of  the  petition  should  not  be  granted."  ^^ 

§  1126.  Requisites  of  petition,  where  heir  has  died  or  aliened. — 
"  If  an  heir  has  since  died,  or  has  conveyed  the  share  or  interest 
so  established,  by  a  deed  duly  recorded  in  the  county,  the  petition 

14  That  is,  upon  the  hearing.  17  Co.  Civ.  Proc.  §  •2C^r,8. 

15  Co.  Civ.  Proc,  §  2r>ri7.  18  Co.  Civ.  Prop..  §  2f>.i8. 

16  Co.  Civ.  Proc,  §  2481.  subd.  6.  19  Co.  Civ.  Proc.  §  26.58. 


§  1127.  Pkobate  of  Heirship.  920 

must  state  that  fact ;  and  must  pray  that  the  persons,  who  have 
succeeded  to  his  interest,  may  be  also  cited."  ^* 

§  1127.  Decree  of  revocation,  etc. —  Where  such  a  petition  is 
presented,  and  it  appears,  upon  the  hearing,  that,  if  the  petitioner, 
or  his  ancestor,  testator,  or  grantor,  had  been  a  party  to  the  special 
proceeding  for  probate,  the  decree,  or  a  part  thereof,  could  not 
have  been  legally  made,  the  surrogate  must  vacate  or  modify  the 
decree  accordingly.  "An  exemplified  copy  of  the  decree  or  order, 
so  vacating  or  modifying  the  original  decree,  may  be  recorded  in 
the  office  of  any  clerk  or  register,  where  a  copy  of  the  original 
decree  was  recorded."  ^^ 

20  Co.  Civ.  Proc,  §  2658.  2i  Co.  Civ.  Proc,  §  2659.     There  is 

no   provision   as  to  the  effect  of  this 
decree,  as  evidence. 


CHAPTER  XXIV. 

APPEALS. 


TITLE  FIRST. 


APPEALS  TO  THE  SUPREME  COURT. 

§  1128.  Changes  in  practice  effected  by  the  Code The  commis- 
sioners who  framed  the  Code  left  Surrogates'  Courts  in  the  cate- 
gory of  courts  not  of  record,  and  revised  the  laws,  embodied  in 
that  act,  on  this  theory;  but  the  Legislature,  in  1877,  made  these 
tribunals  courts  of  records,  leaving,  however,  most  of  the  other 
pertinent  provisions  of  the  Code  unchanged.  Thus  the  General 
Rules  of  Practice  are  declared  by  the  Code  to  be  binding  upon  all 
courts  of  record,  except  the  Court  for  the  Trial  of  Impeachments 
and  the  Court  of  Appeals.  Accordingly,  the  rules  which  took 
effect  March  1,  1884,  except  so  far  as  such  a  result  would  be  in- 
consistent with  statutes,  govern  these  courts ;  and  surrogates  are 
expressly  mentioned.  The  general  chapter  of  the  Code,  concern- 
ing appeals,  was  originally  declared^  not  to  apply  to  appeals  from 
a  Surrogate's  Court ;  and  though  that  provision  has  been  repealed,^ 
it  is  believed  that  the  principle  still  remains,  inasmuch  as  a  com- 
plete scheme  for  appeals,  in  the  first  instance,  is  contained  in  the 
eighteenth  chapter  of  the  Code  f  in  which,  however,  certain  sec- 
tions of  the  first-mentioned  chapter  are  made  applicable  by  refer- 
ence.* 

§1129.  Appealable  decree  and  orders. —  An  appeal  to  the  Su- 
preme Court  lies  from  :  (1)  Every  decree^  of  a  Surrogate's  Court, 
i.  e.,  every  ''  final  determination  of  the  rights  of  the  parties,  to  a 
special  proceeding"  in  that  court  ;^  and  (2)  every  order  affecting 

1  L.  1876,  c.  449,  §  5,  subd.  0.  snhd.    11.      Sec   also  Matter  of  Gates, 

2L.  1880.  c.  245.  §  1,  subd.  .52.     See  2G  Hun,  179;   Mills  v.  Hoffman.  92  N. 

Co.  Civ.  Proc,  §  3347,  subd.  9.  V.   181  ;   Matter  of  Savre.  20  St.  Rep. 

3  Tit.  2,  art.   4.  682. 

*  Co.  Civ.  Proc,  §  2o75.    As  to  prac-        5  Otherwise  termed  a  "  final  order." 

lice   on    appeals    from    surropates'    de-  (Co.  Civ.  Proc..  S  2.5;)0.) 
erees  entered  on  or  after  September  1,         *>  Co.  Civ.  Proc..  §§  2.5.50.  2,570.     The 

1880,  in  proceedings  commenced  before  docketing  of  a  surrogate's  decree  doa 

that  day,  see  Co.   Civ.  Proc,   §   3347.  not   make  it   a   judgment  of  the  Su- 

[921] 


§  1130.  Appeals.  922 

a  substantial  right,  made,  before  or  after  tbe  decree  in  a  special 
proceeding,  by  the  surrogate,  or  by  the  Surrogate's  Court  ;^  un- 
less the  decree  or  order  was  rendered  or  made  upon  the  appellant's 
default.®  There  can  be  no  appeal  from  the  mere  decision  of  the 
surrogate  upon  which  no  formal  order  has  been  entered.^  An 
appeal  taken  from  a  decree  brings  up  for  review  each  intermedi- 
ate order  which  is  specified  in  the  notice  of  appeal,  which  neces- 
sarily affected  the  decree,  and  which  has  not  already  been  reviewed 
by  the  appellate  court,  upon  a  separate  appeal  taken  from  that 
order.-''' 

§  1130.  Orders  affecting  a  substantial  right. —  The  Revised  Stat- 
utes gave  a  right  of  appeal  to  the  Supreme  Court  '^  from  the 
orders,  decrees,  and  sentences  of  surrogates  in  all  cases ;"  ^^  yet 
this  language  was,  by  judicial  construction,  subjected  to  certain 
limitations,  which,  it  is  believed,  are,  in  the  main,  applicable  to 
the  provisions  of  the  present  Code,  the  design  of  which  was,  obvi- 
ously, not  to  create  any  radical  change  in  the  rules  governing 
the  appealability  of  these  determinations.  The  clause,  "  wdiich 
affects  a  substantial  right,"  introduced  by  the  present  Code,  is 
conformable  to  the  construction  placed  upon  the  former  statute, 
under  which  it  was  held,  notwithstanding  the  comprehensive  lan- 
guage of  the  section  cited,  that  it  did  not  embrace  orders  not 
affecting  a  substantial  right,  or  merely  formal  orders,  or  those  de- 
pending on  mere  questions  of  discretion. ^^     The  same   principle 

preme  Court,  and  it  is  still  a  subject  139   N.  Y.   51.      See  Potter  v.  Ogden, 

of    appeal,    as    a    surrogate's    decree.  130  id.  384,    401. 

(Davies    v.    Skidmore,    5    Hill.    501.)  10  Co.  Civ.  Proc,  §  2571.    The  Court 

Though  a  decree  be  unauthorized,  and,  of  Appeals  cannot  review  a  judgment 

therefore,  erroneous,  yet,  if  it  purport  of  the  General  Term    (Appellate  Divi- 

to  be  final,  it  is  a  final  decree  for  the  sion)  reversing  upon  the  facts  a  decree 

purposes   of    appeal.       (Smith   v.   Van  of  the   surrogate   admitting  a  will   to 

Kuren,   2   Barb.   Ch.   473.)      A   decree  probate,  and  directing  a  new  trial,  be- 

settling  accounts  which  determines  the  fore  a  jury,  of  questions  of  fact,  nor 

principles  upon  which  the   account  is  does    an    appeal    from    a    subsequent 

adjusted  is  final,  although  it  gives  the  judgment,  after  such  new  trial,  bring 

representative  leave  to  further  account  up    such   order   for   review,   under   Co. 

as    to    certain    expenses    incurred    by  Civ.  Proc,  §§   1316,  1317,  as  it  is  not, 

him.     (Matter  of  Van  Houten,  18  App.  within  the  meaning  of  these  sections, 

Div.  301;  46  N.  Y.  Supp.  190.)  cither    an    interlocutory    judgment    or 

7  Co.  Civ.  Proc,  §  2570.  an    intermediate   order  necessarily   af- 

8  Co.  Civ.  Proc,  §  2508.  There  can  fccting  tlie  final  judgment.  (Matter 
be  no  appeal  from  an  ex  parte  order  rf  Budlong,  120  X.  Y.  423;  38  St. 
on    the    ground    of    its     irregularitv.  Rep.  436.) 

(Skidmore  v.  Davies,  JO  Paige,  316.)  n2  R.  S.  609,  §  104. 

The  aggrieved  party  should  move,  on  12  Under  the  Revised  Statutes,  such 

notice,    to    vacate    an   ex   parte   order,  orders  as  the  following  were  held  not 

and  appeal  from  the  order  of  refusal,  appealable,  as  not  affecting  a  substan- 

( Matter  of  .Johnson,  27   Hun.  538.)  tial   right,   or  as  being  purely   discre- 

8  Matter  of  Callahan,  66  Hun,  118;  tionary:     a    refusal    to    entertain    an 


^23 


Al'PKALS. 


§  1130. 


^•ovenis  under  the  present  Code.  On  the  otlior  hand,  an  ordr-r 
•dircNL'ting  an  administrator  to  render  an  aeeunnt  of  tlie  proceeds 
of  sales  of  property  claimed  bv  him,  individually,  affects  a  sub- 
stantial riiilit,  and  is  appealable;'"'  and  so  is  a  refusal  to  dismiss 
a  ])roeeedin<i'  for  the  examination  of  a  person  alleired  to  have  prop- 
erty of  the  decedent's  estate,  where  there  was  a  defect  of  ])arties.^'' 
An  appi'al  now  lies  from  the  surrogate's  finding  of  a  sufficiency  of 
assets  to  })ay  a  judgment.'''' 

Appeals  to  the  Su})rt'nie  Court,  from  oi-ders  resting  in  the  sur- 
rogate's discretion,  do  not  stand  on  the  same  footing  as  similar 
appeals  from  Sj)ecial  Term  orders  of  the  Supreme  Court ;  except 
that  in  certain  cases,  where  a  nuittcr  is  within  the  discretion  of 
the  surrogate,  his  action  will  be  reviewed  only  to  ascertain  whether 
there  has  Ix^en  an  abuse  of  discretion  or  a  violation  of  justice.^" 
Thus,  whether  a  general  guardian  shall  be  appointed  for  an  infant. 


application  for  the  appointment  of 
a  collector  [special  administrator] 
thoufjh  a  mandamus  might  lie  to  com- 
pel the  surrogate  to  hear  and  deter- 
mine the  allegation  on  the  merits 
(McGreagor  v.  Buel.  24  N.  Y.  160)  : 
an  order  merely  directing  that  a  peti- 
tion for  the  removal  of  a  guardian 
should  be  inquired  into  (Skidmore  v. 
Shaw.  3  Ch.  Sent.  54)  :  a  denial  of 
an  application  for  an  order  directing 
an  executor  to  institute  proceedings 
for  the  recovery  of  assets  in  a  foreign 
jurisdiction,  was  held,  under  the  cir- 
cumstances of  the  case,  discretionary, 
und  not  reviewable  by  the  Court  of 
Appeals,  on  an  appeal  from  the  judg- 
ment of  the  General  Term  affirming 
ii  decree  of  the  surrogate  settling  the 
e::ecutor's  account.  (SheniKui  v.  Page. 
85  N.  Y.  123.)  The  discretion  con- 
ferred \ipon  the  surrogate,  by  2  R.  S. 
()7.  §  02,  to  require  payment,  to  an 
appellant  succeeding  in  impeaching 
the  validity  or  execution  of  a  will,  by 
the  adverse  party,  of  the  costs  and  ex- 
penses of  the  proceedings  (reserying 
the  question  whether  the  payment 
should  be  made  personally,  or  out  of 
the  estate),  was  held  not  reviewable 
in  anv  other  court.  CMarvin  v.  ^lar- 
vin.  No.  1,  11  Abb.  Pr.  \N.  S.l  !)7.) 
Rut.  as  to  costs  in  a  final  order,  see 
Lain  v.  Lain.  10  Paige,  lOl  ;  Willcox 
v.  Smith,  2()  Barb.  31(!.  An  objection 
that  the  surrogate  had  no  power,  luulcr 
the  statute,  to  make  an  arbitrary  al- 
lowance to  counsel  (Devin  v.  Patchin, 
2G  N.  Y.  441;   Seaman  v.  Whitehead, 


78  id.  300).  or  fo  an  unsuccessful 
partv  ( Noves  v.  Children's  Aid  So- 
ciety, 10  Ilun.  289;  afTd.,  7u  N.  Y. 
481),  may  be  taken  by  appeal.  The 
Court  of  Appeals  will  not  review  a 
General  Term  decision,  that  the  sur- 
rogate's award  of  costs  was  discre- 
tionary, (lb.)  The  General  Term  can- 
not review  the  discretionary  order  of 
the  suri'ogate  charging  the  executor 
])ersona]lv  with  costs.  (Matter  of 
Selleck,  'ill  N.  Y.  284.)  Compare 
flatter  of  "^'andervoort.  33  St.  Rep. 
944;    19  Civ.  Proc.  Rep.  355. 

l"5Fiester  v.  Shepard.  2G  Hun,  183; 
affd.,  92  N.  Y.  251:  Matter  of  Gilbert. 
39  Hun,  (>1  ;  affd.,  104  X.  Y.  200.  As 
to  whether  an  order  of  a  surrogate  re- 
quiring an  administrator  to  render  an 
intentiediate  account  is  appealable,  see 
Matter  of  Hurlburt,  43  Ilun.  311. 

1^  Matter  of  Slingerland,  3(5  Hun, 
575. 

I'^Co.  Civ.  Proc.,  §  2552. 

i<'>  Matter  of  Adler,  00  Hun,  481:  39 
St.  Rep.  462:  Matter  of  Hvde,  47  St. 
Rep.  208;  19  N.  Y.  Supp.  742.  While 
the  opening  of  a  decree,  for  fraud  or 
newly-discovered  evidence,  is  disere- 
tioiiary.  the  exercise  of  that  discretion 
is  reviewable.  (Matter  of  Tilden.  5ti 
App.  Div.  277 :  07  X.  V.  Supp.  879. ) 
Rut  not  an  order  dctui'uui  a  motion  to 
vacate  an  order  punishing  an  r.rrru- 
tor,  removed  for  contempt  in  failing 
to  obev  the  final  order  removing  him. 
(Matter  of  Pve.  23  App.  Div.  206;  48 
X.  Y.  Supp.  865.) 


§  1130. 


Appeals. 


924 


and  whether  he  shall  be  selected  out  of  the  relatives  of  the  infant^ 
being  matter  of  discretion,  committed  to  the  surrogate,  is  not  re- 
viewable.^' An  order  denying  a  motion  for  the  simultaneous  trial 
of  different  issues  joined  in  a  special  proceeding,  does  not  ''  affect 
a  substantial  right,"  and  is  not  appealable ;  and  an  attempted  ap- 
peal therefrom  does  not  operate  to  stay  the  trial  of  such  issue.^* 
A  decree  denying  a  motion  to  dismiss  proceedings  to  revoke  the- 
probate  of  a  will,  which  imposes  no  costs,  is  not  appealable  ;^^  nor 
is  an  order  refusing  leave  to  a  person,  having  no  interest  in  the 
estate,  to  intervene  in  a  proceeding  to  compel  the  executor  to  pay 
a  legacy  \^^  nor  an  order  appointing  a  referee  to  take  evidence  and 
report  the  same  to  the  court  f^  nor  an  order  referring  back  an 
accounting  to   the  referee,   with   directions   to   proceed   according- 


17  Matter  of  Vandewater.  115  N.  Y. 
669;  26  St.  Rep.  207;  Matter  of 
Welch,  74  N.  y.  299. 

i8  Henry  v.  Henry.  4  Dem.  253 ;  s.  c. 
in  part  as  Matter  of  Henry,  3  How. 
Pr.  (N.  S.)  386;  9  Civ.  Proc.  Rep.  100. 
An  order  denying  a  motion  for  the  is- 
suance of  a  commission  is  appealable, 
but  as  the  appeal  is  from  an  order 
denying  an  application,  it  has  no  prac- 
tical operation  as  a  stay  and  will  not 
prevent  a  trial  of  the  issues  to  which 
the  desired  testimony  related.  (lb.) 
An  order  allowing  contestant,  on  an 
accounting,  to  amplify  his  answer, 
specifying  debts  for  which  the  execu- 
tor is  to  be  held  liable,  is  not  review- 
able. (Matter  of  Burnett,  15  St.  Rep. 
110.) 

H»  Matter  of  Soule.  46  Hun.  661.  An 
order  denying  a  motion  to  dismiss  a 
petition  is  not  a  final  adjudication  and 
is  not  appealable.  (Matter  of  Phalen, 
51  Hun,  208;  21  St.  Rep.  34.)  But 
an  order  ainending  the  petition  and  di- 
recting the  issuance  of  a  supplemental 
citation  is  appealable,  if  the  effect  of 
the  order  was  to  deprive  the  person 
brought  in  of  a  Statute  of  Limitations 
which  had  run  in  his  favor.  (lb.) 
An  order  dismissing,  conditionally, 
proceedings  for  the  probate  of  a  will, 
affects  a  substantial  right  and  is  ap- 
pealable. (Mattt'r  of  Buckley,  2  St. 
Rep.  073. )  But  an  order  dismissing  a 
motion  to  set  aside  a  citation  requir- 
ing administrators  to  show  cause  why 
the  letters  of  administration  issued  to 
them  should  not  be  revoked,  made  be- 
fore the  citation  was  served,  does  not 
affect  a  substantial  right,  and  is,  there- 
fore,    not    appealable.       (Matter     of 


Westurn.  5  App.  Div.  595;  39  N.  Y, 
Supp.  429. )  So,  too,  an  order  refusing 
to  strike  out  of  the  record  the  name  of 
a  person.  (Matter  of  Nottingham,  88 
Hun,  443  ;  34  N.  Y.  Supp.  404. )  Like- 
wise, an  order  refusing  to  resettle  a 
former  order.  (Matter  of  Sondheim, 
09  App.  Div.  5;  74  N.  Y.  Supp.  510.) 
In  the  Nottingham  case  (supra)  it 
was  said  that  where  a  surrogate  im- 
properly refuses  to  proceed  and  de- 
cree distribution,  the  remedy  is  by 
mandamus,  and  not  by  appeal. 

20  Matter  of  Halsey,  93  N.  Y.  48. 
But  an  order  granting  the  application 
of  one  claiming  to  be  a  legatee,  for  an 
accounting  by  the  executor,  who  con- 
tested his  interest,  affects  a  substan- 
tial right,  and  is  appealable.  (Fiester 
V.  Shepard,  20  Hun.  183.) 

21  Matter  of  Pearsall.  21  St.  Rep. 
305.  Compare  Moffatt  v.  Moffatt,  3 
How.  Pr.  (N.  S.)  150.  An  order  di- 
recting examination  of  witness,  not- 
withstanding allegation  that  witness 
is  mentally  unsound,  is  not  appealable 

(Matter  of  Hutchings,  40  St.  Rep. 
916;  16  N.  Y.  Supp."  36);  nor  is  an 
order  directing  an  attorney,  having^ 
custody  of  estate's  funds,  to  deposit 
same,  pending  adjustment  of  his  claim 
against  the  estate.  (Matter  of  De  Or- 
aindi,  31  St.  Rep.  744:  9  N.  Y.  Supp. 
873.)  An  order  directing  executors  to 
account,  and  to  deposit  bonds  with  a 
trust  company  named,  or  show  cause 
why  such  deposit  should  not  be  made, 
is,  as  to  the  latter  clause,  merely  an 
order  to  show  cause  and  not  appeal- 
able. (Matter  of  Kreischer,  30  App. 
Div.  313;   51   N.  Y.  Supp.  802.) 


<)2o 


Al'l'K.VLS. 


§    ll^'l. 


to  the  original  order  of  reference,  aii<l  making  no  final  disposition 
of  the  matter. ^^ 

§  1131.  Who  may  appeal.- —  Any  jnirty  aggrieved  may  ajjpeal, 
in  the  first  instance,  to  the  Supreme  Court,^  from  a  decree  or  aa 
order,  except  where  the  decree  or  order  of  which  he  complain? 
was  rendered  or  ma<le  upon  his  default,"^  or  where  he  has  com- 
plied with  some  condition  imposed  u])uii  him  thereby. ■"■  The 
requirement  that  appellant  must  be  an  a(j<jrieved  party,  super- 
sedes a  ruling,  under  the  former  statute,  that  any  of  the  i)arties 
to  a  proceeding  for  the  probate  of  a  will  and  codicils,  who,  though 


22  Matter  of  .lost,  46  St.  Rep.  129 ; 
19  X.  Y.  Supp.  4S.  ••  When  the  ref- 
eree has  reported  under  this  direction 
and  his  report  has  been  confirmed  or 
.set  aside  and  a  final  order  niadi> 
thereon,  there  \\\\\  be  a  proper  subject 
of  review ;  the  matter  at  present  is 
.simply  under  investigation.''  (lb.) 
An  order  granting  a  commission  to 
take  testimony,  will  not  be  interfered 
with  on  appeal,  exce])t  where  it  ap- 
pears to  have  been  illegal  or  arbitrarv. 

(Matter  of  Plumb,  (14  Hun,  317;  4() 
St.  Rep.  302;  135  X.  Y.  (501.)  An 
appeal  lies  from  an  order  adjudging 
an  applicant  for  letters  of  adminis- 
tration incompetent,  by  reason  of  im- 
providence (Mc^Iahon  v.  Harrison,  G 
X.  Y.  443)  ;  from  a  decision  in  pro- 
ceedings for  the  sale  of  real  estate 
for  debts,  adjudging  certain  claims 
to  be  valid  and  subsisting  demands 
against  the  deceased  and  his  estate 
(Owens  v.  Bloomer,  14  Hun,  2n())  ; 
and  from  an  order  in  such  proceed- 
ings, vacating  the  sale  on  the  ground 
that  the  price  obtained  was  insuf- 
ficient, and  ordering  a  resale  ( Del- 
aplaine  v.  Lawrence,  10  Paige,  G02)  ; 
though  it  has  been  doubted  whether 
the  appellate  court,  in  such  a  case, 
would  review  the  weight  of  evidence 
as  to  the  insufTiciency  of  price.  (Del- 
aplaine  v.   Lawrence,"  3  X.  Y.  301.) 

23  Co.  Civ.  Proc,  §  2r)70.  An  attor- 
ney, asserting  a  lien  for  services,  can- 
not appeal,  as  he  is  not  a  party  in  in- 
terest. (Matter  of  Evans,  33  Misc. 
671;  08  X.  Y.  Supp.  037.) 

2-t  Co.  Civ.  Proc.  §  2508.  In  Matter 
of  llodgman  (00  Hun,  484;  alTd.,  140 
X.  Y.  421),  it  was  held,  that  on  a 
legatee's  appeal  from  a  decree,  on  a  ju- 
dicial settlement,  which  disallowed  his 
•claim  for  interest,  ho  was  not  entitled 
to  a  review  of  such  provisions  of  the 


decree  as  afTected  only  other  parties  to 
the  proceeding,  he  being  in  no  way  ag- 
grieved tliereby.  It  was  held,  even 
under  the  Revised  Statutes,  that  a  per- 
son who  had  no  interest  in  the  estate, 
or  whose  interest  had  ceased  on  the 
birth  of  a  posthumous  child  who  is 
entitled  to  the  estate,  could  not  p-ose- 
cute  an  appeal  (Reid  v.  Vanderhey- 
den,  5  Cow.  719):  nor  could  a  hus- 
band, by  virtue  of  his  wife  being  the 
next  of  kin,  ajipeal.  in  his  own  name 
alone,  from  a  decree  affirming  the  pro- 
bate of  a  will.  (Foster  v.  Foster,  7 
Paige.  48.)  Where  an  executor,  com- 
mitted to  jail  by  a  surrogate  for  dis- 
obediciK-e  of  a  final  decree  directing 
liim  to  make  certain  payments  to  dif- 
ferent parties  named,  was  discharged 
from  imprisonment  on  habeas  corpus, 
and  the  General  Term,  on  a  writ  of 
certiorari,  afiirmed  the  discharge:  — 
Held,  that  one  of  tlie  parties  named  in 
the  surrogate's  order,  as  entitled  to  a 
certain  pa_\nuent,  but  who  was  not  the 
relator  in  the  writ  of  certiorari,  could 
not  appeal  to  the  Court  of  Appeals 
from  the  General  Term  order.  ( Wat- 
son v.  Xelson,  69  X.  Y.  536.)  For- 
merly, appeals  in  probate  cases,  in- 
cluding proceedings  to  revoke  probate 
on  allegations,  and  proceedings  for 
construction  of  wills,  could  be  main- 
tained only  by  a  devisee  or  legatee 
named  in  the  will,  or  by  an  heir-at- 
law  of,  or  next  of  kin  to,  the  testator. 
(2  R.  8.  06.  §  55:  L.  1870.  c.  359. 
§  11.)  See  Alston  v.  Jones.  10  Paiire. 
OS:  ^lason  v.  Jones,  2  Bradf.  325. 
But  compare  Williams  v.  Fitch,  15 
Barb.  654. 

25  Thus,  where  executors  give  a  bond 
pursuant  to  a  deci'ce  revoking  their 
letters  unless  they  do  so.  they  cannot 
appeal.  (Matter  of  O'Brien,  145  X. 
Y.  370:   04  St.  Rep.  820.) 


§  11^2.  Appeals.  92(> 

the  will  were  established,  would  take  nothing  by  the  codicils,  and 
whose  interests  were,  therefore,  unaffected,  whether  the  decision 
of  the  surrogate  in  reference  to  the  codicils  were  affirmed  or  re- 
jected,  might,  nevertheless,  appeal  from  the  decision  admitting 
the  codicils  to  probate,"''  or  even  from  a  decree  admitting  a  will 
to  probate,  notwithstanding  he  may  have  been  the  petitioner  for 
probate.^'  Under  the  present  statute,  only  persons  who  have  an 
interest  in  the  controversy,  which  has  been  injuriously  affected 
by  the  decision  below,  may  appeal  therefrom.^*  A  special  guard-^ 
ian  does  not  become  functus  officio  by  the  rendition  of  the  decree, 
and  may,  therefore,  prosecute  an  appeal. ^^  But  where  a  represen- 
tative, upon  an  accounting,  has  brought  in  all  persons  interested,, 
he  has  no  further  duty  in  their  behalf  and  may  not  appeal  from 
the  decree,  save  so  much  thereof  as  affects  his  owm  rights.^^ 

§  1132.  Appeals  by  a  person  not  a  party. —  It  was  always  the 
rule  that,  in  probate  cases  at  least,  the  right  of  appeal  did  not 
depend  upon  the  appellant  having  been  a  party  to  the  proceeding 
in  the  Surrogate's  Court.  The  fact  of  his  being  named  in  the 
will  entitled  him  to  appeal  from  a  decree  refusing  probate.^^  This 
principle  has  been  incorporated  in  the  Code,  applicable  to  all 
classes  of  appealable  decrees  and  orders,  wdiich  provides  that  any 
*•'  creditor  of,  or  person  interested  in,  the  estate  or  fund  affected 
by  the  decree  or  order,  who  w^as  not  a  party  to  the  special  proceed- 
ing, but  was  entitled  by  law  to  be  heard  therein,  upon  his  appli- 
cation ;  or  who  has  acquired,  since  the  decree  or  order  was  made, 
a  right  or  interest  which  would  have  entitled  him  to  be  heard,  if 
it  had  been  previously  acquired ;  may  intervene  and  appeal."  ^*' 


26Delafield  v.  Parish,  42  Barb.  274;  30  Matter  of  Hodgman,  140  N.  Y. 
25  N.  Y.  9;  1  Redf.  1.  An  executor  421;  Matter  of  Coe,  55  App.  Div.  270; 
may  appeal  from  a  judgment  of  the  G6  N.  Y.  Supp.  784;  Matter  of  Rich- 
surrogate  refusing  probate  to  a  codi-  mond,  63  App.  Div.  488;  71  N.  Y. 
cil.  (Matter  of  Stapleton,  71  App.  Supp.  795. 
Div.  1;  75  N.  Y.  Supp.  657.)  3i  Lewis  \.  Jones,  50  Barb.  645. 

27Vandemark     v.     Vandemark,     26  32  Co.    Civ.    Proc,    §    2569.       "The 

Barb.  416.  facts,  which  entitle  such  person  to  ap- 

28  Bryant  v.  Thompson,  128  N.  Y.  peal,  must  be  shown  by  an  affidavit. 
426.  One  to  Avhom  an  executor  has  which  must  be  filed,  and  a  copy  thereof 
assigned  his  commissions,  before  they  served  with  the  notice  of  appeal." 
were  ascertained  and  liquidated,  has  (lb.)  See  Delaplaine  v.  Lawrence,  10 
no  interest  which  will  entitle  him  to  Paige,  602 ;  Reid  v.  Vanderheyden,  5 
move  to  vacate  a  decree  refusing  com-  Cow.  719;  Sherman's  Appeal,  16  Abb. 
missions  to  such  executor,  or  to  appeal  Pr.  397,  note;  Lewis  v.  Jones,  50  Barb, 
from   an  order   denying   such   motion.  645 ;  Pruyn  v.  Brinkerhoff,  7  Abb.  Pr. 

(Matter    of    Worthington,    141    N.    Y.  (X.  S.)   400;  Mar\'in  v.  Marvin,  11  id. 

9;   35  X.  E.   929.)  97;    Oilman   v.   Gilman,    1    Redf.    354  r 

29  Matter  of  Stewart.  23  App.  Div.  35  Barb.  591.  Under  the  old  practice, 
17;   48  N.  Y.  Supp.  999.  it  was  improper  for  separate  appeals 


927 


AlM'KALS. 


§§  ii;i;i,  ii;u. 


§  1133.  Necessary  and  proper  parties  to  appeal "  Each  party  to 

the  special  proceeding  in  the  Surrogate's  Court,  and  each  person 
not  a  party,  avIio  has,  or  claims  to  have,  in  the  suhject-matter  of 
the  decree  or  order,  a  right  or  interest,  which  is  directly  affected 
therehy,  and  which  appears  upon  the  face  of  the  papers  presented 
in  the  Surrogate's  Court,  or  has  become  manifest  in  the  course 
of  the  proceedings  taken  therein,  must  be  made  a  party  to  the  ap- 
peal.^"'' A  jierson  not  a  party,  but  who  is  a  necessary  party,  may 
be  brought  in  by  an  order  of  the  appellate  court,  made  after  the 
appeal  is  taken ;  or  the  appeal  may  be  dismissed  on  account  of  his 
absence;  and  the  appellate  court  may  prescribe  the  mode  of  bring- 
ing in  such  a  jicrson,  by  publication,  by  personal  service,  or  other- 
34  '  " 


wise. 


§  1134.  Infants  as  parties. —  Formerly,  where  an  infant  or  other 
incohii)etent  was  a  jiarty  to  an  appeal,  it  was  necessary  to  procure 
the  appointment  of  a  guardian  ad  lUctn  \)\  the  appellate  court^ 
notwithstanding  the  surrogate  had  appointed  a  special'  guardian 
for  the  infant  in  the  proceeding  below;  but  under  the  present 
system,  such  new  aj)pointment   is  not  necessary,  and  the  special 


1o  1)0  taken  by  several  parties  in  in- 
terest wliose  rights  are  identical.  But 
one  appeal,  in  which  all  the  interested 
j)arties  are  named,  was  allowed. 
(Broekway  v.  Jewett,  16  Barb.  590.) 
If,  however,  one  of  the  respondents 
wishes  to  raise  a  question  between 
himself  and  a  co-respondent,  he  should 
appeal  separately.  (Ross  v.  Ross,  6 
Hun.  80. )  An  interested  person  may 
apply  to  be  made  a  party  respondent 
to  the  api)eal,  although  his  time  to 
appeal  has  expired.  (Cox  v.  Scliermer- 
horn.   12  llun,  411.) 

33  Co.  Civ.  Proc,  §  2573. 

^4  Co.  Civ.  Proc,  §  2573.  "  But  this 
section  does  not  require  a  person  in- 
terested, but  not  a  ]iarty.  to  be  brought 
in,  if  he  was  legally  represented,  or 
was  duly  cited  in  the  court  below." 
(lb.)  The  surrogate  cannot  make  an 
order  for  the  intervention  of  new  par- 
ties, ])emliiig  an  ajipeal.  (flatter  of 
Dunn,  1  Dem,  204.)  On  an  appeal 
from  an  order  denying  an  apjilication 
to  revoke  probate,  the  administrator  is 
a  necessary  party ;  although  he  was 
not  notified  to  attend  and  oppose  the 
application  before  the  surrogate. 
(]\Iatter  of  Thompson,  11  Paige,  453.) 
An  aflirmance  or  reversal  of  a  decree 
can  only  be  made  upon  a  duly  certi- 


fied record,  and  prohabh/  upon  a  com- 
pliance with  section  2573,  as  to  the 
j)roper  parties  on  the  appeal.  Hence, 
an  appeal  arranged  between  counsel,, 
and  not  containing  the  certified  record, 
will  be  dismissed.  (Matter  of  Hall, 
27  St.  Rep.  133.)  Under  the  old  prac- 
tice, the  counsel  who,  under  an  order 
of  the  surrogate,  was  to  receive  money 
from  a  decedent's  estate  to  be  applied 
to  a  specific  purpose,  was  held  to  be 
a  proper  party  to  an  appeal  from  sucli 
order.  (Gilnian  v.  Oilman,  3  Hun. 
22.)  For  the  former  prai-tice  in  re- 
gard to  dismissing  appeal  for  a  defect 
of  parties,  see  Gardner  v.  Gardner.  5 
Paige,  170;  Foster  v.  Tyler,  7  id.  48; 
(Jilchrist  v.  Rea,  9  id.  (ii! ;  Jauncev  v. 
Rutherford,  id.  272:  Oilman  v.  Gil- 
man.  1  Redf.  354;  Willco.x;  v.  Smith, 
20  Barb.  31():  Brown  v.  Evans.  34 
id.  504 ;  SufTern  v.  Lawrence,  4 
How.  Pr.  12i);  Patterson  v.  Hamilton. 
20  Hun.  0(i5.  Wliere  the  surrogate 
had  made  allowances  to  the  counsel 
of  parties  contesting  the  probate  of  a 
will,  it  was  held,  that  they  might  be 
made  parties  to  an  appeal  from  the 
order,  as  their  interest  in  the  allow- 
ance was  personal,  and  could  not  be 
discharged  bv  pavment  to  their  clients. 
(Peck  v.   Peck,  '23  Hun,  312.) 


§§  1135,  113G.  Appeals.  928 

guardian  appointed  by  the  surrogate  may  be  made  a  party  to  the 
appeal,  instead  of  the  infant.  If  no  special  guardian  was  ap- 
pointed below,  application  should  be  made  for  the  appointment 
of  a  guardian  by  the  appellate  court. ^^ 

§1135.  Desig-nation  of  the  parties  and  the  proceeding. —  The 
party  or  person  appealing  is  designated  the  appellant,  and  the  ad- 
verse party  the  respondent. ^^  After  the  appeal  is  taken,  the  name 
of  the  appellate  court  must  be  substituted  for  that  of  the  court 
below,  in  the  title  of  the  special  proceeding,  and  the  name  of  the 
county  may  be  omitted ;  otherwise,  the  title  is  not  to  be  changed, 
in  consequence  of  the  appeal.^^ 

§  1136.  Abatement  and  revivor  of  appeal. —  Where  the  adverse 
party  has  died  since  the  making  of  the  determination  appealed 
from,  or  where  such  determination  was  made  after  his  death  (if 
permitted  by  law),  an  appeal  may  be  taken,  as  if  he  were  living; 
but  it  cannot  be  heard,  until  the  heir,  devisee,  executor,  or  ad- 
ministrator, as  the  case  requires,  has  been  substituted  as  the  re- 
spondent.^^ Where  either  party  to  an  appeal  dies  before  the  appeal 
is  heard,  if  an  order,  substituting  another  person  in  his  place,  is 
not  made,  within  three  months  after  his  death,  the  ap|>ellate  court 
may,  in  its  discretion,  make  an  order  requiring  all  persons  inter- 
ested in  the  decedent's  estate,  to  show  cause  before  it,  why  the  de- 
termination appealed  from  should  not  be  reversed  or  afhi-med,  or 
the  appeal  dismissed,  as  the  case  requires. ^^  The  order  must 
specify  a  day,  when  cause  is  to  be  shown,  which  must  be  not  less 
than  six  months  after  making  the  order,  and  must  designate  the 
mode  of  giving  notice  to  the  person  interested ;  and  upon  the  re- 
turn day  of  the  order,  or  at  a  subsequent  day,  appointed  by  the 
court,  if  the  proper  person  has  not  been  substituted,  the  court, 
upon  proof,  by  affidavit,  that  notice  has  been  given,  as  required 
by  the  order,  may  reverse  or   affirm  the  determination  appealed 

35  As  to  appeal,  by  an  infant,  from  execution  of  the  determination  ap- 
an  order  appointinji  his  guardian,  see  pealed  from,  must  recite  the  fact  of 
Underhill  v.  Dennis,  9  Paige,  203 ;  the  adverse  party's  death ;  and  the 
Kellinger  v.  Roe,  7  id.  362.  The  rela-  undertaking  inures,  after  substitution, 
tives  of  the  infant,  who  opposed  the  to  the  benefit  of  the  person  substi- 
appointment.    are    not    necessary    par-  tuted.      ( lb. ) 

ties.      (Chaffee  v.   Baptist  Miss.  Con.,        39  Co.    Civ.     Proc,     §§     1298,    2.57.5. 

10  Paige,  S.5.)  The    former    section    also    contains    a 

36  Co.  Civ.  Proc,   §§    1295,  2575.  retrospective  clause,  relating  to  deaths 

37  Co.  Civ.  Proc,  §  1295.  occurring     before    its    passage;    as    to 

38  Co.  Civ.  Proc,  §§  1297.  2575.  In  which  the  section  should  itself  be  con- 
such  a  case,  an  undertaking  required  suited. 

to  perfect  the  appeal,  or  to  stay  the 


■929  Ai'i'KALs.  §§  li:57.  1138. 

from,  or  dismiss  the  appeal,  or  make  such  further  order  in  the 
j)remises  as  justice  recjuires.'*^ 

§  1137.  Limitation  of  time  to  appeal. —  The  Code  abrogates  the 
former  varied  ruk'S^'  respecting  the  time  for  taking  an  appeal 
from  the  different  adjudications  in  a  Surrogate's  Court  by  pro- 
viding that  an  appeal  bv  a  party  must  l)e  taken  within  thirty  days 
lifter  the  service,  u])on  the  n])])elhint,  or  up(jn  the  attorney,  if  any, 
who  appeared  for  him  in  the  Surrogate's  Court,  of  a  copy  of  the 
decree  or  order  from  which  the  appeal  is  taken,  and  a  written 
notice  of  the  entry  thereof.  An  aj^peal  by  a  person  who  was  not 
a  party  must  be  taken  within  thrcf  months  after  the  entry  of  the 
decree  or  order,  unless  the  appellant's  tJtle  was  acquired  by  means 
of  an  assignment  or  conveyance  from  a  party  ;  in  which  case,  the 
appeal  must  be  taken  within  the  time  limited  for  appeals  by  the 
assignor  or  grantor.'*"  An  oniissi(jn  to  take  an  appeal  in  time 
is  f atal ;  no  court  or  judge  can  grant  relief.'*'^  The  proceedings,  in 
such  a  case,  will  he  dismissed  upon  motion,  which  must  be  made 
to  the  appellate  court,*'*  and  the  party  cannot  ol)tain  relief  indi- 
rectly, by  a  motion.'*^ 

§  1138.  Enlarging  time,  curing  defects,  etc. —  Formerlv,  the 
court  had  not  power  to  cure  any  defect  in  the  proceeding,  such 
as  allowing  a  bond  for  costs  to  be  filed  nunc  pro  tunc ;'^^  but  it  is 
now  provided  that  where  the  appellant  has,  seasonably, "  and  in 
good  faith,  served  his  notice  of  appeal,  either  upon  the  clerk  or 

40  Co.  Civ.  Proc,  §§  1298,  2-575.  An  vised  Statutes,  the  time  was:  1.  Six 
application  for  an  order  of  substitu-  months  after  entry,  to  appeal  from  an 
tion  must  be  made  to  the  appellate  order  appointing,  removing,  or  refus- 
oourt:  and  where  personal  service  of  ing  to  remove  a  guardian.  i2  R.  S. 
notice  of  application  for  an  order  has  lo.S,  §  18.)  2.  Throe  months  after 
been  made,  within  the  State,  upon  the  entry,  to  appeal  from  a  decree  grant- 
proper  representative  of  the  decedent,  ing  or  refusing  probate  (2  R,  S.  66, 
an  Older  of  substitution  may  be  made  §  .55)  ;  from  a  decree  revoking  or  con- 
upon  the  application  of  the  surviving  firming  probate  on  allegations  filed  (2 
party.  (Co.  Civ.  Proc.,  §§  1290,  R.  S.  02.  §  .35):  from  a  decree  finally 
2575.)  settling  the  accounts  of  executors,  etc. 

41  The  time  was  computed  from  the  (2  R.  S.  (MO.  §  105;  id.  95.  §  07;  id. 
entry,  and  not  the  service  of  the  order  152,   §   113:   L.   1800.  c.   115;   Bronson 

(Bay  V.  Van  Rensselaer,  1  Paige.  422;  v.  Ward.  .3  Paige,   189;  Cuild  v.  Peck. 

Robertson    v.    McGeoch,    11    id.    040);  11   id.  475.)      3.  Thirty  days  after  en- 

and   the   court   had   not   power   to  en-  try  of  the  order  or  decree  in  all  other 

hirge  the  time.      (Bronson  v.  Ward,  3  cases. 

Paige,   189;    Stone   v.    Morgan.    10   id.  4:5  Co.    Civ.    Proc,    §    784;    Stone   v. 

015.)  Morgan,   10  Paige,  015. 

42  Co.  Civ.  Proc,  §  2572;  Matter  of  44  Hvncs  v.  McCreerv.  2  Deni.  158. 
Kavanagh,  29  St.  Rep.  215;  10  N.  Y.  4.-.  .\[aish  v.  Averv.  81  N.  Y.  29;  La- 
Supp.    899;     Matter    of    Dingman.    0(i  vejie  v.  Skellv.  24  llun.  ()42. 

App.  Div.  228;  72  N.  Y.  Supp.  ()94  4U  Spotts  v.  Dume^nil.  12  Abb.  Pr. 
(appeal  by  State  comptroller  in  trans-  (X.  S.)  117.  note;  Marvin  v.  Marvin, 
fer  tax  proceeding).     Under  the  Re-    11  id.  97. 

59 


§§  1139,  1110.  Appeals.  930 

upon  the  adverse  party,  or  liis  attorney,  but  lias  omitted,  through 
mistake,  inadvertence,  or  excusable  neglect,  to  serve  it  upon  the 
other,  or  to  do  any  other  act  necessary  to  perfect  the  appeal,  or  to 
stay  the  execution  of  the  determination  appealed  from,  the  ap- 
pellate court  may,  upon  proof,  by  affidavit,  of  the  facts,  in  its 
discretion,  permit  the  omission  to  be  supplied,  or  an  amendment 
to  be  made,  upon  such  terms  as  justice  requires. ^^  Xot  only  "  the 
appellate  court,"  but  the  Surrogate's  Court,  has  jurisdiction  to 
allow  an  appellant,  who  has  seasonably  served  notice  of  appeal, 
to  file  and  serve  an  undertaking  on  appeal,  when  he  has,  through 
mistake  or  inadvertence,  omitted  to  do  so  within  the  proper  time.'*^ 

§  1139.  Notice  of  appeal  and  its  service. —  The  appeal  is  effected 
by  a  notice  of  appeal  served  within  the  State  upon  each  party  to 
the  special  proceeding  who  is  made  a  respondent,  and  also  upon 
tlie  surrogate  or  clerk  of  the  Surrogate's  Court.  When  tlie  re- 
spondent appeared  in  the  proceeding  below  by  attorney,  the  notice 
may  be  served  either  upon  the  attorney  or  upon  the  party  person- 
ally.'*^ If  he  appeared  below  in  person,  it  must  be  served  upon 
him  personally.  If  he  did  not  appear  below,  though  cited,  it  must 
also  be  served  upon  him  personally,  if,  with  due  diligence,  he  can 
be  found  within  the  county ;  otherwise  it  may  be  served  by  deposit- 
ing it,  indorsed  with  a  direction  to  the  party,  with  the  surrogate, 
or  the  clerk  of  the  Surrogate's  Court.  Where  a  person  to  be  served 
cannot,  with  due  diligence,  be  found,  to  make  personal  service 
upon  him,  the  surrogate,  or  a  justice  of  the  Supreme  Court,  may, 
by  order,  prescribe  such  mode  of  service  as  he  thinks  proper ;  and 
service  in  that  mode  has  the  same  effect  as  personal  service. ^"^ 

§  1140.  Security  on  appeal. —  The  appeal  is  perfected  by  the  ser- 
vice  of  the   notice   of   appeal,    and    (except   as   hereinafter   men- 

47  Co.  Civ.  Proc,  §§  1.30.3,  257.5.  See  notice  of  appeal  and  the  undertakinw 
Ellsworth  V.  Fulton,  24  How.  Pr.  20;  on  appeal  were  filed  December  Sth, 
]\Iorris  v.  Morange,  26  id.  247.  See  but  neither  was  served  upon  the  pro- 
General  Rule  .32.  as  to  power  of  surro-  j^onent  or  the  executor  named  in  the 
gate  to  enlarge  time,  etc.  will  until  December   12th,  and  in  the 

48  Matter  of  Darragh.  1  Connoly,  meantime  letters  testamentary  were 
170;  19  St.  Rep.  207:  Matter  of  \Yit-  issued  to  both  executors,— Held,  that 
mark.  1.5  id.  745;  Matter  of  Cluff,  11  the  mere  filing  with  the  court  of  the 
Civ.    Proc.   Rep.    338;    7   St.   Rep.   753.  notice,  and  the  undertaking  neeessa;ry 

49  Where  a  motion  to  compel  accept-  to  effectuate  the  appeal,  did  not  stay 
ancc  of  a  notice  of  appeal,  claimed  to  the  proceedings  and  preA'ent  the  issu- 
hav€  been  served  too  late,  is  granted,  ance  of  the  letters.  Application  for 
re-service  by  mail  is  sufficient.  (Mat-  the  appointment  of  a  temporary  ad- 
ter  of  Williams,  6  !Misc.  512;  27  N".  ministrator  was,  therefore,  denied. 
Y.  Supp.  433.)  (Matter  of  Coles,  N.  Y.  Law  J.,  Feb. 

50  Co.  Civ.  Proc,  §  2574.    Where  the  23,  1893.) 


931 


Appeals. 


§  1141. 


tioned)  the  filing  of  a  proper  undertaking  in  the  surrogate's  office 
(apjiroved  by  the  surrogate,  or  a  judge  of  tlie  apj>ellate  court), 
uitli  at  least  two  sureties,  to  the  effect  that  the  appellant  will  pay 
costs  and  danuiges  which  niav  he  awarded  against  him  upon  the 
appeal,  not  exceeding  two  hundred  and  hfty  dollars/"'* 

g  1141.  Security  to.  effect  a  stay. —  Certain  decrees  are  desig- 
nated in  tiic  statute,  appeals  from  which  do  not  stay  the  execution 
thereof,  uidess  the  a])]K'llant  gives  extraordinary  security.  Thus, 
to  effect  tlie  stay  of  the  ex<'cution  of  a  decree  directing  an  execu- 
tor, administrator,  testanieiitai-y  trustee,  guardian,  or  other  per- 
son, to  pay  or  distribute  money,  or  to  deposit  money  in  a  bank  or 
trust  company,  or  to  deliver  property,  the  appellant  must  give  an 
undertaking,  with  at  least  two  sureties,  in  not  less  than  twice  the 
sum  directed  to  be  paid,  deposited  or  distributed,  "  to  the  effect 
that,  if  the  decree  or  order,  or  any  part  thereof,  is  affirmed,  or 
the  appeal  is  dismissed,  the  appellant  will  })ay  all  costs  and  dam- 
ages which  may  be  awarded  against  him  upon  the  ajipenl,  and 
Avill  pay  the  sum  so  directed  to  be  paid  or  collected,  or,  as  the 
case  requires,  w'ill  deposit  or  distribute  the  money,  or  deliver  the 
property,  so  directed  to  be  deposited,  distributed,  or  delivered, 
or  the  part  thereof  as  to  which  the  decree  or  order  is  affirmed."  °^ 
An  executor  or  administrator  must  give  the  same  kind  of  under- 
taking in  order  to  stay  the  operation  of  an  order  granting  leave 
to  issue  an  execution  against  him,  pursuant  to  section  1825  of 
the  Code."'^"''     And  in  order  to  effect,  by  appeal,  a  stay  of  the  exe- 


51  Co.  Civ.  Proc,  §  2,)77.  An  under- 
taking, which  the  appellant  is  re- 
quired to  give,  or  any  other  act  which 
he  is  required  to  do,  for  the  security 
of  the  respondent,  may  be  waived  by 
the  written  consent  of  the  latter. 
(Co.  Civ.  Proc.  §S  130.1,  2r)75.)  Soo 
id.,  §§  810-81().  for  general  regula- 
tions, as  to  the  form,  etc.,  of  under- 
takings. After  the  filing  and  service 
of  a  sufficient  notice  of  appeal,  and  of 
an  undertaking  to  render  the  appeal 
effectual,  the  matter  is  removed  from 
the  jurisdiction  of  the  Surrogate's 
Court,  and  proceedings  jiredicated 
upon  the  insunicicucy  of  an  undertak- 
ing filed  by  tlu^  appellant  unist  be  ini- 
tiated by  tli(>  res|)oiident  in  the  a])pel- 
late  court.  Du  Pois  v.  Prown,  1  r)em. 
317.)  As  to  ju.stification  of  sureties, 
in  New  York  county,  see  Rule  XVI. 
No  undertaking  is  required  by  the 
jiublic    administrator    of    New    York 


county,  either  to  perfect  an  appeal  by 
him,  or  to  stav  execution  thereon.  (L. 
18518,  c.   230, '§   24,   subd.    lo.) 

MCo.  Civ.  Proc.  §§  2578,  2580.  For 
lli;>  former  requirement,  see  2  R.  S. 
1 10,  §  21  ;  Mount  v.  Mitchell.  31  N.  Y. 
350;  Davies  v.  Skidmore,  5  Hill.  501; 
Matter  of  Espie.  3  Redf.  270. 

53  Co.  Civ.  Proc.  S§  2578.  2580.  There 
is  a  difference  of  opinion  whether,  on 
appeals  under  section  2578,  more  than 
one  undertaking  is  necessary  for  any 
l)urpose.  tliat  is,  whether  the  under- 
taking designated,  in  the  section  is 
suflicicTit  both  to  perfect  the  appeal 
and  also  to  effect  a  stay.  Judge  \lum- 
sey,  in  his  Practice  (vol.  2.  p.  754). 
expresses  the  ojiinion  thai  "  no  secu- 
rity need  be  given  to  perfect  tlie  appeal 
in  the  cases  mentioned  by  section  2578, 
because  such  appeals  are  specially  ex- 
cepted from  the  operation  of  section 
2577."     Rollins,   S.,  in  Fernbacher  v. 


S  1142. 


Appeals. 


932 


cution  of  a  decree  or  an  order,  directing  the  commitment  of  an 
executor,  administrator,  testamentary  trustee,  guardian,  or  other 
person  appointed  by  the  Surrogate's  Court,  or  an  attorney  or 
counsel  employed  therein,  for  disobedience  to  a  direction  of  the 
surrogate,  or  for  neglect  of  duty ;  or  directing  the  commitment 
of  a  person  refusing  to  obey  a  subpoena,  or  to  testify,  when  re- 
quired according  to  law,  the  appellant  must  give  an  undertaking 
with  at  least  two  sureties,  in  a  sum  therein  specified,  to  the  effect 
that  if  the  decree  or  order  appealed  from,  or  any  part  thereof,  is 
affirmed,  or  the  appeal  is  dismissed,  the  appellant  will,  within 
twenty  days  after  the  affirmance,  or  dismissal,  surrender  himself, 
in  obedience  to  the  decree  or  order,  to  the  custody  of  the  sheriff 
of  the  county,  wherein  he  was  directed  to  be  committed.^* 

§  1142.  Proceedings  in  other  cases,  when  stayed. —  Except  in  the 
cases  above  mentioned,  a  perfected  appeal  has  the  effect  to  stay 
all  proceedings  to  enforce  the  decree  or  order  appealed  from, 
which  a  perfected  appeal  from  a  judgment  in  an  action  has,  as 
prescribed  in  section  1310  of  the  Code.^^    But  it  is  expressly  pro- 


Fernbacher  ( 4  Dem.  227,  247 ) ,  made 
the  remark  (obiter)  that  in  cases  pro- 
vided for  in  sections  2578,  2579,  the 
appeal  is  perfected  by  giving  the 
special  security,  and  thereupon  pro- 
ceedings are  stayed  by  the  operation 
of  section  2584.  In  New  York  county, 
the  surrogate  has  held,  that  to  perfect 
an  appeal  in  any  case,  including  ap- 
peals from  orders  and  decrees  men- 
tioned in  section  2578,  an  undertaking 
for  costs  and  damages  must  be  given 
as  required  by  section  2577.  (Matter 
of  Cluff,  7  St.  Rep.  753;  11  Civ.  Proc. 
Rep.  .3.38;  Matter  of  Witmark,  15  St. 
Rep.  745.) 

54  Co.  Civ.  Proc,  §  2579.  Upon  a 
subsequent  appeal  to  the  Court  of  Ap- 
peals, an  undertaking,  under  section 
1326,  is  all  that  is  necessary.  (Mat- 
ter of  Pye,  21  App.  Div.  266.)  The 
Appellate  Division  may  itself  grant 
the  stay.  (lb.)  As  to  actions  on 
undertaking,  .see  §§  1309,  2579,  2.581. 
The  rules  of  procedure  in  ordinary  ap- 
peals, with  reference  to  requiring  a 
new  undertaking,  where  the  sureties 
become  insolvent,  etc.,  and  permitting 
a  deposit  in  lieu  of  an  undertaking, 
govern  appeals  from  surrogates'  de- 
crees. See  Co.  Civ.  Proc,  §§  1306, 
1308.  2575. 

55  Co.  Civ.  Proc,  §  2584.  See  Sud- 
low  V.  Pinckney,  1  Dem.  158;  Stern  v. 


Newberger,  15  Week.  Dig.  133;  Matter 
of  Arkenburgh,  li  App.  Div.  44.  It 
seems,  that,  where  an  executor  appeals 
individually  from  the  decree,  declar- 
ing void  a  legacy  attempted  to  be  given 
to  him  in  the  will  of  his  testator,  and 
directing  him  to  distribute  the  amount 
among  the  next  of  kin,  an  undertaking 
filed  by  him  in  the  sum  of  $250,  is  suf- 
ficient, and  an  additional  undertaking 
under  sections  2578,  2580,  is  not  re- 
quired to  stay  execution.  (Du  Bois  v. 
Brown,  1  Dem.  317.)  Wnere  one  ap- 
peals from  a  decree,  adjudging  him 
entitled  to  a  certain  sum,  on  the 
ground  that  he  is  entitled  to  more, 
and  excepts  from  tlie  notice  of  appeal 
so  much  of  the  decree  as  is  in  his 
favor,  the  execution  of  the  decree  is 
not  stayed,  as  respects  the  excepted 
portion.  (Matter  of  Bullard,  4  Civ. 
Proc.  Rep.  284.)  In  Matter  of  Kav- 
anagh  (29  St.  Rep.  215),  pending  an 
appeal  by  one  of  the  legatees  from  a 
decree  declaring  several  legacies  to  be 
void,  a  decree  for  distribution  was 
made,  from  which  the  appealing  lega- 
tee also  appealed,  and  gave  an  under- 
taking for  ;250.  Held,  on  a  motion 
by  one  of  the  next  of  kin  to  enforce 
]>ayment  of  his  share,  that  the  stay 
secured  by  the  filing  of  this  undertak- 
ing was  intended  only  to  prevent  ac- 
tion by  the  executors,  so  far  as  may 


<J3^  .        Al'I'KALS.  §   1142. 

vided  that  an  appeal  from  a  decroe  of  the  surrogate,  admitting 
a  will  to  probate,  or  granting  letters  testamentary,  or  of  adminis- 
tration, or  from  an  order  or  judgment  of  the  Appellate  Division 
of  the  Supreme  Court  affirming  sueli  decree,  df>es  not  stay  the  issu- 
ing of  letters,  "'  where,  in  the  opinion  of  the  surrogate,  manifested 
by  an  order,  the  preservation  of  the  estate  requires  that  the  letters 
should  issue.  Letters  so  issued  confer  upon  the  person  named 
therein  all  the  powers  and  authority,  and  subject  him  to  all  the 
duties  and  liabilities  of  an  executor  or  administrator  in  an  ordi- 
nary case,  except  that  they  do  not  confer  power  to  sell  real  property 
by  virtue  of  a  provision  in  the  will,  or  to  pay  or  satisfy  a  legacy, 
or  to  distribute  the  unbequeathed  property  of  the  decedent,  until 
after  the  final  determination  of  the  appeal."  ^^  It  seems  to  be 
plain  enough,  from  this  language,  that  an  appeal  from  a  decree 
granting  letters  will  stay  the  issue  of  letters,  unless,  in  the  surro- 
gate's opinion,  the  preservation  of  the  estate  requires  the  issue 
of  letters.^"  In  a  proper  case,  therefore,  he  may  make  an  order, 
reciting  the  necessity  there  is  for  an  immediate  grant  of  letters, 
and  vacate  the  stay  effected  by  the  appeal.  There  is  no  similar 
provision  in  respect  to  an  appeal  from  a  decree  revoking  probate, 
or  rcn'oking  letters  testamentary,  of  administration,  or  of  guard- 
ianship; or  from  a  decree  or  an  order,  suspending  an  executor, 
administrator,  or  guardian,  or  removing  or  suspending  a  testa- 
mentary trustee,  or  a  freeholder  appointed  to  execute  a  decree  for 
the  sale  of  real  ])ropcrty,  or  appointing  a  temporary  administrator, 
or  an  appraiser  of  personal  property;  such  an  appeal  does  not 
stay  the  execution  of  the  decree  or  order  appealed  from.^^ 

be  necessary  for  the  protection  of  the  pended  by  an  appeal  from  the  decree 

interests  of  the  a])pellant.     The  execu-  fjranting   his   letters,    and   so   remains 

tors  should  set  aside  and  retain  a  sum  \inless  the  surrogate  by  order  confers 

suflicient  to  j)rovide  for  a  possible  re-  upon   him  the   limited   powers   in    that 

versal  on  appeal,  and  then  proceed  to  section  specified.      (^Matter  of  Place,  5 

carry  out  the  directions  of  the  decree,  Dem.   22S.) 

so  far  as  the  same  will  not  be  aflfected  R"  Application  for  the  issue  of  let- 
by  the  success  of  the  ai)j)el!ant.  ters  to  executors  under  a  will  con- 
5G('o.  Civ.  Proc,  S  2r)8J,  as  amended  tested  i)ut  admitted  to  probate,  pend- 
1900.  And  in  case  letters  shall  have  injj  an  a])peal  from  the  decree. —  dc- 
been  issued  hcfore  such  appeal,  the  jhVy/,  when  the  temporary  adminis- 
executor  or  administrator,  on  a  like  trator  had  fjiven  ample  security,  the 
order  of  llic  surro<,'ate,  may  exercise  securities  of  the  estate  were  invested 
the  powers  and  autliority,  subject  to  in  permanent  form,  and  there  was  no 
the  duties,  liabilities,  and  excejitions  present  requirement  of  a  sale  of  any 
above  provided.  (lb.)  See  Thomson  of  them.  (Matter  of  Gihon,  27  Misc. 
V.  Tracv.  T.O  X.  Y.  174:  Matter  of  (>2(; :  ')!»  X.  V.  Supp.  404.) 
Gilion.  4S  App.  Div.  508;  Xewliouse  r.s  Co.  Civ.  Proc.  §  2583:  Stout  v. 
V.  Oale.  1  Pedf.  217.  The  authority  Betts,  74  Tlun.  2(i(; :  2t>  X.  Y.  Supp. 
of  an  administrator  witli  the  will  of  809.  An  order  directing  an  executor 
a  decedent  annexed  is  ipso  facto  sus-  to  file  an  official  bond  within  twenty 


§  1143. 


Appeals. 


934 


§  1143.  Making  and  settling  a  case  and  exceptions. —  We  have 
already  pointed  out  that,  if  a  party  wishes  to  appeal  from  a  sur- 
rogate's decree,  on  the  trial  of  an  issue  of  fact,  he  must  procure 
from  the  court  such  findings  or  refusals  to  find,  as  will  present, 
through  appropriate  exceptions,  the  questions  he  desires  to  have 
reviewed.''"''  In  the  absence  of  exceptions,  the  appellate  court  is 
powerless  to  reverse."*^  The  appeal  may  be  taken  upon  questions 
of  law,  or  upon  the  facts,  or  upon  both  f^  as  under  the  former 
practice. ^^  If  the  appeal  is  from  a  decree  rendered  upon  a  trial 
of  an  issue  of  fact,  it  must  be  heard  on  a  case  made  and  settled 
by  the  surrogate,  as  upon  an  appeal  in  an  action.''^  This  provi- 
sion is  merely  declaratory  of  the  power  of  the  appellate  court 
to  review  both  the  facts  and  the  law  on  appeal  from  surrogate's 
decrees.  It  does  not,  even  by  inference,  require  an  appellant  de- 
siring a  review  upon  the  facts  to  so  specifically  state  in  his  notice 
of  appeal. ^^  The  rule  that  in  an  action  tried  by  a  jury,  a  motion 
for  a  new  trial  is  necessary  to  enable  the  appellate   division  to 


days  after  service  of  a  copy  of  the 
order,  provided,  in  case  of  his  failure 
po  to  do,  as  follows:  "It  is  hereby 
ordered  that  the  letters  testamentary 
be  revoked  and  annulled."  The  ex- 
ecutor perfected  an  appeal  from  the 
order  within  the  time  specified;  after 
the  expiration  of  which,  an  applica- 
tion was  made  for  an  absolute  decree 
of  revocation.  Held,  that  the  applica- 
tion must  be  denied,  on  the  ground 
that,  either  the  order  in  question  was 
itself  a  decree  revoking  letters,  in 
which  case  a  further  de(;ree  was  un- 
necessary,—  or  it  was  not  such  a  de- 
cree, in  'which  event  it  was  not  within 
section  2583,  and  the  appeal  operated 
as  a  stav.  ( Halsey  v.  Halsey,  3  Dem. 
196.) 

59  In  the  absence  of  findings,  sepa- 
rately stated,  there  is  nothing  to  re- 
view. (Matter  of  Widmayer.  52  App. 
Div.  301;  G5  N.  Y.  Supp.' 83 ;  Matter 
of  Damon,  47  App.  Div.  315;  61  N.  Y. 
Supp.  997.)  But  where  the  referee 
states  separately  his  findings,  the  sur- 
rogate who  confirms  the  report  need 
not  do  so.  (Matter  of  Bettman,  65 
App.  Div.  229.) 

CO  See  §  114,  anie,  as  to  having  find- 
ings found  by  surrogate  or  referee.  As 
to  the  necessity  of  findings  and  excep- 
tions, see,  in  addition  to  the  cases 
there  cited.  Matter  of  Sprague,  125 
K  Y.  732:  s.  c.  more  fully,  35  St. 
Rep.  450 ;  Matter  of  Peck,  39  St.  Rep. 


234;  21  Civ.  Proc.  Rep.  85.  Excep- 
tions to  a  referee's  report  are  a  suffi- 
cient basis  for  an  appeal,  though  none 
are  filed  to  the  surrogate's  decision 
thereon.  (Matter  of  McAleenan,  53 
App.  Div.  193 ;  05  N.  i',  Supp.  907 : 
afi'd.,  105  X.  Y.  645:  Matter  of  Yetter, 
44  App.  Div.  404;  61  N.  Y.  Supp.  175; 
atld.,  162  N.  Y.  615.)  An  order  based 
on  affidavits,  may  be  reviewed  without 
exceptions.  (Matter  of  Scott,  49  App. 
Div.  130;  62  N.  Y.  Supp.  1059.) 

01  Co.  Civ.  Proc,  §  2576. 

C2  Howland  v.  Tavlor,  53  N.  Y.  627. 

63  Co.  Civ.  Proc,  '§  2576.  As  to  the 
necessity  of  a  case  made,  see  ]\Iatter  of 
Walrath,  09  Hvm,  403,  and  cases  cited. 

64  Matter  of  Stewart,  135  N.  Y.  413. 
A  notice  that  the  appeal  is  "  from 
the  decree  and  each  and  every  part 
thereof "  is  sufficient  to  authorize  a 
review  upon  the  facts.  (lb.)  In 
Burger  v.  Burger  (111  N.  Y.  523;  20 
St.  Rep.  105),  it  was  held,  that  if  a 
notice  of  appeal  from  a  decree  admit- 
ting a  will  to  probate,  recites  that  it 
is  upon  the  facts,  as  well  as  the  law. 
it  is  sufficient  to  give  the  appellate 
court  jurisdiction  to  review  the  facts; 
an  exception  to  the  surrogate's  find- 
ings of  fact  is  neither  necessary  nor 
proper.  But  where  the  appeal  is  also 
upon  the  law,  only  such  questions  of 
law  can  be  considered  as  have  been 
properly  raised  by  objection. 


i)^[ 


Ar'I'KALS. 


§  114:5. 


review  the  facts,  is  based  on  reasons  wholly  inapplicable  to  the 
<:nse  of  a  trial  before  a  surrogate:  conse(iuently  no  exceptions  are 
necessary  for  the  proper  presentation  of  the  question  whether  there 
should  be  a  new  trial  before  a  jury.^'"*  Either  ])arty  may,  upon  the 
settlement  of  a  case,  request  a  finding-  upon  any  question  of  fact, 
or  a  niliiig  uj)oii  any  (pu'stion  of  law,  and  an  exception  may  be 
taken  to  such  a  finding  or  ruling,  or  to  a  refusal  to  find  or  rule.^' 
The  General  liules  of  Practice  'j-2  and  33  requires  a  case  to  be  inade 
and  served  within  thirty  days  after  service  of  a  copy  of  the  decree 
or  order  appealed  from,  but  permit  the  surrogate  to  allow  further 
time.  "Where  the  right  of  an  appellant  to  serve  a  notice  of  appeal 
has  expired  by  limitation,  his  time  to  make  and  serve  a  case  on 
appeal  will  not  be  extended  f^  and  the  surrogate  has  no  power  to 
extend  the  time  to  serve  a  case  on  appeal,  after  the  period  within 
which  such  service  must  be  made,  under  the  General  Rules  of  Prac- 
tice, has  expired."^  On  the  other  hand,  if  the  time  for  perfecting 
the  appeal  by  filing  security  has  not  expired,  the  surrogate  may 
•enlarge  the  time  for  making  and  serving  a  case.^^     The  case  is  to 


65  Burger  v.  Burger,  supra ;  Matter 
of  Stewart,  135  N.  Y.  413;  Matter  of 
Patterson.  40  St.  Rep.  919;  10  N.  Y. 
Supp.   140. 

Cfi  Co.  Civ.  Proc,  §  2545.  In  Burner 
V.  Burger  (supra),  it  was  held  that 
section  2545  lias  no  relation  to  findings 
on  controverted  facts,  or  refusals  to 
find  facts  not  conclusively  established. 
The  court  said:  "The  rule  under  the 
Code  is,  that  an  appeal  on  the  facts 
from  the  decree  of  a  surrogate  admit- 
ting, or  refusing  to  admit,  a  will  to 
probate  brings  up  for  review  in  the 
Supreme  Court  the  question  of  the  suf- 
ficiency, weight,  or  preponderance  of 
evidence,  and  the  general  merits  of  the 
decision ;  and  that  it  is  not  necessary 
that  any  exception  should  have  been 
taken  to  the  findings  of  fact,  or  that 
there  should  have  been  any  request  for 
findings  in  order  to  give  the  General 
Term  jurisdiction  to  review  the  facts, 
and  reverse  or  afiitm  the  decision  of 
the  surrogate  thereon."  Until  settle- 
ment of  a  case,  the  surrogate  cannot 
be  required  by  the  parties  to  a  pi'obate 
proceeding  to  pass  upon  jiroposed  find- 
ings of  fact  and  conclusions  of  law. 
(Matter  of  Hoyt,  5  Dem.  284.)  When 
the  case  and  exceptions  are  settled  and 
filed,  the  clerk  is  required  to  certify 
them  to  the  appellate  court,  together 
with  the  other  papers  and  proceedings 
prescribed  by  sections  1344,  1353,  2585. 


He  should  include  all  papers  recited 
in  the  decree  appealed  from.  (Matter 
of  Mullen,  X.  Y.  Law  J.,  Fel).  7,  1890.) 
The  clerk  will  not  be  required  by  man- 
damus to  certify  and  return  to  the 
county  clerk  as  part  of  the  papers,  on 
api)cal  from  an  order  of  the  surrogate, 
a  paper  which  the  surrogate  has  stated 
was  never  brought  to  his  attention 
until  the  case  was  presented  for  settle- 
ment, although  such  paper  was  upon 
file.  (Matter  of  Studwell,  8  Civ. 
Proc.  Rep.   414.) 

67  Matter  of  Cluir.  1 1  Civ.  Proc.  Rep. 
338. 

•5'<  Be  Lamater  v.  Havens,  5  Dem.  53. 

<W  Matter  of  Williams,  (i  Misc.  512: 
27  X.  Y.  Supp.  433;  Tilby  v.  Tilby.  3 
Dem.  258;  where  it  was  held,  that" the 
l)rovisions  of  section  2572,  limiting  the 
time  for  taking  an  a])peal  from  a  Sur- 
rogate's Court  to  thirty  days  from  the 
time  of  service  of  a  copy  of  the  decree 
or  order  comi)laiiied  of.  and  of  section 
2577  declaring  tliat,  to  render  an  ap- 
peal efl'ectual  for  any  purpose,  the 
appellant  must  give  an  undertaking  to 
the  eft'ect  specified:  and  General  Rules 
of  Practice  32  and  33,  requiring  a  cnsr 
to  be  made  and  served  within  a  speci- 
fied period  after  service  of  a  copy  of 
the  decree  or  order,  but  permitting  the 
surrogate  to  allow  further  time,  etc.. 
are  to  be  construed  independently  of 
each  other. 


§  1144.  Appeals.  93G. 

be  "settled  by  the  surrogate  as  prescribed  by  law"  (§  2576); 
that  is,  where  the  trial  is  by  a  referee,  e.  g.,  on  a  judicial  settle- 
ment of  accounts,  the  case  is  to  be  settled  by  the  referee."^" 

The  correct  practice  on  appeal  from  a  decree  or  order,  in  which 
it  is  unnecessary  to  prepare  and  settle  a  case,  is,  for  the  parties  to 
submit  to  the  clerk  of  the  court  such  a  i-cturn  as  they  deem  them- 
selves entitled  to,  whereupon  the  clerk  will  detern.ine  what  papers 
he  should  certify  to  the  appellate  court. '^ 

§  1144.  Principles  of  determination  of  surrogate  appeals. —  It  has 
always  been  understood  that  appeals  from  surrogates'  decrees 
were  to  be  determined,  not  on  the  principles  governing  the  deter- 
mination of  a  common-law  writ  of  error,  but  on  those  governing 
appeals  under  the  old  chancery  practice.'^  The  distinguishing 
feature  of  an  appeal  in  equity,  as  contrasted  with  a  writ  of  error 
at  law,  was  that  the  ajipeal  was  substantially  a  rehearing,  on 
which  the  appellate  court  examined  the  whole  case  as  fully  as 
if  it  were  brought  before  it  in  the  first  instance,  and  determined 
all  the  questions  involved,  whether  of  law  or  fact,  without  being 
in  any  way  concluded  by  the  decision  of  the  court  below.  It  fol- 
lowed that  the  appellate  court  would  not  reverse  a  decree  merely 
because  improper  evidence  was  admitted  by  the  surrogate,'^  or 
proper  evidence  was  rejected  by  him/"'  if  it  appeared,  on  the  one 
hand,  that  there  was  competent  evidence  sufficient  to  sustain  it, 
or,  on  the  other,  that,  after  considering  the  rejected  evidence,  the 
decree  was  still  sustainable  on  the  facts  shown.  In  other  words, 
the  appellate  court  might  treat  the  appeal  as  if  it  were  an  origi- 
nal hearing,  and  must  make  such  a  decree  as  in  its  judgiuent 
ought  to  have  been  made  in  the  first  instance.'^     It  is  expressly 

70  See  §  118,  anie.  If  it  is  desired  75  Burger  v.  Burger,  111  N.  Y.  523; 
to  amend  or  modify  the  testimony,  20  St.  Rej).  10.5.  Only  tiiose  questions 
it  should  be  done  before  the  report  is  in  which  the  appellant  has  an  interest 
confirmed.  (Matter  of  Dietzel,  36  will  be  considered,  (flatter  of  Allen. 
App.  Div.  300:  55  X.  Y.  Supp.  323.)  81  Hun,  91  ;  30  X.  Y.  Supp.  683:  affd.. 

71  Matter  of  Kavanagh,  X.  Y.  Law  151  X.  Y.  243.)  The  court  will  not 
.1.,  Mar.  10,  1890.  Upon  what  papers  determine,  for  the  first  time,  a  ques- 
an  appeal  from  an  order,  setting  aside  tion  of  fact  which  was  not  examined 
a  report  as  to  claim  against  decedent's  and  determined  below,  but  was  as- 
estate.  is  to  be  heard,  see  Foote  y.  sumed  for  the  purpose  of  the  decision 
Valentine.  48  Hun,  475.  of  other   points;   but  if  such  question 

"2  See  Clapp  v.  Fullerton,  34  X.  Y.  is    material     to    the    other    questions 

190.  raised   on   the   appeal,   the  court   may 

7:!  Schenck  v.    Dart,   22    X.   Y.    420;  examine  it.   for  the  puri)ose  of  seeing 

Clapp  V.  Fullerton,  34  id.  i90:  Robin-  what   probability   there   is   of   the   ap- 

son  V.  Raynor.  28  id.  494:   Matter  of  pellanfs    sustaining    the    point    on    a 

Paige,  62  Barb.   476;   Brick  v.  Brick,  retrial.      fChristv  v.  Clarke.  45  Barb. 

66  X.  Y.  144.  529.)        Compare    Lee   v.    Lee,    39     id. 

74  Horn  V.  Pullman,  72  X.  Y.  269.  172;  Dobke  v.  McClaran,  41  id.  491;. 


937 


Ai'i'j 


•TKALS. 


114; 


pr*  vidf'd  that  a  decree  or  order  shall  not  bo  reversed  l"<n-  an  crntr 
in  admitting-  or  rejecting  evidence,  nnle.-ri  it  appears  tr>  the  appel- 
hitc  court  that  the  exceptant  was  necessarily  prejudiced  thereby.''* 
To  justify  a  reversal  under  this  provision,  it  must  appear  that, 
if  conij)etent  evidence,  which  Avas  rejcHL'^^ed,  had.  been  received,  the 
appellant's  case  \v(»uld  not  have  failed,  or  that,  without  improper 
evidence,  which  was  received,  the  resj)ondent's  case  was  deficient."^ 
Where  the  evidence*  is  not  returned,  tlie  facts  found  by  the  court 
or  referee  must  1k'  assumed  t(»  l»e  justiticil  by  llic  proof.'^  An  ap- 
peal froui  a  decree  or  an  order  brings  up  for  review,  by  each  court 
to  which  the  appeal  is  carried,  each  decision  to  which  an  exception 
was  duly  taken  by  the  appellant.''"* 

{^  1145.  Powers  of  Appellate  Court. —  rndei-  the  former  ])ractice, 
however,  there  was  a  distinction,  as  to  the  powers  of  the  appellate 
court,  between  appeals  in  probate  cases  and  other  appeals.  On 
appeals  in  probate  cases,  the  General  Term  liad  only  the  powers 
of  the  Circuit  judge  when  such  apjx-als  were  taken  to  him,^'*  that 
is,  to  affirm  or  reverse  the  surrogate's  decree.  It  could  not  make 
such  other  decree  as  it  thought  the  surrogate  should  have  made. 
This  distinction  no  longer  exists; — ^  the  rule  established  by  the 
Code  being  that  which  governs  equity  appeals  generally.  It  is, 
therefore,  provided,  that  ''  where  an  appeal  is  taken  ujion  the 
facts,  tiie  ajipellate  court^^  has  the  same  power  to  decide  the  ques- 


Smith  v.  Rpmington.  42  id.  7.5 ;  Moore 
V.  Moore,  21  How.  Pr.  211. 

7<it'o.  Civ.  Proe.,  §  2545;  Matter  of 
Torivington,  79  Hun,  128;  61  St.  Rep. 
420;  Matter  of  Degen,  89  Him,  143; 
34  N.  Y.  Supp.  1137;  flatter  of  Sea- 
prist.  1  App.  Div.  (515;  37  N.  Y.  Supp. 
4!)(;:  Matter  of  Miner.  14(5  X.  Y.  121: 
()(■>  St.  Hep.  2(i5.  An  error  in  receiving 
in  evidence  tleelarations  of  tlie  decedent 
in  lielMlf  of  iiis  estate,  upon  the  trial 
of  a  claim  against  the  estate,  must 
have  been  necessarily  prejudicial  to 
the  clainnint,  and  will  justify  a  re- 
versal of  the  decree.  (Matter  of  Bron- 
son.  ()7  Hun,  237;  22  N.  Y.  Supp.  90.) 
See  also  ^Latter  of  Bedlow.  07  Hun, 
408;  22  K.  Y.  Supp.  290:  Matter  of 
Meilen.  50  Hun,  553:  31  St.  Kep.  770; 
9  X.  Y.  Supp.  929:  .Matter  of  Wil- 
liams, 46  St.  Rep.  791  :  19  X.  Y.  S-upp. 
778;  Matter  of  Cliamberlain,  40  St. 
Rep.  841  :  19  N.  Y.  Sui)p.  1010:  Matter 
of  Potter,  161  X\  Y.  84. 

77  Snvder  v.  Sherman,  88  X.  Y.  050 : 
affg,    2i3    Hun,    139.       See  Matter   of 


Smith,  90  X.  Y.  001 ;  Harper  v.  Harper^ 
1  Sup.  Ct.  (T.  &  C.)  351.  Where  the 
evidence,  on  a  trial  of  an  issue  of  fact 
by  the  surrogate,  is  so  evenly  balanced 
that  a  determination  eitlier  way  wouUl 
not  be  reversed  on  appeal,  it  may  not 
be  said  that  tlie  losing  party  is  not 
prejudiced  by  admission  of  incompe- 
tent testimony,  and  the  admission 
thereof  is  error  requiring  a  reversal. 
(Matter  of  Kysaman,   113   X'.  Y.   02.) 

78  Wheelwright  v.  l\hoades.  2S  Ihm. 
57. 

79  Co.  Civ.  Proc.,  §  2545.  fifth  sen- 
tence. Tliis  provision  was  not  con- 
tained in  the  revision  commissioners' 
original  draft  of  this  section."  How  it 
is  to  be  reconciled  with  Co.  Civ.  Proe., 
§  1337,  as  construed  in  Matter  of  Ross, 
S7   X.   Y.  514,  <ntrni? 

^'^•1  R.   S.  008,   §  95. 

■'^i  This  means  the  Supreme  Court 
niilv.  (Matter  of  Ross.  87  X.  Y.  514.) 
And  see  Davis  v.  Clark,  id.  023.  The 
rule  laid  down  in  Hewlett  v.  Elmer 
(103   X.   Y.    150),   that   the   Supreme 


^  1145. 


Ari'KALS. 


938 


tions  of  fact  wliicli  tlie  surrogate  had  ;  and  it  may,  in  its  discretion, 
receive  further  testimony  or  documentary  evidence,  and  appoint 
■A  referee."  '^"  So,  upon  an  appeal  from  a  surrogate's  decree  oi)en- 
ing,  vacating,  modifying,  or  setting  aside  a  decree  or  order  of 
his  court,  or  granting  a  new  trial  for  fraud,  etc.,  the  appellate 
€ourt  must  review  the  determination  as  if  an  original  applica- 
tion was  made  to  it.^^  It  is  also  provided  that  "  the  appellate 
court  may  reverse,  affirm,  or  modify  the  decree  or  order  appealed 
from,  and  each  intermediate  order,  specified  in  the  notice  of  appeal, 
which  it  is  authorized  by  law  to  review,  and  as  to  any  or  all  of  the 
parties ;  and  it  may,  if  necessary  or  proper,  grant  a  new  trial  or 
hearing."  ^^ 


"Court  has  the  power  and  it  is  its  duty 
*'  to  decide  the  questions  of  fact  which 
were  before  the  surrogate,"  was  fol- 
lowed upon  appeal,  on  the  facts  and  on 
<juestions  of  law,  from  a  decree  upon 
an  executor's  accounting  in  Matter  of 
McGraw,  45  Hun,  354.  See  also 
Matter  of  Drake,  45  App.  Div.  206; 
60  N.  Y.  Supp.  10-.iU;  Matter  of 
Brunor,  21  App.  Div.  259;  Matter  of 
Laudy,  148  ?<.  Y.  403;  Matter  of 
Pike,' 83  Hun,  327:  31  N.  Y.  Supp. 
G89;  Matter  of  Hamilton,  76  Hun, 
^00;  27  N.  Y.  Supp.  813;  Matter  of 
Warner,  53  App.  Div.  565;  65  N.  Y. 
Supp.  1022;  Matter  of  Welling,  51 
App.  Div.  355;  64  N.  Y.  Supp.  1025; 
Matter  of  Rogers,  10  App.  Div.  593; 
42  N.  Y.  Supp.  133. 

82  Co.  Civ.  Proc,  §  2586.  The  power 
conferred  upon  an  appellate  court  to 
receive,  in  its  discretion,  further  testi- 
mony or  documentary  evidence,  and  to 
appoint  a  referee,  should  be  cautiously 
used.  (Matter  of  Hannah,  45  Hun, 
561.)  Before  the  Revised  Statutes, 
the  Court  of  Chancery  proceeded  on 
appeals  from  the  decrees  of  surrogates, 
according  to  the  course  of  the  civil 
law,  and  might  hear  new  testimony 
and  call  to  its  aid  the  verdict  of  a 
jury  iipon  dis])utP(l  questions  of  fact 
(Vanderhevden  v.  Reid.  1  Hopk.  Ch. 
408 ;  Yarn "  Wvck  v.  Alley,  id.  552 ; 
Scribner  v.  Williams,  1  Paige.  550), 
and  the  same  rule  seems  to  have  been 
in  force  under  the  Revised  Statutes, 
and  until  the  reorganization  of  the 
courts  under  the  Constitution  of  1846, 
and  the  adoption  of  the  Code  of  Pro- 
cedure. (Williamson  v.  Williamson.  6 
Paige,  298;  ("use  v.  Towle,  8  id.  479.) 
It  was  then  l.t-id.  that  the  determina- 
tion of  the  appeal  must  be  made  upon 


the  proofs  contained  in  the  surrogate's 
return ;  and  the  appellate  court  could 
not  receive  further  evidence.  (Devin 
V.  Patchin,  26  N.  Y.  441 ;  Abbev  v. 
Christy,  40  Barb.  276;  White  v.  Story, 
2  Hill,  543.)  It  mignt  reverse  either 
on  the  law  or  the  facts.  (Marvin  v. 
Marvin,  3  Abb.  Ct.  App.  Dec.  192; 
Johnson  v.   Hicks,    1    Lans.    150.) 

83  Co.  Civ.  Proc,  §  2481,  subd.  6. 
Tlie  power  of  the  court  is  Hmited  to 
the  grounds  stated.  (Matter  of  Haw- 
ley,  100  N.  Y.  206.)  The  inherent 
power  of  a  court  over  its  records  to 
modify,  amend,  and  vacate  them,  in- 
dependent of  special  statutory  author- 
ity, cannot  be  exercised  by  an  appel- 
late court,  (lb.)  See  Howell  v.  How- 
ell, 30  Hun,  625;  Booth  v.  Kitchen,  7 
id.  255,  260.  A  decree  on  a  judicial 
settlement,  Avhich  followed  a  decision 
of  the  General  Term  in  an  action  to 
construe  the  will,  which  held  the 
widow  entitled  to  have  a  mortgage  on 
lands  devised  to  her  paid  by  the  ex- 
ecutors, which  last  decision  was  after- 
Avard  reversed  by  the  Court  of  Appeals, 
should  be  modified  accordingly.  (Mat- 
ter of  Cahen,  26  St.  Rep.  860 :  s.  c. 
without  opinion,   117  X.  Y.  (>2(i.) 

84  Co.  Civ.  Proc,  §  2587.  Where  an 
executor  appeals  from  a  decree  ren- 
dered upon  the  settlement  of  his  ac- 
count, which  is  objected  to,  each  of  the 
parties  to  the  accounting,  the  respond- 
ents, though  not  appealing  therefrom, 
are  still  at  liberty,  under  this  section, 
to  specify  any  item  in  the  account 
which  they  deem  erroneous  against 
them.  (Freeman  v.  Coit,  27  Hun,  447.) 
See  Matter  of  Lawson,  42  App.  Div. 
377:  59  N.  Y.  Supp.  152:  Matter  of 
Maver,  84  Hun.  539;  32  X.  Y.  Supp. 
850.     See  §§  1293-1323  for  the  general 


mi) 


Al'lM   AI.S. 


§114: 


Wlifivj  probate  of  a  will  is  contested  on  the  grounds  of  want  of 
execution,  and  of  undue  inHuence,  evidence  being  adduced  to  sus- 
tain ilic  latter  ground,  and  the  surrogate  rejects  the  instrument 
on  the  lornicr  without  passing  on  the  latter,  the  court,  on  appeal, 
cannot  reverse  the  decree  and  direct  the  surrogate  to  admit  the 
will:  it  should  remit  the  proceedings  to  the  surrogate,  to  be  heard 
on  the  question  of  undue  influence.*^"  But  in  a  case'  where  the  only 
issue  presented  by  the  record  is  a&  to  the  due  execution  of  the 
will,  on  the  testimony  of  the  subscribing  witnesses,  between  whom 
there  was  no  contradiction,  the  question  is  simply  one  of  legal 
inferences,  and  the  appellate  court  may,  on  reversing  a  decree  re- 
fusing probate,  order  the  probate,  without  sending  the  case  back 
to  the  surrogate.^'' 

In  ether  ihan  probate  cases,  the  appellate  court  may  now,  as 
heretofore,  upon  a  reversal  or  modification  of  the  decree  appealed 
from,  remit  the  ])roceedings  to  the  surrogate,  with  instructions 
to  him  to  enter  a  decree,  upon  the  principles  settled  by  the  decision 
on  the  appeal,  or  to  take  such  further  proceedings  as  may  be 
necessary.^^  It  may  be  state(1.  as  a  general  rule,  that  the  appellate 
court  will  not  usually  disturb  the  surrogate's  decision  as  to  the 
facts,  where  the  evidence  is  evenly  balanced  and  directly  contra- 
dictory, and  the  question  is  merely  one  of  credibility.^®     Xo  par- 


provisions  relating  to  appeals  and 
award  of  restitution. 

sr.  Dack  v.  Dack,  84  N.  Y.  663. 

S6  Matter  of  Wilcox,  1.31  N.  Y.  610; 
43  St.  Rep.  191.  It  appearing,  how- 
ever, that  there  was  an  issue  concern- 
ing an  alleged  alteration. —  Held,  that 
the  (reneral  Term  should  have  re- 
jnitted  the  ])rocee(lings  to  the  surro- 
gate for  the  irial  of  that  issue.      (lb.) 

8T  Miittor  of  Kellogg,  104  N.  Y.  048; 
Gardner  v.  (Jardncr.  7  Paige,  112; 
Halsey  v.  Van  Aniriiige.  6  id.  12;  :Mat- 
ter  of  Forman,  1  Tuck.  20.1.  If  a  por- 
tion of  a  decree  be  aopealed  from  and 
reversed,  the  remainder  stands,  except 
so  far  as  it  is  necessarily  affected  by 
the  reversal.  In  such  case,  upon  final 
accounting,  the  whole  accounting  is 
not  opened,  but  the  accounts,  as  settled 
by  the  surrogate,  will  be  altered  only 
pro  faiifo.  (()  the  extent  necessary  to 
icarry  out  th(>  decree  of  the  surrogate, 
iis  niddified  by  the  decree  above.  (Mor- 
gan V.  Andariese,  1  Bradf.  133.) 
Where,  however,  the  appellate  court 
proceeds,  as  it  has  power,  beyond  an 
affirmance  or  reversal,  and  adjudicates 
the    cause,    remitting    it    with    direc- 


tions to  proceed  in  an  accounting, 
upon  the  basis  of  facts  established 
by  that  adjudication,  the  surrogate 
should  deem  the  adjudication  final  and 
conclusive  as  to  those  facts,  even 
against  one  who  was  not  made  a  party 
to  the  appeal.  (Clayton  v.  Wardell, 
2  Bradf.  1.)  Upon  affirnuince  of  an 
order  granting  leave  to  issue  ex- 
ecution ujKm  a  judgment  after  the 
death  of  the  judgment  debtor,  the 
successful  party  is  entitled  to  enter 
and  docket  witli  the  clerk  of  the  sur- 
rogate's county  a  judgment  of  attirm- 
ance,  establishing  the  surrogate's  de- 
cree and  awarding  costs  as  for  similar 
services  in  an  action.  Wadley  v.  Da- 
vis, 38  Hun,  ISO.)  Where  an  order  re- 
moving an  executor  ujion  one  ground, 
is  erroneous,  but  other  sutlicient 
grounds  may  exist,  the  order  may  be 
reversed  witliout  iirejudice  to  the  right 
to  renew  tlie  apjilication.  (Matter  of 
I've,  IS  App.  Div.  30!> ;  4.)  X.  Y.  Supj). 
836.) 

88  Robinson  v.  Smith.  13  Abb. 
Vr.  .3.50;  Crolius  v.  Stark.  04  Barb. 
112:  Matter  of  Hunt.  110  X.  Y. 
278:      Matter     of     Clark.     82      Hxm. 


§  1146.  Appeals.  940^ 

ticiilar  rule  can  be  laid  down  as  to  how  great  a  preponderance  of 
evidence  on  the  part  of  the  appellant  is  necessary  to  secure  a  re- 
versal on  a  question  of  fact,  but  it  is  said  that  the  court  will  more 
readily  reverse  the  decree  of  a  surrogate  on  conflicting  evidence, 
than  it  will  set  aside  the  verdict  of  a  jury.**'-^  The  court  .should 
consider  only  legal  evidence  in  determining  whether  a  decree  should 
be  reversed  or  affirmed.**^ 

§  1146.  Awarding  a  jury  trial. —  There  are  two  classes  of  cases, 
in  which  a  trial  by  jury  may  be  had,  of  a  question  of  fact  arising 
in  the  course  of  a  surrogate's  proceedings,  dependent  upon  two 
separate  jDrovisions  of  the  Code.  One  class  comprises  jury  trials, 
in  the  first  instance,  as  a  substitute  for  a  hearing  and  decision  by 
the  surrogate  alone ;  and  the  other  includes  jury  trials  occurring 
during  the  progress  of  an  appeal  from  certain  of  his  decrees,  and 
after  the  appellate  court  has  decided  upon  a  reversal.  The  first 
provision  of  the  Code,  referred  to,  is  that  the  surrogate  may,  in 
his  discretion,  make  an  order  for  such  a  trial  of  any  controverted 
question  of  fact,  arising  in  a  special  proceeding  for  the  ajiplication 
of  a  decedent's  real  jDroperty  to  the  payment  of  his  debts.**^  Such 
a  trial  can  be  reviewed,  in  the  first  instance,  only  upon  a  motion 
for  a  new  trial ;  which  may  be  granted  by  the  surrogate,  or  the. 
court  in  which  the  trial  took  place,  or,  if  it  took  place  at  a  trial 
term  of  the  Supreme  Court,  by  the  Supreme  Court,  in  a  cr.se 
where  a  new  trial  of  specific  questions  of  fact,  tried  by  a  jury,  pur- 
suant to  an  order  for  such  a  trial,  made  in  an  action,  would  be 
granted.^^  An  appeal  which  will  lie  to  the  Su]ireme  Court,  may 
be  taken  from  an  order,  made  upon  the  motion  for  a  new  trial,  as 
if  the  order  had  been  made  in  an  action^  and  with  like  effect. ^^ 

The  other  provision  of  the  Code  is  to  the  effect  that  "  where  the 
reversal  or  modification  of  a  decree  by  the  appellate  court  is 
founded  upon  a  question  of  fact,  the  appellate  court  must,  if  the 
appeal  was  taken  from  a  decree  made  upon  a  petition  to  admit 
a  will  to  probate,  or,  to  revoke  the  probate  of  a  will,  make  an 
order,  directing  a  trial,  by  a  jury,  of  the  material  questions  otf 

341:    31    N.   Y.    Supp.    476;    Coale   v.  be    against   the    appellant.       (Wallace 

Coale,  63  App.  Div.  32;  71  X.  Y.  Supp.  v.  Stony.  4  Hun.  791.) 

214.  w  Matter  of  Kelemen,  57  Hun,  165; 

89  Lake    v.    Ranney.    33    Barb.    40;  32  St.  Rep.  937. 
Rolhvagen  v.  Rolhvagen.  3  Hun,  121;  91  Co.   Civ.   Proc,   §   2547.     And  see- 
See  Robinson  v.  Raynor.  28  N.  Y.  404;  antr.  §  863. 

Kv'o  V.  Kvle,  67  id.  400.  409 ;  Oilman  92  Co.  Civ.  Proc.  §  2548.  as  amended 

v.'Gilman,"3  Hun.  22.    Where  the  will  1895.     See  id..  §  999;  Matter  of  Gan- 

was    not    returned     to    the    appellate  non.  2  'Misc.  329;  21  N.  Y.  Supp.  960. 

c<}urt,  every  presumption  was  held  to  9.3  (jo.  Civ.  Proc,  §  2549. 


?M1 


Al'l'KALS. 


§  1 140. 


fact,  arising  upon  the  issues  between  the  parties."  ''^  'Ihe  order- 
ing of  a  jury  trial,  in  case  of  a  reversal,  is  a  perc-mptory  require- 
ment, unless  the  ease  is  one  in  uliidi  the  CDurt  can  projierly  take 
the  facts  from  the  jury  and  determine  the  ipiestion  as  one  of 
law.'''"  Wliere,  however,  there  is  no  conflict  in  the  facts  and  the 
matter  is  one  of  conclusions  from  the  facts,  a  jury  trial  will  not 
be  awarded. "*■  If  there  was  no  evidence  lielow  in  belialf  of  the 
■contestants,  wliich,  standing  alone,  was  suthcient  to  defeat  the 
probate,  such  failure  of  evidence  is  to  l)o  regarded  as  raising  a 
<iuesti()n  of  law  oidy,  and  on  revei'sal  of  a  dwree  revoking  ])ro- 
bate,  the  court  will  not  send  the  case  to  a  jury,  Ijut  will  confirm  the 
original  decree  admitting  t4ie  will.'"^^  So,  the  provision  that  "  after 
the  trial,  a  new  I  rial  may  be  granted  as  prescribed  in  section 
2548  "  (supra),  refers  to  cases  in  which  a  new  trial  may  be 
granted,  and  not  to  the  court  before  which  an  application  therefor 
may  be  made.  It  gives  no  authority  to  the  surrogate  to  grant  a 
new  trial.^*^ 


94  Co.  Civ.  Proc,  §  2588.  It  may  be 
•doubted  whotlier,  since  tbe  en.actment 
of  section  2()53a,  an  appeal  in  a  pro- 
bate case,  except  upon  questions  of 
law,  i.s  the  advisable  course  to  pursue. 
Sucli  appeals  are  not  to  be  encouraged. 
(Matter  of  lieck,  G  App.  Div.  211:  39 
N.  V.  Supp.  810;  affd.,  154  N.  Y.  750; 
Matter  of  Austin,  35  App.  Div.  27S; 
55  N..  Y.  Supp.  52.) 

OSIMatter  of  Laudv.  148  N.  Y.  403; 
42  N.  K.  lU(il  ;  niodifviii-r  78  Ilun,  479. 

915  Matter  of  Ilunt^  110  N.  Y.  278; 
■explaining  Matter  of  Martin,  98  id. 
193;  Sutton  v.  Ray,  72  id.  482.  See 
Matter  of  Smith.  9(i  id.  (iGl;  Matter 
-of  Wilcox,  131  id.  tJlO;  Thompson  v. 
Stevens.  02  id.  034.  For  recent  cases, 
in  which  the  appellate  court  awarded 
ji  I'urv  trial,  see  Matter  of  Pcrego.  65 
Hun." 478;  20  N.  Y.  Supp.  394;  Van 
Orman  v.  Van  Orman.  34  St.  Rep. 
S24;  11  N.  Y.  Supp.  931;  Matter  of 
Mahoney.  38  St.  Rep.  344;  14  N.  Y. 
Sui)p.  .335;  Matter  of  Drake,  45  App. 
Div.  20():  (50  N.  Y.  Supp.  1020;  Mat- 
ter of  Tompkins,  G9  App.  Div.  474; 
74  N.  Y.  Supp.  1002;  Matter  of  Van 
Houten,  11  App.  Div.  208;  42  N.  Y. 
Supp.  919;  Matter  of  BrTinor.  21  App. 
Div.  259;  ^tatter  of  W.dls,  45  1(1.02(5; 
€0  N.  Y.  Supp.  1100;  Matter  of  Dixon. 
42  App.  Div.  481  ;  59  N.  Y.  S)ipp.  421  : 
Matter  of  C,allup,  43  App.  Div.  437: 
m  N.  Y.  Supp.   137. 


9T  Matter  of  Rapplee,  06  Hun,  558; 
affd.,  141  X.  Y.  553;  Matter  of  Mar- 
tin, 98  id.  193.  On  a  reversal, 
on  the  facts,  of  a  decree  granting 
or  refusing  probate,  the  court  could 
not  formerly  direct  the  surrogate 
to  enter  a  decree  of  probate,  but 
was  required  to  couple  the  order  of 
reversal  with  a  direction  for  a  juiy 
trial.  See  2  R.  S.  06,  S  57 :  id.  609, 
$  98;  Sutton  v.  Ray.  72  X.  Y.  482; 
Tyler  v.  Gardiner,  35  X.  Y.  559,  59(5; 
Howland  v.  Taylor,  53  id.  627.  In  the 
last-mentioned  case,  where  tiie  probate 
was  contested  on  the  question  of  the 
genuineness  of  the  will,  the  Court  of 
Appeals  directed  a  .jury  trial.  See 
also  Kingslev  v.  Blancliard.  66  Rarb. 
317.  See'  :\latter  of  Laudv,  148  X.  Y. 
403. 

*J«  Matter  of  Patterson.  63  Ilun,  529; 
44  St.  Rej).  842.  Where  the  issues  of 
a  contested  ])robate  have  bt^'ii  tried  in 
the  Su])reme  Court  and  a  verdict  ren- 
dered, the  Special  Term  has  no  power 
to  direct  entry  of  judgment  thereon, 
but  the  papers  must  be  transmitted  to 
the  Surrogate's  Court.  ( Matter  of 
Laudv.  35  Aj)]).  Div.  542 ;  r^r^  X.  Y. 
Supp".  98;  Matter  of  Campbell.  48 
Ilun,  417.)  Compare  Matter  of  Bud- 
long,  54  id.  131;  26  St.  Rep.  863. 
See  generally  as  to  new  tiials.  after 
a  verdict,  ^larvin  v.  Marvin.  3  .Vblj. 
Ct.  App.  Dec.  192;  McKinley  v.  Lamb, 


§  1147.  Appeals.  94^ 

TITLE  SECOND. 

APPEALS  TO  THE  COURT  OF  APPEALS. 

§  1147.  When  an  appeal  lies. —  An  appeal,  in  surrogate  causes, 
from  the  Supreme  Court  is  to  the  Court  of  Appeals.  The  pro- 
vision of  section  2585  of  the  Code,  requiring  that  on  "  appeal 
from  a  decree  or  an  order  of  a  Surrogate's  Court,  *  *  *  the 
judgment  or  an  order  made  thereupon  must  be  entered,"  does  not 
require  the  entry  of  a  judgment  before  an  appeal  can  be  taken  to 
the  Court  of  Appeals  from  the  decision  of  the  Appellate  Division ; 
but  an  appeal  from  its  order  is  proper. ^^  The  order  appealed  from 
must  be  a  final  one.  Thus  an  order  reversing  a  probate  decree 
and  directing  a  jury  trial  is  not  a  final  order  which  is  appeal- 
al)le  ;^  though  a  reversal  for  error  of  law  remitting  the  proceedings 
back  to  the  surrogate,  or  the  granting  of  a  new  trial  or  a  new  hear- 
ing before  the  surrogate,  is  appealable  to  the  Court  of  Appeals.^ 
So  an  order  reversing  an  order  refusing  an  accounting,  and  re- 
mitting the  proceedings  to  the  surrogate  for  an  accounting  as  pe- 
titioned for,  is  not  a  final  order,  and  is  not  reviewable.^  But  a 
decision  of  the  Appellate  Division,  on  appeal  from  a  surrogate's 
decree  settling  the  accounts  of  an  executor,  is  appealable,  not- 
withstanding the  remission  of  the  cause  to  the  Surrogate's  Court 
that  he  might  conform  the  decree  to  their  judgment.^  So,  the 
appellate  court's  reversal  of  a  surrogate's  order  denying  a  motion 
to  vacate  certain  decrees  made  upon  an  accounting,  and  vacating 
such  decrees,  is  the  necessary  termination  of  the  proceeding  and 
is  reviewable  in  the  Court  of  Appeals,  in  a  case  where  the  Ap- 
pellate Division  had  no  power  to  make  the  order  by  reason  of  the 
bar  of  the  Statute  of  Limitations. °  But  an  afiirmance  of  such  an 
order  is  not  reviewable^  as  it  is  not  one  '"  finally  determining " 
the  proceeding.^ 

G4    Bavh.    mn:    Matter    of   Laucly.    U  v.   Hojruet,  OG  id.  358.     Compare  Mes- 

App.  Div.  160.     The  surrogate  cannot  serve  v.   Sutton.    3   id.   546. 

make  any  order  or  decree  other  than  ■*  Stimson  v.  Vroman,  99  X.  Y.  74 ; 

tliat  directed   bv   the  appellate  court.  ^Matter  of  Prentice,   160  id.  .568. 

(Matter  of  De  Haas,  24  Misc.  258;  53  5  Matter   of   Tilden,    98   N.   Y.   434; 

X.  Y.  Supp. )    565.)  s.   c.   with   opinion   below,    1    How.   Pr. 

!'f»Libbev  v.   Mason,   112  X.   Y.   525.  (X.  S.)    409.     A  surrogate's  order  va- 

1  Talbot'    V.    Talbot.    23    X'.    Y.    17;  eating  satisfaction  of  a  decree  is  final. 
:Marvin    v.    Marvin.    3    Abb.    Ct.    App.  (Matter  of  PvCgan,   167  X\  Y.  338.) 
Dec.   192:    Sutton  v.   Ray,   72  id.  482,  6  Matter  of   Small.    158  X.  Y.   128; 
and  cases  infra.  29  Civ.  Proe.  Rep.   57. 

2  Talbot  V.  Talbot,  supra.  7  H). ;   Van  Arsdale  v.  King.   155  X. 

3  Matter  of  Latz.  110  X.  Y.  661;  Y.  325:  City  of  Johnstown  v.  Wade> 
Roe  v.   Boyle,  81   id.   305;   Whittlesey  157  id.  50, 


943  AiM'KAi.s.  §  1148. 

§  1148.  What  questions  reviewable. —  'i'ho  jurisdiction  of  the 
Court  of  A))})ciils  is  limited  t<i  a  review  of  (jue.stioiis  of  law  only; 
henee  wliei'e  the  A])p(lliite  Divisidii  has  iiiiaiiiiiKnisly  decided  that 
there  is  evideiiee  supporting,  or  teudiug  to  sustain,  a  finding  (jf 
fact,  there  can  be  no  review.**  So,  too,  a  reversal  of  the  .surro- 
gate's decree,  wli(r<'  il  is  on  the  facts,  and  directing  a  jui'v  trial,  is 
not  reviewable  in  the  Court  of  Appeals."  A  reversal  by  the  aj)- 
jx'Ilate  court  for  error  in  the  admission  of  evidence,  is  a  reversal 
for  eri'or  of  law,  and  not  for  error  of  fact;  hence,  in  such  a  case, 
a  jury  trial,  in  a  prol)ate  matter,  cannot  be  ordered,  even  if  such 
trial  can  be  ordered  in  any  case  by  the  Court  of  Appeals,  as  to 
which  there  is  doubt.'"  As  the  court's  jurisdiction  is  limited  to 
the  review  of  cpiestions  of  law,  it  will  not  entertain  an  appeal 
from  an  order  denying  a  motion  for  a  new  trial,  and  to  set  aside 
the  verdict  of  a  jury  in  a  probate  case  sent  by  the  surrogate  to  a 
jury,  for  the  purpose  of  determining  -whether  the  verdict  was 
against  the  weight  of  evidence. ^^  A  question  of  fact  depending 
upon  conflicting  testimony  will  not  be  entertained  by  the  court,^^ 
but  a  finding  of  fact,  unsupported  by  any  evidence,  is  an  error  of 
law  and  may  be  reviewed. ^^  The  provision  of  the  Code  (§  2586) 
that,  where  an  a])i)eal  is  taken  upon  the  facts,  the  appellate  court 
has  the  same  power  to  decide  the  questions  of  fact  which  the  sur- 
rogate had,  a])]dies  only  to  the  Supreme  Court. ^*  The  evidence 
nniy  be  lodked  into  only  f(ir  the  purpose  of  seeing  whether  there 
is  competent  evidence  to  supjiort  the  conclusions  of  fact  found  by 
the  surrogate ;  if  such  evidence  is  found,  the  court  is  concluded 
by  the  finding.^^     Mere  matters  of  discretion  are  not  reviewable. 

s  Co.  Civ.  Proc.   §   101.  as  amondcd  subd.  11.  hy  providing  tli.at  appeals  to 

1895.      See    id.,    §    1.3.37;     Matter    of  the  Court   of   Appeals   from  an   order 

Rogers,  1.5.3  N.  Y.  .310;  IMatter  of  Hall,  or    judjjment    afflrininjr.    reversinfr.    or 

104  id.  190.     For  tlie  rule  prior  to  the  inodifyiufr  an   order,  etc..  of  a   Surro- 

aiuf'iidinent  of  section    191.  see  flatter  ijate's  Court,  should  be  heard  and  de- 

of  Ross,   S7   X.   Y.   514;    ^larx  v.   ^Ic-  cided  in  confonuity  with  the  laws  and 

Glynn.  8S  id.  357;   Matter  of  Darrow.  practice    reuulatinjr   sucli    ajii'eals   and 

95   id.   0(!S ;    flatter  of  Hipfrins,  94  id.  tlie    heariiiji    and    decision    thereof     in 

554;     Davis     v.    Clark.    87      id.    023;  force  on  April  30.  1877. —  did  not  have 

Kinpsland  v.  ]\Ituray,  133  id.  170;  44  the  effect  of  fiivinj,'  the  Court  of  Ap- 

St.  Rej).  515;  Ackerman  v.  Ackerman,  jjcals  jurisdiction  to  review  a  (piesfion 

20   id.    000;    Matter   of   Flynn,    49    id.  of    fact,    dependinj;     upon     coiillictinjjr 

388;   ^Fatter  of  Bolton,  141  X.  Y.  554.  evidence,    ujxm    appeal    from    a    judj;- 

!i  Burger  v.  Burger.   Ill  N.  Y.  523;  nient  of  the  Supreme  Court  affirming 

'Nfatter    of    'rhorne,     102    id.    238;     50  a  decree  of  a   surrogate. 
N.   E.   025.  i- Matter  of  Roirers.   153  X.  Y.  310. 

i'i:Matter    of    Smith.    90    X.   Y.    001.        14  Davis  v.  Clark.  87  X.  Y.  023.     See 

See  llowland  v.  Tavlor.   53   id.  027.  §   1145.  nntc. 

n  Matter  of   Bull".   Ill   X.  Y.  024.  i".  Matter  of  Roijers.  153  X.  Y.  310; 

12  Hewlett  V.  Elmer.   103  X.  Y.   150.  ^fatter  of  Yalentine.  100  id.  (i07 :  ^fat- 

In  that  case.it  was  held,  that  L.  1883.  ter  of  Cottrell.  95  id.  329.     Where  the 

e.  229,  amcndinsr  Co.  Civ.  rrnc,  §  3347.  court    entertains    a    reasonable    doubt 


§  1149.  Appeals.  944 

Thus,  the  court  will  not  review  a  decision  of  the  Appellate  Division 
affirming  a  decision  of  a  surrogate  punishing  an  executor  for  con- 
tempt in  refusing  to  pay  over  a  sum  found  due,  upon  the  settle- 
ment of  his  accounts,  where  the  only  defense  interposed  con- 
sisted of  allegations  of  insolvency  and  inability  to  pay,  which 
rested  upon  conflicting  evidence  and  were  addressed  to  the  discre- 
tion of  the  court  below. ^*^  So,  too,  an  order  of  the  surrogate  re- 
quiring a  life  tenant  to  give  security,^'  or  vacating  a  stay  on  pro- 
bate ;^*  but  an  order  denying  a  motion  to  vacate  an  order  fixing 
appraiser's  fees,   affects   a   substantial    right   and    is   appealable. ^^ 

§1149.  Proceedings  after  determination  of  appeal. —  Where  the 
proceedings  are  remitted  to  the  surrogate  by  the  Appellate  Di- 
vision, a  certified  copy  of  its  order  should  be  filed  in  the  surro- 
gate's office."*^  Where  they  are  remitted  by  the  Court  of  Appeals, 
judgment  should  be  first  entered  on  the  remittitur  in  the  Supreme 
Court,  and  a  certified  copy  of  the  latter  judgment  filed  in  the 
surrogate's  office.^^  Under  the  Revised  Statutes,  when  a  decree  in 
a  probate  case  was  affirmed  or  reversed  on  a  question  of  law,  the 
iiffirmance  or  reversal  was  required  to  be  certified  to  the  surrogate 
whose  decision  was  appealed  from,  and  the  copies  of  papers  were 
to  be  returned  to  him^^^  and  the  surrogate  was  thereupon  to  direct 
the  administration  of  the  estate  according  to  the  will,  if  the  court 
affirmed  his  decree  admitting  it  to  probate,  or  if  otherwise,  he 
was  to  annul  and  revoke  the  probate.  If  his  decree  refusing  pro- 
bate was  affirmed,  no  further  proceedings  could  be  taken  before 
him;   but  if  it  was  reversed,  he   proceeded  to  take  proof  of  the 

as  to  the  correctness  of  the  surrogate's  rogate's  decree  directing  a  sale.     (Mat- 
decree,  where  incompetent  evidence  has  ter  of  Lamberson,  63  Barb.  297 ;  Mat- 
been  received,  a  case  is  presented  where  ter  of  Laird,  42  Hun,   1.36.)      A  ques- 
the     party     excepting     is     necessarily  tion  as  to  referee's  fees  is  not  properly 
prejudiced,    and    the    error    requires   a  brought  before   the   Court   of    Appeals 
reversal  of  the  judgment.      (Matter  of  on  an  appeal  from  a  determination  of 
Smith,   95  N.   Y.    516.)      See  Brick  v.  the  General  Term  affirming  a  decree  of 
Brick,    66    id.    144;    Schenck   v.    Dart,  the  surrogate,  rendered  in  proceedings 
22    id.    420.      On    an    appeal    from    an  in  which  a  reference  was  had.      ( Kear- 
order  reversing  the  decree  of  a  surro-  ney  v.   McKeon.  85   X.   Y.   136.)      See 
gate,   it  will  be  assumed  that  the  re-  Fredenburgh  v.  Biddlecom,  85  id.  196; 
A-ersal  was  for  errors  of  law  where  the  Matter  of  DeuLon.  137  id.  428;  Matter 
order    does    not    certify    that    it    was  of  O'Brien,   145  id.  379. 
based  upon  errors  of  fact.     (Matter  of  l"  Hitchcock    v.    Peaslee,    145    N.   Y. 
Haxtun,    102    N.    Y.    157;    Matter    of  547 :  65  St.  Rep.  504. 
Keefe,   164   id.   3.52.)  18  Matter  of  Baldwin,  1.58  N.  Y.  713. 
16  Matter  of  Snyder,  103  N.  Y.  178;  m  Matter  of  Harriot,  145  N.  Y,  540; 
Cochrane  v.  Ingersoll,  73  id.  613.     The  65   St.  Rep.  528. 
question   of  the  allowance   of  costs  of  20  Co.  Civ.  Proc,  §  2585. 
proceedings  for  the  sale  of  a  decedent's  21  Co.   Civ.   Proc   §    194;   Wright  v. 
lands  for  debts  is  not  brought  up  for  Wright.  3  Redf.   325. 
review  upon  an  appeal  from  the  sur-  222  R.  S.  609,  §§  97,  98. 


M5  Appeals.  §  1149. 

will.  In  case  the  decree  was  reversed  on  a  question  of  fact,  and 
a  jury  trial  had,  as  before  mentioned,  the  final  determination 
thereon  was  to  be  certified  to  the  surrogate,  and  if  the  determina- 
tion was  in  favor  of  the  validity  of  the  will,  or  of  the  sufficiency 
of  the  proof  thereof,  the  surrogate  was  required  to  record  the 
will,  or  admit  it  to  probate,  as  the  case  might  be.^  If  the  de- 
termination was  against  the  validity  of  the  will,  or  against  the 
eomjK'tency  of  the  proof  thereof,  the  surrogate  was  required  to 
annul  and  revoke  the  record  of  probate  thereof,  if  any  had  been 
made.  Although  these  provisions  are  included  in  the  General 
Kepcaling  Act  of  1880,  the  practice  prescribed  is  not  ont  of  har- 
mony with  the  present  system  of  procedure,  and  should  be  fol- 
lowed. Where,  on  affirmance  of  the  decree,  the  proceedings  are 
remitted  to  the  surrogate,  he  has  no  power  to  open  the  decree,  and 
grant  a  rehearing  for  alleged  error  of  law.^* 

23  2  R.  S.  67,  §§  59,  60.  X.    Y.    Supp,    565;    §    1146,    note    98, 

24  Reed  V.  Keed,  52  JS.  Y.  651.     See    ante. 
Matter  of  De  Haas,  24  Misc.  258;   53 

60 


FORMS. 


No.   I. 

[Ante,  §   11.] 
Certificate   of   Disqualification   of    Surrogate. 

[Title  of  the  proceeding.] 

I,   O.  T.  C,  hereby  certify,  that   I   am  the  surrof^ate  of  county, 

N.  Y.,  and  that  I  am  rehited  by  affinity  [or,  consanguinity]  to  one  of  the 
executors  named  in  tlie  will  of  the  above-named  deceased,  and  who  is  also 
one  of  the  j)etitioners  named  in  the  within  petition  [here  specify  facts  of 
relationship]  :  and,  for  the  reason  aforesaid,  1  have  no  jurisdiction  in  this 
matter. 

Wherefore,  pursuant  to  section  2485  of  the  Code  of  Civil  Procedure,  I 
hereby  designate  Hon.  E.  W.,  the  surrogate  of  the  adjoining  county  of 
,  to  act  in  my  place  in  the  said  matter. 

[Date.]  [Signature.] 

No.   2. 

[Ante,  §   14.] 
Establishing  Authority  of  Another  Officer  to  Act  as  Surrogate. 

I.  Petition. 

To  the  [Supreme]  Court  of  the  State  of  New  York: 

The  petition   of   R.   Y.   B.,  of   the    [town]    of  ,   in   the   county   of 

and  State  of  New  York,  shows: 

I.  That  C.  H.,  late  of  the  town  of  ,  in  the  county  of  , 
and  State  of  New  York,  died  on  the  day  of  ,  ,  leaving 
liis  last  will  and  testament,  by  which  your  petitioner  was  appointed  the 
executor  thereof. 

II.  That  your  j)ct  it  loner  has  presented  a  petition  to  the  .surrogate's  court  of 
the  county  of  ,  asking  that  said  will  be  proved  and  letters  testa- 
mentary granted  thereon.  Your  jietitioner  is  informed  and  advised,  that  Jf).  T. 
C.  the  surrogate  of  said  county,  cannot  act  as  surrogate  in  the  matter,  for 
the  reason,  as  appears  by  the  certificate  of  said  surrogate  hereto  annexed, 
that    [here  state  cause  briefly.] 

\ViiEREFOKE,  your  petitioner  prays,  that  an  order  Tuay  be  made  by  this 
court  establishing  tliese  facts,  and  establishing  the  authority  of  the  [naming 
nffircr  mentioned  in  Code.  §  2484],  to  act  in  the  ))lace  of  said  surrogate,  and 
declaring  that  he  is  empowered  *  to  discharge  the  duties  of  the  offiee  of 
surrogate  of  said  county  fin  relation  to  tlie  matter  of — naming  the  pro- 
ceeding, for  insfa)ice.  thus: — the  proving  of  the  last  will  of  C.  H..  of  , 
deceased,  and  the  granting  of  letters  testamentary  thereon,  and  in  all  things 
relating  thereto,  and  in  all  things  relating  to  the  accounting  and  settlement 

[947] 


No.  2.  i  oUxMs.  948 

of  said  estate  —  and  if  required,  add, —  upon  liis  giving  security  by  a  bond  — 
describing  it  and  directing  the  filing. 

[Datc.\  [IS  ig  nature.] 

[Veri/icudon.] 

II.  Order  Establishing  Authorily  of  anothi  r  Officer  or  Court  to  act  as 

ISurrogule. 
[Title.] 

On   reading   and   filing  tlie   annexed  l    petition   duly   verified   the 
day  of  ,  ;  and  the  certificate  of  O.  T.  C,  surrogate  of  the  county 

of  ,  dated  the  day  of  ,  ;    by  which  it  appears  to  the. 

satisfaction  of  this  court  that  a  proceeding  has  been  instituted  in  said 
surrogate's  court  of  the  county  of  ,  for  the  probate  of  the  will  of 

C.  H.,  deceased;  that  said  0.  T.  C,  surrogate,  cannot  act  as  surrogate  in  said 
matter  for  the  reason  that  [state  cause  briefly],  and  on  motion  of  H.  L.  D., 
attorney  for  the  petitioner,  it  is  ordered  that  [naming  officer  mentioned  in 
§  2484  of  Code,  or  in  Isew  York  county,  say,  the  supreme  court  in  and  for 
the  county  of  New  York],  be  and  he  [or  it]  is  authorized  and  empowered  to 
act  in  place  of  said  surrogate  and  to  discharge  the  duties  of  the  otlice  of  the 
surrogate  of  said  county  of  ,  in  the  matter  of  proving  the  last  will 

and  testament  of  C.  H.,  deceased,  and  the  granting  of  letters  testamentary 
thereon,  and  all  matters  relating  to  the  accounting  and  settlement  of  said 
estate — [and  if  required,  add, —  upon  his  giving  a  bond  —  describing  it  and 
directing  the  filing], 

[Signature.] 

III.  Order    Transferring    a    Probate   Proceeding    to    Supreme    Court. 

[Ante,  §  11.] 
[Title.] 

By  virtue  of  the  authority  vested  in  this  court  and  in  the  surrogate  of 
this  county,  by  §  2547  of  the  Code  of  Civil  Procedure,  it  is.  hereby  ordered 
that  the  above-entitled  proceeding  now  pending  in  this  court,  being  a  special 
proceeding  for  the  probate  of  a  will,  be  and  the  same  is  hereby  transferred 
to  the  supreme  court  in  and  for  the  county  of  New  York. 

[Signature], 

Surrogate. 
IV.  Notice   of  IlemoiKil    of    Proceeding. 
[Title.] 

You  are  hereby  notified  that  by  virtvie  of  the  avithority  vested  in  the  sur- 
rogate's court  of  this  county,  by  §  2.547  of  Code  of  Civil  Procedure,  the 
surrogate,  by  an  order  filed  on   the  day  of  ,  .   has  transferred 

the  above-entitled  proceeding  now  pending  in  this  court  to  the  supreme  court 
in  and  for  the  county  of  New  York. 

Yours,  etc., 

[Signature], 

Calendar  Clerk. 

V.  Order  Remitting  Proceedings  to  Surrogate's  Court. 
[Title.] 

This  proceeding  having  been  transferred  to  me  [or,  to  this  court]  from 
the  surrogate's  court  of   the   county   of  ,  by   order   of   the   supreme 

court  dated  the  day  of  .  .   for  the  reason   that    [state  reason 

'briefly],  and  it  appearing  to  me  that  the  reason  for  the  exercise  of  the 
powers  and  jurisdiction  of  said  surrogate's  court  has  ceased  to  operate,  now, 
pursuant  to  §  2401  of  the  Code  of  Civil  Procedure,  it  is  ordered  that  this 
proceeding  be  and  the  same  is  hereby  transmitted  back  to  the  surrogate's 
court  of  the  county  of  ,  for  final  disposition  by  him. 

[Signature.] 


I  In  New  York  county,  the  filing  of  the  certificate  is  not  necessary. 


t)49  FoK.Ms.  ^^os.  3-5. 

No.   3. 

[Ante.   §  72.] 

Petition  for  Citation;  General  Form. 

[Title.'] 

To  the  Surrogate's  Court  nf  the  cduiity  (if  New  York: 

Tlie  petition  of  E.  G.,  residing'  at  street,  respectfully  shows: 

That  your  petitioner  is.  [stating  in  nluit  relation  the  petitioner  stood  to  the 
deeedcnt,  as  thus: J  a  le},'atee  named  in  the  last  will  and  testament  of  A.  M.. 
deeeased,  and  as  such  is  interested  in  the  above-entitled  jiroeeedinj^. 

That  letters  testamentary  [or,  of  administration]  on  the  estate  of  .said 
deeeased  were  f,'ranted  by  the  surrogate  of  the  county  of  New  York  to  P.  G. 
on  the  day  of  , 

That  more  than  has  elapsed  since  his  appointment,  and  the  .said 

P.    G.    has    not    [for   insta)iee,    tiled   any   account   of    his    proceedings    as   such 
executor]. 

Your  petitioner  therefore  prays  that  a  citation  may  be  issued  requiring  the 
said  P.  G.  to  appear  in  this  court,  and  show  cause  why  [stating  relief  sought, 
as  thus:]  he  sliould  not  tile  and  judicially  settle  his  account  as  executor  of 
A.  M.,  deceased. 


[dignature], 

Petitioner. 


[Verification.'] 


No.   4. 

[Ante,  S  73.] 

Order  for  Citation. 

At  a  Surrogate's  Court  [etc.]. 
[Title.] 

On  reading  and  filing  the  petition  of  E.  G.  [stating  nature  of  the  j)etition, 
as  thus:]  praying  for  a  judicial  settlement  of  the  accounts  of  A.  M.,  or 
executor,  etc.,  of  said  deceased,  it  is  ordered,  that  a  citation  issue  to  all 
persons  interested  in  the  estate  of  the  said  deceased,  as  creditors,  legatees, 
next  of  kin,  or  otherwise  [or,  if  the  proceeding  be  for  probate,  say:],  to  the 
Avidow,  de\ispes.  legatees,  heirs  and  next  of  kin  of  said  deceased,  mentioned 
in  said  jjctitidii.  retuinable  the  day  of  ,  ,  at  o'clock  in  th-i 

forenoon,  and  also  tliat  said  citation  contain  a  notice  to  said  parties  who  are 
infants,  to  then  and  there  show  cause  why  a  special  guardian  should  not  be 
apjKtinted  by  the  surrogate  to  appear  for  them  and  protect  their  interests  in 
the  above  entitled  proceeding. 

,   Surrogate. 

No.   5. 

[Ante.   S  74.] 

Citation. 

I.  General  Form. 

The  People  of  the  State  of  New  York, 

To  John  Doe  and  James  Jackson  [or,  on  accounting,  to  all  persons  inter- 
ested in  the  estate  of  A.  IJ..  late  of  .  deceased,  as  creditors, 
legatees,  next  of  kin,  or  otherwise],  send  greeting: 

Y^ou  and  each  of  you  are  herebj-  cited  and  required  personally  lo  be  and 
appear  before  our  surrogate  of  the  county  of  New  York,  at  the  surrogate's 
court  of  said  county,  held  at  the  county  courthouse  in  the  city  of  New 
York,    on    the  day    of  ,  [not    more    than    four    months   after 

date],  at  half-past  ten  o'clock  in  the  forenoon  of  that  day.  then  and  there 
[here  state  hriefig  the  object  for  which  the  person  is  cited,  r.  g.,  to  show 
cause  why  the  letters  of  administration  granted  to  you  on  the  day  of 


Xo.  6.  Forms.  950 

,        ,  as  administrators  of  the  estate  of  A.   B.,  deceased,  should  not 
be  revoked  —  or,  to  attend  the  judicial  settlement  of  the  account  ol  , 

as  executor  of  the  last  will,  etc.,  of  A.  13.,  deceased]. 

[Where  infants  are  cited  add:  and  such  of  you  as  are  under  the  age  of 
twenty-one  years,  are  required  to  appear  by  your  guardian,  if  you  have  one, 
or  if  you  have  none  to  appear  and  apply  for  one  to  be  appointed  or  in  the 
event  of  your  neglect  or  failure  to  do  so  a  guardian  will  be  appointed  by  the 
surrogate  to  represent  and  act  for  you  in  the  jjroceeding.] 

In  Testimony  Whereof  we  have  caused  the  seal  of  our  said  surrogate's 
court  to  be  hereunto  affixed.     Witness,  Hon.  ,  surrogate  of 

said  county,    at   the   city   of  New  York,   tjie  day   of  ,   in 

[Seal.']    the  year  of  our  Lord,  one  thousand  nine  hundred  and 

,    Surrogate. 
[or,  Clerk  to  the  Surrogate's  Court]. 

II.   Citation   to  Attend  Probate  A 

The  People  of  the  State  of  New  York, 

To  A.  B.,  C.  D.,  and  E.   F.,  the  widow,  heirs,  and  next  of  kin  of  G.  H., 
deceased,  send  greeting: 

Whereas,  H.  W.,  of  the  city  of  New  York,  has  lately  applied  to  our  surro- 
gate's court  of  the  county  of  New  York,  to  have  a  certain  instrument,  in 
writing,  relating  to  both  real  and  personal  estate,  duly  proved  as  the  last 
will  and  testament  of  G.  H.,  late  of  the  city  of  New  York,  deceased. 

Therefore,  yoii,  and  each  of  you,  are  hereby  cited  to  appear  before  our  said 
furrogate,  at  the  county  courthouse,  in   the  city  of  New  York,  on  the 
day  of  ,         ,  at  half-past  ten  o'clock  in  the  forenoon  of  that  day,  then 

and  there  to  attend  the  probate  of  the  said  last  will  and  testament. 

In  Testimony  Whereof  [etc.,  as  above]. 

No.   6. 

[Ante,  §  77.] 

Additional  Service  of  Citation  on  Infant  or  Incompetent. 

I.  Affidavit. 
[Title  and  Venue.] 
A.  B.,  being  duly  sworn,  says: 

I.  That  he  is  [here  state  his  relation  to  the  infant,  or  to  the  cause,  and  tchat. 
if  anything,  has  been  done  as  to  service  upon  him']. 

II.  That  the  above-named  party.  Y.  Z.,  is  an  infant  of  the  age  of  [upwards 
of]  fourteen  years,  residing  with  his  mother,  in  the  of  [or,  is  an  habit- 
ual drunkard,  mentally  incapable  adequately  to  protect  his  rights,  although  not 
judicially  declared  to  be  incompetent  to  manage  his  affairs  —  or,  is  an  infant 
under  the  age  of  fourteen  years  —  or,  is  judicially  declared  to  be  incompetent  to 
manage  his  affairs,  by  reason  of  idiocy  —  and  taat  affiant  believes  that  the  in- 
terest of  ,  the  person  to  whom  a  copy  of  the  citation  in  the  above- 
entitled  special  proceeding  was  delivered,  in  behalf  of  said  Y.  Z.,  is  adverse  to 
that  of  the  said  Y.  Z. —  or  state  other  unfitness,  giving  reasons]. 

III.  That  no  previous  application  for  an  order  directing  service  of  said  cita- 
tion on  some  third  person  in  behalf  of  said  infant  for,  incompetent]  has  been 
made  herein,  to  the  best  of  affiant's  knowledge,  information,  and  belief. 

[Jurat.]  [Signature.] 

II.  Order  on  Foregoing. 
[Title.] 

An  application  having  been  made  by  A.  B.,  of  ,  to  the  surrogate 

of  county  [here  state  object,  e.  g.,  to  have  a  certain  paper  writing  proved 

as  the  will  of  M.  N..  late  of  —  or,  the  account  of  his  proceedings  as  ex- 

1  See  §  157,  ante,  as  to  persons  to  be  cited. 


5)51  FoKMs.  Xo.  7. 

ecutor  of  tho  will  of  'SI.  X.,  late  of  ,  doceasod,  judicially  settled],  and  it 

appcariiif^  by  tlic  petition  [or,  allidavit]  of  said  A.  15.,  upon  wJiicli  said  aj^piiea- 
tion  is  based,*  that  Y.  Z.,  (»ne  of  the  |jersons  to  be  cited,  is  an  infant  of  the  ajjij 
of  fourteen  years  [or,  and  the  said  surro^'atc  liavinj,'.  in  his  opinion,  reasonabh* 
ffrounds  to  believe  tliat  Y.  Z.,  ojie  of  the  persons  lo  be  cited,  is  an  habitual 
drunkard  —  or,  mentally  incapable  adequately  to  protect  his  rifj;hts  althou^rh 
not   judicially  declared  to  l)e  suchl : 

Now,  on  motion  of  L.  M.,  attorney  for  said  A.  ]}.  [oniil  tJiis,  if  on  surroi/iilr'a 
mot  ion], 

It  is  oui)i:KKi),t  tliat  a  copy  of  the  citation  issued  on  said  application,  be 
also  delivered  personally,  in  behalf  of  said  Y.  Z.,  to,  and  left  with,  N.  ().,  resid- 
inj^  in  tlie  city  and  county  of  New  York  [at  least  eij^ht  days  before  the  return 
day  of  said  citation],  and  that  the  service  of  said  citation  shall  not  be  deemed 
complete  luitil  such  delivery. 

[Where  the  infant  is  under  fourteen,  or  the  incompetent  person  has  a  com- 
mittee, continue  from  the  asterisk  above,  That  Y'.  Z.,  one  of  the  persons  to  be 
cited,  is  an  infant  under  the  age  of  fourteen  years, —  or,  has  been  judicially 
declared  to  be  incompetent  to  manage  his  alTairs  by  reason  of  lunacy  —  or, 
idiocy  —  or,  habitual  drunkenness, —  and  it  appearing,  by  the  aflidavit  of 
A.  B.,  that  a  copy  of  the  citation,  issued  on  said  application,  has  been  duly 
served  on  S.  Z.,  the  —  mother  —  of  said  infant,  with  wliom  he  resides, —  or, 
the  conmiittee  of  said  lunatic  —  or,  idiot  —  or,  habitual  drunkard, —  and  the 
said  surrogate,  having  reasonable  yronnd  to  believe  that  tlie  interest  of  said 
S.  Z.  is  adverse  to  that  of  said  Y.  Z. —  or,  to  believe  that  said  S.  Z.  is  not  a  fit 
j)erson  to  protect  the  rights  of  said  Y.  Z., —  for  the  reason  that  —  indicating  it 
briefli/]. 

It  is  ordered, —  [co^itinue  as  above  from  t  to  the  end:  then  there  mat/  be 
added:]  — And  It  is  fi'RTHER  ORDETiED,  that  the  said  X.  O.  be  and  he  hereby 
is  apjjointed  special  guardian,  to  conduct  the  proceeding  in  behalf  of  said 
Y.  Z.,  to  the  exclusion  of  the  said  conmiittee,  S.  Z.,  and  with  the  same  powers, 
and  subject  to  the  same  liabilities,  as  a  committee  of  the  property. 

No.   7. 

[Ante,  §  81.] 
Order  for  Service  of  Citation  out  of  State,  or  by  Publication. 

[Title.] 

A  duly  verified  potitionl  having  l)oen  presented  to  and  filed  in  the  surrogate's 
court  in  the  county  of  Xew  Y'ork,  by  A.  B.,  the  i)erson  designated  as  sole  ex- 
ecutor, in  the  will  of  M.  X..  late  of  the  city  of  Xew  Y'ork,  deceased,  praying 
for  the  probate  of  said  will,  and  for  the  issuing  of  a  citation  to  attend  such  pro- 
bate, and  for  such  furtlicr  or  other  order  in  relation  to  the  proof  of  said  will 
or  the  service  of  said  citation,  as  should  l)e  just  and  ])ropcr.  and  a  citation  hav- 
ing been  issued  thereon  directed  to  the  [husband],  legatees,  heirs  and  next  of 
kin  of  the  said  decedent,*  [here  state  ground  of  order  for  publication,  for  in- 
stance, thus  in  ca.^e  of  absentee :]  and  it  being  ]iroved  by  said  i)etition.  to  the 
satisfaction  of  the  surrogate,  that  Y''.  Z.,  the  father  of  said  ^I.  X..  deceased,  is 
an  adult,  and  a  resident  of  this  State,  but  is  temporarily  absent  in  Kuropc 
[where  his  post-olTlce  address  is  care  of  O.  P.  &  Co..  Paris,  France]  ;  and  that 
personal  service  of  the  citation  herein  cannot  with  due  diligence  be  made  upon 
him  within  this  State. 

[ll7ir*T  //((■  residence  of  a  parti/  cannot  he  ascertained']  And  it  appearing  b>' 
said  ])etition  [or,  allidavit],  tliat  the  residence  of  \V.  Z.  [formerly  \V.  K.],  wife 
of  A.  Z..  who  is  one  of  the  heirs  and  next  of  kin  of  said  decedent  M.  X..  and 
one  of  the  parties  to  whom  the  said  citation  is  directed,  cannot,  after  diligent 
inquiry,  be  ascertained  by  the  petitioner: 2 


1  Separate  petition  for  an  order  of  publication  is  usually  not  necessary:  but  if  the  facts 
required  by  rode,  tiSy.'iSSor  2523,  do  not  appear  in  the  petition  for  probate,  they  should  be  set 
forth  in  a  further  aftUlavit. 

2  It  seems  to  he  ininuiteriiil  whether  (he  party  sonpht  to  be  served  without  the  State,  upon 
this  ground,  is  a  resident  of  this  State  or  not.    See  Co.  Civ.  Proc.,  §  2523,  subd.  1. 


Xo.  8.  FoKMS.  952: 

[WJtcrc  there  are  unlcnoicn  heirs  or  next  of  kin']  And  it  being  proved,  to  the 
satisfaction  of  the  surrogate,  that  tliere  are  other  heirs  and  next  of  kin  of  said 
deceased,  wliose  names  and  places  of  residence  are  unknown,  and  cannot  with 
due  diligence  be  ascertained: 

Now,  on  motion  of  N.  R.,  attorney  for  said  petitioner  A.  B.,  it  is  hereby 

ORDKHEl), 

That  service  of  the  above-mentioned  citation,  upon  the  said  [naming  parties], 
be  made  by  publication  thereof  in  two  newspapers,  to  wit:   in  thel  both 

published  in  the  city  of  New  York,  once  a  week  for  six  successive  weeks;  cir,  at 
the  option  of  the  petitioner,  by  delivering  a  copy  of  the  citation. to  the  person 
so  cited,  in  j)erson,  without  the  State  [and —  irhere  the  person  to  be  called  is  an 
infant  under  fourteen  years  —  a  copy  thereof  to  the  person  with  whom  the  said 
{the  infant)  is  sojoHrning,2  and  in  the  case  of  a  corporation — a  copy  thereof 
to  namin(j  some  officer  specified  in  §S  431,  432  of  the  Code]. 

And  it  is  further  ordered  and  directed,  that  on  or  before  the  day  of  the  first 
publication,  the  petitioner  deposit  in  the  post-office,  at  the  city  of  New  York, 
a  copy  of  the  citation  and  of  this  order,  contained  in  a  securely-closed  post- 
paid wrapper,  directed  to  the  said  Y.  Z.  at  [or,  if  several  are  to  be 
served,  to  the  following  persons,  respectively,  at  the  places  designated  below:  — 
giving  addresses  in  full]. 

[Where  residence  is  unknoicfi']  And  it  is  further  ordered  that  service  of  the 
citation  in  the  above-entitled  matter  upon  [nami)ig  parties],  whose  places  of 
residence  are  unknown,  and  cannot  with  due  diligence  be  ascertained,  be  made 
by  publication  thereof  in  two  newspapers,  to  wit:  [naming  them,  as  above], 
once  a  week  for  six  successive  Aveeks,  which  is  the  time  the  surrogate  deems 
reasonable,  or,  at  the  option  of  the  petitioner,  by  service  of  the  citation  and  a 
copy  of  this  order  upon  the  persons  so  cited  without  the  State. 

[Where  mailing  is  impracticable,  add]  And  the  said  surrogate,  being  satisfied 
by  said  petition  [or,  affidavit],  that  the  above-mentioned  petitioner  A.  B.  can- 
not, with  reasonable  diligence,  ascertain  a  place  or  places  where  the  said  W.  Z. 
would  probably  receive  matter  transmitted  through  the  post-office,  hereby  dis- 
penses with  the  deposit  of  any  papers  therein. 

[Where  gratuitous  additional  publication,  in  case  estate  is  not  over  $2,000.  is 
desired,  add]  And  it  affirmatively  appearing  from  said  petition,  that  the  prop- 
erty of  the  decedent  M.  N.  does  not  exceed  two  thousand  dollars  in  value,  it  is 
hereby  further 

Ordered,  that  the  publication  of  said  citation,  hereby  required  to  be  made 
in  the  ,  be  made  gratuitously,  and  the  publishers  of  said  are  hereby 

ordered  and  directed  to  make  such  publication  without  charge. 

,  Surrogate. 

No.   8. 

Same;  Shorter  Form. 

[Title.] 

A  citation  having  been  duly  issued  in  the  above-entitled  matter,  and  it  ap- 
pearing to  my  satisfaction  by  the  verified  petition  of  E.  G.,  that  [naming  par- 
ties to  be  cited]  are  heirs-at-law  and  next  of  kin  of  said  A.  B.,  deceased,  or 
are  interested  as  legatees,  etc.,  under  his  said  will,  and  to  be  cited  upon  the 
probate  of  said  last  will  and  testament  of  said  deceased,  and  are  nonresidents 
of  this  State,  residing  as  follows,  to  wit: 

I  do  hereby  order  and  direct  that  the  service  of  citation  herein  upon  said 
[naming  j)arties]  be  made  by  publication  thereof  in  two  newspapers,  to  wit: 
,  being  two  newspapers  printed  and  published  in  the  county  of 
.  once  in  each  of  six  successive  weeks,  whicli  is  the  time  I  deem  reason- 
able; or,  at  the  option  of  the  said  petitioner,  by  delivering  a  copy  of  the  .said 
citation,  without  the  State,  to  the  said   [naming  them]   in  person.     And  I  do 


iThe  newspapers  in  which  the  above  service  is  to  be  published  are  in  the  discretion  of  the 
surrogate,  but  should  be  those  only  as  are  published  in  the  county  where  the  persons  sought 
to  be  served  reside,  unless  there  is  only  one  paper  in  the  county,  when  publication  may  bd 
mnde  in  such  paper  in  another  county  as  the  surrogate  designates. 

2The  surrogate  may  designate  a  person  to  be  served  in  behalf  of  infants  and  incompetents 
in  certain  cases.    See  Co.  Civ.  Proc,  §  2527,  and  form  6,  ante. 


1»53  Fou.MS.  Xos.  t>,  1<». 

furtlipr  order  and  direct,  that  on  or  before  the  day  of  the  f.rst  publication, 
the   petitioner   herein   deposit   in    the  post-olliee,   in   the  city   of  ,    [four J 

sets  of  copies  of  the  said  citation  and  of  tliis  order,  each  set  contained  in  a 
securely-closed,  post-paid  wrapper,  and  directed  as  follows:  [givin;/  uddrrsn<H 
ill  full]. 

[Date.]  ,  Surrogate, 

No.   9. 

\.\ntr,  §   S.l."| 

Proof  of  Service  of  Citation. ^ 

[Title  and  Venue.] 

V.   15.,   beinf!^  duly  sworn,  says  that  he   is  years   of  ape,   and   that  on 

llu"  day  of  ,  18     ,  at  No.  14  Wall  street,  in  the  city  of  New  York, 

he  served  the  annexed  citation  on  W.  I{.,  one  of  the  persons  named  in  said  cita- 
tion, by  deliverinff  to  and  leaving  with  him.  personally,  a  true  co|)y  thereof 
[or,  ichere  the  parti/  served  is  a  liniatie,  by  deliverin<(  to  the  said  W.  B.,  a 
lunatic,  personally,  a  copy  of  the  annexed  citation,  and  by  also  deliverinj^  a 
copy  thereof  to  and  leaving  the  same  with  E.  F.,  personally,  who  has  been  cluly 
ap])oiiited  the  committee  of  the  person  and  estate  of  said  W.  B.,  heretofore 
judicially  declared  to  be  of  unsound  mind  —  or  where  the  party  served  is  an 
infant,  by  deliverinfj  a  copy  of  the  same  to  the  said  infant  personally,  and  by 
also  deliveriiif^  a  copy  thereof  lo  E.  F.,  the  father  of  the  said  infant,  person- 
ally, and  leavinff  the  same  with  them]. 

[^Vhere  admission  of  serriee  is  indorsed  on  the  citation,  attach  an  affidavit ^ 
as  folloics:]  J.  M.,  of  the  town  of  CJoshen,  in  the  county  of  Orange,  being  duly 
sworn,  says,  that  he  is  well  acquainted  with  C.  S.,  of  the  said  town  of  Goshen, 
and  with  his  manner  and  style  of  handwriting,  having  frequently  seen  him 
write;  that  he  was  present  and  saw  the  said  C.  S.  sign  the  said  w-aiver;  and 
the  signature  purporting  to  be  the  signature  of  the  said  C.  S.,  subscribed  to 
the  admission  of  .service  of  the  annexed  citation,  is  the  true  and  genuine  signa- 
ture of  the  said  C.  S. 

[Where  citation    teas  published.]  2 

That  on  the  day  of  ,  IS     ,  the  first  day  of  the  publication  of  the 

citation  herein,  he  depo.^ited  in  the  [general]  post-olliee  in  the  city  [or.  town] 
of  [New  York,]  a  copy  of  the  citation  issued  herein,  and  of  the  order  directing 
the  jjublication  thereof,  entered  the  •20th  dav  of  .Tune,  IS  .  co])ies  of  which 
are  hereto  annexed,  contained  in  a  securely-closed  and  duly  post-paid  wrapper, 
directed  to  each  of  the  persons  liereinafter  named,  at  tlie  places  and  addresses 
below  stated,  to  wit:  [setting  forth  names  of  pcrso)is  contained  in  the  order  of 
publication.]  3 

[Jurat.]  [Signature.] 

No.   10. 

[Ante,  p.   S5.] 
Appearance  by   Attorney   or  General   Guardian. 

[Title.] 

Take  notice  that  I  am  retained  by  and  apjiear  for  A.  B.,  one  of  the  next  of 
kin  and  heirs-at-law  of  the  said  C.  I).,  deceased  [or,  for  E.  F..  general  guardian 
of  A.  B.,  an  infant  named  in  the  citation  herein],  and  demand  that  all  noticis 
and  papers  herein  be  served  on  me  at  my  address  given  below. 

[Date.]  [Signature  and  Address.] 

To  [name  of].  Surrogate,  and  E.  F..  Attorney  for  C.  T>.    proponent  of  the  will. 


1  Tn  New  York  county,  the  orieinal  citatinn  ni"st  )>p  returned  to  the  clerk  of  the  court 
before  one  o'clock,  p.  m.,  on  th-  day  precediiifj  the  return  day,  with  sworn  proof  of  service, 
or  admission  of  service,  duly  acknowledfred. 

3  Wl\pre  .service  by  publication  hc.s  hppn  ordered,  personal  service  of  nonresident  within 
this  State  is  void.     (Matter  of  J'orter.  1  Delp>iantv.  489. ) 

3 To  the  affidavit  of  mailing,  should  be  annexed  the  proofs  of  publication. 


Xo.  11.  Forms.  U.j  t 

II.   Waiver  of  Service  of  Citation. 
[Title.] 

We,  the  undersigned,  widow,  heirs,  and  next  of  kin  and  legatees,  etc.,  of 
M.  N.,  deceased,  do  hereby  apj)ear  in  person  and  waive  the  issue  and  service 
of  a  citation  in  the  matter  of  proving  the  last  will  and  testament  of  the  said 
IM.  N.,  deceased,  and  we  do  hereby  consent  that  the  same  be  admitted  to  pro- 
bate forthwith. 

[i^ignatures.] 
[Authentication  as  of  a  deed.'] 

III.  Admission  of  Service  of  Citation. 
[Title.] 

I,  E.  G.,  narped  in  the  annexed  citation,  being  of  full  age,  do  hereby  admit 
<lue  and  timely  service  of  a  copy  of  the  said  citation  upon  me  in  person  on 
this  day  of  ,  at  ,  in  the  State  of  :   and  I  do  hereby  ap- 

pear in  person  in  the  matter  of  proving  the  last  will  and  testament  of  said 
deceased,  and  consent  that  the  same  may  proceed  to  a  decree  without  notice 
to  me  of  any  further  proceedings  therein. 

[Authentication  as  of  a  deed.] 

No.   II. 

[Ante,  §   109.] 
Appointment  of   Special   Guardian. ^ 

I.  Petition. 
[Title.] 

To  the  Surrogate  of  the  county  of  : 

The  petition  of  A.  B.   [etc.,]   shows: 

I.  That  your  petitioner  is  an  infant  over  fourteen  years  of  age,  and  resides 
with  his   [fatiier]    in  the  city  of  ,  county  of  ,  and   State  of 
[state  age  and  residence  of  each  other  infant  joining  in  the  petition],  and  that 
your   petitioner   has   not    [or,   neither   of    your    petitioners    has]    any   general 
guardian  in  the  State  of  New  York  [or,  if  there  is  a  guardian,  state  the  facts]. 

II.  That  your  petitioner  is  a  legatee  named  in  the  will  of  M.  X.,  deceased 
[or,  is  one  of  the  next  of  kin  to  M.  X.,  deceased]. 

That  the  will  of  said  M.  X.  has  been  duly  admitted  to  probate  by  a  decree  of 
the  surrogate's  court  of  Xew  York  county,  but  a  i)etition  has  been  presented  to 
obtain  a  revocation  of  the  said  probate  of  said  will,  and  a  copy  of  the  citation 
issued  thereon  has  been  duly  served  upon  your  petitioner. 

III.  That,  to  protect  and  preserve  the  rights  and  interests  of  your  petitioners 
under  the  said  will,  it  is  necessary  that  some  proper  person  should  be  duly 
appointed  the  special  guardian  of  your  petitioners  in  the  said  proceedings. 

Wherefore,  your  petitioners  pray  that  X.  R.,  counselor-at-law.  of  the  [city 
of  Xew  York],  may  be  appointed  such  special  guardian,  to  protect  the  rights 
and  interests  of  your  petitioners. 

[Date.]  [Signatures.] 

[Verification.] 

[Indorse  or  attach  consent  as  follows:] 

I,  X.   R.  of  ,   counselor-at-law,  hereby  consent  to   become  the  special 

guardian  of  A.  B.,  an  infant  [heir,  etc.]  of  ^I.  X..  deceased,  for  the  sole  pur- 
pose of  appearing  for  him  and  protecting  his  interests  in  the  matter  of  [the 
probate,  or,  revocation  of  probate  of]  the  will  of  M.  X.,  deceased  [ard  I  hereby 
state  that  I  have  no  interest  in  the  proceedings  adverse  to  the  said  infant]. 

[Date.]  [Signature.] 

[Authentication  as  of  a  deed.] 


1  If  the  infant  is  under  the  aee  '~f  fourteen  year^  the  petition  should  be  made  by  his  parent 
or  a  person  with  whom  he  resides,  or  in  aprop.-r  case,  by  any  of  the  parties  to  the  proceeding. 


1)55  Forms.  No.  12. 

II.  Affidavit  of  Special  Guardian. 
[Tit  it:] 

S.   K.,  being  duly  sworn,  says  tliat  lie  resides  at  ,  in  the  city  of  New 

^'l)^k.  That  he  is  perfeetiy  able  and  eonipetent  to  protect  the  rights  and  in- 
terests of  ,  infant,  in  this  ])roeceding:  that  he  has  no  interests  ad- 
verse to  that  of  said  infant,  and  is  not  connected  in  business  with  the  attorneys 
-or  counsel  for  the  ])ropoMriit.  Thai  lie  is  df  siiMi^-icnt  aidlity  to  answer  to  said 
infant  foi'  any  damage  wliich  may  be  sustained  by  reason  of  his  negligence  or 
misconduct  in  this  ])roceeding  and  is  wortli  over  |  five  hundred  doliarsj  over 
jind  above  all  his  <lebls  and  liabilities  and  besides  j)ro[)erty  exemjjt  by  law 
from  levy  and  sale  under  an  execution.  That  his  property  consists  of 
istdtiiifi  it]. 

[Jurat.]  [Hiynature.'] 

III.  Affidavit  of  Person    irith   trhom   Infant  Resides.^ 
ITitle.] 

C.  F.  B.,  being  duly  sworn,  says  that  he  is  the  father  (or  slate  what  relation 
.the  affiant  occupies  tcifh  respect  to  the  infant]  of  A.  B.,  infant;  that  said  in- 
fant resides  with  deponent  at  ,  in  the  city  of  New  York:  that  de])onent 
has  knowledge  of  the  apj)lication  of  said  infant  for  the  appointment  of  N.  K. 
as  his  special  guardian  and  approves  of  the  same;  that  dii)onent  has  no  in- 
terests adverse  to  that  of  said  infant,  and  has  not  influenced  him  in  his  selec- 
tion of  said  special  guardian. 

[Jurat.]  [>Sig  nature.'] 

IV.  Order  Appointing  Special  Guardian. 
[Title.] 

It  appearing  to  my  .satisfaction  by  tlie  verified  petition  nerein  [or,  the  affi- 
<lavit  of  J.  K.],  that  A.  B.,  one  of  the  heirs  and  next  of  kin  of  the  said  di-- 
■ceased,  is  an  infant  having  no  general  guardian  for,  having  a  general  giiard- 
ian,  but  that  the  interests  of  said  guardian  are  adverse  to  those  of  said  in- 
fant] ;  now  on  reading  and  filing  the  consent  of  N.  R.,  counselor-at-law  of 
,  to  become  special  guardian  for  the  said  infant,  for  the  sole  purpose 
■of  taking  care  of  his  interests  in  this  matter:  Ordkrki),  that  the  said  N.  R. 
lie,  and  he  hereby  is,  appointed  the  special  guardian  for  the  said  A.  B.,  to 
appear  and  protect  his  interests  in  this  matter. 

[Or,  tchere  the  appointment  is  made  on  the  surrnf/ate's  motion,  omit  the 
recital,  and  say,  after  title:]  It  is  ordered,  that  N.  R.  be.  and  he  is  hereby, 
appointed  the  special  guardian  of  A.  B..  an  infant,  for  the  sole  purpose  of 
appearing  for  and  takintr  care  of  his  for,  her  —  or,  their]  interest  in  the 
matter  of  proving  the  will  of  said  deceased.2 

[iiig)iature  of]. 

Surrogate. 

No.    12. 

[Ante,  §  52.] 
Subpoena  from  Surrogate's  Court. 

The  People  of  the  State  of  New  York, 

To  [naines  of  witnesses],  greeting: 

We  command  you,  that,  all  and  singular  business  and  excuses  being  laid 
aside,  you  and  each  of  you  appear  and  attend  before  the  surrogate  of  the 
county  of  fNew  York],  at  a  surrogate's  court  to  be  held  in  and  for  the  county 
of  fNew  York],  at  the  coiuity  courthouse  in  fthe  city  of  New  York],  on  the 
day   of  ,  .    at  o'clock    in    the  noon,    to   testify   and 

give  e\id('ne(>  in  a  certain  s|iecial  proceeding  now  ])ending  in  said  court, 
entitled.  In  the  Matter  of  [insert  title]. 


iThis  affidavit  is  made  necpssarv  to  the  appointment  of  a  special  puardlan  on  the  infauts 
appliciiiioii  in  tlie  oountv  of  N,-  \v  York  by  ihe  rules  of  the  surrogate's  court  in  that  eount  v. 
Rul'»  10.  And  see  ante.  §  lO'.t.  n. 

2  AVhei-p  he  irusrdian  is  appointed  on  the  surrogate's  motion,  the  consent  of  the  guardiaa 
is  indorsed  on  the  order. 


Xo.  13.  FoKMS.  956 

[If  production  of  a  hook  or  paper  is  desired,  add:  And  you  are  hereby 
required  to  bring  with  you,  and  then  and  there  produce  —  here  describe  booh 
or  paper. I 

And  for  a  failure  to  attend  you  will  be  deemed  fruilty  of  a  contempt  of 
court,  and  liable  to  pay  all  damages  sustained  thereby  by  the  party  aggrieved,, 
and  forfeit  fifty  dollars  in  addition  thereto. 

Witness,   Hon.  ,  surrogate   of   our  said   county,   at   the    [city   of 

New  York],  the  day  of  ,  one  thousand  nine  nundred  and 

\ Signature   of]. 
Clerk  to  the  Surrogate's  Court. 

No.   13. 

[Ante,  §   125.] 
Obtaining  Examination  of  Infirm  Witness. 

I.  Affidavit. 
[Title  and  Venue.'] 

A.  T.,  being  duly  sworn,  says,  that  he  is  the  attorney  for  the  proponent  [or 
otherwise]  herein  [or  describe  any  other  proceeding]  -.  that  C.  D.  is  one  of 
the  subscribing  w'itnesses  [or,  is  a  material  and  necessary  witness  in  support 
—  or,  in  opposition  to  —  the  petition  herein];  that  said  C.  D.  is  past  seventy 
years  of  age,  and  is  confined  to  his  house.  Xo.  ,  street,  in  the  city  cf 

,   by   age   and    infirmity    [or,    sickness],    and   is   unable   to    attend 
before  the  surrogate,  to  be  examined  in  this  matter. 

[Jurat.]  [Signature.] 

II.  Order  for  Examination. 
[Title.] 

It  appearing  to  the  satisfaction  of  tlie  surrogate,  and  the  surrogate  having- 
good  reason  to  believe,  that  the  testimony  of  C.  D.,  of  No.  , 

street,  in  the  city  of  ,  is  material  and  necessary  to  prove  the  due 

execution  of  .said  will,  and  that  said  C.  D.  is  aged  and  infirm,  and  that  the 
witness  cannot  attend  before  the  surrogate  within  a  reasonable  time: 

Now,  on  motion  of  A.  T..  the  attorney  for  A.  B..  the  proponent  of  said  will. 
It  is  ordered,  that  the  said  C.  D.  be  examined  before  *  me  [or,  X.  R.,  Esq., 
counselor-at-law,  who  is  hereby  appointed  referee  for  that  ])urpose]  at  the 
residence  of  said  C.  D.,  Xo.  ,  street,  in  the  city  of  Xew  York,  on 

the  day  of  ,         ,  or  on  an  adjourned  day  to  be  fixed  by  me. 

[Where  icitness  resides  in  another  county,  continue  from  *  above,]  the 
Hon.  ,  surrogate  of  the  county  of  ,  on  the  day  of 

,  ,  or  on  an  adjourned  day  to  be  fixed  by  him ;   and  that  a  certified 

copy   of   this   order   be   delivered    to    said   surrogate,    on    or    before   the 
day  of  ,         . 

It  is  further  ordered,  that  a  copy  of  this  order,  duly  certified  imder  the 
seal    of    this    court,    together    with    the    original    will    of    said  ,    be 

delivered  to  ,  the  proponent  of  said  will,  to  be  by  liim  transmitted 

to  the  surrogate  of  county,  for  use  upon  sucli  examination. 

[In  any  case  add:]  That  five  days'  written  notice  be  given  personally  to 
the  attorney  of  [adverse  and  other  interested  parties]   of  such  examination. 

That   all    proceedings   herein   stand   adjourned   till   the  day   of  ,. 

,  at         o'clock,         M. 

III.  Notice   of  Examination   of   Infirm    Witness. 
[Title.] 

Please   take   notice,   that   the   surrogate   of  county    will    take,    in 

this  matter,   the  examination  of  C.   D.    [one  of  the  subscribing   witne.s.ses   to> 

the   will    of   M.   X.,    late   of  ,    deceased],    at   the   residence    of    .said 

C.    D.,    Xo.  ,  street,    in     the    city    of  ,    county    of 

,  on  the  day  of  ,         .  at  o'clock  in  the  noon. 

[Signature.] 
To  [names  of  those  to  whom  notice  is  required].  Attorney    [etc.]. 


957  FoKMs.  JSu.  ii. 

IV.  Record  of  E, rami  nation. 
[Title.] 

Examination  of  C.  D.,  a  witness  sworn  and  examined  in  the  above-entitled 
special     proceed  in<^,     before     Hon.  ,     surr<i^at<-     of     the     county     of 

,  pursuant  to  an  order  of  tlie  surrof,'ate  of  the  county  of  , 

made  on  the  day  of  , 

£  Venue.  ] 

The  said  C.   D.,  beinf^  di'.ly  sworn   and  examined   by  ,  say.s    [ntate 

substance,  or  set  forth  question   and  ansirer]. 

[Sif/natur)'.] 

V.  Certificate  of  {Surrogate  to  Examination. 

I,  ,   surrogate   of   the   county    of  ,    hereby    certify,    tliat 

pursuant   to   tlie  annexed   order   by   Hon.  ,   surrcjjfate  of  the   county 

of  ,  directinj^  that  C   D.,  an  af^pd  and   infirm  witness,  be  e.xamiiiel 

before  me  on  the  day  of  ,  ,1   attended  on   said   day,  at   No. 

,  .street,   in   the    [cityj    of  .    the   residence   of   said 

C.  D.  [here  state  any  adjournment  or  other  proeeedinfi^,  and  there  took  tli  ■ 
foregoing  examination  of  said  witness,  and  that  I  reduced  the  examination 
to  writing,  as  above,  and  the  same  was  subscribed  by  .said  wit-iess  in'  my 
pre.sence  {or  state  other  authentication]. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand,  and  liave  aflixed 
the  seal  of  my  court,  the  day  of  ,  ,  in  attestation  thereof. 

[seal.]  *  ,  SurFogate. 

No.   14. 

[A7ite,  S  124.] 

Interrogatories  under  Commission  to  Take  Testimony  of  Foreign  VVit= 

ness,  on  Probate. 1 

[Title  of  Proceeding.] 

Intehkogatories  to  be  administered  respectively  to  W.  W.  and  O.  P..  of 
Paris,  France,  who  are  witnesses  to  be  examined  under  the  annexed  commis- 
•sion,  in  support  of  the  will  in  the  above-entitled  proceeding: 

First  interrogatory. —  What  is  your  name,  age,  and  occupation,  and  where 
■do  you  reside? 

Hecond  interrogatory. —  Were  you  acquainted  with  M.  X.,  late  of  tiie  city 
•of  New  York,  deceased? 

State  for  how  long  a  time  prior  to  her  decease  you  had  known  the  above- 
named  ]\I.  N.,  now  decea.sed? 

Third  interrogatory. —  Look  at  the  instrument  in  writing,  bearing  date 
the  day  of  ,  purporting  to  be,  and  offered  for  jirobate  as,  the  last 

will  and  testament  of  the  said  M.  N.,  deceased,  and  say  whether  or  not  you 
were  present  as  a  witness  at  the  time  of  the  execution  of  the  same?  Did  you 
see  the  said  'W.  N.  subscribe  her  name  to  the  said  instrument,  or  did  she 
make  such  subscription  in  your  presence,  or  did  she  acknowledge  or  (K'clare 
to  you  that  the  signature  "  M.  N.,"  at  the  foot  of  said  instrument,  was  her 
.signature  ? 

Fottrth  interrogator)/. —  Did  the  said  M.  X..  at  any  time,  ileelare  the  said 
instrument  so  subscribed  by  her  to  be  her  last  will  and  testament  ?  if  so. 
«tate  wlien  she  so  declared  it  to  be  her  last  will  and  testament,  and,  to  the 
best  of  your  recollection,  what  words  were  used  by  her  in  making  sueli 
•declaration;  also  state  at  what  place  said  instrument  was  executed? 

Fifth  interrogatory. —  State  if  vou  were  reqtiested  by  said  M.  N..  at  the 
time  of  the  above-mentioned  subscription  or  declaration,  to  sign  said  instru- 
ment as  subscribintr  witness,  and  if  vou  did  thereupon  sign  as  sucli  witness, 
^and  if  either  of  tlie  siirnntures  of  the  witnesses  to  said  in.strument  is  your 
signature;  and,  if  so,  specify  which  one? 


1  The  commission  is  in  the  form  and  tested  as  commissions  in  an  action.    The  affidavit  may 
1)6  adapted  from  Form  13,  ante,  mutatis  mutandis. 


1^0.  15.  ■      Forms.  958 

i^ixfh  interrogatory. —  Who  was  present  when  the  said  instrument  was 
deehued  by  M.  N.  to  be  her  last  will  and  testament,  and  to  whom  was  such 
last  declaration  made,  in  whose  presence  was  it  signed  by  her,  and  in  whose 
])resence  were  you  requested  to  sign,  and  in  whose  presence  did  you  sign,  as 
witness? 

Seventh  interrogatory. —  Did  you  see  the  other  subscribing  witness  to  the 
said  instriunent  sign  his  name;  and,  if  so,  state  his  name,  and  if  he  signed 
the  same  in  the  presence  of  said  M.  N.  and  yourself :  and  if  he  signed  the 
same,  as  witness,  at  the  request  of  the  said  M.  N.,  and  if  she  declared  to  him 
that  said  instrument  .was  her  last  will  and  testament? 

Eiyhih  interrogatory. —  Was  the  said  j\I.  N.  over  [twenty-one]  years  of  age 
at  the  time  of  executing  such  instrument;  was  the  said  M.  N.  of  sound 
mind,  memory,  and  understanding  at  the  time  of  executing  such  instrument ; 
was  she,  at  such  time,  imder  any  restraint  whatsoever;  and  was  she,  in  any 
respect,  incompetent  to  [devise]  real  estate? 

Ninth  interrogatory. —  Do  you  know  of  any  other  matter  or  thing  relative 
^o  the  execution  of  the  said  instrument  by  the  said  M.  N.,  or  to  the  condition 
of  the  mind  of  the  said  M.  N.,  at  the  time  of  such  execution?  answer  fully 
and  particularly. 

[Signature  and  address  of  attorney.] 

Waiver  of  Cross-Interrogatories. 

1.  S.  G.,  the  special  guardian  of  the  infant  H.  I.,  interested  in  the  probate 
of  the  last  will  and  testament  of  M.  N.,  deceased,  do  hereby  approve  of  the 
foregoing  interrogatories,  and  waive  my  right  to  send  out  cross-interrogatories.. 

[Signature  of  Special  Guardian.'] 
The  foregoing  interrogatories  are  allowed. 
[Date.]  [Signature  of]. 

Surrogate. 

No.   15. 

[Ante,  §  117.] 
Order  of  Reference  of  Questions  of  Fact,  etc.i 

At  a  Surrogate's  Court,  etc. 
[Title.] 

The  petition  of  A.  B.,  a  surety  in  the  official  bond  of  C.  D.,  general  guardian> 
of  E.  F.,  an  infant,  praying  for  the  removal  of  said  guardian,  on  the  ground 
that  he  is  incompetent  to  fulfill  his  trust,  having  been  presented  to  the  court,, 
and  a  citation  issued  to  said  guardian  having  been  duly  returned,  and  said 
guardian  having  filed  an  answer  denying  the  material  allegations  of  such 
petition. 

It  is  ordered.   1.  That  the  said  matter  be  referred  to  ,   who   is 

hereby  appointed  referee,  to  take  and  report  to  the  surrogate  the  evidence 
upon  the  facts  as  to  the  alleged  incompetency. 

2.  That  the  hearing  be  had  before  said  referee,  at  such  time  and  place,  in' 
the  city  of  ,  as  he  shall  appoint;  and  that  he  report  thereon  with 
all  convenient  speed. 

3.  That,  on  the  coming  in  of  said  report,  notice  is  to  be  given  to  the  parties 
that  have  appeared,  of  motion  to  be  made  before  the  surrogate  on  the  ques- 
tion of  confirming  such  report,  or  for  such  other  or  further  order  as  may  be 
proper. 

[Or,   instead   of  subds.  2  and  3,  insert:    2.   That   the    first  hearing  of  this 

matter,  before  said  referee,  take  place  at  his  office,  in  the  city  of  , 

on  the  day  of  next,  at  o'clock  in  the  noon,  and  the  said 

referee  bring  in  his  report   herein  before  the   surrogate,   on   the  day   of 

next,   at  o'clock   in  the  noon  -.    which   last-mentioned   day   i» 


1  For  FTms  relating  to  Exceptions,  Surrogates'  Decisions,  Requests  to  Find,  etc.,  see  Abbt 
New  Forms,  Nos.  50J-513,  533,  533. 


959  FoKMs.  Xo.  lO- 

lu'rol)y  appointed  for  tlio  lioarinfr  of  tlic  jjartics  lieifto  at  tlie  surrogates  ollice 
in  said  eity,  on  the  eonliniiation  of  tlie  report  of  said  referee,  without  further 
notice.] 

[Signature  of\, 

Surrof^ate. 
[fiamc,   on   consent.^ 
[Titled 

Upon  the  consent  of  the  attorneys  for  the  respective  parties  to  this  pro- 
ceeding, 

It  is  okdeueu,  by  tlie  said  surrogate,  that  the  evidence  liercin,  f)n  botli  si(h'< 
of  the  case,  he  taken  before  ,  as  referee,  liereby  a])i)ointeil  for  that 

purpose,  but  upon  the  condition  that  nil  questions  of  law  relating  to  the 
admission  or  exclusion  of  testimony  shall  be  reserved  for  decision  by  the 
surrogate  as  they  shall  arise;  that  either  party  shall  have  the  right  to 
require  the  examination  or  cross-examination  of  any  witness  to  be  liad  in 
the  presence  of  the  surrogate;  and  that  either  party  shall  be  at  liberty,  at 
any  time,  to  apply  to  the  surrogate,  on  notice,  for  a  modification  or  rescission 
of  this  order. 

[Signature  o/']. 

Surrogate. 

No.   i6. 

[Ayxte,  §  152."1 

Petition  for  Proof  of  Will. 

[Title.'] 

To  the  Surrogate's  Court  of  the  county  of  Now  York. 

The  Petition  of  T.  G.  S.  respectfully  shows: 

I.  That  A.  R.,  late  of  the  city  of  New  York,  departed  this  life  on  the 

day  of  ,  ,  leaving  a  last  will  and  testament,  dated  the  day  of 

[and   a    codicil    thereto,    dated    the  day    of  ,  ]^ 

which  is  signed  at  the  end  thereof  by  the  said  testator,  and  by  [naming  wit- 
ness'] as  subscribing  witnesses. 

II.  That  tiie  said  decedent  was,  at  or  immediately  previous  to  his  death,  a 
resident  of  the  city  and  county  of  New  York,  and  departed  this  life  in  said 
county.  [Or,  irherc  the  decedent  was  a  nonresident  of  the  State,  That  the 
decedent  was  not  a  resident  of  this  State,  but  di(>d  in  the  city  of  I?oston. 
leaving  personal  property  within  the  State  —  or,  which  has  since  his  death 
ODine  into  the  State,  and  remains  unadministered.]  [Where  decedent,  a  non- 
resident, died  without  the  State,  That  the  decedent  was  not  a  resident  of 
this  State,  and  died  without  the  State,  but  left  personal  property  in  the 
county  of  New  York  —  or,  left  personal  pro))erty  which  has.  since  his  death, 
come  into  the  county  of  New  York,  and  remains  unadministered.]  [ir/iccc 
nonresident  had  real  property  in  the  county,  That  the  decedent  was  not.  at 
the  time  of  his  death,  a  resident  of  this  Stat'.\  but  died  seiwd  of  real  properly 
to  which  the  said  will  relates  —  or,  whicli  is  subject  to  disposition.  ])ursuant 
to  the  statute,  for  the  payment  of  tlie  debts,  etc..  of  the  decedent — situated 
in  the  county  of  New  York;  aiul  that  no  petition  for  the  ]irobate  of  sai<l 
■will,  or  for  a  grant  of  letters  of  administration  of  the  ))ersonal  property  of 
the  decedent,  has  l)een  filed  in  any  surrogate's  court  of  this  State,  to  the 
best  of  your  petitioner's  knowledge,  information,  and  belief.] 

III.  That  said  will  relates  to  lioth  real  and  personal  property  [or,  to  real 
property  only  —  or,  to  personal  property  only];  and  that  the  value  of  the 
personal  pro])erty  does  not  exceed  dollars  [or,  >rherc  gratuitous  addi- 
tional }iuhlication   of  citation  is  desired,  two  thousand  dollars].* 

IV.  [If  the  u-ill  relates  exclusirely  to  real  estate,  here  set  forth  the  nanus 
and  places  of  residence  of  the  heirs  of  the  testator;  or  if,  upon  diligent  in- 
quiry, they  cannot  he  ascertained,  state  that  fact.  If  the  u-ill  relates 
e.relusirely  to  personal  estate,  state  the  same  facts  in  regard  to  the  niloir 
and  next  of  kin  of  the  testator.  If  the  will  relates  to  hoth  real  and  personal 
estate,  state  the  same  facts  in  regard  to  the  heirs,  widou-,  and  ne.rt  of  kin 
of  the  testator  as  for  example:]     That,  as  your  petitioner  is  informed  and 


A'u.  IG.  i^ouMS.  960 

believes,  the  following  persons  are  the  [widow  —  or,  husband  —  and]  only 
heirs-at-law  and  next  of  kin  of  the  said  decedent,  to  wit: 

L.  C.  R.,  widow,  residing  at  No. 

L.  R.,  a  son,  aged  se^^enteon  years.       )  residing    with    their    mother,  at    the 

E.  R.,  a  daughter,  aged  fifteen  years,  \  place  aforesaid. 

[Whei-e    there   is  no   widow   or   husband,    or   child:']    E.    R.,   the    mother   of 

said  testator,  residing  at  the  city  of  New  York,  J.  R.,  a  brother,  and  M.  R., 

a   sister   of   said  testator,   residing   at  ,   and   E.    L.    R.   residing   at 

,  a   daughter  of  B.  R.,   a  brother  of  the   testator,   who  died  before 

bim. 

[Where  name  of  a  person  interested  is  unknoivn:]  That  your  petitioner  is 
informed  and  believes,  that  G.  H.,  a  sister  of  the  testator,  removed  from  this 
State,  in  or  aboiit  the  year  1860,  to  the  State  of  Texas,  where  she  married 
and  afterward  died,  before  the  testator,  leaving  one  or  more  children.  But, 
after  diligent  inquiry,  your  petitioner  is  unable  to  ascertain  their  names,  or 
the  name  of  their  father,  or  his  or  their  residence,  or  whether  they,  or  either 
of  them,  be  dead  or  living. 

[Or  where  residence  cannot  be  ascertained :]  That  K.  R..  a  brother  of  said 
testator,  who  is  not  a  resident  of  this  State,  was  known  to  reside  in  the  city 
of  Chicago,  111.,  in  or  about  the  month  of  May,  1879.  Your  petitioner  is  in- 
formed and  believes,  that  a  letter  addressed  to  said  K.  R.  at  Chicago,  111., 
Avas  deposited  in  the  post-office  at  New  York  city,  and  was  shortly  there- 
after returned  through  the  post-office,  with  the  information  that  said  K.  R. 
could  not  be  found;  and  yovir  petitioner,  after  diligent  inquiry,  has  been 
unable  to  ascertain  his  present  residence. 

[Or  where  publication  is  sought:']  That  personal  service  of  a  citation  can- 
not with  due  diligence  be  made  upon  the  above-named  nonresidents  within 
the  State  of  New  York,  and  your  petitioner  prays  for  an  order  directing  the 
service  thereof  without  the  State,  or  by  publication,  pursuant  to  sections  2522 
and  2523  of  the  Code  of  Civil  Procedure. 

[Where  a  party  has  been  irithout  the  United  States  for  more  than  six 
months,  add:]  (i.  R.,  a  son  of  said  B.  R.,  a  resident  of  this  State,  who  has 
been  continuously  without  the  United  States  for  more  than  six  months  im- 
mediately prior  to  the  date  of  this  petition,  and  has  not  made  a  designation 
of  any  person  upon  whom  to  serve  a  summons  on  his  behalf,  as  provided  by 
section  438  of  the  Code  of  Civil  Procedure,  his  present  post-office  address  being 
care  of  Monroe  &  Co.,  Rue  Scribe,  Paris,  France. 

V.  [Where  the  facts  are  not  already  stated,  add:]  All  of  the  foregoing 
named  are  of  full  age  and  sound  mind  [except  as  follows:  That  said  C.  B.  is 
an  infant,  of  the  age  of  ,  residing  with  ,  his  mother,  at  the  address 
aforesaid,    and   has   no  general    guardian  —  or,   if   otheririse,   name   guardian, 

with  address,  and  state  how  appointed,  if  knou'n : — and  that  E.  B.  is  a 
lunatic,  for  whom  ,  of  ,  is  the  committee  —  stating  how  appointed, 

if  knoirn]. 

VI.  [It  is  usual  to  add:]  That  said  decedent  left  him  surviving  no  widow, 
Tior  any  child  or  children,  adopted  child  or  children:  the  issue  of  any  deceased 
■child  or  children,  or  the  issue  of  any  deceased  adopted  child  or  children;  or 
any  father  or  mother,  or  any  deceased  child's  husband  or  wife,  or  brother  or 
sister  of  the  half  or  the  whole  blood,  or  the  issue  of  any  deceased  brother  or 
sister,  or  any  deceased  brother's  wife  or  any  deceased  sister's  husband,  except 
as  al)ove  stated. 

VII.  [It  is  veil,  to  add  in  all  cases;]  That  no  petition  for  the  probate  of 
said  will,  or  for  letters  of  administration  on  said  estate,  has  been  heretofore 
filed  in  any  surrogate's  court  of  this  State. 

VIII.  That  your  petitioner  is  the  sole  executor  [and  trustee]  named  in  said 
will  [or,  one  of  the  executors  named,  etc. —  or.  a  legatee  named,  etc. —  or,  a 
creditor  of  the  said  testator  in  the  sum  of  $1,000,  upon  a  certain  promissory 
note  made  and  delivered  by  the  testator  to  the  petitioner,  on  the  day  of 

,  for  value]. 

IX.  [Where  interpretation  of  will  executed  in  this  Fitate  is  sought:]  That 
your  petitioner  is  advised  bv  counsel,  and  verily  believes,  that  the  true  inter- 
pretation and  legal  effect  of  the  [fourth  clause  of]  said  will  are  doubtful,  in 
that    [it   is  uncertain   upon  Avhat  contingency  the  trust   thereby  created  was 


961  i'oiais.  Xo.  17. 

intended  to  terminate  —  or,  it  is  questioned  wliether  tlie  said  clause  does  n<jt 
unlawfully  .suspend  the  absolute  ounersliij)  of  the  property  so  becjueathed  in 
trust,  c^f.J.  That  the  followinj,'  persons,  besides  those  above  named  [tin;  ii<j-; 
of  Lin,  etc.],  are  interested  in  the  detcrniination  of  the  im-anin^,  validity,  and 
le<;al  etl'eet  of  said  will,  to  wit:  [shite  mtincH  and  nxifh  nccs  of  liijiitnn,  not 
alridfli/  mentioned  as  neat  of  kin,  iridoir,  etc.;  or  state].  That  the  abcjvc- 
nanied  |  widow  —  or,  husband  —  and]  next  of  kin  are  the  only  persons  whu  arc 
interested  in  the  determination  of  the  meaniiif,',  validity,  and  Ic^mI  cllVct  of 
said  [elause  of  said]  will.    • 

WiiKHKFORE,  your  jjetitioner  prays,  tliat  the  said  last  will  aiul  testament 
may  be  proved,  and  letters  testamentary  frranted  thereon,  aecordinj^  to  law,  to 
the  executor  [or,  executors]  who  may  qualify  thereunder,  and  that  the  above- 
named  widow  [or,  husband],  heirs  and  nexl  of  kin  |or  cither]  of  said  deceased 
may  be  cited  to  attend  the  probate  thereof;  and  that,  upon  the  presentation 
of  this  petition,  tlie  surrogate  of  the  coiuity  of  New  York  may  make  such 
further  or  other  order,  in  relation  to  the  proof  of  said  will  or  the  service  of 
said  citation,  as  may  be  just  and  proper  [and  that  the  validity,  construction. 
an<l  lejfal  effect  of  the  aforesaid  disposition  of  personal  projierty  may  be  de- 
termined and  adjudged]. 

[Date.]  [Signature.] 

[ Venue] 

A.  B.,  being  dtily  sworn,  says  that  he  is  the  petitioner  [or  other  party] 
above  named,  tliat  he  has  read  the  foregoing  petition  for,  answer,  etc.],  sub- 
scribed by  him,  and  that  the  same  is  true,  to  his  own  knowledge,  except  as  to 
the  matters  therein  stated  to  be  allenfed  on  information  and  belief,  and  that, 
as  to  those  matters,  lie  believes  it  to  be  true. 

[Jurat.]  [Signature.] 

No.  17. 

Same;  Shorter  Form. 

[Title.] 

To  the  Surrogate's  Court  of  the  county  of  Kings: 

The  petition  of  P.  G.,  of  the  city  of  Brooklyn,  respectfully  shows  to  this 
court  that  he  is  an  executor  named  in  the  last  will  and  testament  of  L.  K., 
late  of  the  city  of  Brooklyn,  in  the  county  of  Kings,  deceased. 

That  the  said  deceased  was,  at  the  time  of  his  death,  a  resident  of  the 
county  of  Kings,  and  departed  this  life  in   said   county  on  the  ilay   of 

That  said  last  will  and  testament  relates  to  both  real  and  personal  estate, 
and  bears  date  the  day  of  ,  ,  and  was  signed  by  the  testator, 

and  A.  M.  and  L.  R.  as  subscribing  witnesses. 

That  said  deceased  left  him  surviving  a  [or,  no]  widow.  E.  E.,  who  resides 
at  the  town  of  W.,  comity  of  S.,  and  as  his  only  heirs-at-law  and  next  of 
kin  the  following  named  persons,  to  wit:    [naming  them]. 

And  your  ])etitioner  prays  that  the  said  instrument  above  described  be 
])roved  and  admitted  to  probate  as  a  valid  will  of  real  and  personal  estate, 
and  that  the  above-named  widow,  all  the  heirs-at-law  and  next  of  kin.  of  said 
testator,  be  cited  to  attend  the  probate  thereof:  that  the  surrogate,  on  the 
return  day  of  said  citation,  appoint  a  competent  and  responsible  person  to 
appear  as  special  guardian  for  the  above-named  infants,  and  that  letters  testa- 
lueiitary  l)e  granted  thereon  according  to  law. 

[Date]  [Signature.] 

[Verification.] 

Affidarif  as  to  Heirs  and  Legatees.^ 
[Title  and  Venue] 

C.  D.,  being  duly  sworn,  says: 

T.  That  he  is  executor  named  in  the  will  of  the  al)ove-named  decedent. 
TT.  That  the  above-named  decedent  died  on  the  day  of  ,  ,  at 

.  in  the  city  [or,  town]  of 


IThis  affidavit  is  made  necessary  by,  and  in  conformiiy  with,  section  238  of  chapter  906 
of  the  Laws  of  1896. 

61 


:N'os.  18,  lU. 


FOKMS. 


962: 


III.  That  the  estimated  value  of  the  real  property  in  this  State,  of  which 
said  decedent  died  seized,  is  dollars. 

IV.  That  the  estimated  value  of  the  personal  property  of  which  said  decedent 
died  possessed,  is  dollars. 

V.  That  the  names  of  the  heirs-at-law  of  said  decedent,  tlieir  places  of  resi- 
dence, and  relationship  to  the  decedent,  are  as  follows: 


Name. 


Relationship. 


VI.  That  the  following  is  a  full  and  correct  list  of  the  names  and  residences 
of  all  the  persons  and  bodies  who  are  in  any  way  entitled  to  any  legacy, 
devise,  interest,  or  estate  under  or  by  virtue  of  the  will  of  said  deceased,  or 
from  said  decedent,  together  with  the  nature,  value,  and  amount  of  such 
legacy,  devise,  interest,  or  estate. 


Name  of  legatee  or  devisee. 


Residence. 


Amount  or  value  of 
legacy. 


Value  of  devise. 


[Jurat.'] 


[Signature.] 


No.  i8. 


[Ante,  §  152.] 
Petition  for  Probate  where  Citation  is  not  Necessary. 

[As  in  A'o.  16,  to  the  asterisk,  and  then  continue :] 

IV.  That  the  said  decedent  left  him  surviving  no  widow  [or,  husband]  and 
no  heir-at-law  or  next  of  kin,  except  your  petitioner,  who  is  the  only  child 
of  said  decedent,  and  of  full  age,  and  the  sole  executor  named  in  said  will,  and 
is  the  only  person  interested  thereunder. 

V.  That  no  petition  for  the  probate  of  said  will  has  been  filed  in  anv  surro- 
gate's court  of  this  State. 

Wherefore,  your  petitioner  prays,  that  the  said  last  will  and  testament 
may  be  proved,  and  letters  testamentary  granted  thereon  according  to  law. 

[Signature.] 
[Verification.'] 


No.   19. 

[Ante,  §  242.] 
Petition  for  Proof  of  Nuncupative  Will. 

[After  alleging  jurisdictional  facts  as  in  No.  IG,  continue:]     That  on  the- 
day  of  ,         ,  the  said  decedent  was  a  mariner  in  actual  service, 

and  Avas  captain  of  the  brig  Osprey,  engaged  in  making  the  voyage  from  New 
York  to  Liverpool,  said  vessel  then  being  in  mid-ocean.  That  on  the  said  day 
the  decedent  was  seized  with  a  sudden  and  violent  sickness,  to  wit,  with  the 
disease  of  cholera,  and  being  then  in  immediate  danger  of  death,  and  having 
no  opportunity  to  make  a  written  will,  he  called  to  him  your  petitioner,  who 
was  the  mate  of  the  said  vessel,  and,  in  the  presence  of  J.  K.  and  L.  ^L,  sailors 
belonging  to  said  vessel,  addressed  him  substantially  in  the  following  words: 
"Upon  my  death  I  desire  tliat  you  act  as  mv  executor,  and  take  possession  of 
all  my  personal  estate,  and  divide  it,  one-half  to  my  wife  and  the  rest  to  my 


S63  FoKMS.  Xos.  20,  :il. 

tlaiiplitor."  That  thoroaftor  the  said  dfccdpnt  foiitimicd  to  fail  in  strength, 
and  died  two  days  thcreaftt-r,  on  the  day  of  ,  ,  before  the  vessel 

arrived  in  ])ort. 

[The  remainder  of  the  petition  should  be  as  in  Nos.  10  and  18  except  that, 
as  a  nuncupative  u-ill  can  extend  only  to  personalty,  it  is  never  necessary  to 
cite  the  hcirs-at-law.1 

No.   20. 

[Ante,   S   234.] 
Petition   for   Proof  of   Lost  or   Destroyed   Will. 

[The  same  as  \o.  lU,  except  that,  afl'r  paragraph  ^■lll.  «.s  there  given, 
insert  :} 

IX.  Tlial  tlio  said  will  was  made  by  the  said  testator,  on  or  about  the 

day  of  .  ,  and  [a  copy  of  said  \vill  is  hereunto  annexed,  marked  Exhibit 

A  —  or.  tlie  witnesses  to  said  will  were  J.  K.  and  L.  M.,  of  Brooklyn,  X.  Y., 
the  provisions  of  the  said  will  were  substantially  as  follows,  viz.,  etc.]. 

X.  That  the  aforesaid  will  of  the  said  testator  was  in  existence  at  and  for 
sonif  time  subsequent  to  his  death,  and  since  his  death  has  been  lost  or 
destroyed  by  accident  or  design  —  or.  That  the  said  will  was,  in  the  lifetime 
of  the  said  testator,  fraudulently  destroved  in  the  following  manner:  — 
\stnting  facts  making  a  prima  facie  case  of  fraudulent  destruction  in  the  life- 
time of  the  testator.'] 

Your  petitioner,  therefore,  prays  that  a  citation  may  issue  [etc.,  as  in  Xo.  Ifl, 
and  continue'],  and  [that  the  instrument  of  whioli  a  copy  is  hercTinto  annexed, 
marked  Exhibit  A.  may  be  established  as  the  last  will  and  testament  of  the 
said  A.  B.,  deceased- — or,  that  the  i)rovisions  of  the  last  will  and  testament  of 
the  said  A.  B.,  deceased,  may  be  established  and  declared  to  be  as  set  forth  in 
the  foregoing  petition]. 

[Verification.]  [Signature.'] 

No.   21. 

[Ante,  §  250.] 
Petition  for  Leave  to  File  for  Record  Exemplified  Copy  of  WilF. 

To  the  Surrogate  of  the  city  and  county  of  Xew  York : 

The  petition  of  E.  G..  residing  in  the  city  of  Xew  York,  State  of  X>w 
York,  respectfully  showeth.  that  your  j)etitioner  is  the  executor  [or,  legatee] 
named  in  the  last  will  and  testament  of  L.  R.,  deceased. 

That  said  deceased  was,  at  the  time  of  his  death,  a  resident  of  the  city  of 
Boston,  State  of  ^Massachusetts,  and  departed  this  life  in  the  said  city  of 
Boston,  on  the  day  of  .  ,  leaving  real   property,  or  an  interest 

in  real  property,  situated  within  this  county,  to  wit:  [naming  it  sprcificaUy], 
which  is  devised,  or  made  subject  to  a  power  of  disposition  by  the  said  will  of 
said  deceased. 

That  said  will  was  duly  executed  in  conformitv  with  the  laws  of  this  State. 

That    on    the  day   of  .  .the   said    will    of   said    deceased    was 

admitted  to  probate  within  the  State  where  the  decedent  so  resided  as  afore- 
said. 

That  said  will  is  filed  or  recorded  in  the  Inaming  office  where  will  is  filed], 
the  same  being  the  proper  office  as  prescribed  by  the  laws  of  said  State  of 
Massachusetts,  and  that  the  said  Avill,  with  the  proofs  and  the  records  thereof, 
reniains  in  said  court. 

That  your  petitioner  herewith  presents  a  copy  of  such  will  or  the  record 
thereof  and  of  the  proofs  or  the  record  thereof,  dutv  auflienticated  i  bv  the 
seal  of  the  court  or  officer  by  which  or  whom  such  will  was  a<lmitted  to 
probate,  or  haviii<r  the  custody  of  the  same  or  of  the  record  thereof,  and  the 
siirnature  of  a  judge  of  such  court,  or  the  signature  of  such  offieor.  and  of 
the   clerk   of  such   court  or  officer,   if  any:    and    further   authenticated   bv   a 


1  For  th?  proper  authentication  of  a  will  of  another  State,  see  L.  1888,  c.  495;  Co.  Civ.  Proc- 
S  2703. 


Ko.  22.  FoKMS.  9G-1: 

certificate  under  the  great  or  principal  seal  of  such  State  and  the  sif^naturc 
of  the  olhcer  who  has  the  custody  of  sucii  seal,  to  the  ellect  that  the  court 
or  olUcer  by  which  or  whom  such  will  was  aduiitted  to  probate  was  duly 
authorized  by  the  laws  of  such  State  to  admit  such  will  to  probate;  that 
tlie  will  and  records,  the  accompanyinf^  co])ies  of  which  are  so  authenticated, 
are  kept  pursuant  to  those  laws,  by  sucii  court  or  by  the  officers  who  authen- 
ticated such  copies ;  that  the  seal  of  such  court  or  officer  affixed  to  such  copies 
is  genuine,  and  that  the  officer  making  such  certificate  under  such  seal  of  such 
State  verily  believes  that  each  of  the  signatures  attesting  such  copies  is 
genuine. 

[If  no  proofs  are  on  file  with  the  tcill,  say:] 

Your  petitioner  herewith  presents  with  said 
copy  of  such  will,  or  of  the  record  thereof,  autlienticated  as  above  set  forth,  a 
certificate  that  no  proofs  or  statement  of  the  substance  of  proofs  of  such  will, 
are,  or  is  on  file,  or  recorded  in  such  office,  and  that  said  certificate  concerning 
proof  accompanying  the  copy  of  the  will  or  of  the  record  so  authenticated  is 
under  the  seal  of  the  court  or  officer  by  which  or  whom  such  will  was  admitted 
to  probate,  or  having  the  custody  of  such  will  or  record,  and  the  signature  of 
a  judge  or  the  clerk  of  such  court,  or  the  signature  of  such  officer,  authenticated 
by  a  certificate  under  the  great  or  principal  seal  of  such  State,  and  the 
signature  of  the  officer  having  the  custody  thereof,  to  the  effect  that  the  seal 
of  the  court  or  officer  affixed  to  such  certificate  concerning  proofs  is  genuine 
and  that  sucli  officer  making  such  certificate  under  such  seal  of  such  State 
verily  believes  that  the  signature  to  such  certificate  concerning  proofs  is 
genuine. 

That  no  previous  application  herein  has  been  heretofore  made  to  this  court. 

Your  petitioner  therefore  prays  that  a  decree  may  be  signed  by  the  sur- 
rogate of  this  court  directing  that  said  copies  be  filed  and  recorded  in  his 
office. 

[Date.]  [Signature.] 

No.    22. 

[Ante,  §  161.] 

Answer  to  Petition  for  Probate. i 

[Title.] 

The  undersigned  [or,  J.  K.],  one  of  the  next  of  kin  of  the  said  decedent, 
hereby  contests  tiie  validity  of  the  disposition  of  the  real  and  personal  estate 
of  the  said  decedent,  of  which  he  died  seized  and  possessed,  contained  in  a 
certain    paper   writing   bearing   date    the  day   of  ,    and   purporting 

to  be  his  last  will  and  testament,  presented  to  and  now  before  this  court, 
for  probate,  as  a  will  of  real  and  personal  estate  [and  also  calls  in  question 
the  construction  and  legal  effect  of  said  disposition].  And  for  answer  to  the 
petition  of  T.  C.  S.  for  the  probate  of  said  will,  he  avers  [upon  information 
and  belief]  as  follows,  to  wit:   [state  grounds  of  objections,  e.  g.] 

I.  That  the  said  paper  is  not  the  last  will  of  the  said  decedent,  and  that 
the  alleged  execution  thereof  was  not  his  free,  unconstrained,  or  voluntary  act. 

II.  That  neither  at  the  time  said  paper  purports  to  have  been  executed,  nor 
at  any  time  when  it  was  executed  (if  ever  executed),  was  he  of  sound  mind, 
memory,  and  understanding. 

III.  That  the  said  paper  was  not  subscribed,  published,  and  attested,  as  and 
for  his  last  will,  in  conformity  with  tlie  statute  in  such  case  made  and 
provided. 

IV.  Tliat  the  said  paper  is  invalid  and  void  as  a  testamentary  disposition 
of  the  decedent's  property  on  the  following,  among  other,  jjrounds,  to  wit: 

1.  That  A.  J.,  the  person  to  Avhom  tlie  said  alleged  will  purports  to  devise 
an  interest  in  real  property  in  this  State,  is  a  nonresident  alien,  not  authorized 
by  law  to  hold  real  estate. 

2.  That  there  was  not  then,  and  there  is  not  now,  living  any  person  of  the 
name  of  A.  J.,  or  entitled  to  that  name,  or  to  the  property  so  alleged  to  be 
devised  and  bequealhed. 

1  For  other  forms  of  objections,  sea  Taylor  Will  Case,  10  Abb.  Pr.  (N.  S.)  300. 


'JG5  Forms.  Xo.  23. 

3.  That  thoro  is  no  sunieiont  doscription  of  the  property  desif^iatcd  in  tlie 
said  paper  by  t!ie  term  "  tlie  family  silver,"'  and  that  such  designation  is  in- 
definite and  uncertain. 

4.  That  there  is  no  sullicient  description  of  the  property  designated  in  said 
]»aper  hy  the  lerm  "all  my  personal  j)roperty  now  in  a  storage-house  in 
Liverpool,  J'>ngland,"'  and   liiat  such  designation  is  indclinite  and  uncertain. 

o.  That  there  is,  by  such  paper,  no  suliicient  disposition  of  any  real  property 
of  the  decedent,  or  of  the  possession  thereof,  during  the  lifetime  and  until  the 
death  of  the  said  A.  J.,  aiid  no  person  is  named  as  entitled  thereto  meanwhile. 

G.  That  there  is  no  power  or  authority  therein  or  tliereliy  conferred  upon  the 
person  named  as  executor  thereof,  or  upon  any  other  person  or  persons,  to  col- 
lect or  receive  the  income  of  any  of  the  real  estate  of  the  decedent. 

7.  That  "The  Roman  t'atholic  Little  Sisters  of  the  Poor,"'  named  as  residu- 
ary legatee  and  devisee  therein,  is  not  a  corporate  body  or  legal  person  capable 
of  taking  real  or  personal   property  b\-  \\ill. 

8.  That  there  is  no  society,  corpoiation,  or  legal  person  in  esse,  having  the 
name  "  The  Roman  Catholic  Little  Sisters  of  the  Poor,"  or  properly  designated 
thereby. 

9.  That  the  real  ])roperty  of  the  decedent,  which  would  pass  to  the  Roman 
Catholic  Little  Sisters  of  the  Poor  by  the  said  residuary  devise  and  bequest,  if 
valid,  and  if  tiie  devisee  or  legatee  were  properly  distinguished  and  named  and 
authorized  to  take  by  devise,  is  of  greater  value  and  larger  income  than  it  is  or 
would  be  lawful  for  the  said  so-called  beneficiary  to  receive,  in  addition  to  its 
other  property,  under  the  laws  of  this  State. 

10.  That  "The  Roman  Catholic  Little  Sisters  of  the  Poor.""  or  the  corpora- 
tion or  beneficiary  intended  by  that  designation  (if  any  such  in  fact  exist),  was 
not,  at  the  time  of  the  death  of  the  decedent  or  at  any  time  prior  thereto,  au- 
thorized by  law  to  take  by  devise. 

11.  That  there  is  more  than  one  society  known  by  the  name  "The  Roman 
Catholic  Little  Sisters  of  the  Poor.""  and  the  said  paper  does  not  distinguish 
which  of  said  societies  is  intended  by  that  name. 

12.  That  the  devise  and  bequest  in  said  alleged  will  to  "The  Roman  Catholic 
Little  Sisters  of  the  Poor,"  is  invalid,  because  the  said  alleged  will  was  not 
made  and  executed  at  least  two  months  b^'fore  the  death  of  the  said  decedent. 

V.  That  the  paper  pro]ioiuide(l  for  probate  herein  is  invalid  as  a  last  will  and 
testament,  and  is  illegal  and  void. 

WiiKRKFORE.  the  above-named  .T.  K.  \or,  the  iindersigned],  contestant,  prays 
that  the  proceeding  may  be  dismissed  with  costs. 

[Dale.  \Sirinafiirc  of  contestant   or  atfornet/.'] 

[Verification,  if  required  by  the  siirrofiatc's  order  directing  written  answer.] 

No.  23. 

[Ante,  §  102.] 

Notice  of  Hearing  of  Objections  to  Probate. 

I.   Pet il ion. 
[Title] 

To  the  Surrogate's  Court  of  the  county  of  New  York: 

The  petition  of  E.   G.  respectfully  shows: 

First.  That  your  petitioner  is  the  executor  named  in  the  last  will  and  testa- 
ment of   L.   R.,  late  of  the  county  of  .  deceased. 

Second.  That  said  last  will  and  testament  was  duly  filed  for  probate,  and 
that  proceedings  for  the  jirobate  of  said  last  will  and  testament  have  been  begun 
by  >(nir   petitioner. 

Third.  That  the  proving  of  said  last  will  and  testament  has  been  contested  by 
J.  K.  upon  the  grounds  set  forth  in  his  answer  to  the  ]i»'tition  for  the  probate 
of  said  last   will  and  testament   of  the  deceased. 

Fourth.  That  all  persons  in  being  who  would  take  any  interest  in  any  ]irop- 
erty  under  the  provisions  of  said  last  will  and  testament,  and  the  executors 
named  therein  who  have  not  ajipeared  in  the  ])roceeding.  together  with  their 


Is^o.  24.  Forms.  96G 

addresses,  are,  as  deponent  is  informed  and  verily  believes,  as  follows:  [names 
and  addresses.] 

Fifth.  That  all  of  the  above  are  of  full  aj^e  and  sound  mind  except  [namiiui 
them],  who  are  infants  under  the  age  of  fourteen  years,  and  [xaming  them], 
who  are  infants  over  the  age  of  fourteen  years. 

Whehefoue,  an  order  is  prayed  for,  fixing  the  time  and  place  of  hearing  of 
the  issues  raised  herein  and  prescribing  tlie  manner  of  giving  notice  to  the 
above-named  persons  interested  in  the  said  hearing,  and  that  the  petitioner 
may  have  such  other  and  further  relief  as  to  this  court  may  seem  just. 

lVe7-ification.] 

II.  Order  Thereon. 
[Title.] 

On  reading  and  filing  the  petition  of  E.  G.,  the  executor  named  in  the  last 
will  and  testament  of  L.  R.,  late  of  the  county  of  ,  deceased,  by  which 

it  appears  that  objections  to  the  probate  of  said  will  have  been  filed  herein, 

Now,  on  motion  of  X.  Y.,  attorney  for  the  petitioner,  the  proponent  herein, 
it  is 

Ordered,  that  a  notice  of  hearing  of  the  objections  to  the  probate  of  said 
will  be  given  by  said  E.  G.,  petitioner,  to  the  person  or  persons  in  being,  who 
would  take  any  interest  in  any  property  under  the  provisions  of  said  will,  and 
to  the  executors  named  therein,  who  have  not  appeared  herein,  being  residents 
of  the  State  of  New  York,  by  service  personally  on  each  of  said  persons  of  a 
copy  of  the  notice  of  hearing  of  said  objections  to  the  probate  of  said  will  for 
the  day  of  ;  such  service  to  be  made  at  least  eight  days  before  the 

said  day  of  ;   and 

It  is  further  ordered,  that  service  of  said  notice  upon  such  of  said  persons 
as  are  not  residents  of  this  State  shall  be  made  in  the  manner  following:  by 
depositing  at  least  sixteen   (16)  days  before  the  said  day  of  ,         ,  in 

the  post-office  in  the  town  of  ,  coimty  of  ,  a  copy  of  said  notice, 

contained  in  a  securely-closed,  post-paid  wrapper,  directed  to  each  of  the  per- 
sons named  in  said  petition  respectively,  at  the  places  therein  designated  as 
their  addresses. 

,  Surrogate. 

III.  Notice  of  Hearing. 
[Title.] 

Please  take  notice,  that  the  issues,  raised  by  the  answer  filed  herein,  will 
be  brought  on  for  a  hearing  before  the  surrogate  of  the  county  of  ,  at 

the  county  courthouse  in  the  town  of  ,  on  the  day  of  ,         ,  at 

10:. 30  o'clock  in  the  forenoon  of  that  day,  or  as  soon  thereafter  as  counsel  can 
be  heard,  pursuant  to  an  order  of  Hon.  ,  the  surrogate  of  the  county  of 

,  dated  the  day  of 

[Dated.]  [Signature  of  attorney.] 

No.  24. 

[Ante,  §  154a.] 

Petition  and  Order  for  Leave  to  Intervene  on  Probate. 

[Title.] 

To  Hon.  ,  Surrogate  of  the  county  of  New  York   [or,  to  the  Surrogate's 

Court  of  the  county  of  New  York]  : 

The  petition  of  A.  B.  respectfully  shows: 

I.  That  on  the  day  of  ,  ,  a  petition,  to  prove  the  last  will 
and  testament  of  CD.,  was  duly  filed  in  the  office  of  the  surrogate  of  the 
county  of  New  York,  and  proceedings  for  the  proof  of  such  will  are  now  pend- 
ing before  such  surrogate. 

II.  That  your  petitioner  is  [a  legatee  named  in  said  will  —  or,  a  creditor  of 
such  deceased,  stating  the  nature  and  amount  of  the  debt  and  how  it  arose], 
and  is  interested  in  the  probate  of  said  will. 


X)G7  Forms.  Xo-;.  2^>--2l. 

Your  petitioner,  therefore,  prays  [that  the  said  will  may  be  i)rovc(i,  an<l| 
that  he  may  he  allowed  to  intervene  in  said  proceedings,  in  order  to  protect  his 
interests  therein. 

[Date.]  [Sig)i(iture.] 

[Verification.] 

[The  order  granting  leave  may  he  as  follows:]  On  reading,'  and  tilin;,'  the 
verified  petition  of  A.  15.,  from  which  it  apj)ears  that  tlie  said  petitioner  therein 
named  is  interested  in  the  proof  of  the  will  of  C.  D.,  deceased,  pr<)cecdin;;s  fur 
which  are  now  pendinj,'  in  this  court,  and  tiiat  the  said  petitioner  d«-sires  to  in- 
tervene in  such  proceedinjis  to  j)rotect  his  interest  therein;  now,  after  hearing 
the  counsel  of  the  petitioner  and  of  the  proponent  respectively, 

ORDKKEn,  that  the  said  A.  B.  have  leave  to  appear  in  the  said  proceedings, 
with  the  same  rights  and  privileges  as  if  he  had  been  named  in  the  citation 
herein. 

No.  25. 

[Ante,  §  1G5.] 

Notice  Requiring  Examination  of  Witnesses. 

[Title.] 

Please  take  notice,  that  the  undersigned,  who  contests  tlie  probate  of  the 
alleged  will  of  said  decedent,  requires  tiie  examination  of  all  the  subscribing 
witnesses  to  said  alleged  will  [or,  of  all  the  witnesses  to  said  will,  subscril)ing 
witnesses,  or  otherwise  —  and  of  any  other  witness  whose  testimony  the  surro- 
gate of  this  county  is  satisfied  may  be  material]. 

[Date.]  ['Signature  and  address.] 

No.   26. 

[Ante,  §  IGO.] 

Order  that  Testimony  on  Probate  be  Taken  by  Clerk. 

ITiile.] 

By  virtue  of  the  authority  vested  in  this  court  and  in  the  surrogate  of  this 
city  and  county,  by  chapter  701  of  the  act  of  the  Legislattire  of  the  State  of 
Xew  York,  passed  Jiuie  25,  1887,  entitled  ''  An  Act  to  amend  section  '2.)4l)  of 
the  Code  of  Civil  Procedure."  it  is  hereby 

Ordered,  that  the  testimony  in  the  above-entitled  proceeding  now  pending 
in  this  court,  being  a  special  proceeding  for  the  probate  of  a  will,  be  taken 
by  B.  T.,  assistant  to  the  surrogate,  he  to  report  the  same  to  this  court  for  its 
■consideration. 

[Siguaturr], 

Surrogate. 
No.  27. 

[Ante,  §  165.] 
Depositions  to  Prove  Will. 

I.  Examination   of  Huhscrihing  Witness. 
[Title.] 

Examination  of  witnesses,  sworn  and  examined  in  the  above-entitled  matter. 

[Venue.] 

E.  S.,  of  New  York  city,  being  duly  sworn  as  a  witness  in  the  above-entitled 
matter,  and  examined  on  behalf  of  the  projwnent  to  prove  said  will,  says: 
I  was  well  acquainted  with  J.  T..  the  said  testator,  and  had  known  him  for 
more  than  six  years  before  his  death.  The  subscription  of  the  decedents  nam'* 
to  the  instrument  now  shown  to  me  and  ofTered  for  jirobate  as  his  last  will  and 
testament,  and  bearing  date  the  day  of  ,  ,  was  made  by  the  d  -cedent 
flt  150  Bond  street,  in  the  city  of  Xew  York,  in  the  presence  of  mvself  an  1 
P.  T..  the  other  subscribing  witness.  At  the  time  of  sucli  sub-i-riot  i<ii.  the 
said  decedent  declared  the  said  instrument  so  stibscribcd  by  him  to  be  his  la*t 


Xo.  27.  FoKMs.  968 

^vill  and  testament:  and  I  thereupon  signed  my  name  as  a  witness  at  the  end 
of  said  instrument,  at  the  request  of  said  decedent,  and  in  his  presence  [and 
in  the  presence  of  said  P.  T.J.  I  also  saw  said  P.  T.,  the  other  attesting  wit- 
ness, sign  liis  name  as  a  witness  at  tiie  end  of  said  will  and  know  that  he  did 
so  at  the  request  of  said  decedent,  and  in  his  presence.  The  said  decedent,  at 
tlie  time  of  so  executing  said  instrument,  was  upwards  of  the  age  of  [twenty- 
iirie]  years,  and  of  sound  mind,  memory,  and  understanding,  and  not  under  any 
restraint  or  in  any  respect  incompetent  to  make  a  will. 

[Jurat.]  IHignature.] 

II.  Examination  as  to  Custod]/  of    Will. 

[Title  and  Venue.] 

A.  B.  and  C.  D.,  being  duly  and  severally  sworn  and  examined  before  , 

surrogate  of  the  county  of  ,  say: 

I.  The  said  A.  B.,  for  himself,  says  that  he  is  an  attorney-at-law,  having  an 
office  at  .  street,  in  the  city  of  New  York,  and  that,  at  the  request  of  J.  K., 
now  deceased,  he  drafted  and  caused  to  be  prepared  the  instrument  in  Avritinu: 
now  produced  and  shown  him  dated  ,  ,  purporting  to  be  the  last  will  and 
testament  of  J.  K.,  deceased :  and  that  he  was  present  at  the  execution  of  tlie 
same,  which  took  place  at  his  office,  ,  aforesaid,  on  the  day  of  the  date 
of  said  instrument.  That  immediately  upon  the  execution  of  the  same,  the 
deceased  J.  K.  delivered  it  to  him  for  safe-keeping,  and  he  thereupon  placed 
the  same  in  the  safe  in  his  said  office,  where  it  remained  until  tlie  day  of 

,         ,  when  he  took  it  thence  and  delivered  it  personally  to  C.  D.,  one 
of  the  executors  named  therein. 

II.  The  said  C.  D.,  for  himself,  says  that  he  personally  received  the  said  in- 
strument from  A.  B.,  the  person  herein  named,  on  the  day  of  ,  ,  as 
above  stated;  that  the  same  remained  in  his  custody  from  that  time  until  the 

day  of  ,       ,  when  he  brought  the  same  to  the  office  of  the  surrogate 

of  the  county  of  New  York,  where  he  deposited  the  same  for  probate. 

III.  The  said  A.  B.  and  C.  D.  further  say.  that  whilst  the  said  instrument 
remained  in  their  respective  custodies,  the  same  was  in  no  respect  altered  or 
changed. 

[Jurat.l  [Signature.] 

III.  Examination  as  to  Hatiduriting  of  Testator. 
[Title  and  Venue.] 

A.  R.,  of  Xew  York  city,  being  duly  sworn  as  a  witness  in  the  above-entitled 
matter,  and  examined  on  behalf  of  the  petitioner  to  ^jrove  said  will,  says,  that 
he  was  well  acquainted  with  J.  T.,  late  of  the  said  city  of  Xew  York,  and  witli 
his  manner  and  style  of  handwriting,  having  often  seen  him  write,  and  that 
he  verily  believes  that  the  signature  of  the  said  J.  T.,  subscribed  as  testator  to 
the  instrument  in  writing  now  produced  and  shoMTi  to  deponent,  purporting  to 
be  the  last  Avill  and  testament  of  said  deceased,  bearintr  date  the  day  of 

.  is  the  proper  signature  and  handwriting  of  said  testator. 

[Jurat.]  [Signature.] 

IV.  Examination  as  to  Handirriting  of  Attesting  Witnesses.! 
[Title  and  Venue.] 

E.  D.,  being  duly  sworn  as  a  witness  in  the  above-entitled  matter,  and  ex- 
amined on  behalf  of  the  proponent  of  said  will,  says: 

That  he  was  well  acquainted  with  E.  S.,  late  of  the  city  of  Xew  York,  and 
■with  his  manner  and  style  of  handwriting,  having  often  seen  him  write,  and 
that  he  verily  believes  that  the  signature  purporting  to  be  his,  subscribed  as  a 
Avitness  to  the  instrument  in  writins  now  produced  and  shown  to  deponent, 
purporting  to  be  the  last  will  and  testament  of  E.  S.,  deceased,  bearini?  dnto- 
the  dav  of  ,  ,   is   the   proper   signature  and   handwritinsr   of   said 

E.  S.  " 

[Jurat.]  [Signature.] 

1  As  to  when  proof  of  handwriting  of  witness  is  competent,  see  ante.  §  169. 


969  Forms.  Xos.  28,  21). 

No.  28. 

[Ante,  §   150.] 

Consent  and   Report  of  Special  Guardian. 

[Title] 

I,  L.  R.,  counselcr-at-la\v,  lieichy  consent  to  Ito  appointed  by  the  surrogate 
of  tlie  city  and  county  of  New  York  tlie  s])ecial  j,Miardian  of  [nnniinfi  him  or 
them],  infant  [or,  infants']  for  tiie  sole  purpose  of  appearinfr  for  and  takinj; 
care  of  his  [or,  tlieir]  interests'  in  tlie  above-entitled  matter,  and  I  hereby  state 
that  I  have  no  interest  in  the  proceedinfrs  adverse  to  that  of  said  infant  [or^ 
infants],  and  am  not  connected  in  business  witli  the  attorney  or  counsel  of  any 
party  hereto. 

Dated,  New  York,  .  [Hignuture.] 

[Acknowledgment  as  of  a  deed.] 

[Report.] 
[Title  and  Tcnue.] 

L.  R.,  being  duly  sworn,  says:  that  he  is  a  counselor-at-law:  that  since  his. 
appointment  as  special  guardian  herein,  he  has,  to  the  best  of  his  ability, 
made  iiimsclf  aciiuainted  with  the  rights  of  his  ward  [or,  wards],  and  that  he 
has  taken  all  the  steps  necessary  for  the  ])rotection  of  such  rights,  to  the  best 
of  his  knowledge,  and,  as  he  believes,  that  he  has  examined  into  tlie  circum- 
stances of  the  case,  the  instrument  offered  for  probate,  the  ]ietition  and  other 
])apers  herein,  that  he  has  attended  on  the  return  of  the  citation  and  examined 
the  testimony  given  by  the  subscribing  witnesses  [naming  them],  and  that  he 
has  found  no  objections  to  the  probate  of  said  instrument,  and  that  it  appears 
to  be  for  the  best  interest  of  his  ward  [or,  wards],  that  the  same  should  be  ad- 
mitted to  probate. 

[Jurat,]  [Signature.] 

Special  guardian. 
No.  29. 

[Ante,  §  243.] 

Decree  Granting  or  Refusing  Probate. 

[Title.] 

Satisfactory  proof  having  been  made  of  the  due  service  of  the  citation  here- 
tofore issued  in  this  matter,  requiring  the  proper  parties  to  be  and  a])])ear  be- 
fore the  surrogate  of  the  county  of  Orange,  on  the  day  of  ,  to  attend 
the  probate  of  the  last  will  and  testament  of  A.  li..  late  of  the  town  of  Goshen,, 
in  the  county  of  Orange,  deceased,  bearing  date  the  day  of  ,  ;  and 
C.  D.,  one  of  the  executors  named  in  said  will,  the  petitioner  herein,  having- 
appeared  in  person,  and  by  E.  F.,  his  attorney,  in  support  of  the  proof  of  the 
same:  and  ^I.  X.,  the  widow  of  the  said  deceased,  having  ai)pear('d  in  ])er.son. 
and  by  W.  M..  her  attorney,  and  filed  an  answer  in  opposition  thereto  [or,  an<I 
no  objections  liaving  been  made  thereto]  :  and  G.  H.,  the  special  guardian  duly 
appointed  of  J.  K.  and  L.  M.,  minors,  two  of  the  heirs  and  next  of  kin  of  said 
deceased,  having  appeared  for  said  minors,  and  no  other  jiarties  or  person* 
having  appeared  herein;  *  [And  A.  J.,  a  legatee  and  beneficiary  under  said 
'will,  having  appeared  by  his  attorney,  J.  J.  T..  in  ])ursuance  of  an  order  of  this 
court  ])ermitting  him  to  intervene  and  appear  herein]. 

And  witnesses  having  been  examined  and  iiroofs  takcji  touching  the  facts 
and  circTunstances  attending  the  execution  thereof,  and  the  com])etency  of  th".-' 
said  A.  V,.  to  execute  the  same,  as  and  for  liis  last  will  and  testament:  and  the 
said  surrogate  having  licnrd  the  ]iroofs  and  allegations  of  the  parties  and  ma- 
ture deliberation  being. had  thereon,  and  the  matter  having  been  adjourned  to 
this  day: 

It  is  AD.rrDGED:  That  the  said  instrument  in  writing,  purporting  to  be  the 
last  will  and  testament  of  the  said  A.  B..  deceased,  was  [properly  executed  and 
is  genuine  and  valid.  That  the  said  A.  T?..  at  tlie  time  of  the  execution  of  the 
said  instrument,  Avas  in  all  respects  competent  to  execute  the  same,  and  was 


Xos.  30, 31.  Forms.  970 

not  under  restraint  or  undue  influence.  And  that  the  said  instrument  be,  and 
the  same  hereby  is,  admitted  to  probate,  and  established  as  a  will  of  real  or 
personal  estate,  that  the  same  be  recorded,  and  that  letters  testamentary  issue 
to  the  executor  in  said  will  named  on  his  taking  the  oath  required  by  statute  — 
or,  was  not  executed  and  attested  in  the  manner  prescribed  by  law  tor  the  ex- 
ecution and  attestation  of  last  wills  and  testaments;  and  that  the  said  A.  B., 
at  the  time  of  the  execution  of  the  said  instrument,  was  not  competent  to  exe- 
cute the  same;  and  that  the  execution  thereof  by  him  was  procured  while  he 
was  under  restraint  and  undue  influence,  and  that  the  said  instrument  in  writ- 
ing is  null  and  void  as  or  for  the  last  will  and  testament  of  the  said  A.  B., 
deceased] . 

[Where  probate  is  granted  and  eonstruetion  is  asked,  add:  And  on  motion 
of  J.  J.  T.,  counsel  for  said  A.  J.  (intervening  legatee),  it  is  further  adjudged 
that  the  true  construction  and  legal  eff"ect  of  the  following  paragraph  or  clause 
of  said  will,  to  wit:  — state  the  paragraph, —  is  to  create  a  valid  express  trust 
in  the  executor  as  trustee,  who  is  to  receive  and  pay  over  the  rents  and  prcTits 
and  income  of  the  decedent's  estate  (other  than  that  otherwise  devised  or  be- 
■queathed )  to  said  A.  J.,  who  is  entitled  to  receive  the  same  as  a  beneficiary, 
during  his  life]. 

And  it  is  hereby  further  ordered,  adjudged,  and  decreed,  that  the  objec- 
tions to  the  probate  not  hereinbefore  disposed  of,  be  and  the  same  are  hereby 
dismissed  as  unproven  and  unsustained. 

And  it  is  further  ordered,  that  the  surrogate's  charges,  and  the  costs  of 
the  respective  parties  who  have  appeared  herein,  be  paid  out  of  the  estate  of 
«aid  deceased. 

[Signature  of  surrogate.] 

No.  30. 

[Ante,  §  243.] 

Decree,  where  there  is  no  Contest;  Common  Form. 

ITitle.] 

The  citation  in  this  matter  having  been  duly  issued,  served,  and  returned 
[or,  it  appearing  to  the  court,  by  the  petition  of  A.  B.,  the  proponent,  that  the 
said  A.  B.  is  the  sole  executor  named  in  the  will  prooounded,  and  is  the  only 
heir-at-law  of,  and  next  of  kin  to,  the  said  decedent,  and  that  there  is  no 
widow  —  or,  husband,  e^c],  such  proceedings  were  thereupon  had  that  the 
proofs  were  duly  taken;  and  the  allegations  of  the  parties  appearing  having 
been  heard,  and  the  surrogate  having  inquired  partictilarly  into  all  the  facts 
and  circumstances,  and  being  satisfied  of  the  genuineness  of  the  will  and  the 
validity  of  its  execution,  and  the  competency  of  the  testator;  and  the  probate 
of  said  will  not  having  been  contested: 

It  is  adjudged,  that  the  instrtiment  oflFered  for  probate  in  this  matter  is 
the  last  will  and  testament  of  the  said  testator,  and,  as  such,  is  valid  as  a  will 
of  [real  and]  personal  property,  and  the  same  is  hereby  admitted  to  probate  as 
a  will  of  [real  and]  personal  property,  and  thnt  letters  testamentary  be  issued 
thereon  to  the  executor  A.  B.,  who  may  qualify  thereunder. 

[ISignature  of  .surrogate.'] 

No.  31. 

[Ayxte,  §  234.] 

Decree  Establishing  Lost  or  Destroyed  Will. 

[As  in  Form  29  to  the  asterisk,  but  inserting  before  the  uord  paper  the 
words  a  lost  or  destroyed;  and,  it  may  be,  stating  approximate  date;  and  con- 
tinuing: and  no  instrument  in  writing,  purporting  to  be  the  last  will  and  testa- 
ment of  M.  N.,  deceased,  having  been  i)ro(luoed,  and  after  hearing  the  allega- 
tions and  proofs  of  the  parties,  and  dtie  deliberation  being  thereon  had,  the 
surrogate  having  inquired  particularly  into  all  the  facts  and  circimistances, 
and  being  satisfied  of  the  genuineness  of  the  said  lost  or  destroyed  will,  and  of 
the  validity  of  its  execution,  and  of  its  loss,  and  that  it  was  in  existence  at 
the  time  of  the  testator's  death  [or,  and  that  it  was  fraudulently  destroyed  in 


971  Forms.  Xos.  32,  33. 

the  testator's  lifetime],  and  its  provisions  having  l)een  clearly  and  distinctly 
pruved  to  the  satislaction  of  the  .surn^j^ate,  by  at  least  two  credible  witnesses 
lor,  one  credible  witness,  and  a  correct  copy  or  draft] :  Now,  on  motion  of 
A.  T.,  attorney  and  counsel  for  the  said  A.  B., 

It  is  AUJlDGKU,  that  M.  X.  duly  made  and  executed  his  last  will  and  tes- 
tament in  the  year  ,  and  tliat  sucli  will  contained  the  following  provi- 
sions [stating  them    and  conclude  as  in  previous  forms]. 

No.  32. 

[Ante,   §    •24t).] 

Certificate  of  Probate. 

Surrogate's  Court,  County  of  New  York : 

Be  it  remembered,  that  in  pursuance  of  section  2G29  of  the  Code  of  Civil 
Procedure,  I  hereby  certify  that  on  the  day  of  ,         ,  the  last  wilt 

and  testament  [with  the  codicil  thereto  attached]  of  T.  G.  S.,  deceased,  being 
the  foregoing  written  instrument,  was  upon  due  proof  duly  admitted  to  pro- 
bate by  tlie  surrogate's  court  of  the  county  of  New  York,  and  by  the  surro- 
gate of  said  county,  as  and  for  the  last  will  and  testament  of  said  deceased, 
and  as  a  will  valid  to  pass  [real  and  personal]  property.  Said  last  will  and 
testament  and    proofs   are    recorded    in   the   office    of   said   surrogate    in 

Liber  of  Wills,  page 

In  Te-stimoxy  Whereof,  I  have  hereunto  subscribed  my  name  and  affixed 
the  seal  of  ofrlce  of  the  surrogate  of  said  county,  this  day  of  ,  one 

ihousand  nine  hundred  and 

[^ifjnature.] 
Clerk  of  the  Surrogate's  Court. 

No.   33- 

[Ante,  §  281.] 

Revoking  Probate  within  One  Year. 

I.   Petition. 
ITitle.] 
To  the  Surrogate's  Court  of  county: 

The  petition  of  H.  ^I.,  of  ,  in  the  State  of  ,  respectfully  shows, 

iis  follows: 

Y'our  petilioner  allegesi   [upon  his  information  and  belief]  : 

I.  That  a  paper  writing,  bearing  date  the  day  of  ,  .  pur- 
porting to  be  the  last  will  and  testament  of  J.  M..  deceased,  and  appointing 
<G.  J.  executor  thereof,  was  duly  admitted  to  probate  by  the  surrogate  of  the 

county  of  ,  on  the  day  of  ,         ,  as  a  will  of  personal  j>rop- 

■erty. 

II.  That  the  said  ])aper  writing  is  not  the  last  will  and  testament  of  the 
said  J.  ]\I.,  deceased. 

III.  That  the  said  J.  M.,  deceased,  was  not,  at  the  time  of  the  making  and 
subscribing,  or  of  the  acknowledging  by  him,  the  said  J.  M.,  of  the  said  paper 
writing  ])urporting  to  be  his  last  will  and  te.stament,  of  sound  mind  or  memory, 
•or  in  any  resjiect  capable  of  making  a  will. 

IV.  That  the  said  J.  M..  deceased,  did  not,  at  the  time  of  making  the  sub- 
scription at  the  end  of  said  alleged  will,  or  at  the  time  of  acknowledging  the 
same  subscription  to  have  been  mnde  by  him  to  the  attesting  witnesses  to  the 
said  paper  writing,  declare  the  said  paper  writing  to  be  the  last  will  and  tes- 
tament of  him,  the  said  J.  M. 


1  For  othe'-  allegatiDns  against  validity  of  will,  see  No.  22  ante.  Where  probate  was 
•granted  by  default  or  in  consequence  of  a  mistake,  or  where  it  was  imprope  ly  obtained 
\ipon  a  false  sugEestion  of  fact,  "  ithout  notice  to  the  pf.rty  entitled  to  administration,  or 
ripon  a  fraudulent  concpalment  of  ihe  truth  with  respect  to  a  matTial  fact,  revocation  may 
be  had  bv  motion  on  atfldavit,  instead  of  by  petition.    See  ante,  §  276. 


No.  33.  Foiais.  •  972 

V.  That  the  attesting  Avitnesses  tu  said  alleged  will  did  not,  nor  did  either 
of  them,  sign  his  name  as  a  witness  at  the  end  of  said  alleged  will,  at  the  re- 
quest of  tlie  said  J.  M. 

\'I.  That  the  said  paper  writing,  purporting  to  be  such  last  will  and  testa- 
ment, was  obtained,  and  the  execution  thcreot  by  said  J.  M.  procured,  by 
fraud  and  circumvention,  and  undue  inllucnce  jjracticed  against  and  upon  the 
said  J.  }kl.  by  K.  J.,  M.  J.,  I.  J.,  and  CI.  J.,  or  some  one  of  them,  or  some  other 
person  or  persons  unknown  to  the  subscriber. 

VII.  That  the  said  paper  writing  was  not  freely  and  voluntarily  executed 
or  made  as  his  last  will  and  testament,  by  said  J.  M.,  deceased,  but  that  the 
subscription  thereto,  and  publication  thereof,  by  him,  the  said  J.  M.,  were  pro- 
cured by  fraud  and  coercion  exercised  upon  him,  the  said  J.  M.,  deceased,  by 
the  said  R.,  M.,  I.,  and  G.,  or  some  one  of  them,  or  some  other  person  or  per- 
sons to  the  subscriber  unknown. 

VIII.  That  the  said  paper  Avriting  was  not  duly  and  sufficiently  proved  be- 
fore the  said  J.  C,  as  such  surrogate,  Avhen  so  admitted  to  probate  as  aforesaid 
and  that  the  proofs  taken  at  the  said  surrogate's  court,  on  such  admission 
thereof  to  probate,  did  not  and  do  not  show  or  establish  that  the  said  J.  M., 
deceased,  was  of  sound  mind  or  memory  when  the  said  alleged  will  was  made, 
or  that  he  was  free  from  restraint  Avhen  he  made  the  same,  or  that  the  same 
alleged  will  was  subscribed  by  the  said  J.  M.,  or  declared  by  him  to  be  his  last 
will  and  testament,  in  the  manner  required  by  the  statute  in  that  behalf,  or 
that  the  same  was  duly  attested  as  required  by  said  statute. 

IX.  Your  petitioner  further  alleges,  that  [the  said  G.  J.,  named  as  executor 
in  said  will,  has  taken  upon  himself  the  execution  thereof,  and  letters  testa- 
mentary have  been  duly  issued  to  him  in  accordance  therewith  —  or,  G.  B.  has 
been  duly  appointed  administrator  witli  the  will  annexed  of  the  said  J.  ^VI.. 
and  letters  of  administration  issued  to  him],  and  such  letters  are  now  in  full 
force  and  effect. 

X.  That  the  only  legatees  named  in  the  said  will  are  [E.  F.  and  L.  ]\I.,  both 
of  whom  are  now  alive  and  of  full  age,  and  residing  at  Xew  York  city,  in  this 
State  —  or,  E.  F.,  who  is  a  minor,  and  resides  at  137  Hoyt  street,  in  Brooklyn, 
Kings  county,  and  State  of  X^ew  York,  with  B.  F.,  who  is  his  general  guard- 
ian; and  L.  M.,  who  has  died  since  the  said  will  was  admitted  to  probate,  and 
of  whose  estate  J.  K.,  residing  at  Yonkers.  in  Westchester  county,  in  this 
State,  has  been  duly  apjjointed  execvitor  by  the  surrogate  of  said  county,  by 
letters  bearing  date  the  day  of  ,  .  which  letters  are  now  in  full 
force  and  effect], 

XI.  Your  petitioner  further  alleges,  that  he  is  the  son  of  the  said  J.  M.,  de- 
ceased, and  one  of  his  next  of  kin  [or.  that  he  is  a  person  interested  in  the 
estate  of  the  said  —  etc.,  describing  hotel. 

Wherefore,  your  petitioner  prays  for  a  decree  revoking  said  probate-,  and 
for  such  other  and  further  relief  as  may  be  just;  and  that  the  said  executor 
[or,  administrator  with  the  will  annexed],  and  all  of  the  devisees  and  legatees 
named  in  said  alleged  will,  and  all  other  persons  who  are  parties  to  the  pro- 
ceeding in  which  said  probate  was  granted,  be  cited  to  *  show  cause  wliy  said 
probate  should  not  be  revoked ;  *  and  why  your  petitioner  should  not  have 
such  other  and  further  relief  as  may  be  just. 

[Date.']  [Signature.] 

[Verification.'] 

[Citation:  insert  in  general  Form  {see  No.  5)  the  words  between  the  as- 
terisks in  above  Form.] 

II.  Decree  Revoking  or  Confirming  Probate. 
[Title] 

A  verified  petition  containing  allegations  against  the  validity  of  the  last 
will  and  testament  of  J.  M.,  late  of  the  city  of  ,  deceased,  and  against 

the  competency  of  the  proof  thereof,  having  been  presented  to  the  surrogate's 
court  of  the  county  of  ,  on  the  day  of  ,         ,  by  H.  'M.    [one 

of  the  next  of  kin  of  said  J.  "M.,  deceased,  and  a  citation  having  been  there- 
unon  issued,  requiring  the  executor  —  or.  administrator  with  the  will  annexed! 
of  said  will,  and  all  the  devisees  and  legatees  therein  named    [and  all  other 


973  FouM^.  :<o.  ;i4. 

persons  who  were  parties  to  the  proceedings  for  said  probate],  to  appear  before 
said   surrogates    LcourtJ,  on  the  day  of  ,         ,  to  sliow  cause   wliy 

tile  probate  of  tlie  said  will  should  not  be  revoked: 

And  the  said  citation  having  been  returned,  with  proof  of  due  service 
tlierecjf  on  all  the  persons  to  whom  it  was  directed;  and  on  the  return  day  of 
said  citation,  said  executor  [or,  administrator  with  the  will  annexed]  of  said 
H.  ^1.,  deceased,  having  api)eared  by  T.  B.,  his  attorney  and  counsel  J.  and  in- 
terposed an  answer  |(hMiyiiig  the  facts  and  conclusions  stated  in  said  allega- 
tionsj  ;  and  the  said  II.  ,^l.,  having  a])peared  i)y  A.  T.,  his  attorney  and  cf^uiiMel, 
and  S.  (J.  having  lieen  appointed  by  tlie  said  surrogate  special  guardian  for  the 
minors  E.  F.  and  G.  ll.,  to  appear  for  and  take  care  of  their  interests  in  this 
proceeding,  and  having  duly  appeared  herein  as  such  special  guardian,  and  no 
one  else  having  appeared;  and  said  surrogate  having  dulv  lieard  the  allega- 
tions and  proofs  of  the  parties  [and  having  proceeded  to  take  the  proofs  of  the 
subscribing  witnesses  to  said  will],  and  due  deliberation  being  had  thereon.* 
And  it  appearing  to  the  said  surrogate  that  [here  state  the  objection  to  valid- 
ity sustained ;  see  \o.  2!)]. 

Now,  on  motion  of  A.  T.,  attorney  for  said  petitioner: 

It   is   ADJi'iKiiii)  AM)   DECREED,   that   Said   paper    writing   is   not   sufficiently 
proved  to  be  the  last  will  of  said  H.  ^I.   [or,  is  invalid  for  the  reason  that  — 
stating  it],  and  that  the  probate  thereof,  and  the  decree  therefor,  entered  the 
day  of  ,  ,    [and  the  letters  testamentary  —  or,   of   administra- 

lion  with  the  will  annexed  —  issued  tticrt'on.  be,  and  the  same  hereby  are, 
revoked]. 

[Or,  after  reciting  facts  found  by  the  sur~  ogate,  insert,  in  lieu  of  matter 
following  the  aste7-isk :]  It  is  adjudged  and  decreed,  that  said  last  will  and 
testament  of  J.  M.,  deceased,  and  the  ])robate  thereof,  heretofore  made,  and  the 
decree  entered  thereon  in   this  court,  on  the  day  of  ,  ,  be.   and 

the  same  hereby  are,  in  all  respects,  ratified  and  confirmed. 

And  it  is  further  ordered:  1.  Tliat  the  above-mentioned  allegations,  filed 
in    this    ])roceeding,    on   the  day   of  ,  ,   by   H.    M.,    be,    and    the 

same  hereby  are,  dismis.sed   [but  that  the  expense  of  this  proceeding  shall  not 
be  charged  personally  against  the  said  H.  M.].     2.  That  said  G.  J.,  as  the  exec- 
utor of  said  will  of  J.   il.,  deceased,   pay  to  his  counsel,   out   of  any   funds 
that  are  or  may  come  under  his  control  as  such  executor,  the  sum  of 
dollars,  for  costs  of  this  proceeding.     3.  That  the  sum  of  dollars  be,  and 

the  .same  is,  hereby  allowed  to  S.  G.,  the  special  siuardian  appointed  in  this 
proceeding  for  the  minors  E.  F.  and  G.  H.,  one-half  of  such  amount  to  be 
])aid  by  each  of  said  minors  to  said  special  guardian  out  of  their  respective 
estates. 

[Signature  of]. 

Surrogate. 
No.   34- 

[Ante,  §  296.] 

Renunciation  of  Letters. 

ITitlc.] 

I,  C.  D.,  of  the  city  of  New  York,  one  of  the  executors  named  and  appointed 
in  and  by  the  last  will  and  testament  of  .A..  I?.,  late  of  the  city  of  New  York, 
deceased,  do  hereby  *  renounce  the  said  api>oiiitment,  and  all  right  and  claim 
to  letters  testamentary  on  the  said  l:i>t  w  ill  and  testament,  or  to  act  as  execu- 
tor thereof. 

[If  there  is  no  executor  appointed,  or  if  the  executor  has  renounced,  say:] 
I,  R.  D.  L.,  residuary  legatee  |  or,  special  legatee]  named  in  the  la.st  will  and 
testament  of  A.  B.,  deceased,  do  hereby  renounce  all  right  and  claim  to  letters 
of  administration  with  tlie  will  annexed,  on  the  estate  of  said  decedent. 

[Or,  if  there  be  no  wilh  say:]  I.  R.  D.  L.,  a  [stating  relationship  to  dece- 
dent] of  the  decedent,  A.  B.,  do  hereby  renounce  all  right  to  letters  of  adminis- 
tration on  the  estate  of  the  said  decedent. 

[Date.]  [SUgnature.] 

[To  be  authenticated  as  a  deed,  or  attested  by  witness  to  surrogate's  satis- 
faction.] 


:N'os.  35-37.  FoKMS.  974 

No.  35. 

[Ante,  §  297.] 

Retraction  of  a  Renunciation. 

[As  above  to  the  asterisk,  continuing :]  retract  the  renunciation  of  my  said 
appointment,  and  of  the  right  and  claim  to  letters  testamentary  on  said  will, 
and  the  ri<rht  to  act  as  one  of  the  executors  tliereof,  which  was  filed  in  the 
oflice  of  the  surrogate  of  county;  and  pray  tliat  letters  testamentary  may 

be  granted  to  me,  according  to  law,  as  one  of  such  executors  thereof. 

[Date.l  [i^signature.'] 

[Addressed]  To 

Surrogate. 
[Authentication,  same  as  of  renunciation.] 

No.  36. 

[Ante,  §  300.] 
Oath  or  Affirmation  of  Executor  or  Administrator. 

[Title  and  Venue.} 

I,  C.  D.,  one  of  the  executors  named  in  [or,  appointed  bv  virtue  of  a  power 
contained  in]  the  last  will  and  testament  of  [or,  about  to  be  appointed  sole 
administrator  of  the  estate  of]  A.  B.,  late  of  the  citv  of  New  York,  deceased, 
do  depose  [or,  solemnly,  sincerely,  and  truly  affirm]  and  say,  that  I  am  a 
resident  of  New  York  city,  in  the  State  of  New  York,  and  over  twenty-one 
years  of  age,  and  that  I  will  well,  faithfully,  and  honestly  discharge  the  duties, 
of  executor  of  the  said  last  will  and  testament  [or,  of  such  administrator]. 

[Jurat.]  [Signature.'] 

No.   37- 

[Ante,  §  298.] 

Proceedings  to  Compel  Executor  to  Qualify. 

I.  Petition  to  Obtain  Order  to  Qualify. 
[Title.] 

To  ,  Surrogate  of  the  county  of  : 

The  i^etition  of  A.  B.  respectfully  shows  as  follows:  Your  petitioner  allege.s; 
[upon  information  and  belief], 

I.  That  your  petitioner  is  [one  of  the  legatees  named  in  the  will  —  or,  a 
creditor  —  stating  the  amount  of  the  debt,  and  hoiv  it  arose]  of  C.  D.,  de- 
ceased. 

II.  That  the  will  of  the  said  C.  D.  was  on  the  day  of  ,  ,  duly 
admitted  to  probate  by  tlie  surrogate's  court  of  this  county. 

III.  That  one  J.  K.,  residing  at  No.  ,  street,  in  the  city  of  , 
is  named  as  an  executor  [or,  has  been  duly  chosen  executor  by  virtue  of  a 
power  contained]  in  said  will,  and  has  not  renounced,  and  has  not  yet  ap- 
peared to  qualify  and  take  upon  himself  the  execution  of  the  said  will,  not- 
withstanding *  more  than  thirty  days  have  elapsed  since  said  will  was  admitted 
to  probate  as  aforesaid  [or,  since  such  choice  was  made].  [Or,  if  objections 
have  been  fled  and  dismissed,  substitute,  for  ichat  fetUovs  the  *,  five  day.s 
have  elapsed  since  objections  to  the  granting  of  letters  to  him.   filed  on  the 

day  of  ,  ,  were  dismissed  by  the  surrogate.] 

IV.  That  no  previous  application  for  sucli  an  order  has  been  made. 
WhePvEFOre,  your  petitioner   prays,   that  an   order  may  be  made,  requiring- 

the  said  J.  K.  to  qualify  as  such  executor,  within  a  certain  time  therein  to  be 
specified,  and  that,  in  default  thereof,  he  be  deemed  to  have  renounced  the  said 
appointment. 

[Date.]  A.  B. 

[Verification.] 


075  F«)i;.\i.s.  Nos.  38, 39. 

II.  Order  that  Executor  Qiuilify  or  he  Deemed  to  have  lienouneed. 
[Title.] 

On   roadinj,'  and   filing  tlie  petition  of  A.   li.,   dated  tlip  day  of  ^ 

,  and  on  motion  of  A.  T.,  attorney  and  counstd   for  said  petitioner, 
It  is  okdkkeu,  tiiat  J.  K.,  of  No.  ,         street,  in  the  city  of  ,  qualify 

as  an  executor  of  the  will  of  A.  B.,  late  of  ,  (le<'eased,  on  or  before  the 

day  of  ,  ,  and   that,   in  default  of  so  doing,   he  be  deemed   to 

liilve  renounced  his  ai)pointment  as  such. 

III.  Ordrr  tliaf  Kxeeutor  he  Deemed  to  have  lienouneed. 
[Title.] 

On   reading  and  filing  the  order  made  in  this  matter,  upon  the  petition  of 
A.  !{.,  on  the  day  of  ,  ,  requiring  J.  K.,  the  executor  named  in 

the  will  of  C  D.,  deceased,  to  (pialify  as  such  executor,  on  or  before  the 
day   of  ,         ,  and   directing   tliat,   in   default  thereof,   he  be  deemed   to 

have  renounced  the  said  ajjpoiiitment,  and  due  proof  of  the  due  service  tliereof, 
on  the  said  J.  K.,  and  the  said  ■!.  K.  having  neglected  to  qualify  as  ref|uircd  liv 
said  order,  and  an  order  having  on  that  day  l)een  entered,  allowing  him  until 
this  day  to  (pialify.  and  he  ha\ing  failed  to  qualify  within  >aid  time,  and  no 
further  order  extending  the  time  having  been  granted, 

Okdeukd,  that  the  said  J.  K.,  by  reason  of  such  neglect,  has,  and  is  to  be 
deemed  to  have,  renounced  the  appointment  as  executor  as  aforesaid. 

[Date.]  ifiignature  of], 

Surrogate. 
No.  38. 

[Ante,   S  .30 1.] 
Letters  Testamentary. 

The  People  of  the  State  of  New  York, 

To  all   to  whom  these  presents  shall  come,  or  whom  they  may  concern,  send 
greeting: 
Know  ye.  that  at  the  city  and   county  of  New  York,   on   the  day  of 

,  in  the  year  of  our  Lord,  one  thousand  nine  huiulred  and  ,  before 

Hon.  .   surrogate   of   oui*  said   count}',    the   last   will   and   testament    of 

A.  li.,  deceased,  was  proved,  aiul  is  now  approved  and  allowed  by  us;  and  the 
said  A.  li..  having  been  at  the  time  of  his  death  a  resident  of  the  county  of 
New  York  [or  state  other  c/round  of  jurisdiction]  by  means  whereof  the  ])rov- 
ing  and  registering  of  said  will,  and  tlie  granting  of  administration  of  all  an<l 
singular  the  goods,  chattels,  and  credits  of  the  said  testator,  anil  also  the 
auditing,  allowing,  and  judicially  settling  the  account  thereof,  doth  belong  to 
us.  tlie  administrati(m  of  all  and  singular  the  goods,  chattels,  and  credits  of  the 
said  deceased,  in  any  way  concerning  his  will,  is  granted  unto  V.  D..  one  of  the 
executors  in  the  said  will  named,  he  being  first  duly  sworn  well,  faithfully,  and 
honestly  to  discharge  the  duties  of  such  executor. 

I.\  Testimony  Whereof,  we  have  caused  the  seal  of  oflice  of  the  surrogate's 
court  of  the  county  of  New  \''ork  to  be  hereunto  afhxed. 

Witness,   Hon.  ,   surrogate  of   our   said   county,   at   the   city   of   New 

York,  the  day  of  ,  one  thousand  nine  hundred  and 

[Seal.]  [Signature  of]. 

the  Surrogate. 
No.  39. 
[Ante.  §   mC] 
Supplementary   Letters. 

I.  Petition. 
[Title.] 
To  ,  Surrogate  of  the  county  of  New  York. 

The  petition  of  C.  D..  of  street,  of  the  city  of  New  York,  respectfully 

shows : 

I.  That  the  will   of  A.   U..  deceased,  late  of  street,   in  the  city  of  New 

York,   was,  on   the  day  of  ,  ,  duly  admitted  to  probate  by  the 


A' 0.40.  FoiiMS.  976 

surrogate  of  the  county  of  Xew  York,  and  recorded  by  him  in  Liber  , 

page         ,  of  the  records  of  "Wills  in  his  oHice,  and  on  the  day  of  , 

It)  ,  letters  testamentary  were  issued  thereupon,  by  the  said  surrogate,  to 
IM.  X.,  one  of  the  executors  named  therein. 

II.  That  your  petitioner  is  one  of  the  executors  named  in  said  will,  but  at 
the  time  of  the  admission  of  the  said  will  to  probate,  and  tne  issue  of  letters 
thereon,  he  was  a  minor  under  the  age  of  twenty-one  years,  Ijy  reason  whereof 
letters  testamentary  could  not  issue  to  him. 

III.  That  your  petitioner,  since  the  said  will  was  admitted  to  probate,  to 
wit,  on  the  day  of  ,         ,  arrived  at  the  age  of  twenty-one  years. 

IV.  That  the  execution  of  said  will  is  not  yet  completed,  but  [state  what 
remains  to  he  done   to  complete  the   irill]. 

WiiEKEFORE,  your  petitioner  prays,  that  supplementary  letters  testamentary 
may  be  issued  to  him  in  the  same  manner  as  the  orijrinal  letters,  and  that  he 
may  be  authorized  to  join  in  the  execution  of  such  will  witii  the  person  already 
appointed. 

[Date.1  [>Signature.'] 

[Verification.] 

Order  for  Suppleinejitari/  Letters  Testamentary. 
[Title.] 

Whereas,  J.  C.  D.,  named  in  the  last  will  and  testament  of  A.  B.  as  one  of 
the  executors  thereof,  was  at  the  time  said  will  was  admitted  to  probate,  an 
infant  under  the  age  of  twenty-one  years,  by  reason  whereof  letters  testa- 
mentary could  not  issue  to  him :  and  whereas,  the  said  J.  C.  D.  arrived  at 
the  age  of  twenty-one  years  on  the  day  of  ,  19      ;  and  the  execution 

of  said  will  is  not  yet  completed;  Xow,  on  reading  and  filing  the  verified 
petition  of  the  said  J.  C.  D.,  It  is  ordered  axd  ad.judged,  that  supplementary 
letters  testamentary  issue  to  the  said  J.  C.  D.  on  the  will  of  A.  B..  deceased, 
in  the  same  manner  as  the  original  letters,  and  he  is  hereby  authorized  to 
join  in  the  execution  of  said  will  with  the  other  executors  already  appointed. 

No.  40. 

[Ante,   §   309.] 

Staying  Grant  of  Letters  Testamentary. 

I.  Affidavit  of  Intention  to  File  Objections  against   Grant  of  Letters. 
[Title  and  Venue.] 

J.  B.,  of  the  city  of  Xew  York,  being  duly  sworn,  says: 

I.  That  she  is  the  widow  of  A.  B.,  late  of  the  city  of  Xew  York,  deceased, 
■whose  last  will  and  testament  was,  on  the  day  of  ,  ,  duly 
admitted  to  probate  by  the  surrogate  of  the  county  of  Xew  York,  and  of 
"which  said  Avill  C.  D.  is  named  one  of  the  executors. 

II.  That  she  is  a  legatee  under  the  the  said  last  will,  and  is  advised  and 
believes  that  there  are  one  or  more  legal  objections  against  the  granting  of 
letters  testamentary  thereon  to  the  said  C.  D.,  and  that  she  intends  to  file  a 
specific  .statement  of  the  same. 

[Jurat.]  [Signatui-e.] 

II.  Objections    against    the    Granting    of   Letters    Testamentary. 
[Title.] 

To  Hon.  ,  surrogate  of  the  county  of  Xew  York: 

The  objections  of  .J.  B.,  of  the  city  of  Xew  York,  widow,  a  legatee  under 
the  last  will  and  testament  of  A.  B.,  late  of  the  city  of  Xew  York,  deceased, 
against  the  granting  of  letters  testamentary  of  the  said  last  will  and  testa- 
ment to  C.  D..  one  of  the  executors  therein  named. 

First  Objection.  That  the  said  C.  D.  is  incompetent  to  execute  the  duties 
of  his  trust  as  executor  of  the  last  will  and  testament,  by  reason  of  im- 
providence. 


977  FoicMs.'  No.  iu. 

Second  Objection.  That  the  oircntnstanops  of  the  said  C.  D.  aro  surh  tliat 
they  do  not  iiHord  adequate  security  to  the  creditors,  lej^atees,  an<l  relatives  of 
the  said  deceased  for  the  duo  administrati(jn  of  the  estate;  that  he  has 
recently  faih-d  in  iiis  business  as  a  inercliant  of  the  city  of  New  York,  and 
become  inscdvent;  and  tiiat  the  del»ts  owing  by  the  said  C  D.  greatly  exceed 
the  amount  of  property  belonging  to  him. 

[Date.]  [Signature.] 

[  Venue.] 

J.  B.,  of  ,  in  [or  the  attorney  may  verify],  Iwiiig  duly 

sworn,  says   lie  believes   the  foregoing   statement  of   objections,   by   him   sub- 
scribed, to  be  true. 

[Jurat.]  [SitfHuture.] 

III.  Answer  to  Objcetions. 
ITitle.] 

C.  D.,  one  of  the  executors  named  in  the  last  will  and  testament  of  A.  I]  , 
•deceased,  in  answer  to  the  objections  filed  by  J.  15.,  in  this  matter,  respect- 
fully says: 

I.  That  he  is  not  incompetent  to  execute  the  duties  of  his  trust  as  executor 
of  the  said  last  will  and  testament  by  reason  of  improvidence  [or  any  other 
allegation  in  justificntion]. 

II.  That  his  circumstances  are  such  as  to  afford  amj)i('  security  to  the  cred- 
itors, legatees,  and  relatives  of  the  said  deceased  for  the  due  administration 
of  the  estate  [may  add  amount  of  income  if  desired,  and  any  other  form  of 
denial  suited  to  the  exigency  of  the  case]. 

Whkukkore,  he  prays  the -adjudication  of  the  court  upon  such  objections. 
[Verification  as  in  preceding  form.]  [Signature.] 

IV.  Order  for  Inquiry. 
[Title.] 

On  reading  and  filing  the  objections  of  J.  B.,  the  widow  of  A.  B..  late  of 
the  city  of  New  York,  deceased,  and  a  legatee  under  his  last  will  and  testa- 
ment, against  the  granting  of  letters  testamentary  of  the  said  last  will  and 
testament  of  C.  D.,  one  of  the  executors  therein  named: 

Ordered,   that   the  said   C.    D.    personally   appear   before   the   surrogate   of 
the  county  of  New  York,  at  his  oHice  in  tlie  city  of  New  York,  on  the 
day  of  ,  ,  at  10:30  o'clock  in  the  forenoon  of  that  day,  and  attend  the 

inquiry  into  tlie  said  objections;   and  that  the  said  J.  B.  appear  at  the  same 
time  and  place,  and  proceed  with  the  inquiry  into  the  said  objections. 

[Signature,] 

Surrogate. 
V.  Order  on  Objections. 
[Title.] 

J.  B.,  the  widow  of  A.  B.,  late  of  the  city  of  New  Y'ork,  deceased,  and  a 
legatee  under  his  last  will  and  testament,  having  duly  filed  her  objections 
against  the  granting  of  letters  testamentary  of  the  said  last  will  and  testament 
to  C.  D.,  one  of  the  executors  named  therein,  and  the  surrogate  having  in- 
quired into  the  said  objections,  and  due  proof  having  been  taken,  and  after 
hearing  counsel  for  the  respective  parties,  and  it  annearing  to  the  said  surro- 
gate that  [the  said  C.  D.  is  incoiii])etent,  by  reason  of  iini)rovidoiict',  to  execute 
the  duties  of  his  trust  as  such  executor. 

Ordered,  that  letters  testamentary  of  the  said  last  will  and  testament  be 
refused  to  the  said  ('.  D.]. 

[Or,  the  circumstances  of  the  said  C.  D.  are  siich  that  they  do  not  atTord 
adequate  security  to  the  creditors,  legatees,  and  relatives  of  the  said  deceased, 
for  the  due  administration  of  the  said  estate. 

Ordered,   that    such    letters   testamentary   aforesaid   be    refuse!    to   the   said 
C.  D.,  until  he  shall  give  a  bond,  as  required  by  law,  in  a  penalty  of 
dollars.] 

[Or,  the  said  C.  V).  is,  in  all  respects,  comnetent  to  execute  the  duties  of  his 
trust  as  such  executor,  and  that  he  is  not  disqualified  therefrom  by  reason  of 

62 


Xo.  41.  Forms.  978 

improvidonce.  and  that  the  circumstances  of  the  said  C.  D.  are  such  that  they 
do  all'ord  adequate  security  for  tlie  due  administration  of  said  estate, 

OuDEKEi),  that  tlie  objections  tiled  by  tiie  said  J.  B.  against  the  issuing  of 
letters  testamentary  to  the  said  C  D.  be  dismissed. 

It  is  FiKTiiEK  OKDEKKD,  that  the  said  J.  15.  pay  the  costs  of  the  said  C.  D^ 
on  this  2)roceeding,  and  the  fees  and  expenses  thereof  to  be  taxed. 

[Signature'], 

Surrogate. 
No.   41. 

[Ante,   §   313.] 

Granting   Ancillary   Letters   on   Foreign   Probate. 

I.  Petition. 
[Title.] 
To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  C.  D..  residing  at  ,  State  of  ,  respectfully 

shows  [upon  information  and  belief]  that  your  petitioner  is  [here  state  in 
tchat  capacity  the  petitioner  applies  to  the  court]  of  said  deceased. 

I.  That  said  deceased  was,  at  the  time  of  his  death,  a  resident  of  Chicago, 
State  of  Illinois,  and  departed  this  life  in  Chicago,  State  of  Illinois,  on  the 

day  of  ,         ,  leaving  personal  i)roperty  within  this  county. 

II.  That,  on  the  day  of  ,  ,  the  will  of  said  deceased  was 
duly  admitted  to  probate  by  the  county  court  of  Cook  county,  in  the  State  of 
Illinois,   a  court  of  competent  jurisdiction   for  that   purpose,   being   a   court 

■witliin  the  State  [or,  territory  —  or,  county]  where  said  will  was  executed  [or, 
where  said  testator  resided  at  the  time  of  his  death],  and  said  will  was  duly 
recorded  in  the  office  of  the  said  county  court,  on  the  day  of  ,         , 

the  same  being  the  proper  office  therefor,  as  prescribed  by  the  laws  of  said 
State  of  Illinois,  and  the  said  will  with  the  proofs  and  records  thereof  remains, 
in  said  office. 

III.  That,  on  the  day  of  ,  ,  letters  testamentary  upon  the 
estate  of  the  said  A.  B.,  deceased,  were  duly  issued  to  your  petitioner,  as  the 
sole  executor  named  in  said  will,  and  by  virtue  thereof  your  petitioner,  under 
the  laws  of  the  State  of  Illinois,  became  and  is  solely  entitled  to  the  possession 
of  the  personal  estate  of  the  said  A.  B.  situated  in  the  State  of  Illinois  [or 
state  that  letters  testamentary  have  not  been  granted]. 

IV.  That  an  exemplified  copy  of  the  [record  of]  said  will,  and  of  the  decree 
admitting  tlie  same  to  probate  [and  of  the  letters  issued  thereupon]  is  hereto 
annexed,  and  marked  "  PJxhibit  A." 

V.  That  said  will  relates  to  personal  property,  and  that  the  value  of  such 
property,  left  by  the  deceased.  *  does  not  exceed  in  value  the  sum  of 

dollars,  and  the  amount  of  debts  due  or  claimed  to  be  due  from  the  decedent  to 
residents  of  this  State  is  dollars,  or  thereabouts,  and  does  not  exceed 

the  simi  of  dollars. 

VI.  That  the  decedent  left  personal  property  in  the  county  [of  the  surrogate 
applied  to,  or  other  jurisdictional  facts]. 

VII.  Your  petitioner  further  alleges,  that  he  has  made  diligent  search  to 
discover  who  are  the  creditors  of  the  said  A.  B.,  residing  in  the  State  of  New- 
York,  as  follows,  to  wit:  [Here  state  the  efforts  made  to  ascertain  the  cred- 
itors, as  that  he  has  advertised,  etc.'].  and  that,  according  to  the  best  informa- 
tion and  belief  of  your  petitioner,  the  only  creditors  of  the  said  A.  B.  wiio 
reside  in  the  State  of  New  York,  and  the  only  persons  so  resident  who  may 
make  any  claim  against  the  estate  of  the  said  A.  B..  are  J.  K.  and  L.  M..  both 
of  New  York  city. 

VIII.  That  no  previous  application  for  ancillary  letters  testamentary  has 
been  made  to  this  or  any  other  surrogate's  court  of  this  State. 

Your  petitioner,  therefore,  prays  that  ancillary  letters  testamentary  upon 
the  estate  of  the  said  A.  B.  may  be  issued  to  him,  upon  his  qualifying  as 
prescribed  l)y  law,  and  to  that  end  that  a  citation  may  issue  according  to  law. 

[Date.]  '  [Signature.] 

[Verification.] 


1)7U  i'uii.Ms.  Xi>.  41. 

TI.  f'xcvipli/ication  of  Record. 
The   People  of   the   State  of  New   York,   hy   the   <j;race   of   Cod    free   and 
independent. 

To  all  to  wlioiii  these  presents  sliall   or   may  eoneern,  t,'reeting: 
Know  ye,  that  we,  having  examined  the  records  and  files  in  tlie  ollice  of  the 
surrogate  of  the  county  of  ,  do  find  there  remaining  a  certain  record  of 

the  last  will  and  testament  of  A.  ii..  deceased  [or  other  papers],  in  the  words 
and  figures  following,  to, wit:  All  which  we  have  caused  by  these  presents  to 
be  exemplified,  and  the  seal  of  dur  said  surrogate's  court  to  Ije  hereunto 
allixed. 

Witness,    Hon.  ,   surrogate   of    the    county   of  ,    at   the    city 

[8cal.]    of  ,   tlie  day   of  ,   in  the  year   of  our   Lord,   one 

thousand  nine  iiundred  and  .  [Sigtmture.] 

Clerk   of   the    Surrogate's   Court. 
STATE    OF    NEW    YORK,  ^  ^.^.  . 
County  of  ,        i       ' 

I,  .      ,  surrogate  of  the  county  of  ,  and  sole  presiding  judge  of 

the  surrogate's  court  of  the  county  of  ,  in  the  State  of  New  York,  the 

same  being  a  court  of  record,  having  a  seal,  do  hereby  certify  that 
iclerlc  of  the  surrogate's  court],  whose  name   is  subscribed   to  the   foregoing 
certificate  of  attestation,  now  is,  and  was  at  the  time  of  signing  and  sealing 
the  same,  the  clerk  of  the  surrogate's  court  of  the  county  of  ,  afore- 

said, and  keeper  of  the  records  and  seal  thereof,  duly  appointed  and  qualified, 
and  that  full  faith  and  credit  are,  and  of  right  ought  to  be  given  to  all  his 
official  acts,  as  such,  in  all  courts  of  record  and  elsewhere,  and  that  the  said 
attestation  is  in  due  form  of  law,  and  made  by  the  proper  officer,  and  that  the 
seal  annexed  is  the  seal  of  said  court. 

Witness  my  hand  [etc.].  [Signature.] 

Surrogate. 
STATE    OF    NEW    YOKK,  }  ^.^  . 
County  of  ,        ^-  •  ■  •  • 

I,  ,  clerk  of  the  surrogate's  court  of  the  county  of  ,  do 

hereby  certify  that  ,  whose  name  is  subscribed  in  the  preceding  cer- 

tificate, is  the  sole  presiding  judge  of  the  surrogate's  court  of  the  county  of 
,  duly  elected,  sworn,  and  qualified,  and  that  the  signature  of  said 
judge  to  said  certificate  is  genuine. 

In  Testimony  Whereof  [etc.].  [Signature.] 

[,S'eo/.]  Clerk   of   the    Surrogate's   Court. 

III.  Affidavit   as    to   Legatees,   Heirs,   etc.,    maij    be    Adopted   from    Form    on 

page  961,  ante. 

IV.   Citation. 

[Insert  after  "greeting"  in  Yo.  5:] 

Whereas,   C.   D.,   of  ,  has  lately   applied   to  our  surrogate's   court   of 

the  county  of  .  for  ancillary  letters  testamentary  under  the  last  will 

and  testainent  of  the  said  A.  B.,  deceased,  an  exenii)lified  copy  of  which  wa.s, 
on    the  day   of  ,  ,   filed   in   this  office;    therefore,  you    and   each 

of  you  are  cited  to  appear  before  our  said  surrogate,  at  his  office,  in  the  city 
of  ,    on   the  day   of  .         ,   at  o'clock    in    the  noon 

of  that  day,  then  and  there  to  show  cause  why  such  letters  should  not  issue. 
[Teste,  Seal,  and  Signatures  as  in  Yo.  5.] 

V.  Dcerrr   auardiuq   AnviUarii    Lcttrrs>    Trstamrntarg. 
[Title.] 

An    exemplified    copy    of    the    [record    of    the]    will    of   A.    B..    late    of    the 
[  of  ,  and  State  of  ].  deceased,  and  of  the  judLnnent,  decree, 

or   order  of  the  court  of  .  within   said    [State],  entered  the 

day   of  .         .    duly   admitting   the  same    to   probate    [and   of  tlie   letters 

testamentary  issued  thereon  to  C.  D..  the  executor  in  said  will  naniedl.  having 
been  filed  in  this  court,  on  the  day  of  ,  [together  with  an  in- 


No.  42.  FoKMs.  980 

strumont  duly  executed  by  said  C.  U.,  authorizing  E.  F.,  of  Xo.         , 
street,  in  ,  to  receive  ancillary  letters  oi  administration  with  the  will 

annexed,  upon  the  estate  of  said  A.  B.]  ;  and  the  said  C.  D.,  having  therewith 
presented  to  and  tiled  in  this  court  his  duly  verified  petition,  prayi.ig  for  a  de- 
cree awarding  to  him  [o?",  to  E.  F.]  ancillary  letters  testamentary  on  said  will 
[or,  of  administration  with  the  will  annexed,  upon  the  goods,  chattels,  and 
credits]  of  .said  A.  B.,  deceased  [and  the  .surrogate  having  ascertained,  to  his 
satisfaction,  that  there  are  no  creditors  or  persons  claiming  to  be  creditors  of 
the  said  decedent  residing  within  the  State  of  New  York]  : 

Now,  on  motion  of  A.  T.,  attorney  and  counsel  for  said  C.  D., 
It  is  adjudgkd  axd  decreed,  that  administration  with  the  will  annexed,  on 
the  goods,  chattels,  and  credits,  within  this  State,  of  A.  B.,  deceased,  be,  and 
the  same  is  hereby,  awarded  to  said  C.  D.,  and  that  ancillary  letters  testa- 
mentary on  said  will  [or,  of  administration  with  said  will  annexed]  issue  to 
the  said  .  upon  his  taking  and  subscribing  the  statutory  oath  or  affir- 

mation,   and  executing,   according   to   law,   a   bond,    with  sufficient   sure- 

ties, in  a  penalty  of  dollars.  [Sumaturc  of'\, 

Surrogate. 
VI.  Ancillary  Letters. 
The   People   of   the   State  of   New   York,   by   the   grace   of   God   free   and 
independent. 
To  all  to  whojn  these  presents  shall  come,  or  -whom  they  may  concern,  send 
greeting : 

Know   ye,   that   on   the  day  of  ,   in   the   year   of   our  Lord,   one 

thousand  nine  hundred  and  ,  the  last  will  and  testament  of  L.  R.,  late 

of  Boston,  in  the  State  of  Massachusetts,  deceased,  was  duly  admitted  to 
probate  by  the  court,  a  competent  court  within  the  State  of  ^Nlassachu- 

setts,  where  the  said  will  was  executed  and  the  said  L.  R.  resided  at  the 
time  of  his  death,  and  letters  testamentary  thereon  were  by  said  court  duly 
issued  to  E.  G..  residing  in  the  said  city  of  Boston,  and  the  said  will  and 
testament  was,  together  with  the  said  letters,  duly  filed  and  recorded  in  and  by 
our  surrogate's  court  of  the  city  and  county  of  Xew  Y'ork,  upon  an  application 
duly  made  for  that  purpose,  accompanied  by  a  duly  exemplified  and  authen- 
ticated copy  of  the  said  will  and  of  said  letters  and  of  the  decree  of  the  said 
court,  admitting  said  will  to  probate,  and  of  said  letters,  and  the  said  L.  It. 
having  died,  leaving  personal  property  within  the  county  of  Xew  York,  by 
means  whereof  the  filing  and  recording  of  said  will  and  the  granting  adminis- 
tration of  all  and  singular  the  goods,  chattels,  and  credits  of  the  said  testator, 
and  also  the  auditing,  allowing,  and  final  discharging  the  account  thereof, 
doth  belong  unto  us,  the  administration  of  all  and  singular  the  goods,  chattels, 
and  credits  of  the  said  deceased,  and  any  way  concerning  his  will,  is  granted 
unto  the  said  E.  G.,  executor  in  the  said  will  named,  he  being  first  duly 
sworn  well,  faithfully,  and  honestly  to  discharge  the  duties  of  such  executor. 

In  Testimony  Whereof  we  have  caused  the  seal  of  the  surrogate's  court  oi 
the  county  of  New  Y^ork  to  be  hereunto  affixed. 

Witness,   Hon.  ,    surrogate   of   our  covmty,    at   the    city    of 

New  York,  the  day  of  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and  .  \Siqnature.'\ 

Clerk    of   the   Surrogate's   Court. 

No.  42. 

[Ante,   §   3.30.] 

Administration  with  the  Will  Annexed. 

I.  Petition  for  Letters. 
[Title.'] 
To  the  Surrogate's  Court  of  county: 

The  petition  of  C.  C.  G.,  of  ,  in  the  county  of  ,  and  State  of 

New  Y^ork,  respectfully  shows  to  this  court: 

I.  That  the  will  of  A.  B..  late  of  .  in  the  county  of  ,  and 

State  of  ,  was  duly  admitted  to  probate,  by  a  decree  of  this  court,  ren- 

dered on  the  dav  of  , 


1)81  FoiJMs.  No.  42. 

II.  That  no  person  is  named  as  executor  in  said  will,  and  that  the  same 
contains  no  power  autliori/iiif,'  tlie  selection,  as  executor,  of  a  jjerson  not 
named  tliereiii.  [Or,  11.  I  liat  K.  F.,  named  as  sole  executor  in  said  will,  duly 
renounced  liis  appointment  as  such,  \>y  an  instrument  filed  an<l  recorded  in  the 
odice  of  the  surroj^ale  of  this  county,  on  the  day  of  ,  , —  or 
stale  other  cituse  of  vacancy.] 

III.  That  your  petitioner  has  to  the  best  of  his  ability  estimated  and  ascer- 
tained the  value  of  th''  personal  ])roperty  of  which  the  said  testator  died  pos- 
sessed, tojicther  with  the  proi)abh'  amount  to  be  recovered  by  reason  of  any 
right  of  action  «rranted  to  his  executor  or  administrator  by  special  provision  of 
law,  and  the  value  of  the  real  jjrojierty,  or  of  the  proceeds  thereof,  which  may 
come  to  the  hands  of  such  executor  or  administrator  by  virtue,  of  provisions 
contained  in  the  will,  and  that  the  same  will  not  exceed,  in  all,  the  sum 
of  dollars,  according  to  the  best  of  your  petitioner'.s  information  and 
belief. 

IV.  That  your  petitioner  is  over  the  a<re  of  twenty-one  years,  and  is  one  of 
the  next  of  kin  of  the  said  testator  [or,  a  specific  —  or,  residuary  —  legatee 
named  in  said  will].  That  G.  H.  and  M.  N.  are  the  only  specific  legatees 
named  in  said  will,  and  the  only  persons  entitled  to  a  prior  right  of  adminis- 
tration, there  being  no  residuary  legatees  therein   named. 

V.  That  the  said  G.  II.  resides  at  ,  in  the  county  of  ,  and 
State  of  ,  and  that  said  M.  X.  resides  at  Xo.  ,  street,  in  the 
city  of             ,  in  the  State  of 

Wherefore,  your  jjctitioner  prays  that  a  decree  may  be  made  by  this 
court,  granting  letters  of  administration  with  the  will  annexed,  of  the  good.s, 
cliattels,  and  credits  of  the  said  testator,  to  your  petitioner:  and  tliat  all  the 
persons  aforesaid,  having  a  ])rior  right  to  such  administration,  may  be  cited 
to  show  cause  why  such  letters  should  not  be  granted. 

[Date.]  [Signature.] 

[Verification.] 

[Renunciation,  and  Retraction  of  Renunciation,  as  of  Executor.] 

[Form  of  Decree.     See  No.  44,  III.] 

II.  Letterf  of  A(liiiinistrafio)i  irith  the  M'ill  Annexed. 
The  People  of  the  State  of  New  York, 
To  C.  D.,  send  greeting: 

Whereas,  A.  B.,  lately  departed  this  life,  having  previously  duly  made  and 
executed  his  last,  will  and  testament;  And  Where.^s  .said  will  was,  on  the 
day  of  ,  in  the  year  one  thousand  nine  hundred  and  ,  duly  admit- 

ted to  probate  by  the  surrogate's  court  of  the  county  of  ,  the  said  dece- 

dent having  been  at  the  time  of  his  death  a  resident  of  the  county  of 
[or  .state  other  ground  of  jurisdiction],  by  means  whereof  the  proving  of  .said 
will,  and  the  ordering  and  granting  administration  of  all  and  singular  the 
goods,  chattels,  and  credits,  whereof  the  said  testator  died  po.s.sessed  in  the 
State  of  New  York,  and  also  the  auditing,  allowing,  and  final  discharging  the 
account  thereof,  doth  appertain  unto  us:  and  we,  being  desirous  that  said  will 
should  be  observed  and  performed,  and  that  the  goods,  chattels,  and  credits  of 
.said  testator  should  be  well  and  faithfully  administered,  applied,  and  disposed 
of,  do  grant  unto  you,  the  said  C.  D.,  full  ])ower  and  authority,  by  these 
presents,  to  administer  and  faithfully  disjiose  of  all  and  singular  the  said 
goods,  chattels,  and  credits,  and  to  ask,  demand,  recover,  and  receive  the  debt.-: 
which  unto  the  .said  testator,  whilst  living  and  at  the  time  of  his  death,  did 
belong,  and  to  pay  the  debts  which  tlie  said  testator  did  owe  as  far  as  such 
goods,  chattels,  and  credits  will  hereto  extend  and  the  law  require,  hereby 
requiring  you  to  observe  and  perform  the  said  last  will  and  testament,  and  to 
observe  and  ))erform  all  the  duties  to  A\hich  you  would  have  been  subject  if 
you  had  l)een  named  executor  thereof.  And  we  do,  by  these  presents,  depute, 
constitute,  and  appoint  you,  the  said  C.  D.,  administrator  with  the  will  an- 
nexed of  all  and  singular  the  goods,  chattels,  and  credits  which  were  of  said 
-A.  B.,  deceased. 

In  TEsriMONY  Whereof  [etc..  as  in  .Yo.  38]. 


Xos.  43, 44.  Forms.  982 

No.   43. 

[Ante,   §   333.] 
Granting  Ancillary  Letters  of  Administration  with  the  Will  Annexed. 

I.  Petition. 
[See  Form  Xo.  41,  suiting  the  wording  to  the  exigencies  of  the  case.] 

II.  Ancillary  Letters  of  Administ7'ation  with  Will  Annexed. 
The  People  of  the  State  of  New  York, 
To  E.  G.,  send  greeting: 

Whereas,  A.  B.,  lately  departed  this  life,  having  previously  executed  his 
last  will  and  testament: 

And  Whereas,  the  said  will  has  been  duly  admitted  to  probate  by  the 
court,  a  competent  court  within  the  State  [or,  Territory  —  or,  county]   where 
the  said  will  was  executed,  and  the  testator  resided  at  the  time  of  his  death ; 

And  Whereas,  tlie  said  E.  G.  has  made  an  application  to  our  surrogate's 
court  of  the  county  of  New  York,  a  court  having  jurisdiction  to  entertain 
the  same,  for  the  issuance  to  him  of  ancillarj'  letters  of  administration  with 
the  will  annexed. 

And  Whereas,  the  said  application  is  accompanied  by  an  exemplified  copy  of 
the  said  will  and  of  the  judgment,  decree,  and  order  admitting  the  same  to 
probate,  and  also  of  the  foreign  letters ;  and  we  being  desirous  that  said  will 
should  be  observed  and  performed,  and  that  the  goods,  chattels,  and  credits  of 
said  testator  should  be  well  and  faithfully  administered,  applied,  and  disposed 
of,  do  grant  unto  you,  the  said  E.  G.,  full  power  and  authority,  by  these 
presents,  to  administer  and  faithfully  to  dispose  of  all  and  singular  the  said 
goods,  chattels,  and  credits,  and  to  ask,  demand,  recover,  and  receive  the  debt;* 
which  unto  the  said  testator  whilst  living  and  at  the  time  of  his  death  did 
belong,  and  to  pay  the  debts  which  the  said  testator  did  owe,  as  far  as  such 
goods,  chattels,  and  credits  will  thereto  extend  and  the  law  require,  hereby 
requiring  you  to  observe  and  perform  the  said  last  will  and  testament,  and  to 
observe  and  perform  all  the  duties  to  which  you  would  have  been  subject  if 
you  had  been  named  executor  thereof. 

And  we  do  by  these  presents  depute,  constitute,  and  appoint  you,  the  said 
E.  G.,  ancillary  ad3ninistrator  with  the  will  annexed,  of  all  and  singular  the 
goods,  chattels,  and  credits  which  were  of  said  A.  B.,  deceased. 

In  Testimony  Whereof,  we  have  caused  the  seal  of  office  of  the  surrogate's 
court  of  the  city  and  county  of  New  York  to  be  hereunto  affixed. 

Witness,  Hon.  ,  surrogate  of  said  county,  at  the  city  of  New  York, 

this  day  of  ,  in  the  year  of  our  Lord,  one  thousand  nine  hundred 

and 

[Signature.] 
Clerk   of   the    Surrogate's   Court. 

No.  44. 

[Ante,   §   3.31.] 
Letters  of  Administration. 

I.  Petition. 

To  the  Surrogate's  Court  of  the  county  of  [New  York]  : 

The  petition   of  A.   B.   respectfully  shows: 

I.  That  C.  D.,  the  decedent,  was,  at  or  immediately  previous  to  his  death, 
a  resident  of  this  State  [or  state  other  jurisdictional  facts  as  to  residence  and 
location  of  real  or  personal  property,  as  in  Yo.  l(i.  ante],  and  died  [in  the  city 
of  New  York]  on  the  day  of  ,  without  leaving  any  last  will  and 

testament,  to  the  best  of  your  petit  ioner's  knowledge,  information,  and  belief ; 
[that  your  petitioner  has  made  diligent  search  for  a  will  of  said  decedent,  and 
has  not  found  any  or  obtained  any  information  that  he  left  any]. 


i)83  Forms.  Xo.  44. 

II.  That  the  said  dpopflcnt  died  pos'^os'^pd  of  oortain  pergonal  property 
witliin  this  State;  and  tliat,  as  \our  pclitioiuT  is  infoniifd  and  iK-licvcs.  Ihi; 
value  of  tiie  personal  proix'ity  of  which  the  said  decedent  died  possessed 
[tofjether  with  the  probable  amount  to  be  recovered,  by  reason  of  any  rif^ht  of 
action  f^ranted  to  an  executor  or  administrator  of  the  said  decedent,  by  sjx'cial 
j)ro\ision  of  lawj,  does  not  exceed  the  sum  of  dollars.     [Si-r  Xo.  Ht.initr.] 

HI.  That  [as  far  as  lliey  are  known  io  the  petitioner  or  can  lx»  ascertained 
by  him  with  due  dili;,^'nci'l  the  [widow  —  or,  husband  —  and  J  only  next  of  kin 
of  said  decedent  are  as  follows:  [cintmcrcilc  them,  giriiig  ages  of  minors,  as  in 
No.  iG  ]. 

IV.  That  your  jietiticner  is  a  [son]  of  the  said  decedent,  and,  as  .such,  is 
entitled  to  admi.iistration  upon  the  estate  of  said  decedent  [or,  if  another  has 
a  prior  right,  continue,  on  the  failure  of  the  said  D.  G.,  who  is  the  only  person 
haviiif,'  a  prior  right  to  your  petitioner,  to  a])ply  for  and  take  out  such  ad- 
ministiation.  the  above-mentioned  D.  (i.,  who  is  equally  entitled  with  your 
petitioner  to  such  administration,  being  willing  to  renounce  her  right  to  the 
same  in  favor  of  your  petitioner]. 

V.  That  no  petition  for  a  grant  of  letters  of  administration  upon  said  estate 
has  been  filed  in  any  surrogate's  court  of  this  State. 

Whkukfoke.  your  petitioner  prays  for  a  decree,  awarding  letters  of  admin- 
istration upon  the  goods,  cliattels,  and  credits  of  the  said  C.  D.,  deceased,  to 
your  petitioner;  and  that  a  citation  may  be  issued  to  all  persons  having  a  right 
to  administration,  jirior  or  eijual  to  that  of  your  petitioner,  to  show  cause  why 
such  a  decree  should  not  be  made.  [f)i  case  the  petitioner  desires  another  per 
son  joined  icith  him  in  the  administration,  the  prayer  of  the  petition  shall  be 
as  follons:  Your  petitioner,  therefore,  prays  that  letters  of  administration 
may  be  granted  to  liim,  and  to  J.  W.,  residing  in  the  city  of  New  York,  mer- 
chant, to  be  joined  with  him  in  the  administration,  pursuant  to  the  .statute 
in  such  case  made  and  provided  ;  and  he  hereby  consents  to  have  the  said 
J.  W.  so  joined  in  such  administration], 

[•Signature.] 
[Verification.] 

[The  Form  of  renunciation  to  be  filed  is  as  folloirs:] 
[Title.] 

I,  J.  D.,  of  Poughkeepsie,  Dutchess  county,  widow  of  C.  D..  late  of  the  city 
of  New  York,  deceased,  do  hereby  renounce  all  right  to  letters  of  administra- 
tion on  the  estate  of  .said  C.  D. 

[Signature,  attestation,  and  authentication  as   in   Yo.   34.] 

[The  consent  to  hare  another  person  joined  in  the  administration,  where  it 
is  not  contained  in  the  petition,  may  be  in  the  following  Form:] 

I,  E.  K.,  of  the  city  of  New  York,  the  widow  of  J.  K.,  late  of  the  city  of  New 
York,  deceased,  intestate,  and  entitled  to  the  administration  of  the  goods,  chat- 
tels, and  credits  of  the  said  intestate,  do  hereby  consent  that  such  adminis- 
tration be  granted  to  J.  \V.,  of  the  city  of  New  York,  to  be  joined  with  me 
therein. 

[Date  and  authentication.] 

Affidavit  as  to  Heirs,  Next  of  Kin,  etc. 

[May  be  Adapted  from  Form   17.] 

II.  Citation. 

[Commence  as  in  Form  o,  stating  object,  as  follous:]  To  sliow  cause  why 
letters  of  administration  of  the  goods,  chattels,  and  credits  of  t".  D..  late  of 
the  [city  of  New  York],  deceased,  intestate,  should  not  be  granted  to  A.  B., 
of  the  [said  city],  a  [son]  of  said  decedent,  who  has  made  application  for  the 
same. 

III.  Decree  Granting  Letters  of  .idministration. 
[Title.] 

A   duly   verified  petition  having  been,   on  the  day  of  ,         ,   pre- 

sented   and    tiled    in    the    surrogate's    court   of    the   county    of    New   York,    by 


Xo.  44.  FoKMs.  984r 

A.  B.,  praying  for  a  decree  awarding  letters  of  administration  of  the  goods, 
chattels,  and  credits  of  C.  D.,  deceased,  to  said  petitioner  A.  B. ;  and  that  all 
persons  having  a  right  to  such  administration,  prior  or  equal  to  said  petitioner, 
be  cited  to  show  cause  why  such  a  decree  should  not  be  granted ;  and  the 
petitioner  having  proved  to  the  satisfaction  of  the  surrogate,  by  said  petition. 
Land  the  affidavits  of  O.  P.  and  Q.  R.  filed  tiierewith],  tliat  [here  set  forth  the 
jurisdictional  facts;  see  No.  44]  ;  and  a  citation  having  been  thereupon  issued 
out  of  said  court,  directed  to  all  such  persons,  and  said  citation  having  been 
returned,  witii  jjroof  of  the  due  service  thereof,  on  all  of  said  i)ersons  [or  recite 
serrices  and  afipearaitces ;  and  adjournments,  if  any]  ;  and  on  reading  and 
filing  the  written  renunciation  of  ,1.  D. —  the  widow  ^ — -or,  son  —  of  said  dece- 
dent, of  all  her  right  and  title  to  administer  said  estate ;  and  the  consent  and 
request  of  said  A.  B.,  that  such  administration  be  granted  to  J.  W.,  of  ; 

and  that  said  J.  W.  be  joined  with  said  petitioner,  in  the  administration  to 
which  he  might  be  entitled  herein] ;  and  due  consideration  having  been  given 
to  all  the  papers  and  proceedings  in  this  matter; 

[And  it  appearing,  that  the  only  party  liaving  a  prior  right,  to  the  petitioner 
A.  B.,  to  such  administration,  has  failed  to  appear  in  this  proceeding  and 
claim  sucli  administration;  and  it  further  appearing,  that  the  said  A.  B.  is 
entitled  to  such  administration;  and  it  also  appearing,  that  said  J.  W.  is  a 
proper  and  competent  person  to  be  joined  in  such  administration,  with  the 
said  A.  B.]  ; 

Now,  on  motion  of  J.  L.  H.,  attorney  for  said  petitioner,  it  is  hereby  Or- 
dered, ADJUDGED,  AND  DECREED,  tnat  letters  of  administration  of  the  goods, 
chattels,  and  credits  of  said  C.  D.,  deceased,  be,  and  the  same  are  hereby 
awarded  to  said  A.  B.,  of  [and  to  J.  W.,  of  ,  to  be  joined  with 

the  said  A.  B.  in  the  administration,  and  letters  are  hereby  granted  to  him], 
upon  his  [or,  their  severally]  taking  and  subscribing  the  statutory  oath,  and 
executing  a  bond,  according  to  law,  with  sufficient  sureties,  in  the  penalty  of 
dollars. 

[In  case  of  limited  letters,  say,  and  modified  security  having  been  given, 
the  letters  of  administration  issued  pursuant  to  this  decree  are  limited  to  the 
prosecution  of  an  action  under  section  1902  of  the  Code  of  Civil  Procedure  to 
recover  damages  for  causing  the  death  of  said  decedent,  and  said  adminis- 
trator is  restrained  from  a  compromise  of  such  action  and  the  enforcement  of 
any  judgment  recovered  therein  until  the  further  order  of  this  court  on  addi- 
tional further  satisfactory  security.] 

IV.  Letters  of  Administration. 
The  People  of  the  State  of  New  York, 
To  A.  B.  and  C.  D.,  send  greeting: 

Whereas,  E.  F.,  lately  departed  this  life,  intestate,  being  at  or  immediately 
previous  to  his  death  an  inhabitant  of  the  county  of  New  York,  by  means 
whereof  the  ordering  and  granting  administration  of  all  and  singular  the 
goods,  chattels,  and  credits  whereof  the  said  intestate  died  possessed,  in  the 
State  of  New  York,  and  also  the  auditing,  allowing,  and  final  discharging  the 
account  thereof,  doth  appertain  unto  us;  and  we  being  desirous  that  the  goods, 
chattels,  and  the  credits  of  the  said  intestate  may  be  well  and  faithfully  ad- 
ministered, applied,  and  disposed  of,  do  grant  unto  you,  the  said  A.  B.  and  C. 
D.,  full  power,  by  these  presents,  to  administer  and  faitlifully  dispose  of  all 
and  singular  tlie  said  goods,  chattels,  and  credits;  to  ask,  demand,  recover,  and 
receive  the  debts  which  unto  the  said  intestate,  whilst  living  and  at  the  time 
of  his  death,  did  belong;  and  to  pay  the  debts  which  the  said  intestate  did 
owe,  as  far  as  such  goods,  chattels,  and  credits  will  thereunto  extend  and  the 
law  require;  hereby  requiring  you  to  make,  or  cause  to  be  made,  a  true  and 
perfect  inventory  of  all  and  singular  the  goods,  chattels,  and  credits  of  the 
said  intestate,  within  a  reasonable  time,  and  return  a  duplicate  thereof  to  our 
surrogate  of  the  county  of  New  York,  witliin  three  months  from  the  date  of 
these  presents;  and,  if  further  personal  jiroperty  or  assets  of  any  kind,  not 
mentioned  in  any  inventory  that  shall  have  been  so  made,  shall  come  to  your 
possession  or  knowledge,  to  make  or  cause  to  be  made,  in  like  manner,  a  true 
and  perfect  inventory  thereof;   and  return  the  same  w'ithin  two  months  after 


985  FoKMs,  Xo.  45. 

the  discovery  thoroof,  and  also  to  render  a  just  and  true  account  of  adminis- 
tration, when  thereunto  required;  and  we  do,  by  these  presents,  depute,  eon- 
stitute,  and  ajjpoint  you,  the  said  A.  B.  and  C.  D.,  administrators  of  all  and 
sinf,aihir  the  floods,  chattels,  and  credits  of  the  said  E.  F.,  deceased. 

[In  cases  of  limited  udini)iistrali<jn  sui/,  and  it  appearin};  that  a  rijrht  of 
action  is  f^ranted  by  s])e(ial  provision  of  law  to  saiil  administrator;  and  it 
aj)|)earin^  to  be  im])i;utiial)le  for  said  administrator  to  fri\e  a  bond  sullicienL 
to  co\er  the  proljable  amount  to  be  recovered,  and  tlie  surrofjate  havin{^  ac- 
I'ejjted  mcdilicd  security  from  said  administrator,  we  do,  therefore,  herein'  au- 
thorize and  empower  said'  administiator  to  prosecute  said  action.  i)ut  he  is 
restrained  from  compromisinj^  said  action  and  from  enforcin;^  any  jud;,'ment 
recovered  therein  until  the  further  order  of  the  surrogate  on  additional  fur- 
ther satisfactory  security.] 

In  Testimony  Whereof  [etc.]. 

V.  The  Same  —  A  Short  Form. 
The  People  of  the  State  of  New  York, 

To  A.   B.,  of  the  city  of  Rochester,   in  the  county  of  Monroe,  New  York, 
send  greeting: 
Whereas,  E.  F.,  late  of  the  city  of  Rochester,  aforesaid,  died  on  or  about 
the  day  of  ,  intestate ; 

And  Whereas,   on   the  day   of  ,  at   a   surrogate's  court   held  at 

Kocliester,  in  and  for  our  coiuity  of  ^lonroe,  a  decree  was  duly  made,  award- 
ing letters  of  administration  upon  the  estate  of  the  said  deceased  to  you:  And 
you  having  taken  your  official  oath,  and  duly  filed,  with  the  surrogate  of  our 
.said  county  of  Monroe,  the  said  oath,  and  the  bond  required  by  law: 

Now,  therefore,  know  ye,  that  we,  having  full  faith  and  confidence  in 
your  competency,  have  granted,  and  by  these  |)resents  do  grant,  unto  you,  the 
.said  A.  ]{.,  the  administration  of  all  and  singular  the  goods,  chattels,  and 
credits  which  were  of  the  said  deceased,  hereby  constituting  and  appointing 
you  administrator  thereof. 

Witness.   Hon.  ,   surrogate   of  our   said   county  of  Monroe,    and   the 

[Seal.]     seal  of  our  said  surrogate's  court,  this  day  of 

[Signature  of], 

Surrogate. 

No.  45. 

[Ante,   §   470.] 

Bond  of  Executor  or  Administrator. 

Kno'U'  all  men  by  these  presents. 

That  we,  A.  B.,  of  ,  in  the  city  of  ;  and  C.  D.,  of  street, 

in  tii(!  city  of  ;   and  E.  F.,  of  ,  in   the  county  of  ,  are  held 

and  firmly  bound  imto  the  people  of  the  State  of  New  York,  in  the  sum  of 
one  thousand  dollars,  lawful  money  of  the  United  States  of  America,  to  be 
])iud  to  the  said  people:  to  which  payment  well  and  truly  to  be  made  we  bind 
ourselves,  our  and  each  of  our  heirs,  executors,  and  administrators,  jtiintly 
and  severally,  firmly  by  these  jjresents.  Sealed  with  our  seals.  Dated  tlu' 
day  of  ,  one  thousand  nine  huiulred   and  *. 

The  condition  of  this  obligation  is  such,  that  if  the  above  bounden  A.  B. 
shall  faithfully  discharge  the  trust  reposed  in  him  as  executor  [or.  adminis- 
trator] of  all  and  singular  the  goods,  chattels,  and  credits  of  G.  II..  late  of 
the  city  of  New  York,  deceased,  and  obey  all  lawful  decrees  and  orders  of  the 
surrogate's  court  of  the  county  of  Xew  York,  touching  the  administration  of 
the  estate  connnitted  to  him,  then  this  obligation  to  be  void,  else  to  remain  in 
full  force  and  virtue. 

[Signatures  and  seals.] 
[Sealed  and  delivered   in  presence  of] 

[Authentication  as  of  a  deed.] 


:No.  40.  Forms.  986 

[Append  an  affidavit  of  each  surety  as   to  his  sufficiency,  in  the  folloiving 
form:] 
[Venue.] 

C.  D.,  of     '        street,  in  the  city  of  ,  a  surety  named  in  tlie  annexed 

Jbond,  beinfi  duly  sworn,  deposes  and  says,  that  lie  owns  in  his  own  right  real 
estate  in  fhe  State  of  New  York,  consisting  of  the  house  and  lot  No.  , 

street,  in  tlie  city  of  ,  and  that  the  same  is  of  the  value  of  not  less  than 

tive  thousand  dollars,  and  is  subject  to  no  incumbrance,  except  a  mortgage  of 
two  thousand  dollars,  held  by  the  ^Mutual  Life  Insurance  Company  of  New 
York  city;    and  that  he  o^^•ns  personal   CNtate   in  the  city  of  ,  and  that 

its  value  is  not  less  than  three  thousand  dollars,  that  it  consists  of  the  fix- 
tures and  stock  of  goods  in  the  grocery  store.  No.  ,  street,  in  said 
city,  and  that  it  is  subject  to  no  incumbrance;  and  that  there  are  no  unsatis- 
fied judgments  or  executions  against  him,  and  that  he  is  under  no  recogni- 
zance; and  that  he  is  worth  in  good  property,  exclusive  of  such  as  is  exempt 
by  law  from  execution,  not  less  than  two  thousand  dollars,  over  and  above  all 
debts,  liabilities,  and  lawful  claims  against  him,  and  all  liens,  incumbrances, 
and  lawful  claims  upon  his  property. 

[Jurat.]  [>^ig)iature.] 

[t^amc  Form,  mutatis  mutandis,  for  bond  of  administrator  ivith  will  an- 
nexed.] 

No.  46. 

[Ante,  §  370.] 

Administration  de  Bonis  Non. 

I.  Petition. 
[Title] 

To  the  Surrogate's  Court  of  the  county  of  New  Y^ork: 

The  petition  of  C.  D.  respectfully  shows: 

I.  That  your  petitioner  is  a  grandson,  of  full  age,  of  the  said  A.  B.,  de- 
ceased, who  died  in  New  Y''ork  city  on  the  day  of 

II.  That  letters  of  administration  of  the  goods,  chattels,  and  credits  of  the 
said  A.  B.,  deceased,  were  duly  granted  by  the  surrogate  of  the  county  of  New 
Y^ork,  on  the  day  of  ,  unto  J.  B.,  the  widow  of  said  decedent. 

III.  That  said  J.  B.,  the  administratrix  aforesaid,  departed  this  life  on  the 
day  of  ,  leaving  certain  property  and  assets  of  the  said  A.  B.  still 

imadministered. 

IV.  That  your  petitioner  has,  to  the  best  of  his  ability,  ascertained  and  esti- 
mated the  personal  estate  of  which  the  said  A.  B.  died  possessed,  and  the  value 
of  the  same  does  not  exceed  the  sum  of  one  thousand  dollars. 

V.  That,  as  your  petitioner  has  been  informed,  and  believes,  the  said  de- 
ceased left  him  surviving  [state  names  and  residences  of  next  of  kin,  as  in 
Xo.  IG],  his  only  next  of  kin. 

Your  petitioner,  therefore,  prays  that  letters  of  administration  de  bonis  non 
of  the  goods,  chattels,  and  credits  of  the  said  deceased,  so  left  imadministered  as 
aforesaid,  may  be  granted  by  the  surrogate  of  the  county  of  New  York  to  your 
petitioner.  [Signature.] 

[Verification.] 

II.  Decree  on  Foregoing. 
[May  be  adapted  from  Form   No.  44,  III.] 

III.   Letters   of  Administration  De  Bonis  Non. 
The  People  of  the  State  of  New  York. 

To  C.  D.,  one  of  the  next  of  kin  of  A.  B..  late  of  ,  deceased,  intestate: 

Whereas,  E.  F.  was  duly  appointed  the  administrator  of  the  goods,  chattels, 

and   credits  which   were   of   the  said   intestate,   and   letters   of  administration 

were  duly  granted  and  issued  by  the  surrogate  of  Westchester  county  to  the 

said  E.  F.,  on  the  day  of  ; 


And  Whereas,  tlio  said  E.  F.  lias  siiico  dopartod  tliis  life,  Icavin",'  property 
and  a.s.st'ts  of  the  said   intestate  still  unadniinistered ; 

A.M)  WiiKKEA.s,  the  said  A.  15.,  at  or  immediately  previous  to  his  death,  was 
an  inhabitant  of  tlie  county  of  Westchester,  having:,  whilst  livin<,'  and  at  the 
time  of  his  death,  f>roods,  chattels,  and  credits,  within  this  State,  by  means 
whereof  the  ordering  and  granting  administration  of  all  and  singular  th; 
goods,  chattels,  and  credits,  and  also  the  auditing,  allowing,  and  final  dis- 
charging the  accounts  thereof,  doth  appertain  unto  us:  and  we  being  desir(nis 
that  the  goods,  chattels,  and  credits  of  the  said  deceased  may  be  well  anil  faith- 
fully administered,  api)lied,  antl  disjjoscd  of,  do  grant  unto  you,  the  said  C.  D., 
full  jxiwer  and  authority,  by  these  presents,  to  admiiiister  and  faithfully  dis- 
pose of  all  and  .singular  the  goods,  chattels,  and  credits  left  unadniinistered; 
to  ask,  demand,  receive,  and  recover  tlie  debts  which  unto  said  intestate,  whilst 
living  and  at  the  time  of  his  death,  did  belong;  and  to  pay  the  debts  whicli 
the  said  intestate  did  owe  at  the  time  of  his  death,  so  far  as  such  goods,  chat- 
tels, and  credits  will  thereunto  extend,  and  the  law  requires;  hereby  requiring 
you  to  make  or  cause  to  be  made  a  true  and  iierfect  inventory  of  all  and  .sin- 
gular the  goods,  chattels,  and  credits  of  said  intestate,  which  have  or  shall 
come  to  your  possession  or  knowledge,  and  the  same  so  made  to  exhibit  or 
cause  to  be  exhibited  and  filed  in  the  office  of  the  surrosrate  of  the  county  of 
"Westchester,  on  or  before  the  expiration  of  three  months  from  the  date  hereof, 
and  also  to  render  a  just  and  true  account  of  your  administration  when  there- 
unto required. 

And  we  do  by  these  presents  depute,  constitute,  and  appoint  you,  the  said 
C.  D.,  administrator  de  bonis  non  of  all  and  singular  the  goods,  chattels,  and 
<'redits  which  were  of  the  .said  A.  B.,  deceased,  intestate,  left  unadniinistered 
as  aforesaid. 

l.\  Witness  Whereof  [etc.]. 

No.   47. 

[Ante,   §   373.] 

Granting;   Ancillary   Letters   of   Administration, 

I.  Priition. 
ITitle.] 

To  tlie  Surrogate's  Court  of  the  county  of  : 

The  petition  of  E.  G.,  residing  at  ,  State  of  ,  respectfully  .shows: 

I.  That  said  deceased  was  at  the  time  of  his  death  a  resident  of  ,  State 
•of              ,  and  departed  this  life  in              ,  State  of              ,  on  the  day  of 

,  ,  leaving  personal  property  within  this  county. 

II.  That  on  the  day  of  ,  ,  letters  of  administration  were 
<luly  issued  to  your  petitioner  upon  the  estate  of  the  said  deceased  by  the 
<'ourt  of  the  county  of  ,  State,  a  court  of  competent  jurisdiction 
for  that  purpose,  being  a  court  within  the  State  [or.  Territory  —  or,  county | 
in  which  the  said  decedent  resided  at  the  time  of  his  death,  and  said  letters 
were  duly  recorded  in  the  oflice  of  the  said  court,  on   the  day  of 

III.  That  an  exemplified  copy  of  said  letters,  and  of  the  decree  granting  the 
same,  is  hereto  annexed  and  marked  "  Exhibit  A."' 

IV.  That  the  value  of  the  property  left  by  deceased  [etc.,  continuing  as  in 
No.  41  from  the  *,  suiting  the  prayer  to  the  exigencies  of  the  case]. 

[Date.]  [Signature.] 

[Verification.] 

II.  Decree. 

[May  he  adapted  from   Form   Xo.  41.  IV.] 

III.  Ancillary  Letters   of  Administration. 
The  People  of  the  State  of  New  York, 
To  E.  G.,  send  greeting: 
Whereas,  letters  of  administration  ujion  the  estate  of  A.  B.,  an  intestate, 
•were  dulv  granted  to  E.  G.  bv  the  court  of  the  State  of  ,  the  said 


No.  48.  FoKMs.  D8S 

court  being  a  competent  court  in  tlio  State  [or,  county  —  or.  Territory]  where 
the  ."iaid  intestate  resided  at  the  time  of  lus  death;  Axu  Whekeas,  the  said 
E.  U.  has  ijresented  to  tlie  surrogate's  court  of  the  county  of  isew  York, 
letters  of  administration  upon  the  said  estate,  duly  authenticated,  and  applied 
for  the  issuance  to  liim  of  ancillary  letters  of  administration,  by  means  whereof 
the  ordering  and  granting  administration  of  all  and  singular  the  goods,  chat- 
tels, and  credits  wliereof  the  said  intestate  died  possessed,  in  the  State  of 
New  York,  and  also  the  auditing,  allowing,  and  final  diseharging  the  account 
thereof,  doth  appertain  unto  us,  and  we,  being  desirous  that  the  goods,  chattels, 
and  credits  of  the  said  intestate  may  be  well  and  faithfully  administered,  ap- 
plied, and  disposed  of,  do  grant  unto  you,  the  said  E.  G.,  full  power  by  these 
presents  to  administer  and  faithfully  dispose  of  all  and  singular  the  said 
goods,  chattels,  and  the  credits,  ask,  demand,  recover,  and  receive  the  debts 
which  unto  the  said  intestate,  whilst  living  and  at  the  time  of  hi*s  death,  did 
belong;  and  to  pay  the  debts  which  the  said  intestate  did  owe,  as  far  as  such 
goods,  chattels,  and  credits  will  thereunto  extend,  and  the  law  require;  hereby 
requiring  you  to  make  or  cause  to  be  made  a  true  and  perfect  inventory  of 
all  and  singular  the  goods,  chattels,  and  credits  of  the  said  intestate,  within 
a  reasonable  time,  and  return  a  duplicate  thereof  to  our  surrogate  of  the 
county  of  Xew  Y'ork.  within  three  months  from  the  date  of  these  presents; 
and  if  further  personal  property,  or  assets  of  any  kind,  not  mentioned  in  any 
inventory  that  shall  have  been  so  made,  shall  come  to  your  possession  or 
knowledge,  to  make  or  cause  to  be  made  in  like  manner,  a  true  and  perfect 
inventory  thereof,  and  return  the  same  within  two  months  after  the  discovery 
thereof,  and  also  to  render  a  just  and  true  account  of  administration,  when 
thereunto  required ;  and  we  do  by  these  presents,  depute,  constitute,  and  ap- 
point you,  the  said  E.  G.,  ancillary  administrator  of  all  and  singular  the 
goods,  chattels,  and  credits  of  the  said  A.  B.,  deceased.  ' 

In  Testimony  Whereof,  we  have  caused  the  seal  of  office  of  the  surrogate's 
court  of  the  city  and  county  of  Xew  Y'ork  to  be  hereunto  affixed. 

Witness,  Hon.  ,  surrogate  of  said  county,  at  the  city  of  New  Y'ork, 

the  day  of  ,  in  the  year  of  our  Lord,  one  thousand  nine  hundred 

and 

[Signature], 
Clerk  of  the  Surrogate's  Court. 
No.  48. 

[Ante,  §  376.] 
Proceedings  by  Public  Administrator. 

I.  Affidavit  to  Obtain  Order  to  8ell  Perishable  Property. 
[Title  and  Venue.] 

M.  N.,  being  duly  sworn,  says,  that  he  is  a  clerk  in  the  office  of  S.  R.,  Esq., 
the  treasurer  [or,  public  administrator]  of  the  county  of  ;   that  on  the 

day  of  ,  ,  A.  B.,  of  ,  died  intestate  at  said  city,  leaving 

certain  goods,  chattels,  and  effects  therein;  that  no  notice  has  been  received 
by  the  said  treasurer  [or,  public  administrator]  that  any  one  entitled  to  a  dis- 
tributive share  in  the  estate  of  said  A.  B.  is  a  resident  of  the  said  county;  and 
that  the  said  S.  R.,  by  virtue  of  his  office  as  public  administrator,  did,  on 
the  day  of  ,         ,  take  possession  of,  and  now  holds,  the  said  goods, 

chattels,  and  effects  of  the  said  A.  B..  deceased,  which  were  in  said  county  of 
at  the  time  of  his  decease,  or  which  have  since  come  therein;  that' the 
said  deceased  was  in  his  lifetime  a  dealer  in  country  produce,  at  ;   and 

that  the  stock  of  goods  in  the  said  store,  which  has  been  taken  possession  of 
by  the  said  public  administrator,  consists  of  the  butter,  eggs,  vegetables,  and 
dressed  poultry  shown  by  the  annexed  inventory,  marked  Exhibit  A,  and  that 
the  whole  thereof  is  now  in  a  perishing  condition. 

[Jurat.]  [Signature.] 

II.  Order  on  the  Foregoing. 
[Title.] 

On  reading  and  filing  the  affidavit  of  M.   N.,  hereto  annexed,  by  which   it 
appears  that  S.  R.,  Esq.,  the  treasurer  [or,  public  administrator]  of  "^  ,  has- 


in  liis  charpp,  by  virtue  of  his  ofTieo,  certain  property  (wliicb  is  desr-riljed  in 
an  inventory  attaciied  to,  and  made  part  of,  .said  affidavit),  and  that  sueii 
j>r()j)('r1y  is  in  a  jx'iisliin^  condition; 

Okukhki),  tliat   tlic  said    S.   K.,    Kscj.,   pul)lic   adniinistratur   of  ,   sell    at 

public  auction  tlie  pr()])erty  descril>ed  in  the  .said  affidavit  and  inventory,  and 
that  such  sale  take  place  on  the  day  of  ,  ,  or  on  such  adjourned 

days  as  the  said  public  administrator  shall  designate. 

III.  Petition  for  Order  to  Seize  Personal  Property  to  Prevent  Waste. 
[Title.^ 
To  the  Surrogate's  Court  of  the  county  of  New  York : 

The  petition  of  S.  R.,  public  administrator  in  the  city  of  New  York,  respect- 
fully shows,  upon  his  information  and  belief,  that  A.  B.,  late  of  Chicago, 
Illinois,  died  in  the  city  of  New  York,  on  the  day  of  ,         .  intes- 

tate, leaving  certain  goods,  chattels,  and  ett'ects  in  the  city  and  county  of  _\»w 
York,  and  that  the  said  property  is  in  danger  of  waste  and  embezzlement.  H'! 
further  shows,  upon  his  information  and  belief,  that  the  said  A.  H  left  him 
surviving,  ^1.  B.,  his  widow,  of  full  age,  and  \V.  B.  and  S.  B..  i)oth  minors 
under  the  age  of  tweniy-one  years,  his  only  cliildr^n.  and  only  next  of  kin, 
all,  at  the  time  of  the  d'.'ath  of  the  said  intestate,  and  still,  residents  of  the 
city  of  New  York,  and  for  proof  of  the  allegations  herein  contained  the  public 
administrator  refers  to  the  affidavit  of  W.  S.,  a  creditor  of  tlie  said  intestate, 
hereunto  annexed. 

The  j)ublic  administrator,  pursuant  to  the  statute  in  such  case  made  and 
provided,  applies  to  the  surrogate  for  an  order  authorizing  him  to  take  charge 
of,  seize,  and  secure  the  goods  and  property  of  the  said  A.  B.,  deceased,  in- 
testate. [Signature.^ 

[Verificaiion.'] 

IV.   The  Afpdavit  to  Accompany   the  Petition. 
[Title  and  Yenue.'l 

W.  S.,  of  the  city  of  Xew  Y'^ork,  being  duly  sworn,  says,  that  he  is  a  creditor 
of  A.  B.,  late  of  Chicago,  Illinois,  the  person  referred  to  in  the  annexed  peti- 
tion. That  the  said  A.  B.  died  in  the  city  of  Xew  York,  on  the  day  of 
,  .  That  he  left  him  surviving,  M.  B.,  of  full  age,  his  widow,  and 
W.  B.  and  S.  B.,  minors,  his  only  children,  and  only  next  of  kin,  and  that  the 
said  widow  and  next  of  kin  of  the  said  intestate  resided  at  the  time  of  his 
■death,  and  still  reside,  in  the  city  of  Xew  York.  That  the  said  A.  B.  died 
possessed  of  a  stock  of  dry  goods  of  the  value  of  upwards  of  ten  thousand 
dollars,  in  his  late  store,  Xo.  ,  street,  in  the  city  of  Xew  York. 
That  the  said  store,  and  the  stock  of  goods  therein  contained,  have  been,  since 
the  death  of  the  said  A.  B.,  in  the  possession  of  the  clerks  formerly  employed 
in  the  said  store.  That  no  responsiI)le  person  has  ])een  in  cliarge  thereof,  and 
that  portions  of  the  said  goods,  to  the  anioimt  of  upwards  of  one  thousand 
dollars,  have  been  dis])osed  of  and  carried  away,  apparently  imder  the  direc- 
tion of  the  clerks  in  the  said  store.  And  this  deponent  further  says,  that  the 
said  goods  are  in  danger  of  waste  or  embezzlement,  and  that,  as  this  deponent 
believes,  it  will  be  for  the  benefit  of  the  estate  of  the  said  deceased  to  have 
the  said  goods  seized  and  secured. 

[Jurat.']  [Signature.] 

V.  Order  on  the  Foregoing  Petition. 
[Title.] 

On  reading  and  filing  the  application  of  S.  R.,  the  public  administrator  in 
the  city  of  Xew  York,  and  the  affidavit  of  W.  S.,  a  creditor  of  the  said  A.  B., 
•deceased,  by  which  it  a])iiears  that  the  widow  and  next  of  kin  of  the  said  in- 
testate, entitled  to  a  distributive  share  in  his  estate,  resided  in  the  city  of  Xew 
York  at  the  time  of  the  death  of  the  said  intestate,  and  still  reside  in  the  saiil 
city;  and  that  the  stock  of  dry  goods  of  the  said  deceased  in  his  late  store. 
No.         ,  street,  in  the  eitv  of  Xew  York,  are  in  danger  of  waste  and 


.\o.  4!»..  FuKMs.  000' 

f  iiibozzlomcnt ;  and  that  it  would  be  for  the  benefit  of  the  estate  of  the  said 
intestate  to  have  the  said  stock  of  floods  seized  and  secured; 

OiiDEUiiO.  tliat  the  said  S.  R..  public  administrator  in  the  city  of  New  York, 
be.  and  he  hereby  is  authorized  to  take  charj^e  of,  seize  and  secure  the  stock 
of  dry  floods,  property,  and  effects  of  the  said  A.  B.,  deceased,  in  the  storfr 
lately  occupied  by  tlie  said  deceased,  at   Xo.  ,  street,   in  tlie   city  of 

New  York. 

VI.  Xotice  of  Application  for  Letters. 

Public  Administrator's  Office. 

Notice  is  hereby  given  to  the  relatives  and  next  of  kin  of  A.  B.,  deceased, 

and  who  is  alleged  to  have  died  intestate,  that  I  shall  apply  to  the  surrogate 

of  the  county  of  New  York,  for  letters  of  administration  upon  the  estate  of 

the  said  intestate,  on  the  day  of  next,  at  ten  oclock  in  the  forenoon. 

[Date.]  [Signature  of], 

Public  Adm'r. 
VTT.  Affidavit  on  Application  for  Letters. 
[T'eni/e.] 

H.  J.  C,  Jr.,  the  public  administrator  in  the  county  of  Kings,  being  duly 
f^worn,  says,   that  he  is   informed   and   believes   that   the   said   A.    B.,   late   of 
Brooklyn,  Kings  county,  deceased,  departed  this  life  at  Brooklyn,  on  the 
day  of  last,  leaving  property  and  effects  of  which  this  deponent  is  au- 

thorized by  law  to  take  charge,  the  value  of  which  is  about  the  sum  of  sev- 
enty-five dollars.  That  deponent  has  caused  the  service  and  publication  of  the 
notice  required  by  law,  as  appears  by 'affidavit  annexed  hereto:  that  no  claim 
has  been  made  according  to  law,  and  that  deponent  has  taken  upon  himself 
the  administration  of  the  estate  of  the  deceased. 

[Jurat.]  [Sifinattire.] 

[Annex  to  this  an  affidavit  shoicincj  due  service  and  publication  of  foregoing 
notice.] 

No.   49. 

[Ante,  §  405.] 
Appointment  of  Temporary  Administrator. 

I.  2\otice  of  Motion.^ 
[Title  of  the  principal  proceeding.] 

Take  notice,  that  on  the  proceedings  heretofore  had  herein  [and  on  the  affi- 
davit of  L.  H.,  a  copy  of  which  is  hereto  annexed],  a  motion  will  be  made  to 
Ihe  surrogate  of  this  county,  at  his  office  in  the   [city  of  New  York],  on  the 
day  of  [at  least  ten  days  after  date  of  notice],  at  o'clock  in 

ihe  noon  of  that  day.  for  an  order  appointing  a  temporary  administrator 

of  the  goods,  chattels,  and  credits  of  B.  B.,  above  named,  deceased. 

[Date.]  [Signature  of  attorney.l 

To  [each  party  to  proceeding,  or  his  attorney.'] 

II.  Affidavit  on  Motion. 
[Venue.] 

L.  H.,  being  duly  sworn,  says: 

1.  That  he  is  the  sole  executor  named  in  the  paper  ^A^•iting  purporting  to 
be  the  last  will  and  testament  of  B.  B.,  late  of  the  city  of  New  York,  deceased, 
propounded  for  probate  and  now  pending  in  the  court  of  the  surrogate  of 
the  coimty  of  New  York. 

2.  That  he  is  the  younger  brother  of  the  said  decedent,  and  that  by  said 
Avill.  after  several  small  legacies  and  a  legacy  to  the  wife  of  the  said  decedent, 
the  rest,  residue,  and  remainder  of  the  real  and  personal  estate  of  the  said 
decedent  are  given,   devised,   and   bequeathed   unto   deponent,   as   executor    in 


1  The  application  for  the  appointment  of  a  temporary  administrator  may  be  by  motion  in 
the  original  proceeding  or  by  a  petition,  in  a  case  where  the  ground  of  the  application  is  one 
of  those  mentioned  in  subd.  1  of  $  2668  of  Co.  Civ.  Proc.  But  the  aoplication  must  be  by 
petition,  where  the  ground  is  the  absence  of  the  party,  as  provided  by  subd.  2  of  the  same 
section. 


991  FoHMs.  X.I.  4!». 

trust.  That  tlic  proof  of  tlic  said  will  is  c-ontcstcd,  whereby  delay  is  neces- 
.sarily  produced  in  f,Manting  letters  testamentary  or  administration  in  thii 
matter,  and  it  is  uncertain  when  such  contest  will  be  terminated  [or  spcciftf 
other  cause  of  delay]. 

3.  That  the  property  of  the  said  deceased  consists  in  part  of  personal  prop- 
erty and  in  part  of  real  estate,  and  that  it  is  advisable  and  necessary  that 
immediate  steps  be  taken  for  the  collection  of  the  income  from  the  same  and 
the  rentals  thereof,  and  for  the  re-renting  of  certain  portions  of  the  real  es- 
tate for  the  en -uing  year. 

4.  That  your  petitioner  has,  to  the  best  of  his  ability,  ascertained  and  esti- 
mated tlie  \alue  of  the  real  and  jK'rsona'i  property  of  wliich  the  said  deceased 
died  possessed,  and  th  it  the  real  j^roperty  does  not  exceed  in  value  the  sum 
of  dollars,  and  the  annual  rentals  therefrom  being  about  dollars; 
and  that  the  value  of  the  personal  j)roperty  does  not  exceed             dollars. 

5.  That  all  the  [widow  and]  heirs  and  next  of  kin  of  said  decedent  are  par- 
ties to  the  proceeding  for  the  proof  of  said  paper  writing. 

[Jurat.]  [Signature.] 

III.  Petition  for  Letters  in  Case  of  Absentee. 
To  the  Surrogate's  Court  of  the  county  of  New  York: 
The  petition  of  A.  B.  respectfully  shows: 

I.  That  your  petitioner,  residing  in  tlie  city  of  New  York,  is  the  son  of  C. 
D.    [or  a  creditor,  etc.,  slatiny  particulars  of  debts,]   who  resided  at   No.  , 

street,  in  said  city,  up  to  and  on  the  day  of  .     That  on  said 

day  the  said  C.  D.  took  passage  in  the  steamer  Saratoga,  from  the  port  of 
New  York,  to  Havana,  Cuba.  That  it  was  the  intention  of  the  said  C.  D.  to 
find  employment  as  a  civil  engineer  in  Cuba,  and,  as  your  petitioner  is  in- 
formed and  believes,  he  was,  for  some  months  after  his  arrival  at  Havana, 
engaged  in  the  construction  of  a  railroad  in  the  vicinity  of  ,  Cuba,  from 

which  j)lace  he  communicated,  from  time  to  time,  with  dejwnent,  by  mail. 
'I'hat  since  the  day  of  ,  your  ])etitioner  has  _eceived  no  communica- 

tion from  the  said  C.  D..  by  mail,  or  otherwise,  and  has  no  information  as  to 
his  present  whereabouts,  if  living.  That  your  petitioner  lias  caused  diligent 
search  to  be  made  for  the  present  abode  of  the  said  C.  D.^  through  the  U.  S. 
Consul  at  Matanzas,  Cuba,  in  the  vicinity  of  the  last  known  place  of  abode 
of  C.  D.,  and  his  communications  are  hereto  annexed,  from  which  it  appears 
that,  shortly  before  the  disajipearance  of  said  C.  D.,  an  insiirrection  broke  out 
among  the  negro  slaves  in  the  district  of  his  abode,  in  which  several  white 
persons  in  the  vicinity  were  massacred,  since  which  no  trace  of  said  C.  D. 
can  be  found;  and  there  is  reason  to  believe  that  the  said  C.  D.  is  dead  [or,. 
that  he  has  been  secreted,  confined,  or  otherwise  unlawfully  made  away  with 
—  or,  after  stating  the  presumptive  circumstances,  that  he  has  become  a 
lunatic]. 

II.  [State  particulais  as  to  names,  residences,  and  ages  of  next  of  kin.  uidotr. 
etc.,  of  absentee,  as  in  the  case  of  an  application  for  letters  in  case  of  deceased 
intestate.] 

III.  That  there  is  now  on  deposit   to  the  credit  of  the  said   C.   D..   in  the 
Savings  Bank,  in  the  city  of  New  York,  the  sum  of  dollars   [or 

state  other  properti/,  and  necessity  for  temporary  administration  for  the  pres- 
ervution  or  disposal  thereof]. 

IV.  That  your  petitioner  has,  to  the  best  of  his  ability,  estimated  and  as- 
certained the  value  of  the  i)ersonal  property  in  this  State  belonging  to  the 
said  ('.  ])..  and  that  the  same  does  not  exceed  dollars. 

WiiKUKioi.i;,  your  ]>etitioner  ])rays  that  a  temporary  administrator  of  the- 
goods,  chattels,  and  credits  of  the  said  C.  D.  may  be  ap|)ointed.  and  that  letters 
may  be  issued  to  him  pursuant  to  the  statute  in  such  case  made  and  pro- 
vided, and  that  a  citation  may  be  issued  [etc.]. 

[Date  and  Verification.]  [Signature.] 

IV.  Order  for  Letters  of  Temporani  Administration. 
[Title.] 

On  reading  and  filing  the  jietition  of  A.  B.,  dated  the  day  of  ^ 

,  [or.  On  all  the  proceedings  in  the  above-entitled  matter,  and  the  papers 


.NO.  40.  Forms.  992 

licrein  heretofore  filed,  and  on  reading:  and  filins;  the  affidavit  of  A.  B.,  veri- 
fied the  day  of  ,  ],  to  the  surrogate  of  the  county  of  [New 
York],  for  an  order  appointing  a  temporary  administrator  of  the  goods,  chat- 
tels, and  credits  which  were  of  the  late  M.  N.,  deceased,  together  with  proof 
of  due  service  of  notice  of  motion  [or,  citation  —  or,  and  affidavit]  on  all 
necessary  parties  [none  of  tlie  parties  having  appeared  pursuant  to  said  no- 
tice—  or,  citation, —  except  Y.  Z.,  wlio  ap{)eared  by  his  attorney,  B.  T.,  and 
opposed  said  application!  ;  and  the  surrogate  being  satisfied  that  the  case  is 
a  proper  one  for  the  appointment  of  a  temporary  administrator,  and  thai 
A.  B.  is  a  competent  and  qualified  person  therefor;  *  Now,  on  motion  of 
A.  T.,  attorney  for  said  A.  B. : 

It  is  hereby  oudekkd,  that  temporary  administration  on  the  goods,  chat- 
tels, and  credits  of  said  ^M.  N.,  late  of  ,  deceased,!  be,  and  the  same  liereby 
is,  granted  to  said  A.  E.,  and  that  letters  of  temporary  administration  upon 
the  goods,  chattels,  and  credits  [and  estate]  of  said  decedent  issue  to  the  said 
A.  B.,  upon  his  [here  direct  him   to  qualify  as  in  No.  44,  III.] 

And  it  is  further  ordered,  that  said  A.  B.  be,  and  he  is  hereby,  authorized 
to  take  possession  of  the  buildings,  and  lots  on  which  they  stand,  known  as 
Nos.  ,  street,  in  the  city   [New  York],  being  property  of  which  said 

M.  N.  died  seized  and  possessed,  and  receive  the  rents  and  profits  thereof,  as 
the  same  become  due  and  payable,  until  the  further  order  of  this  court.  [The 
order  may  also  authorize  the  leasing  of  premises  for  not  more  than  a  year,  or 
other  aets,  except  selling,  necessary  for  preservation  or  benefit  of  the  estate.] 

It  is  further  ordered,  that  the  said  A.  B.,  within  ten  days  after  any 
money  belonging  to  the  estate  comes  into  his  hands,  deposit  the  same  in  the 
Bank   [or,  in  Neic  York,  in  the  Trust  Company],  to  the  credit  of 

this  proceeding. 

V.  Letters  of   Temporary  Admitiistration. 

The  People  of  the  State  of  New  York, 

To  E.  G.,  send  greeting: 

Whereas,  a  paper  has  been  propounded  for  probate  before  the  surrogate 
of  the  county  of  New  York,  as  the  last  will  and  testament  of  L.  R.,  late  of 
the  city  and  county  of  New  York,  deceased,  and  a  contest  exists  relative  to 
such  probate  [or,  other  cause],  and  a  delay  is  thereby  necessarily  produced 
in  granting  letters  testamentary  or  of  administration  upon  the  estate  of  said 
deceased : 

Know  ye.  that  we,  being  desirous  that  the  goods,  chattels,  and  credits  of 
said  deceased  may  be  collected  and  preserved,  do  grant  unto  you,  the  said 
E.  G.,  full  power  by  these  presents  to  take  into  your  possession  the  personal 
property  of  the  said  deceased,  and  to  secure  and  preserve  it  with  all  the 
authority  and  power  conferred  upon  you  by  law,  hereby  requiring  you  to 
make,  immediately,  a  true  and  perfect  inventory  of  all  and  singular  the 
goods,  chattels,  or  credits  of  said  deceased,  and  return  the  same  to  our  said 
surrogate,  within  three  months  from  the  date  of  these  presents,  and  also  to 
render  a  just  and  true  account  of  your  administration  as  such  temporary 
administrator  whenever  required  by  our  said  surrogate,  and  faithfully  to 
deliver  up  the  goods,  chattels,  and  credits  of  said  deceased  to  any  person  or 
persons  \\ho  shall  be  appointed  executors  or  administrators  of  the  said  L.  R., 
deceased,  or  to  such  other  person  as  shall  be  authorized  to  receive  the  same 
by  said  surrogate. 

In  Testimony  Whereof,  we  have  caused  the  seal  of  office  of  the  surrogate's 
^ourt  of  the  city  and  county  of  New  York  to  be  hereunto  affixed. 

Witness,   Hon.  ,   surrogate   of  .said  county,  at   the   city   of   New 

York,   this  day  of  ,   in   the  year  of  our   Lord,   one  thousand  nine 

hundred  and 

[Signature], 

Clerk  of  the  Surrogate's  Court. 


1  In  case  of  administration  of  an  absentee's  estate,  substitute  now  or  late,  for  late  of 
dtceaaed. 


993  FoKMs.  No.  50. 

No.   50. 

[Antr,   §   417.] 

Payment  of  Debt  by  Temporary  Administrator. 

I.   I'ctition. 
{Title.-] 
To  the  Surrofrate  for,  thf  Surrogate's  Court]  of  the  county  of  [New  York]: 

The  petition  of  A.  K.  respectfully  shows; 

I.  That  your  petitioner  [or,  if  the  petition  is  by  a  creditor.  That  C.  I).] 
was  heretofore  apj)oiiited  teini)orary  administrator  of  tjie  <joods,  chattels,  and 
credits  of  M.  X.,  late  of  ,  deceased  [or,  of  the  property  of  M.  N.,  now 
or  late  of  .  an  absentee],  by  an  order  duly  made  by  the  [surrogate's 
court  of  this  county,  on  the  day  of  ,  ,  and  thereupon  your 
petitioner  [or,  said  C.  D.]  qualified,  and  letters  of  temporary  administration 
were  issued  to  him  as  such. 

II.  That,  on  the  day  of  ,  ,  in  pursuance  of  an  order  there- 
tofore duly  made  by  the  said  surrogate,  your  i)etitioner  [or,  said  C.  D.] 
commenced  the  publication  of  notices  to  creditors  of  said  M.  X.,  to  present 
their  claims,  and  continue  said  publication,  agreeably  to  the  statute,  for  the 
period  of  six  months. 

III.  That  more  than  one  year  has  elapsed  since  said  letters  of  temporary 
administration  were  issued. 

IV.  That  the  assets  of  the  estate  of  .said  M.  X.  amount  to  over 

dollars,  and  the  debts  amount  to  dollars;    and  your   petitioner   [or, 

said  C.  D.],  as  sucli  temporary  administrator,  has  sufficient  assets  in  hand, 
applicable  to  the  payment  of  tlie  debts  of  said  M.  X.,  to  pay.  with  interest 
[one-half  of]  the  claim  of  L.  ^l.  [or.  of  your  petitioner],  hereinafter  men- 
tioned, and  the  same  may  be  so  applied,  without  injuriously  affecting  the 
rights  of  others  entitled  to  priority  or  equality  of  payment  or  satisfaction. 

V.  That  one  L.  M.  [or,  your  petitioner]  has  a  valid  claim  against  said 
M.  X.  [deceased],  consisting  of  [state  it  briefly,  e.  g.,  thus]  a  promissory 
note  made  by  said  ^I.  X.,  in  his  lifetime,  to  the  order  of  said  L.  yi..  dated 
the  day  of  ,  ,  for  dollars,  payable  months 
after  date,  and  that  no  portion  of  the  same  has  been  paid  [as  your  petitioner 
is  informed  and  believes].  That  said  claim,  with  proof  thereof,  was  duly 
presented  to  your  petitioner  [or,  by  your  petitioner  to  said  temi)orary  admin- 
istrator.] and  a  cojiy  of  said  note,  and  [a  copy  of]  the  proof  of  the  validity 
of  said  claim  are  hereto  annexed  and  marked.  res])ectively.  A  and  B. 

WiiKijKFOHE  your  petitioner  prays  that  a  decree  be  entered  herein,  direct- 
ing him  [or,  said  temporary  administrator]  to  pay  [one-half  of]  said  claim, 
with  interest  from  the  day  of  ,  ,    [or,  so  much  of  said  debt  as 

it  may  be  proper  and  just  now  to  pay:  ntnl  if  the  petition  is  by  the  creditor, 
add:  and  that  a  citation  be  issued  requiring  him  and  all  parties  interested  to 
show  cause  why  he  should  not  render  an  account,  and  why  such  decree  should 
not  be  made].  [i^ignature.] 

[Verification.] 

II.  Decree  on  the  Foregoing. 

[The  decree  on  the  foregoing  petition,  after  the  proper  recitals,  may  be:] 
That  the  .said  temporary  administrator  be,  and  he  is  hereby  directed  to  pay 
[state  claim  as  in  petition:  and  if  the  petition  iras  by  a  creditor,  add:  and 
that  a  citation  be  issued  therefor  and  a  citation  having  been  duly  issued 
thereupon  out  of  this  court,  requiring — names  —  to  appear  and  show  cause 
why  an  account  should  not  be  rendered,  and  the  said  claim  should  not  be 
paid,  and  said  citation  having  been  returned  and  filed,  with  proof  of  due 
service  thereof,  on  all  saiil  jiarties]  ;  and  it  having  lieen  proved  to  the  satis- 
faction of  said  surrogate  by  the  said  petition  [and  the  alfidavit  of  Q.  R., 
verified   the  day   of  ,  ,   and   herewith    filed],   that   the   assets   of 

said  decedent  [or,  absentee],  in  the  hands  of  said  temporary  administrator, 
exceed  the  debts    [and   if   the  petition    was   by   a   creditor,   add:   and  that  the 

63 


No.  51.  FoKMS.  ■  094 

petition  may  be  granted,  without  injuriously  affecting  the  rights  of  others 
entitled  to  priority  or  equality  of  payment  or  satisfaction]  ; 

Now,  on  motion  of  A.  T.,  attorney  for  said  A.  B., 

It  is  adjudged,  that  said  A.  B.,  the  temporary  administrator  of  the 
property  of  M.  N.,  the  said  deceased  [or,  absentee],  pay  to  said  L.  M.  [one- 
lialf]  the  full  amount  of  his  said  claim,  to  wit.  dollars,  with  interest 

thereon,  at  per  cent.,  from  the  day  of  ,         ,  the  whole  amount- 

ing to  $ 

No.   51. 

[Ante,  §  438.] 
Revocation  of  Letters. 

I.   Petition. 
[Title.] 

To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  A.  D.  respectfully  shows : 

I.  That  your  petitioner  is  one  of  the  legatees  under  the  will  of  C.  D.,  latfv 
of  the  [city  of  New  York],  deceased  [or  state  other  interest,  as  next  of  kin, 
creditor,  etc.],  which  was  admitted  to  probate  by  the  surrogate['s]    [court]  of 

county,   on  the  day  of  ,  ,   and  recorded  in  the  office 

of    said    surrogate,    in    Liber  of    Wills,    at    page  ;    and    thereupon 

letters  testamentary  were  duly  issued  by  said  surrogate  to  Y.  Z.,  the  sole 
executor  in  said  will  named.  [Or,  irhcre  letters  of  administration  are  sought 
to  he  revoked,  allege  the  interest  of  the  petitioner  and  the  issue  of  letters  of 
administration]. 

II.  That  the  circumstances  of  said  Y.  Z.  are  siich  that  they  do  not  afford 
adequate  security  to  your  petitioner,  nor  to  the  creditors  of  said  C.  D.,  nor 
to  other  persons  interested,  for  the  due  administration  of  the  said  estate 
[adding  particulars,  for  instance]  that  the  estate  ^^■hich  has  come  into  the 
hands  of  the  said  Y.  Z.,  as  such  executor,  exceeds  dollars ;  that  the 
said  Y.  Z.  is  insolvent  and  owes  large  sums  of  money,  and  on  the  day  of 

,  ,    made    an    assignment    of    all    his    property    for    the    benefit    of 

creditors.  [Or  state  other  cause  for  revocation,  icith  facts  ami  circumstances, 
e.  g..  That  the  said  Y.  Z.,  at  the  time  of  the  issue  of  letters  testamentary  to 
him  as  above  stated,  was  an  alien  (not  being  a  citizen  of  the  United  States, 
but  being  a  citizen  of  the  kingdom  of  Great  Britain,  resident  at  New  York 
city,  in  the  State  of  Xew  York,  and  that  since  such  appointment  he  has 
ceased  to  be  a  resident  of  the  State  of  Xew  York,  and  did,  on  or  about  the 

day  of  ,         ,  remove  from  the  city  of  Xew  York,  and  take  up  his 

residence  at  .Jersey  City,  in  the  State  of  Xew  Jersej',  and  he  is  now  a  resident 
of  that  State]. 

Wherefore,  your  petitioner  prays,  that  a  decree  be  made  revoking  the  said 
letters  heretofore  issued  to  said  Y.  Z.,  and  that  he  be  cited  to  show  cause 
why  .such  a  decree  should  not  be  made;  [and  that,  in  the  meantime,  the  said 
executor  be  enjoined  from  further  acting  in  the  premises]. 

[Signature.] 
[Verification.] 

II.  Order  Enjoining  Executor. 
[Title.] 

A.  D.  of  the  city  of  New  York,  a  legatee  under  the  will,  and  interested  in 
the  estate  of  C.   D.,  late  of  said  city,  deceased,  having,   on  the  day  of 

,  ,  filed  a  verified  petition,  by  which  complaint  is  made  that  the 
circumstances  of  Y.  Z.,  the  executor  of  the  said  will,  are  such  that  they  do 
not  afford  adequate  security  for  the  due  administration  of  the  estate  of  the 
said  deceased  [or,  that  the  said  executor  has  become  by  law  incompetent  to 
serve  as  such]  ;  and  it  appearing  to  the  surrogate  that  there  are  good  grounds 
for  such  complaint,  and  the  said  surrogate  having  thereupon  issued  a  citation 
to   the   said   Y.    Z.,   requiring   him   to    appear    at   a   day   and   place    therein 


995  Forms.  Si>.  52. 

sppoifiod.  to  show  cause  why  letters  testamentary  jrranted  ami  issued  to  him, 
as  executor,  on  the  day  *)f  .  ,  sliouhl  not  be  revoked, 

It  is  oruekei),  that  the  said  V.  Z.  be,  and  he  hereby  is,  enjoined  from 
further  acting  in  the  premises  until  the  matter  in  controversy  shall  be  dis- 
posed of. 

III.   Onlrr  Revoking  Letters. 
[Title.'] 

On  reading  and  liliivr  proof  of  the  due  and  personal  service  of  Y.  Z..  tho 
executor  of  the  last  will  and  testament  of  C.  D..  late  of  the  city  of  New  York, 
deceased,  of  the  citation  heretofore  issued  in  this  matter,  requiring  him  to 
appear  in  this  court,  on  this  day,  to  show  cause  why  the  letters  testamentary 
issued  to  him  on  said  will  sliould  not  be  revoked;  and  the  said  Y.  Z.  having 
appeared,  and  A.  1).,  the  complainant  herein,  having  also  appeared,  and  after 
hearing  the  jiroofs  and  allegations  of  the  parties,  and  it  a])pearing  that  the 
circumstances  of  the  said  Y.  Z.,  executor  as  aforesaid,  are  such  that  they  do 
not  afford  adequate  security  for  his  due  administration  of  the  estate. 

Okdkreu,  that  the  said  Y.  Z.  give  a  bond,  with  sureties  like  those  required 
by  law  of  administrators,  within  five  days  from  this  day,  or,  in  default 
thereof,  that  his  letters  testamentary  be  revoked  [or  if  cause  of  revocation 
ca)inot  he  cured  by  giving  securiti/,  say.  instead:  That  the  letters  testa- 
uH'ntary  heretofore  issued  to  the  said  Y'.  Z.  be.  and  they  are  hereby  revoked. 
And  all  authority  and  rights  of  the  said  Y.  Z.,  as  such  executor,  are  hereupon 
to  cease]. 

No.   52. 

[Ante.   §   443.] 

Revocation  of  Letters  upon  Resignation. 

/.  Petition  for  Discharge.^ 
[Title.] 

To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  A.  B.,.the  executor  of  the  will  [or,  administrator  of  the 
estate]  of  M.  X..  late  of  the  city  of  New  York,  deceased,  respectfully  shows: 

I.  That,  by  this  court,  on  the  day  of  ,  ,  said  will  was 
duly  admitted  to  probate,  and  letters  testamentary  thereon  issued  to  your 
petitioner  [or  allege  letters  of  administration]. 

II.  That  tlie  only  persons  interested  in  the  estate  of  M.  X.,  the  decedent, 
as  creditors  or  j)ersons  claiming  to  be  creditors,  husband  [or,  wife],  legatees, 
next  of  kin,  or  otherwise,  and  the  only  persons  who  are  entitled,  absolutely 
or  contingently,  by  the  terms  of  said  will,  or  by  the  operation  of  law,  to 
share  in  the  fund,  or  in  the  proceeds  of  property,  held  by  your  petitioner, 
in  the  application  of  such  estate  or  fund,  and  the  places  of  residence  of  all 
such  ])ersons,  to  the  best  of  the  knowledge,  information,  and  belief  of  your 
petitioner,  are  as  follows,  viz.:    [stating  thon]. 

III.  [State  grounds  of  application,  for  instance :]  That  your  petitioner  is 
an  alien  and  a  citiz;'n  of  the  re])ublic  of  France,  having  resided  in  the  city  of 
Xew  York  for  a  number  of  years  past,  but  is  now  about  to  take  up  his 
residence  in  tlie  city  of  London.  England:  and  is  now  desirous  to  render  an 
account  of  all  his  proceedings  as  such   [executor],  and  be  discharged. 

Wherefore,  your  petitioner  prays  that  his  account  of  his  proceedings,  as 
.such  [executor],  may  be  judicially  settled,  and  that  a  decree  be  thereupon 
made  revoking  his  said  letters,  and  discharging  him  accordingly  as  [executor], 
and  that  the  creditors  and  persons  claiming  to  be  creditors  of  the  decedent, 
and  the  decedent's  husband  for,  wife],  next  of  kin,  and  legatees,  and  other 
persons  interested,  may  be  cited  to  attend  the  judicial  settlement  of  such  an 
account. 

[Signature.] 
[Verification.] 


IFor  forms  of  petition,  decree,  etc.,  upon  resignation  of  testamentary  trustees,  see  post. 


'Xo.  52.  Forms.  996 

II.  Order  Allouing   Accounting   for  Purpose   of   Discharge. 
[Tiilc.] 

A.  B.,  one  of  tlie  executors  of  the  will  of  M.  N.,  late  of  the  city  of  New- 
York,  deceased,  havinj?  presented  to  this  court  his  petition,  duly  verified,  on 
the  day   of  ,  ,   praying   that   his    account   be   judicially   settled, 

and  that  a  decree  be  thereupon  made,  revoking  his  letters  testamentary,  and 
service  charging  him  accordingly,  and  a  citation  thereon  having  been  issued, 
directed  to   [names],  and   returnable  on  the  day  of  ,         ,  and  the 

said  citation  having  been  returned  on  that  day  and  filed,  with  proof  of  due 
service  on  all  the  persons  named  therein;  and  C.  D.  having  appeared  by  Z.  T., 
his  attorney,  and  none  other  of  the  persons  cited  having  appeared;  and  the 
said  petitioner  having  appeared  by  his  attorney,  A.  T.,  and  the  surrogate 
having  heard  the  proofs  and  allegations  of  the  parties:  Now,  on  motion  of 
A.  T.,  the  attorney  for  said  A.  B., 

It  is  ordered  and  adjudged,  that  sufficient  reasons  exist  for  granting  the 
pra3'er  of  the  petition,  and  that  said  A.  B.  be.  and  he  hereby  is,  allowed  to 
account  for  the  purpose  of  being  discharged  as  [executor  of  the  will]  of  M.  N., 
deceased. 

III.   Decree  Revoking  Letters  and  Discharging   the  Representative.^ 

[Title.'] 

Letters   [testamentary,  on  the  will]   of  M.  X.,  late'  of  ,  deceased,  hav- 

ing been   heretofore  issued  by  this  court,   on   the  day  of  ,         ,  to 

A.  B.,  as  [executor],  and  the  said  A.  B.,  having,  on  the  day  of  ,       , 

filed  a  petition  in  the  office  of  said  surrogate,  praying  that  his  account  be 
judicially  settled,  and  a  decree  made  revoking  his  said  letters  and  discharging 
him,  and  that  a  citation  be  issued,  requiring  the  necessary  parties  to  .show 
cause  why  the  petition  should  not  be  granted;  and  such  citation  having  been 
thereupon  duly  issued,  requiring  [insert  names]  to  show  cause,  on  the 
day  of  ,         ,  why  such  a  decree  should  not  be  made :  and  the  said  cita- 

tion having  been  returned  on  that  day,  and  filed,  with  proofs  of  due  service 
thereof  on  the  persons  named,  and  none  of  the  persons  therein  named  having 
appeared  [except  C.  D.,  the  co-executor  of  said  A.  B..  who  appeared  by  B.  T., 
his  attorney,  and  waived  the  account  of  said  A.  B.,  and  a  judicial  settlement 
thereof]  ;  and  the  said  A.  B.  having  appeared  [in  person  and]  by  his  said  attor- 
ney and  counsel,  and  it  satisfactorily  appearing  to  the  surrogate  that  none  of 
the  money,  books,  papers,  or  other  property  of  the  estate  of  the  said  ]M.  X.,  are 
in  the  hands  of  said  A.  B. :  Xow,  on  motion  of  A.  T..  attorney  and  counsel  for 
said  A.  B. : 

It  is  ordered,  adjudged,  and  decreed,  that  the  said  letters  heretofore 
issued  to  A.  B.,  as  such  [executor],  be,  and  the  same  hereby  are.  revoked: 

And  it  is  further  ordered  and  adjudged,  that  the  said  A.  B.  be  charged 
as  such  executor  [here  insert  provision  as  to  charges  and  credits,  as  in  a  de- 
cree settling  an  executors  accounts  see  72,  XXI,  post]. 

And  it  is  further  ordered,  adjudged,  and  decreed,  that  the  said  executor 
has  fully  accounted  for  all  property  belonging  to  the  said  estate  coming  into 
his  hands,  as  such,  and  he,  having  paid  over  the  sum  of  dollars,  foimd 

due  from  him  as  aforesaid,  and  delivered  all  books,  papers,  and  other  property 
of  the  said  estate  in  his  hands,  to  the  clerk  of  this  court  [or,  to  his  co-execu- 
tor—  or,  to  J.  S.,  who  is  hereby  appointed  the  successor  of  the  said  A.  B.]  as 
directed  by  the  surrogate,  it  is  ordered  and  adjudged  that  the  resignation  of 
the  said  A.  B.  as  executor  of  the  last  will  and  testament  of  M.  X.,  deceased,  be 
and  the  same  is  accepted,  and  that  he  be  discharged  of  and  from  all  liability 
and  duty  on  account  thereof. 


1  Bee  post,  for  form  of  decree  revoking  letters  for  failure  to  give  new  or  additional  sureties. 


<J97  FoitMs.  iso.  53. 

No.  53. 

[Ante,  §  4()0.] 
Depositing  Securities,  to  Reduce  Penalty  of  Official  Bond. 

I.  I'ctition  for  Leave  to  Deposit,  etc. 

[If  the  application  is  made  on  applying  for  letters,  insert  this  in  the  peti- 
tion for  letters;  if  made  subsefjurntli/,  mai/  entitle  tliis  in  the  same  proceeding, 
reciting  briv/li/  the  former  steps,  and  continuing,  for  instance,  thus:] 

Tliat  tlic  said  doccas-d  diid  j)os.s(;.ssed  of  wrtain  j)ersonul  property  situate  in 
the  eoiinty  of  and  State  of  New  York  ;  and  tliat  tlie  afrfjrcpate  value  of 

all  the  j)ers()nal  ])rf)perty,  wherevt'r  situated,  of  whieh  the  deceased  died  pos- 
sessed, tof^ether  with  tlie  probable  an:ount  to  be  recovered  by  reason  of  all  or 
any  right  of  action  granted  to  an  executor  or  administrator  of  the  said  de- 
ceased, by  special  provision  of  law  [in  case  of  executor,  or  administrator  uith 
the  will  annexed  add.  ar.d  also  the  value  of  the  real  property,  or  of  the  pro- 
ceeds thereof,  whicli  n'.ay  con:e  to  tlie  hands  of  the  executor  —  or,  administrator 
—  by  virtue  of  any  ])rovision  contained  in  the  will,  does  not  exceed  the  sum  of 
three  hundred  and  fifty  thousand]  dollars,  and  that  the  same  largely  consists 
of  securities  for  the  payment  of  money,  and  that  all  the  goods,  chattels,  effects, 
and  [personal]  property  of  said  deceased,  over  and  above  said  securities,  does 
not  exceed  the  sum  of  [fifty  thousand]  dollars.  A  true  description  of  said 
securities  is  contained  in  Schedule  "  A  "  hereunto  annexed. 

That  it  is  inconvenient  for  your  petitioner  to  furnish  security  in  the  full 
amount  prescribed  by  law,  but  he  is  able  to  effect  an  arrangement  by  which 
the  Company  of  New  York,  a  trust  company,  which  is  authorized  by  law 

to  receive  the  same,  will  become  the  depository  and  custodian  of  the  said  estate 
under  the  direction  of  the  surrogate. 

Wherefore,  vour  petitioner  ])rays  that  an  order  be  made  directing  the 
dei)osit  with  said  Trust  Company  of  ,  of  the  aforesaid  securities  for 

the  payment  of  money  belonging  to  the  estate,  and  that  the  amount  of  the 
bond  to  be  given  by  your  petitioner  be  fixed  with  reference  to  the  remainder 
of  said  estate  or  fund,  amounting  to  dollars. 

[Signature.] 
[  Verification.] 

II.  Order  Thereon  Alloirinq  Deposit  and  Reduction  of  Bond. 
[Title.] 

On  reading  and  filing  the  verified  ]>etition  of  A.  B..  dated  the  day  of 

,  askiiig  an  order  directing  that  certain  securities  for  the  payment 
of  money  belonging  to  the  estate  of  said  deceased,  in  said  petition  specified  and 
described,   be    deposited    with   the  Trust    Company    of  ,    to   the   end 

that  the  amount  of  the  bond  to  be  given  by  him.  as  such  administrator,  may 
be  fixed  and  (h^termined  with  respect  to  the  remainder  only  of  the  estate  or 
fund  amounting  to  [fifty  thousand]  dollars  oi-  thereabouts  ;*  and  these  facts 
a])i)earing  to  the  satisfaction  of  the  surrogate,  and  lie  deeming  it  inexpedient 
to  r(>(]uire  of  said  A.  li.  security  in  the  full  amount  re(iuired  by  law:  Now,  on 
motioji  [etc.,  as  in  other  orders]. 

[Insert  in  ordering  part]  That  the  said  securities  for  the  payment  of  money, 
the  description  of  which  is  contained  in  Schedule  "  A."  annexed  to  said  peti- 
tiim,   belonging  to  the    estate   of  said   deceased,    be   deposited   with   the 
Trust  Company  of  ,  to  the  order  of  said  A.  B.,  as  administrator  as  afore- 

said, countersigned  by  the  surrogate. 

Axi)  IT  IS  FiRTiiEU  oiuu-.REi).  AD.n  DoEi),  .\M)  DECREED,  that  letters  of  adminis- 
tration upon  the  goods,  chattels,  and  credits  of  said  decedent  issue  to  said  A.  B., 
upoi.  his  subscribing  the  statutory  oath  that  he  will  well,  honestly,  and  faith- 
fully discharge  his  duty  as  such  adtninistrator,  according  to  law.  and  upon 
making  the  deposit  aforesaid,  and  upon  filing  the  recei])t  of  the  said 
Trust  Company  for  the  said  securities,  and  upon  executing  a  bond  in  the 
pe7;alty  of  [one  hundred  thousand]  dollars  to  the  people  of  Xew  York  State, 
with  two  or  more  competent  sureties,  for  the  faithfid  discharge  of  the  trust 
reposed  in  him  as  such  administrator.     And  it  is  further  ORDERED,  adjudged, 


.  ^o.  54.  FoKMs.  998 

AND  DECREED,  that,  as  such  administrator,  he  shall  be.  and  hereby  is,  empow- 
ered to  collect  and  receive  all  interest,  income,  and  dividends  now  due  or-  to 
grow  due  upon  the  securities  so  di'i)osited  as  aforesaid,  and  in  case  the  interest, 
income,  or  dividends  upon  any  of  said  securities  cannot  be  collected  without 
the  production  of  the  certificate  or  security  itself,  the  same  may  be  collected 
by  the  said  Trust  Company,  the  depositary  aforesaid,  and,  after  collec- 

tion, shall  be  paid  over  by  said  company  to  said  administrator,  upon  such  terms 
as  may  be  agreed  upon. 

And  the  said  Trust  Company  is  ordered  to  keep  possession  of  the  said 

securities,  subject  to  the  order  of  the  administrator  aforesaid,  countersigned  by 
the  surrogate,  or  subject  to  the  special  order  of  the  surrogate. 

III.  Receipt  by  Depositary  of  Securities. 
[Title.] 

The  Trust    Company,   of  ,   does    hereby   acknowledge  having   re- 

ceived, on  this  date,  from  A.  B.,  the  following  securities,  together  with  the 
certified  copy  of  an  order  [or,  decree]  of  the  surrogate  of  the  county  of  , 

made  in  the  matter  above  entitled,  and  dated  , 

Securities. 
[Here  foUoivs  description  of  the  securities.] 

In  Witness  Whereof,  the  said  Trust  Company  of  has  hereunto 

caused  its  corporate  seal  to  be  affixed,  and  the  same  to  be  duly  attested,  on 
this  day  of  , 

[Seal.}  [Signature  of], 

President. 
[Authentication  as  of  a  deed.] 

No.  54. 

[Ante,  §  462.] 

Proceedings  to  Compel  New  Official  Bond,  or  New  Sureties. 

I.  Petition  by  Person  Interested. 
[Title.] 

To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  M.  N.,  of  the  city  of  New  York,  respectfully  shows: 

I.  That  your  petitioner  is  one  of  the  children  and  next  of  kin  of  S.  N.,  late 
of  the  city  of  New  York,  deceased,  intestate,  and  has  not  yet  received  the 
share  of  the  estate  of  the  said  S.  N.,  to  which  by  law  he  is  entitled. 

II.  That  letters  [of  the  administration  of  the  estate]  of  the  said  S.  N.,  de- 
ceased, were  issued  by  the  surrogate  of  the  county  of  New  York  to  C.  D.,  of 
the  city  of  New  York,  on  the  day  of  , 

III.  Your  petitioner  further  alleges,  that  C.  R.  [lately  a  resident  of  the  city 
of  New  York,  is  one  of  the  sureties  of  the  said  C.  D..  in  his  bond  given  by  him 
on  the  granting  of  the  said  letters,  and  that  the  said  C.  R.  has  removed  out  of 
the  State  of  New  York,  as  your  petitioner  is  informed  and  believes,  and  has 
gone  to  Boston,  in  the  State  of  Massachusetts  —  or  other  facts  showing  insuffi- 
ciency of  sureties  or  inadequacy  of  amount  of  bond]. 

IV.  That  E.  N.,  of  the  city  of  New  York,  is  the  only  other  surety  of  the  said 
administrator  in  his  said  bond. 

Wherefore,  your  petitioner  praj's  that  C.  D.  may  be  required  to  give  new 
[or,  additional]   sureties   [or,  a  new  bond,  in  a  penalty  of  dollars],  or, 

in  default  thereof,  that  he  may  be  removed  from  his  office,  and  that  letters 
issued  to  him  may  be  revoked ;  and  that  the  said  C.  D.  may  be  cited  to  show 
cause  why  the  prayer  of  this  petition  should  not  be  granted. 

[Signature.] 
[Yerifioation.] 


DUt)  Forms.  Xo.  55. 

II.  Order  for  Xcic  or  Additional  Sureties,  etc. 
[Title] 

The  citation  issued  to  C.  D.,  administrator  of  the  estate  of  A.  B.,  deceased, 
on  the  day  of  ,  ,  ri'qiiiriiif^   him  to  show  cause  why  lie  should 

not  ho  requirod  [etc.,  rt.s  above],  havinj,'  Ijccn  returned  with  due  proof  of  service 
on  the  said  C.  D..  and  tlie  said  C.  D.  liavinj^  ap])eared  Ijv  W.  M.,  Esq.,  hi.s 
attorney,  and  it  satisfactorily  ai)]tearinf;  that  C  K.,  one  of  his  sureties,  has 
[removed  from  this  State  —  or  stating  other  facts  shoeing  insufficiency  of 
suretfi,  or  iiiadc(]uacy  of  amount  of  bond]. 

Okdkkei),  that  said  C.  D.  give  new  [or,  additional]  sureties  [or,  a  new 
bond,  in  a  penalty  of  dollars],  in  the  usual  form,  as  such  administrator 

as  aforesaid,  witliin  five  days  from  this  date,  or,  in  default  thereof,  that  his 
letters  of  administration  be  revoked. 

III.  Decree  Revoking  Letters  on  Failure  to  Give  Xeiv  Bond. 
[Title.] 

\Viif:rea.s,  bj'  an   order  made  and   entered  by  the  surrogate's   court  on  the 
day  of  ,  C.  D.,  administrator  of  the  estate  of  A.  B.,  deceased,  was 

required  witliin  five  days  from  that  date  to  give  a  new  bond  in  the  penalty 
of  dollars,  of  which  order  the  said  C.  D.  had  notice;  And  Whereas, 

the  said  C.  D.  has  failed  to  furnish  a  new  bond,  approved  by  the  surrogate,  as 
required  by  said  order  for,  has  filed  a  new  bond,  approved  by  the  surrogate,  as 
required   by  said   order].      Now,   on   motion   of  .   It  is  ordeked  and   de- 

creed, that  the  said  C.  D.  be,  and  ho  is  hereby,  removed  from  his  office  as  ad- 
ministrator aforesaid,  and  that  the  letters  of  administration  heretofore  issued 
to  him  be,  and  they  are  hereby,  revoked  [or,  if  new  bond  has  been  giveti  and  ap- 
proved, say,  instead,  that  this  proceeding  be,  and  the  same  is  hereby,  dismissed, 
with  costs  and  disbursements  of  the  same,  to  be  paid  by  to  ]. 

No.  55. 

[Ante,  §  464.] 

Releasing  Sureties  in  Official  Bond. 

I.  Petition  of  t^itrety  to  be  Released. 
[Title.] 

To  the  Surrogate's  Court  of  New  York  county: 

The  petition   of  J.   K.,   of  the   county  of  ,   respectfully  shows   to   the 

court  as  follows: 

Your  petitioner  alleges  that  he  is  one  of  the  sureties  of  C.  D.,  as  administra- 
tor of  the  goods,  chattels,  and  credits  of  A.  B.,  late  of  the  city  of  New  York, 
deceased,  and  that  he  desires  to  be  released  from  responsibility  on  account  of 
any  future  breach  of  the  condition  of  the  bond  of  the  said  administrator.  He, 
therefore,  prays  for  a  decree  releasing  him  accordingly,  and  that  C.  D.,  the  said 
administrator,  may  be  cited  to  show  cause  why  he  should  not  give  new  sureties. 

[Signature.] 
[Verification.] 

II.  Citation  Thereon. 

[The  command  of  the  citation  is]  to  show  cause  why  you  should  not  give  new 
sureties,  in  your  oflScial  bond  as  administrator  [etc.],  pursuant  to  the  statute. 

III.  Decree  Releasing  Surety. 
[Title.] 

J.  K.,  of  the  city  of  New  York,  one  of  the  sureties  of  C.  D.,  as  the  adminis- 
trator of  all  and  singular  the  goods,  chattels,  and  credits  of  A.  B..  late  of  the 
city  of  New  York,  deceased,  having  heretofore  presented  his  petition,  dated 
[etc.],  to  this  court,  setting  forth  that  he  desired  to  be  released  from  responsi- 
bility on  account  of  any  future  breach  of  the  condition  of  the  bond  of  the  said 
administrator,  and  praying  for  relief,  pursuant  to  the  statute;  and  the  surro- 


Xo.  56.  FoK.MS.  1000 

gate  liavinfj  thereupon  issued  a  citation  roquirinj^  the  said  C.  D.,  administrator 
as  aforesaid,  to  [state  substance  of  citation]*  and  the  said  C.  D.  having  ap- 
peared in  compliance  with  the  said  citation,  and  having  giver,  new  sureties,  to 
the  satisfaction  of  the  surrogate: 

It  is  Ai)Ji'i)(iED  AND  DECREED,  that  the  said  J.  K.  shall  not  be  liable  on  the 
bond  bearing  date  on  the  day  of  ,  in  the  year  one  thousand  nine 

hundred  and  ,  executed  to  the  people  of  the  State  of  New  York,  by  the 

said  C.  D.,  as  principal,  and  the  said  J.  K.  and  one  L.  M.,  as  sureties,  on  the 
granting  of  the  letters  of  administration  of  all  and  singular  the  goods,  chattels, 
and  credits  of  the  said  A.  B.,  deceased,  to  the  said  C.  D..  by  the  said  surrogate, 
for  any  breach  of  the  condition  of  the  said  bond,  occurring  after  the  date  of 
this  decree. 

No.  56. 

[Ante.  §  467.] 

Suing  on   Bond   of   Executors,   etc.,   after    Letters   Revoked.^ 

I.  Petition  for  Leave  to  Hue,  by  Person  Aggrieved. 
[Title.] 

To  the  Surrogate  of  county : 

The  petition  of  C.  D.  respectfully  shows  to  the  court,  as  follows:  Your 
petitioner  alleges   [upon  information  and  belief]  : 

I.  That  letters  of  administration  [with  the  will  annexed  or  letters  testa- 
mentary] on  the  estate  of  A.  B.,  late  of  ,  deceased,  were  granted  by  a 
decree  of  the  surrogate's  court  of  this  county,  on  the  day  of  ,  , 
to  G.  H.,  of  ,  who  entered  upon  the  discharge  of  his  duties  as  such  ad- 
ministrator with  the  will  annexed  [or,  executor],  accordingly,  and  as  such 
received,  in  his  official  capacity  as  aforesaid,  certain  property  belonging  to  the 
estate  of  said  A.  B.,  viz.:  [describe  it],  Avhich  he  has  not  duly  administered, 
but,  on  the  contrary,  has  wholly  converted  to  his  o^\^l  use. 

II.  That  your  petitioner  is  a  creditor  of  said  A.  B.,  and  has  a  valid  claim 
against  his  estate,  and  that  upon  his  petition  as  such  creditor  [or  otherwise], 
the  said  surrogate  on  the  day  of  ,  ,  made  a  decree  requiring 
that  said  G.  H.,  to  whom  said  letters  had  been  granted,  should,  within  thirty 
days,  render  an  account  of  his  proceedings,  or  paj"  the  same  [or,  otherwise^ 
state  briefly  the  object  of  the  decree  made]. 

[Or  where  the  applicant  seeks  payment  of  a  legacy,  substitute  for  the  first 
part  of  the  foregoing  paragraph:  That  he  is  a  legatee  under  the  will  of  the 
said  A.  B.,  deceased,  and  entitled  to  the  payment  of  a  legacy  given  him 
thereby;   and  that  upon  his  petition  —  and  continue   as   above.] 

[Or,  ichere  the  applicant  seeks  payment  of  a  distributive  share:  That  he 
is  one  of  the  next  of  kin  of  said  A.  B.,  deceased,  and  is  entitled  to  the  payment 
of  a  distributive  share  of  the  estate;  and  that  upon  his  petition  —  and  continue 
as  above.] 

III.  That  said  G.  H.  has  refused  to  perform  said  decree,  and  has  not  ren- 
dered an   account    [or,  has  not  paid  the  same],  although   on  the  day  of 

,  he  had  due  notice  of  said  decree,  and  was  requested  so  to  do. 

IV.  That  a  certified  copy  of  the  bond  of  said  A.  H.  is  hereto  annexed. 

V.  That  the  letters  of  administration  [with  the  Avill  annexed  —  or,  letters 
testamentary]  so  granted  to  the  said  A.  B.,  were  revoked  by  a  decree  of  the 
surrogate's  court  of  this  county,  rendered  on  the  day  of  ,  ,  and 
no  successor  has  been  appointed  in  said  administration. 

WiiEREP'ORE.  your  petitioner  prays  for  an  order  permitting  him  to  maintain 
an  action  upon  the  bond  given  by  the  said  G.  H.,  as  such  administrator,  for 
the  faithful  discharge  of  the  trust  reposed  in  him.  in  behalf  ol  himself  and  all 
others  interested  in  the  estate  of  the  said  A.  B.,  deceased,  to  recover  the  value 
of  the  property  so  received  by  the  said  administrator  and  not  duly  adminis- 
tered by  him.  [Signature.] 

[Verification.] 


1  Each  of  the  next  of  kin  having  a  separate  certificate  in  his  favor  may  sue  for  his  sha'-e. 
Brawlev  v.  Forman,  15  Hun,  144.  See  Hood  v.  Hood,  85  N.  Y.  561;  Bieder  v.  Steinhauer,  15 
Abb.  N."  C,  428. 


1001  FdijMs.  No.  :>T. 

II.  Onli  r  l'<  iiiiil  I  iii<i  Suit. 

\T!Hr.\ 

L'|)iiu  ii'julin^'  and  liliii;,'  llic  Nciilicd  |ictiti(Pii  nf  ( '.  1).  Ncttiii;;  furlli  [rrcilr 
suhfildncc  of  uUcfidtionti  aj  julil ion  \ -.  Now.  (Mi  iiioliiiii  of  Y.  Z.,  attorney  f<jr 
said  ix'titioncr,  it  is 

OijDKHKi),  that  the  said  C.  D.  bo,  and  lio  lioreby  is,  jHTinitted  to  maintain, 
in  ht'iialf  of  liiniseif  and  of  all  others  interested,  an  action  upon  the  olljcial 
bond  f^iven  by  .said  G.  H.,  as  administrator  \(lr.],  dated  tlie  day  of  , 

,  and  now  on  tile  in  the  office  of  the  surrogate  of  this  county,  to  recover 
the  value  of  [dcscrihiiiff  pr(jp(r1]i~\  :  and  tliat  the  moneys  recovered  in  such 
action  be  paid  l)y  tlie  olliccr  (•olleetin<i-  them  iiilo  tlie  surrogate's  court  of  this 
county,  to  be  distributed  according  to  law. 

\Si(i)i(itui-e  o/"]. 

Surrogate. 

III.  Hame ;   in  Action    hy   the  People.^ 

[Recitals  (IS  ahorr.] 

Okdeuki),  that  the  bond  given  by  said  G.  H.  [dcscrihitig  it  as  ahove],  be 
prosecuted  by  said  ('.  1).,  in  the  name  of  the  people  of  this  State,  joining  his 
name  as  relator;  and  that  the  moneys  collected  therein,  in  satisfaction  of  such 
decree,  be  applied  in  the  same  manner  as  the  same  ought  to  have  been  applied 
by  said  G.  H.  [Signature  of]. 

Surrogate. 

No.   57. 

[.biff,   §  404.] 

Appraisal  of  Assets  and   Making;   Inventory. 

I.  Petition. 
[Title.] 
To  the  Hon.  ,  Surrogate. 

Application  is  hereby  made  by  L.  R.,  as  executor  [or,  administrator]  of 
tlie  estate  of  A.  B.,  deceased,  to  have  appraisers  appointed  to  estimate  and 
ajjpraise  the  personal  property  of  said  deceased,  which  consists  of  [dcficril)- 
ing  it]. 

Dated,  [Signature  of]. 

Executor. 

II.  Order  Appointing  Appraisers.^ 
[Title.] 

I'pon  the  application  of  C.  D.,  administrator,  etc.,  of  the  said  A.  B.,  deceased, 
it  is  ordered  that  J.  K.  and  L.  M.,  both  of  the  town  of  Yonkers,  in  the  county 
of  Westchester,  two  disinterested  persons,  be.  and  they  are  hereby,  appointed 
appraisers  of  the  personal  property  of  the  said  A.  B.,  deceased,  to  estimate  and 
appraise  the  same;  and  they  are  hereby  authorized  and  required  to  truly, 
lioiiestly,  and  imiJartially  a])praise  the  |)ersonal  ])roperty  of  said  deceased, 
whicli  shall  be  exhibited  to  them,  according  to  the  best  of  their  knowledge  and 
ability.  [Signature  of]. 

Surrogate. 
III.  Appraiser's  Oath. 
[  \'cnur.] 

I,  J.  K.,  of  the  town  of  ,  in   said  county,  appraiser,  duly  appointed 

by  the  surrogate  of  the  said  county  of  \Yestchester.  do  swear  and  (leclare,  that 
I  will  truly,  honestly,  and  im])artially  a])i)raise  the  jjcrsonal  property  of  A.  H., 
late  of  the  said  county  of  Westchester,  deceased,  whicli  shall  be  for  that  pur- 
pose exhibited  to  me,  to  the  best  of  my  knowledge  and   al)ili1y. 

[Jurat.]  [Signature.] 

1  People  ex  rel.  Becar  v.  Rtnille-,  16  Hun  234.  The  action  may  be  broufjht  by  an  8ssi}rne«of 
the  bond.  See  Critiler  v.  Curry,  66  Baib.  386,  and  Rowe  v.  Parsons.  0  Hun,  338,  as  to  what  is 
a  sufficient  nssi{;nnieiit. 

2  As  to  duties  and  compensation  of  appraisers,  see  Co.  Civ.  Proc,  §§  2565,  2711,  as  amended 
1893;  and  page  494  et  seq.,  ante. 


Xo.  57.  Forms.  100:^ 

IV.  Notice  of  Appraisement. 

To  the   legatees,  next  of  kin,  and  to  all  persons  interested  in   the  estate  of 
A.  B.,  late  of  the  city  of  Yonkers.  in  the  county  of  Westchester,  deceased: 

Notice  is  hereby  f^iven,  that  the  undersigned,  the  administrator,  etc.,  of  said 
deceased,  witli  tlie  aid  of  J.  K.  and  J^.  yi.,  the  sworn  appraisers  appointed  by 
the  surrogate  of  the  county  of  Westchester,  to  estimate  and  appraise  the  per- 
sonal property  of  tlie  said  deceased,  will  proceed  to  make  an  appraisement  of 
all  the  goods,  chattels,  and  credits  of  said  deceased,  at  the  late  residence  of  said 
<leceased.  No.         ,  street,  in  the  said  city,  on  the  day  of  ,  , 

at  ten  o'clock  in  the  forenoon. 

[Date.']  [Signature  of  representative.} 

V.  Inventory. 

A  true  and  perfect  inventory  of  all  the  goods,  chattels,  and  credits  which 
were  of  A.  B.,  late  of  the  city  of  Yonkers,  in  the  county  of  Westchester,  de- 
ceased, made  by  the  administrator,  etc.,  of  the  said  deceased,  with  the  aid  and 
in  the  presence  of  -J.  K.  and  L.  M.,  both  of  said  county  of  Westchester,  they 
having  been  duly  appointed  and  sworn  appraisers,  containing  a  full,  just,  and 
true  statement  of  all  the  personal  property  of  the  said  deceased  which  has  come 
to  the  knowledge  of  the  said  administrator,  and  particularly  of  all  moneys, 
bank  bills,  and  other  circulating  medium  belonging  to  the  said  deceased,  and 
of  all  just  claims  of  .said  deceased,  against  said  administrator,  and  of  all  bonds, 
mortgages,  notes,  and  other  securities  for  the  payment  of  money,  belonging  to 
the  said  deceased,  specifying  the  names  of  the  debtors  in  each  security,  the 
date,  the  sum  originally  payable,  the  indorsements  thereon,  with  their  dates, 
and  the  sum  which,  in  the  judgment  of  the  appraisers,  may  be  collectible  on 
such  security. 

Upon  the  completion  of  this  inventory,  duplicates  thereof  have  been  made, 
and  signed  at  the  end  thereof  by  the  appraisers. 

[I.]   Specifie  articles  set  off  to  ividoic,  husband,  or  minors. 

[Here  enumerate  the  articles  coming  ivithin  Code  Civ.  Proc,  §  2713,  as 
amended  1893,  subds.  1,  2,  3,  ante,  §  495,  and  uhich  are  included  in  the  in- 
ventory without  being  appraised.  State,  in  addition,  the  articles  specified  in 
subd.  4,  and  that  they  do  not,  in  the  aggregate,  exceed  $150  in  value.] 

[II.]  .$150  tcorth  of  personal  property  set  off  to  tvidow,  husband,  or  minors. 

In  addition  to  the  above  enumerated  articles  exempt  from  appraisal,  the 
appraisers,  pursuant  to  the  statute,  set  apart  the  following  articles  of  neces- 
sary household  furniture,  provisions,  and  other  personal  property,  selected  in 
their  discretion,  for  the  use  of  the  widow  and  minor  children  [or,  in  case  of  a 
iridow  dying,  of  the  minor  children]  of  the  deceased,  the  same  not  exceeding 
in  value  one  hundred  and  fifty  dollars: 

IHere  enumerate  the  articles  set  apart  to  the  widoic,  under  Code 
Civ.  Proc,  §  2713,  as  amended  1893,  subd.  5,  and  which  are  to 
be  appraised. 

[III.]  Chattels  in  possession  having  an  ascertainable  value. 
IHere  enumerate  and  describe  such  articles  as  household  furni- 
ture, stock   in   trade,   tools,   farming  implements,  etc.,  other 
than  those  specified  above,  and  set  opposite  each  its  appraised 
value,  e.  g. :  ] 


Household  Furniture  at  No.         ,  Street,  New  York. 

First  Floor  —  Front  Parlor. 

About  sixty  yards  of  Brussels  carpet $.50  00 

Set  of  window  curtains  and  ornaments 150  00 

Pair  of  window  shades.  $G  :  mahogany  sofa,  $25 31   00 

Two  mahogany  couches.  $40 ;  rocking-chair,  .$7 47  00 

Six  mahogany  chairs.  $18:  two  mahogany  labourets,  $8 26  00 

Large  mirror.  $S0  ;  one  pair  of  candelabras.  $40 120  00 

Mahogany  stand,  $3 ;   astral  lamp,  $9 12  00 

[Back  Parlor,  similar  list;  and  so  with  the  other  rooms  of  the  house.] 


lOO;}  Fdkms.  Xu.  57. 

[IV.]  Things  in  action  considered  good. 

[Here  enumerate  and  describe  the  stocks,  bonds,  etc.,  in  the  manner  reijuired 
bxj  2  n.  ti.  84,  §  11,  f.  (/.;] 

Bond  iiiiulf  by  .Ji)iiathan  i^ittie  to  tlie  deceased,  dated  the  first  day 
of  October,  in  the  year  18  ,  conditioned  for  the  payment  of 
the  sum  of  nine  thousand  dollars,  on  tlie  first  day  of  October,  in 
the  year  18  .  witli  interest  at  tlie  rate  of  seven  per  cent,  per 
annum.  ])ayable  half-yearly;  .secured  by  a  mort;,'afre  of  real  es- 
tate in  the  city  of  Xew.York,  made  by  the  .said  .lonathan  Little 
and  his  wife,  'bearinj,'  even  date  with  the  bond .$9,000  00 

(Tile  payment  of  interest  is  indorsed  on  this  bond  up  to  the  first 
day  of  April.  18       .) 

Interest  now  due  on  this  bond $ 

Promissory  note,  made  by  Tliomas  Shaw  to  the  deceased,  or  order, 
dated  the  first  day  of  F('l)ruaiy,  18  ,  for  three  thousand  dol- 
lars, payable  on  demand,  with  interest 3,000  00 

Interest  now  due  on  this  note $ 

The  followinnf  accounts  are  due  to  the  deceased: 

Account  against  .loiin  (Jreeii,  20th  March,   18        125  00 

Henry  Jones,  15th  April,  18        280  00 

twenty-five  shares  of  the  capital  stock  of  the  Greenwich  Insurance 
Company,  in  the  city  of  New  York;  certificate  number  198 — 
par  value,  twenty-five  dollars  each  share;  present  actual  value, 
one  hundred  and  five  jier  cent 656  25 

Due  to  the  deceased  from  C.  D.,  the  said  administrator,  for  money 

borrowed,  without  interest,  two  thousand  dollars 2,000  00 

The  interest  of  the  deceased  in  the  stock  in  trade,  elTects.  and 
credits  of  tlie  late  firm  of  "  T.  &  B.,"  hardware  merchants  in 
the  city  of  New  York,  composed  of  tlie  said  deceased  and  J.  T., 
and  in  which  the  said  testator  o\vned  the  one-half  share  and 
interest.  The  accounts  and  affairs  of  the  said  partnersiiip  not 
having  been  adjusted  and  clo.sed.  the  appraisers  are  not  able  to 
state  the  exact  value  of  this  interest.  From  the  information 
they  have  obtained,  the  value  of  the  said  interest  is,  in  their 
judgment,  not  less  than  ten  thousand  dollars 10.000  00 

Money  —  in  specie,  at  the  residence  of  the  testator,  at  the  time  of 

his  death  ,  220  00 

"  in  bills  of  the  Bank  of  America 1,575  00 


.$2().S5r)  25 


[V.]  Things  in  action  not  considered  good,  and  chattels  having  no  ascrrtain- 

<ible  value. 

The  following  stock,  securities,  and  accounts  the  appraisers  consider  of  no 

-value : 

Thirty-two  shares  of  the  capital  stock  of  the  "  President,  Mana- 
gers, and  Company  for  erecting  a  bridge  over  the  river  Dela- 
ware, near  the  town  of  Milford."'  of  which  the  par  value  was 
$50  per  sliare. 

Bond  made  by  James  Hazen  to  the  testator,  dated  21st  June, 
18  ,  conditioned  for  the  payment  of  $()00  one  year  after  the 
date,  with  interest. 

Promissory  note  made  by  Samuel  Ward  to  the  order  of  John  King, 
and  by  him  indorsed  to  the  testator,  dated  2d  October.   18 
for  .$400.  jiayahle  six  months  after  date,  duly  protested. 

Account  against  George  Brown   $78  00 

"       ■       "  Thomas  Jackson   95  00 

The  value  of  the  following  chattels  the  appraisers   have  not  been  able  to 

ascertain: 

A  large  collection  of  autographs  [etc.'\. 


Xo.  58.  Forms.  1004 

VI.  Oath  to  Inventory. 
[Venue.] 

C.  D.,  of  the  said  county,  being  duly  sworn,  says,  that  he  is  the  adminis- 
trator, etc.,  of  A.  li.,  late  of  the  city  of  Yonkers,  in  said  county,  deceased, 
and  that  the  foregoing  is  an  inventory  of  the  personal  property  of  the  said 
deceased;  that  the  said  inventory  is  in  all  respects  just  and  true;  that  it  con- 
tains a  true  statement  of  all  the  personal  property  of  the  said  deceased,  which 
has  come  to  the  knowledge  of  this  deponent,  and  particularly  of  all  moneys, 
bank  bills,  and  other  circulating  medium,  belonging  to  the  said  deceased;  and 
of  all  just  claims  of  the  said  deceased  against  the  deponent,  according  to  the 
best  knowledge  of  the  deponent. 

[Jurat.]  [iiignature.} 

No.   58. 

[Ante,  §  500.] 

Returning  Inventory. 

I.  Petition  for  Further  Time  to  Return  Inventory. 
[Title.] 

To  the  Surrogate's  Court  of  the  county  of  New  York: 

The  petition  of  J.  B.,  of  the  city  of  New  York,  widow%  respectfully  show.^;: 

I.  That  on  the  day  of  ,  last  past,  your  petitioner  was  duly  ap- 
pointed the  administratrix  of  the  goods,  chattels,  and  credits  of  A.  B.,  late  of 
the  city  of  New  \"ork,  deceased,  intestate,  her  late  husband. 

II.  That  the  personal  propertj'  of  said  A.  B.  consists,  for  the  most  part,  of 
the  undivided  distributive  share  to  which  the  said  A.  B.  was  entitled  in  and 
of  the  personal  estate  of  P.  B.,  lately  deceased,  intestate,  his  brother.  That 
W.  B.  was  appointed  by  the  said  surrogate  the  administrator  of  the  goods, 
chattels,  and  credits  of  the  said  P.  B.,  deceased,  on  or  about  the  day  of 

,  .  That  the  period  for  the  settlement  of  the  estate  of  the  said  P.  B., 
deceased,  has  not  yet  arrived,  and  that  the  amount  of  the  share  thereof  to 
which  the  said  A.  B.,  or  his  estate,  may  be  entitled,  cannot  yet  be  ascertained. 
That  your  petitioner  will,  therefore,  be  unable  to  exhibit  a  perfect  inventory  of 
the  personal  property  of  the  said  A.  B.,  deceased,  within  the  three  months 
limited  by  law.  Y^our  petitioner  prays  th^t  she  may  be  allowed  four  months 
further  time  to  return  such  inventory. 

[Signature.] 
[Verification.] 

II.  Order  for  Further  Time  to  Return  Inventory. 
[Title.] 

On  reading  and  filing  the  petition  of  J.  B.,  the  administratrix  of  the  goods, 
chattels,  and  credits  of  A.  B.,  late  of  the  city  of  New  York,  deceased,  intestate, 
praj'ing  that  she  may  be  allowed  four  months  further  time  to  return  an  in- 
ventory of  the  personal  property  of  the  said  intestate,  and  reasonable  cause 
therefor  being  shown: 

Ordered,  that  the  said  J.  B.,  administratrix  as  aforesaid,  be  allowed  four 
months  further  time  to  return  such  inventory. 

III.  Affidavit  of  Failure  to  Return  Sufficient  Inventory. 
[Title  and  Venue.] 
C.  D.,  being  duly  sworn,  says: 

I.  [Allege  residence  and  credit orship,  or  interest  in  estate.] 

II.  That  letters  testamentary  [or,  of  administration  with  the  will  annexed  — 
or,  of  administration]  on  the  estate  of  said  deceased  were  granted  by  the  sur- 
rogate's court  of  the  county  of  ,  to  J.  B.,  of  ,  by  a  decree  duly 
made  by  said             ,  on  the             day  of             , 

III.  That  more  than  has  elapsed  since  said  appointment,  and  the  said 
J.  B.  has  not  returned  any  inventory  of  the  personal  property  and  effects  of 


1005  ToKMs.  Xo.  59. 

said  A.  B.  [or,  .iny  .sufTioicnt  inventory  of  the  property  and  ofTects  of  said  A.  B., 
—  .spi'cifi/ing  defect]. 

[Jio-nt.]  [Signature.] 

IV.  Order  to  Return,  or  Show  Cause. 
[Title.] 

Upon  reading  and  filing  the  affidavit  of  C.  D.  [refer  to  contents],  and  the 
surrogate  being  riitisfied  that  J.  B.,  administrator  ^etc.],  is  in  default,  as 
iillcgcd.  and,  on  motion  of  A.  T.,  attorney  for  the  said  C.  1).,  it  is 

OiiiJKKEU,  tliat  till"  said  J.  B.  return  an  [or,  a  further]  inventory  of  the  per- 
sonal property  of  the  said  A.  B.,  deceased,  on  or  before  the  day  of  , 
,  or,  in  default  thereof,  that  he  show  cause  on  said  day,  at  o'clock 
in  the  forenoon,  before  me,  at  my  oflice  in  the  city  of  New  York,  why  he 
should  not  be  attached. 

No.   59. 

[Ante,  S  r)10.] 

Compelling  Setting  Apart  Exempt  Articles. 

I.  Petition  by  Person  Aggrieved. 
ITiile.] 
To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  C.  D.,  an  infant,  by  J.  H.,  his  general  guardian,  respectfully 
shows  to  the  court  as  follows:  Your  petition  alleges  [upon  information  and 
belief]  : 

I.  That  letters  testamentary  upon  the  will  of  A.  B.,  late  of  ,  deceased, 
which  was  admitted  to  probate  by  a  decree  of  the  surrogate's  court  of  this 
count\%  rendered  on  the  day  of  ,  ,  were  duly  issued  to  E.  F., 
as  sol'j  executor,  by  said  court,  on  the  day  of  ,  ;  and  that  said 
E.  F.  thereafter  duly  qualified  as  such  executor,  and  entered  upon  the  discharge 
of  the  duties  of  his  olRce. 

II.  Tliat  an  appraisal  and  inventory  of  the  personal  property  of  the  said 
A.  1'..  has  been  made,  and  the  said  inventory  is  now  on  file  in  the  surrogate's 
office  of  this  county. 

lil.  That  the  said  A.  B.,  immediatelj'  before  his  death,  had  a  family,  and 
left  hin>  surviving  [no  widow  butj  your  petitioner,  his  only  child,  who  is  of  the 
agf*  of  15  years. 

IV.  That  the  said  E.  F.  has  failed  to  set  apart  any  property  [or  if  suffieient 
property  has  been  set  aside  so  state]  for  your  jietitioner,  as  prescribed  by  law, 
although,  as  appears  by  said  inventory,  the  said  A.  B..  deceased,  left  personal 
property  to  a  large  amount,  including  [describe  articles,  if  desired]. 

\\'iii:i!EFOKE,  your  petitioner  j^rays  for  a  decree  requiring  E.  F..  executor  as 
afoi'esaid,  to  set  apart  ])roperty  for  your  petitioner,  as  prescribed  by  law,  or, 
if  the  same  or  any  i)art  thereof  has  been  lost,  injured,  or  disposed  of,  requiring 
him  to  pay  the  value  thereof,  or  the  amount  of  the  injury  thereto,  and  that  he 
may  be  cited  to  show  cause  why  such  a  decree  should  not  be  made. 

[Signature  of]. 

General  Guardian. 
[Verification.] 

II.  Citation  Thereon. 

[Adapt  from  general  form,  inserting,  as  thr  command]  to  show  cause  why  a 
decree  of  this  court  should  not  be  made  requiring  you    [etc.,  as  above]. 

III.  Decree  to  Set  Apart,  or  I'ai/  Value,  etc. 
[Title.] 

Satisfactory  proof  having  been  made  of  the  due  service  of  the  citation  here- 
tofore issued  in  this  matter  for,  if  the  executor  appeared  upon  the  return  dag, 
so  state],  requiring  E.  F.,  executor  [etc.].  to  show  cause  why  he  should  not  be 
required  [stating  substance  of  citation]  ;  the  petitioner  having  appeared  by 
G.  H.,  his  general  guardian,  and  the  said  E.  F.  failing  to  appear;    and  the 


Xo.  60.  Poems.  lOOa 

court  having;  heard  the  proofs  and  allefjations  of  the  parties,  xipon  mature 
deliberation  it  is 

Adjuogeu  and  decreed,  that  E.  F.,  as  executor  as  aforesaid,  liaving  wiiolly 
faiU^d  to  set  apart  for  the  petitioner  any  property  out  of  tlie  estate  of  the  said 
A.  B.,  deceased,  which  was  ample  for  such  purpose,  but  having  disposed  of 
the  same  [stating  7io»],  be,  and  he  hereby  is,  directed  to  pay  to  G.  H.,  the 
general  guardian  of  the  petitioner  C.   D.,  the  sum  of  dollars,   being  the 

value  of  the  property  which  should  have  been  set  apart  by  said  E.  F.,  as  execu- 
tor, for  said  petitioner,  C.  D.,  pursuant  to  law. 

No.  60. 

[Ante,  §   520.] 
Deposit  of  Property,   where   Executors,  etc.,   Disagree. 

I.  Petition. 
[Title] 
To  the  Surrogate  of  county: 

The  petition  of  A.  B.  respectfullj'  shows  and  alleges  [upon  information  and 
belief] : 

I.  That  letters  [of  administration]  were,  on  the  day  of  ,  ,  duly 
issued  upon  the  estate  of  the  above-named  [decedent],  out  of  the  surrogate's 
court  of  this  county,  to  C.  D.  and  your  petitioner  [or,  to  C.  D.  and  E.  F.],  each 
of  whom  has  duly  qualified  and  entered  upon  the  discharge  of  his  official 
duties.  [If  petitioner  is  a  creditor  or  person  interested,  set  forth  facts  show- 
ing claim  or  interest.'] 

II.  That  said  administrators  are  unable  to  agree  respecting  the  custody  of 
certain  moneys  [or  other  property,  describing  it],  belonging  to  the  estate  of 
saia  decedent,  viz.:  the  sum  of  dollars,  now  in  the  hands  of  the  said 
administrators  [or,  of  the  said  C.  D.  and  your  petitioner  —  specifying  particu- 
lars of  disagreement,  e.  g. —  that  said  C.  D.  claims  the  sole  control  of  said 
money  —  etc. —  If  petition  relates  to  executors,  guardians,  or  testamentary 
trustees,  adapt  accordingly]. 

Wherefore,  your  petitioner  prays  for  an  order  to  the  said  C.  D.  [or,  the 
said  administrators]  to  show  cause  why  the  surrogate  should  not  give  direc- 
tion in  the  premises. 

[Signature  of  adm'r,  or  creditor,  etc.] 

[Verification.] 

II.  Order  to  Hhoic  Cause. 
[Title.] 

[Recite  presentation  and  tenor  of  petition  and  conclude]  Ordered,  that 
C.  D.,  administrator  [etc.]  of  the  said  G.  H.,  deceased,  show  cau.se  before  me, 
at  my  office,  in  the  to\\Ti  of  ,  on  the  day  of  ,         ,  at         o'clock 

in  the  noon  of  said  day,  why  the   surrogate  shotild  not  give  directions 

concerning  the  custody  of  the  said  money  [or.  property],  and  why  the  peti- 
tioner should  not  have  such  other  or  further  order  in  the  premises  as  justice 
requires. 

III.  Order  for  Deposit. 
[Title.] 

[Recite  issue  and  return  of  order  to  shoic  cause,  appearance  and  hearing^ 
adding]  Now.  on  motion  of  A.  T.,  attorney  for  the  said  A.  B.,  It  is  ordered, 
that  C.  D.,  administrator  [etc.]  be.  and  he  hereby  is,  directed  to  deposit  the 
sum  of  dollars  belonging  to  the  estate  of  J.  H.,  deceased,  and  now  in  the 

hands  of  himself  and  A.  B.,  as  administrators,  as  aforesaid,  in  the  Trust 

Company,   at    No.         ,  street,    in    the    city   of   New   York,    to   the   joint 

credit  of  the  said  A.  B.  and  C.  D..  and  to  be  drawn  out  only  upon  their  joint 
order  [And  it  is  further  ordered,  that  the  said  C.  D.  pay  to  A.  B.,  the 
petitioner  herein,  the  sum  of  dollars  for  the  costs  and  expenses  of  this 

application.] 


1007  loKMS.  So.  01. 

No.  6i. 

[Antr,  §    575.] 

Discovery,  etc.,  of  Property,  withheld  from  Executor  or  Administrator. 

I.  Petition  {or  hKjuiry. 
[Title.] 

To  the  Surrogate's  Court  of  the  county  of  :1 

The  petition  of  A.    H.,  of  ,  respeclfullv  shows   [upon   information  and 

Iielief]: 

I.  That  lie  is  [the  executor  of  the  last  will  and  testament  of  J.  D.,  late  of 
said  town,  deceased  —  or.  tlit'  ioiniinistrator  of  tlie  floods,  cliattels,  and  credits 
of  J.  D.,  deceased],  and  that  letters  testamentary  [or,  of  administration]  were 
issued  to  your  petitioner,  by  this  court,  on  the  day  of  ,  last  past. 

II.  That  your  petitioner  has  made  search  and  inquiry  for  the  f,'oods,  chattels, 
and  credits  of  said  deceased,  and  from  such  inquiry  believes  that  some  of  such 
chattels,  to  wit:  [describe  the  property]  which  were  in  possession  of  the  .said 
deceased  at  the  time  of  his  death  [or,  wliich  were  in  the  posse.ssion  of  the  de- 
ceased within  two  years  prior  to  his  decease,]  are  in  the  possession  or  under 
the  control  of  L.  M.  [who  was  about  the  person  of  the  deceased,  prior  to  his 
decease  —  or,  in  whose  hands  the  said  effects  of  the  deceased  have  fallen],  and 
who  withholds  the  same  from  your  petitioner  [or,  conceals  —  or,  refuses  to  ex- 
hibit—  the  same],  so  that  they  cannot  be  inventoried  or  appraised. 

III.  That  your  i)etitioner  has  demanch'd  such  articles  from  the  said  L.  il., 
who  has  refused  to  deliver  the  same  to  your  jietitioner. 

IV.  Your  petitioner  further  allet^^es,  that  the  reasons  and  grounds  for  his  be- 
lief that  such  propej-ty  belongs  to  the  estate  of  the  deceased  are  [his  personal 
knowledge  that  the  said  decea.sed  owned  them  —  or,  information  derived  from 
R.  S.  and  T.  U.,  whose  affidavits  are  hereunto  annexed]. 

WiiERKFOUE,  your  petitioner  prays  for  an  inquiry  respecting  the  property 
aforesaid,  by  this  court,  and  that  the  said  L.  M.  may  be  cited  to  attend  the 
inquiry,  and  to  be  examined  accordingly. 

[Signature.] 
[Verification.] 

II.  Citation  Thereon. 

[Addressed  to  L.  M.,  and  commanding  him]  to  attend  before  the  surrogate 
of  county,   at   his   office,    in  ,    forthwith    [or,   on    the  day    of 

,         ,  at  o'clock  in  the  forenoon],  to  attend  the  inquiry  concerning 

certain  personal  property  belonging  to  the  estate  of  J.  D..  late  of  ,  de- 

ceased, alleged  to  be  in  your  possession  or  control,  and  to  be  examined  per- 
sonally in  respect  to  the  same.  [If  peYson  cited  does  not  reside  in  the  surro- 
gate's county,  it  may  be  returnable  before  a  judge,  surrogate,  etc.,  in  the 
county  of  his  residence.] 

III.  Order  to  Attend. 
[Title.] 

Ordered,  that  L.  M.,  the  party  to  whom  the  within  [or,  annexed]  citation 
is  addressed,  be.  and  he  hereby  is,  directed  to  attend  personally,  at  the  time 
and  place,  and  for  the  purpose  therein  specified. 

[Signature  of]. 

Surrogate. 
IV.  Answer. 
[Title.] 

The  answer  of  L.  M.  to  the  petition  of  A.  B.,  praying  for  an  inquiry  respect- 
ing the  property  of  J.  D.,  deceased,  alleged  to  be  in  his  possession,  shows: 

He  denies  each  and  every  allegation  in  said  petition  set  forth  [or,  if  title  is 
denied,  say:]  He  admits  that  said  property  is  in  his  possession,  and  alleges 


1  See  ante,  §  576,  as  to  the  oiBcers  to  whom  the  petition  may  be  presented,  in  case  a  surro- 
gate is  absent. 


No.  61.  FoKMs.  1008 

that  he.  is  the  o\\Tier  thereof,  and  entitled  to  its  possession  by  virtue  of  a  lien 
thereon  and  special  property  therein  {stating  circumstances  upon  which  his 
ownership  is  founded]. 

[Ver'ification.] 

V.  Order  as  to  Requisites  of  Bond  to  Prevent  Decree. 
[Title.] 

It  appearing,  from  the  testimony  in  this  matter,  that  there  is  reason  to 
suspect  that  certain  eft'ects  of  the  above-named  deceased,  to  wit:  [Describe 
the  property],  of  the  value  of  ,  are  concealed    [or,  withheld]   by  L.  M., 

of  No.         ,  street,  in  the  city  of  New  York, 

Ordered,  that  the  bond,  if  any,  to  be  given  by  the  said  L.  M.  to  J.  D., 
executor  of  the  will  of  the  said  deceased,  be   in  the  penalty  of  ,   with 

sureties,  to  be  approved  by  the  surrogate,  conditioned  as  prescribed  In- 
law. 

VI.  Bond  to  Prevent  Decree. 

Know  all  men  by  these  presents,  that  we,  L.  M.,  of  ,  W.  X.   [and 

Y.   Z.],  of  ,  are  held  and  firmly  bound  to  A.  B.,  executor    [etc.],  in  the 

sum  of  [such  a  penalty  as  the  surrogate  approves],  lawful  money  of  the 
United  States  of  America,  to  be  paid  to  A.  B.,  as  such  executor,  or  to  his 
certain  attorney,  successor,  or  assigns ;  to  which  payment,  well  and  truly 
to  be  made,  we  bind  ourselves,  our  and  each  of  our  executors  and  adminis- 
trators jointly  and  severally,  firmly  by  these  presents.  Sealed  with  our  seals. 
Dated  the  day  of  , 

The  condition  of  this  obligation  is  such,  that  if  the  above  bounden  L.  M. 
shall    pay   to   the   above-named    A.    B.,    or    his    successor,    the   sum   of 
dollars,  with   interest  thereon  from  the  day  of  ,  [or,  shall    de- 

liver to  the  above-named  A.  B.,  or  his  successor,  the  following  described 
property  —  giving  description  —  or,  in  default  thereof,  pay  to  him  the  full 
value  of  the  said  property],  and  that  he  will  pay  all  damages  awarded 
against  him  for  withholding  the  same,  whenever  it  is  determined,  in  an 
action  or  special  proceeding  to  be  brought  by  the  said  A.  B.,  or  his  successor, 
that  it  belongs  to  the  estate  of  J.  D..  deceased,  then  this  obligation  is  to  be 
void,  otherwise  to  remain  in  full  force  and  virtue. 

[Signatures  and  seals.] 
[Sealed  and  delivered  in  presence  of] 

[Authentication  and  Justification.] 

VII.  Decree  for  Delivery. 
[Title.] 

[Recite  presentation  of  petition,  issuing  and  return  of  citation,  (tttendance 
of  parties,  etc.,  and  add]  and  it  appearing  to  the  surrogate  who  issued  the 
said  citation,   that   there   is  reason  to   suspect  that  the  sum  of  dollars 

[or,  the  following  described  property  —  giving  description]  is  in  the  pos- 
session or  under  the  control  of  the  said  L.  M.,  and  is  withheld  [or,  concealed] 
by  him,  from  the  said  A.  B.,  executor  [etc.,]  and  on  motion  of  A.  T.,  attor- 
ney for  the  said  executor. 

It  is  AD.TUDGED  AND  DECREED,  that  L.  M.  be,  and  he  hereby  is,  directed  to 
pay  to  A.  B.,  executor   [etc.,]   the  sum  of  dollars   [or,  to  deliver  to  — 

the  same  party  —  the  property  above  described],  and  that  he  pay  to  the 
petitioner  the  sujn  of  dollars  for  the  costs  and  expenses  of  this  proceeding. 

[Signature.] 

VIII.  Warrant  to  Seize  Property. 
The  People  of  the  State  of  New  York, 

To  the  sheriff  of   any   county    [or,   any  constable   of  the  county, —  or,   any 

marshal    of    the    city]    where   the    following   described    property    may    be 

found,  greeting: 

Whereas,  a  decree  was,   on   the  day   of  ,         ,   rendered  by   the 

surrogate's  court   of  the  county   of  ,   requiring   L.   M.   to  deliver  to  A. 


lOUO  FoK.Ms.  Xo.  02. 

B.,  executor  [etc.]  of  J.  D.,  deceased,  tlic  following  described  property: 
[particularh/  dcficribing  if]. 

You  AKK  tiikhkkokf;  coiiiinanded  to  scaroli  foi'  said  property;  to  .seize  it, 
if  it  is  fuiiml  ill  tlie  possession  of  the  said  L.  M.,  or  liis  a;,'ent,  or  a  person 
derivinf^  title  from   liim   since  the  day  of  ,  [the  da;/   on   \ihicli 

petition   irus  prcsoitcd],  and  for  that  purpose,  if  necessary  to  break  open  any 
house   in   the  day-time;   to  deliver  the  j)roperty  so  seized   to  the  said   A.   1?.: 
and  to  return  this  warrant  to  the  surrojjate's  court  of  the  county  of 
within  sixty  days  after  your  receipt  thereof. 

Witness.  E.  D.  W.,  surrogate  of  our  said  county  of  ,  at  his  oflice, 

at  ,  this  day  of  , 

[Signature  of,] 

[Seal.]  Surrogate. 

No.   62. 

[Ante,  §  G36.] 
Liquidation  of  Claims  Against  Decedent's  Estate. 

I.  Application  for  Order  to  I'lihlisli  Xotice  to  Creditors. 

To  the  Surrogate  of  the  county  of  New  York: 

W.  C.  D.  and  E.  F.,  administrators  of  G.  H.,  deceased,  hereby  apply  for  an 
order  of  the  surrogate  of  the  county  of  ,  designating  the  newspapers  in 

which  to  publish  notice  to  creditors  of  said  deceased,  to  present  their  claims 
according  to  law. 

Six  months  have  elapsed  since  the  granting  and  issuance  of  letters  of 
administration  to  your  applicants. 

Said    deceased,    at    the    time   of   his   death,    resided    in   the   town   of  , 

county  of  ,   and  was  engaged   in   [deserihinq   his   business  and  the  sup- 

posed residence  of  any  creditors  knou-n  to  the  applicants]. 

Dated  ,  .  [Signatures.] 

II.  Order  to  Publish   Notice. 
[Title.] 

On  reading  and  filing  the  petition  of  C.  D.  and  E.  F.,  administrators  of  G. 
H..  deceased,  setting  forth,  among  other  things,  that  six  months  and  upwards 
had  elapsed  since  they  were  appointed  the  administrators  of  said  deceased, 
and  that  they  are  desirous  of  giving  such  notice  to  the  creditors  of  said 
deceased  to  present  their  claims,  as  is  authorized  by  law,  and  praying  that 
the  surrogate  Avould  make  an  order  directing  such  notice  published  in  such 
newspapers  as  he  might  deem  necessary  to  give  notice  to  said  creditors;  it 
is  ordered  that  a  notice  be  published  once  in  each  week  for  six  months  suc- 
cessively, in  the  newspaper  published  in  the  city  of  Brookl_\Ti,  Kings  county, 
called  the  Brooklyn  Eagle,  and  in  the  newspaper  published  in  the  city  of 
New  York,  called  the  Daily  Register,  requiring  all  persons  having  claims 
against  said  deceased  to  present  the  same,  with  the  vouchers  thereof,  to 
C.  D.  and  E.  F..  the  administrators  of  said  deceased,  at  the  office  of  the  said 
C.  D..  Xo.  800.. Fulton  street,  in  the  city  of  Brooklyn,  on  or  before  the  10th 
day  of  ;May  next. 

ill.   Xotice  to  Prove  Claims. 

Pursuant  to  an  order  of  ^V.  L.  L.,  surrogate  of  the  county  of  Kings,  notice 
is  hereby  given  to  all  persons  having  claims  against  G.  H..  late  of  the  city  of 
Brooklyn,  in  said  county,  deceased,  to  ])resent  the  same,  with  the  vouchers 
thereof,  to  the  undersigned,  at  his  office.  Xo.  800.  Fulton  street,  in  the  city  of 
Brooklyn  for,  at  the  office  of  L.  A.  L..  00  Liberty  street.  X.  Y.].  on  or  before 
the  day  of  ,         ,   [specifying  a  day  at  least  six  months  after  first 

publication.] 

[Date]  [Xante  of  administrator.] 

64 


:N^o.  C2.  Fokms.  lOia 

IV.  Proof  of  ClaimA 
[Title  and  Venue.'] 

A.  B.,  being  duly  sworn,  says: 

I.  That  tlie  estate  of  said  G.  H.,  deceased,  is  justly  indebted  unto  deponent,, 
in  the  sum  of  three  hundred  dollars  and  fifty  cents,  and  interest  thereon  from 
the  (lay  of  ,  [as  specified  in  the  annexed  account. —  or  specify 

the  facts  (pviuc/  rise  to  the  claim,  as,  e.  g., —  in  payment  for  fifty  barrels 
of  flour,  sold  and  delivered  to  the  said  C.  D.,  on  the  daj'  of  ,         ,. 

for  the  agreed  price  of  $300.50]. 

IT.  That  the  said  sum  of  $300.50  and  interest  is  now  justly  due  and  owing- 
to  deponent,  and  that  no  payment  has  been  made  thereon,  and  that  there  are 
no  offsets  thereto,  and  the  same  is  not  secured  by  judgment  or  mortgage  upon, 
or  expressly  charged  on,  the  real  estate  of  said  deceased,  or  any  part  thereof. 

[Jtirat.]  [Signature.] 

[Serve  pursuant  to  notice,  if  one  has  been  published ;  otherioise  personally .-'\ 

To  A.  B.,  Esq. : 

You  will  please  take  notice,  that  I  doubt  the  justice  and  validity  of  your 
claim  of  $300.50  against  the  above-named  estate,  and  I  hereby  dispute  the 
same,  and  offer  to  refer  it  under  the  statute,  to  some  suitable  and  proper 
person  as  referee,  to  be  approved  by  the  surrogate,  to  hear  and  determine  the 
same  according  to  the  statute. 

[Date.']  C.  D..  Administrator  of  G.  H. 

[This  offer  may  also  be  sent  by  the  claimant  to  the  administrator.'] 

V.  Consent   to  Determination   of   Claim    by    the    Surrogate. 
[Title.] 

A  claim  having  been  filed  by  the  undersigned,  A.  B.,  against  the  estate  of 
G.  H..  deceased,  a  copy  of  which  is  hereto  annexed,  and  made  part  hereof; 
and  the  undersigned  C.  D.,  the  executor  of  said  estate,  having  disputed  the 
same,  it  is  hereby  agreed  and  consented,  by  and  between  the  parties,  that 
the  said  claim  may,  and  shall,  be  submitted  to  the  surrogate  of  the  county  of 
.  for  determination  bv  him,  upon  the  accoimting  of  the  said  executor. 

Dated, 

VI.  Agreement  to  Refer  Claim. 

Whereas,  A.  B.  has  lately  presented  a  claim  to  C.  D.,  the  [executor  of  the 
last  will  and  testament]  of  G.  H.,  late  of  the  city  of  Brooklyn,  deceased,  for 
$300.50,  a  copy  Avhereof  is  attached  hereto,  the  justice  of  which  claim  is 
doubted  by  the  said  executor,  it  is  hereby  agreed  that  the  matter  in  con- 
troversy be  referred  to  M.  N.,  counselor-at-law,  as  sole  referee,  to  hear  and 
determine    the  same. 

[May  add.  stipulations,  if  desired,  as  to  place  of  hearing,  the  taking  of  tes- 
timony, etc.]. 

[Date.]  [Signatures  of  creditor  and  executor.] 

[Indorsed.] 

I  hereby  approve  of  the  referee  named  in  the  foregoing  agreement. 

[Date.]  [Signature  of  surrogate.] 

VII.  Order  of  Reference.^ 
[Title.] 

On  reading  and  filing  the  annexed  agreement  to  refer  the  claim  of  A.  B., 
above  named,  against  the  estate  of  ,1.  K.,  deceased,  to  M.  N.,  Esq.,  counselor- 
at-law,  as  sole  referee  to  hear  and  determine  the  same,  and  the  approval  by  the 
surrogate   of  county,    of    said    referee,   and    on   motion    of    H.    W.,    Esq., 

attorney  for  the  said  C.  D.,  as  executor,  etc. 


1  The  effect  of  neglect  to  present  the  claim  is  to  deprive  the  claimant  of  costs  if  he  sues. 
Co.  Civ.  Proc,  ^  1836;  Hon  on  r.  Brown,  20  Hun,  054. 

2 Service  on  one  of  two  executors  is  sufficient.     Lambert  v.  Craft,  98  N.  Y.  .342. 

3  This  order  must  be  entered  in  the  office  of  the  clerk  of  the  supreme  court,  in  the  county 
in  which  the  parties,  or  either  of  them,  reside.    Co.  Civ.  Proc,  §  ^718,  as  am'd  1893. 


lull  Fojc.Ms.  No.  03. 

Ordeueo.  that  the  said  M.  X..  Ksq..  be,  and  lip  is  horoby.  appointed  referee 
to  licar  and  determine  tlie  matter  in  controversy  mentioned  in  the  said 
af^reeiuent. 

\A<l(l  clauses  stipulated  for,  as  to  hearing,  etc.,   if  any.] 

[Date.^  [tiignature  of,\ 

County  Clerk. 

VIII.  Report  of  Referee  on  Claim  against  Decedent. 
[Title  of  court  and  cause'.'] 
To  the  [Supreme]  Court: 

The  undersigned.  api)ointed  by  this  court  a  referee  to  hear  and  determine 
the  claim  of  A.  B.  af^ainst  tlie  estate  of  .J.  K..  deceased,  and  the  oflTsets 
tliereto.  by  order  dated  .  liavinfj  taken  the  oath  of  office  hereto  annexed,  and 

considered  tlie  alle<ratioiis  and  ])roofs  of  tlie  parties,  and  havinjr  heard  .J.  O.  H., 
Es(i.,  for  the  claimant,  and  H.  \V.  G.,  Esq..  for  the  executors  [or,  adminis- 
trators], reports  to  the  court  as  follows:  [Insert  findings  of  fact  and  con- 
clusio)ts  of  laic,  icith  direction  as  to  judgment  and  as  to  costs,  as  hi  an 
action]. 

[Date.]  [Signature,] 

Referee. 
[Annex  oath  of  referee.] 

IX.  Judgment  on  Reference  of  Claim  against  Decedent. 

[Title  of  court  and  cause.] 

The  claim  of  the  above-named  A.  B.  against  the  estate  of  J.  K.,  deceased, 
having  been  duly  ])resented  to  the  above-named  C.  D.,  her  executor,  and  the 
same  having  been  disputed  and  rejected  by  him,  and  by  consent  of  the 
parties,  and  with  the  approval  of  the  surrogate,  the  same  having  been  referred 
to  ]\I.  X.,  Esq.,  as  sole  referee,  to  hear  and  determine  the  matters  in  con- 
troversy, pursuant  to  the  statute,  and  after  trial  had,  on  due  notice  to  all 
the   parties,   said  referee   having   on  the  day   of  ,   duly   made   and 

filed  his  report,  stating  his  findings  of  fact,  and  conclusions  of  law  thereon, 
and  directing  judgment  as  hereinafter  stated,  and  an  order  having  been  made 
and  entered  the  day  of  ,  awarding  costs  to  the  above-named  claim- 

ant, to  be  taxed,  and  to  be  paid  out  of  the  property  of  the  decedent  [or, 
out  of  the  individual  property  of  said  C.  D.]  and  the  claimant's  costs  having 
been   duly  adjusted  at  dollars,   X'ow,  on  motion   of  I.   II.,   attorney  for 

the  claimant. 

It  I.S  AD.jrDGED.  that  the  said  A.  B.  do  recover  of  the  said  C.  D.,  as  executor 
of  the  last  will  and  testament  of  the  said  .J.  K..  deceased,  the  sum  of 
dollars,  so   found   due   by   the   referee,   as   appears   by   his   report,   and 
dollars   interest  thereon   from   said   date   to   the   date  of  this   judgment,   and 
dollars  for  costs,  amounting  in  the  whole  to  dollars,  to  be  levied 

and  collected  out  of  the  goods,  chattels,  and  credits  of  said  J.  K.,  deceased. i 

No.   63. 

\A)it(.  g  t;2n.] 

Compromise   of   Claims. 

I.  Petition  for  I^eave  to  Compromise. 
[Title.] 
To  the  Surrogate  of  the  county  of  Xew  York: 
The  petition  of  C.  D.  respectfully  shows: 

I.  That  the  will  of  the  above-named  A.  B..  deceased,  was  duly  admitted  to 
probate  by   the   surrogate   of  the   county   of  Xew   York,   on   the  day  of 

.    and    on    the    same   day    letters    testamentary    thereon    were   duly 
issued  to  your  petitioner  as  the  sole  executor  therein   named. 


1  As  to  form  of  judgments  against  representatives  in  actions,  see  §  570,  ante. 


'No.  64.  I'oRMS.  1012 

II.  That  among  the  assets  of  the  estate  of  the  said  deceased,  is  a  debt  of 
$150  on  a  book  account  due  from  tlie  firm  of  N.  &  Co.,  lately  doin<r  business 
at  No.  ,  street,  in  the  city  of  New  York,  which  deponent  has 
hitherto  been  unable  to  collect.  That  on  the  day  of  ,  ,  th(> 
said  firm  suspended  business  and  made  a  general  assignment  of  all  their 
property  to  one  L.  M.,  for  the  benefit  of  their  creditors. 

III.  That  the  said  firm  have  offered  to  pay  their  creditors  fifty  per  cent. 
of  the  amount  of  their  respective  debts,  in  consideration  of  receiving  a  full 
discharge  and  release  of  all  liability  thereon,  and  as  appears  by  the  aflidavit 
of  R.  S.,  hereto  annexed,  that  offer  has  been  accepted  by  a  majority,  in 
number  and  value,  of  all  their  creditors,  and  your  petitioner  verily  believes, 
after  a  careful  examination  of  the  aflfairs  of  said  N.  &  Co.,  that  the  said 
firm  have  acted  honestly  and  in  good  faith,  and  are  not  able  to  pay  any 
larger  percentage  of  their  debts,  and  that  it  will  be  for  the  benefit  and 
advantage  of  the  estate  ef  the  said  A.  B.,  to  compromise  on  the  terms 
offered. 

Wherefore,  your  petitioner  prays  that  he  may  be  authorized  to  com- 
promise the  said  claim  by  receiving  fifty  per  cent,  of  the  amount  thereof  as 
a  full  satisfaction.  [Signature.] 

[Verificat  10)1.1 

II.   Order   Allowing   Compromise. 
[Title.'] 

On  reading  and  filing  the  petition  of  C.  D.,  executor  of  A.  B.,  deceased, 
and  the  aflidavit  of  R.  S.,  annexed  thereto,  and  it  appearing  thereby  that 
there  is  good  and  sufficient  cause  for  allowing  the  said  C.  D.  to  compromise 
the  debt  therein  referred  to,  and  the  terms  of  compromise  therein  named 
being  approved  of. 

Ordered,  that  the  said  executor  be,  and  he  is  hereby,  authorized  to  accept 
fifty  per  cent,  of  the  amount  of  the  debt  owing  from  the  firm  of  N.  &  Co.. 
late  of  No.         ,  street,  in  New  York  city,  to  the  said  deceased,  as  a  full 

satisfaction  and  discharge  of  said  debt. 

No.   64. 

[Ante,  §  68.] 

Enforcing   Judgment    Rendered    Against    Executor,    or    Administrator. 

I.  Petition  for  Leave  to  Issue  Execution. 

[Title  as  in  next  form.] 

To  the  Surrogate  of  the  county  of  New  York: 

The  petition  of  M.  N.,  of  the  city  of  New  York,  respectfully  shows  as 
follows:     Your  petitioner  alleges  [upon  information  and  belief]: 

I.  That  he  is  a  creditor  of  A.  B.,  deceased,  whose  last  will  and  testament 
was  duly  admitted  to  probate  by  the  surrogate  of  the  county  of  New  York, 
on  the  day  of  ,  ,  and  letters  testamentary  thereon  duly  issued 
to  C.  D.,  of  No.  ,  street,  in  the  citv  of  New  York,  on  the  day 
of              ,          . 

II.  That,  on  the  day  of  ,  ,  your  petitioner  commenced  an 
action  against  the  said  C.  D.,  as  executor  of  the  last  will,  etc..  of  the  said 
A.  B.,  deceased,  in  the  supreme  court  of  this  State;  that  such  action  was 
to  establish  the  liability  of  the  said  A.  B.,  as  indorser  of  a  certain  note 
made  by  one  J.  K.,  to  your  petitioner,  for  $400,  dated  the  day  of  , 

,  and  payable  three  months  from  that  date;  that  the  said  C.  D.  duly 
appeared,  and  interposed  an  answer  admitting  the  indorsing  of  the  said 
note  by  the  said  A.  B.,  but  denying  that  the  note  had  been  duly  presented 
for  payment  to  the  maker  thereof,  or  notice  of  dishonor  duly  given  to  the 
said  A.  B.  That  the  issues  of  fact  hereby  raised  came  on  for  trial  at  a 
circuit  court,  held  in  the  city  and  county  of  New  York,  on  the  day  of 

,        ,  and  the  said  C.  D.  then  and  there  appeared  and  gave  evidence 


1013  FoKMs.  Xo.  G-i. 

in  support  of  tlio  allofjation.s  of  liis  answor.  That  tlip  issuos  wcro  submitted 
to  the  jury  ujjom  tlic  cliarfre  of  the  court,  and  a  verdict  rendered  for  your 
j)etitioner  for  dollars,  the  aiuount  due  on  said  note,  with  interest.     Tliat, 

ii])on  a  special  a|)plication  to  the  court,  costs  were  awarded  to  your  jtetitioner, 
■which   were   duly  taxed    at  the   sum    of  dollars,   and    on    the  day  of 

.  jud^Mueiil   for  dollars  was  duly  entered  in  fawn-  of  your  i)eti- 

tioncr,  and  aj^ainsl   tiie  said  C.  J).,  as  executor,  etc. 

111.  That  the  said  jud<,nnent  was  duly  docketed  in  the  ollice  of  the  clerk 
of  the  city  and  county  of  New  York,  on  the  day  of  , 

I\'.  That  the  said  judfiment  has  not  been  paid,  nor  any  part  thereof, 
althou;j;h  duly  demaiuled,  and  the  same  is  now  in  full  force,  and  that,  as 
your  petitioner  is  advised  and  believes,  there  are  [sufficient]  assets  of  the 
decedent  in  the  possession  of  the  defendant,  or  under  his  control,  which  are 
ap])licable  to  such  jud<rment,  and  that  an  execution  aj:rainst  the  said  executor, 
in  his  representative  capacity,  is  necessary  to  collect  the  amount  due  thereon. 

[ir/i(7T  notice  cannot  he  pcr.so)i(iUi/  served,  insert:  V.  That  your  ])etitioner 
has  made  dili<j;«'iit  efl'ort  to  make  personal  service  of  notice  of  this  applica- 
tion upon  the  said  C.  D., —  slafinfi  nature  of  efforts  —  but  has  been  imable 
to  do  so,  and  your  petitioner  believes  that  it  will  be  impossible  to  make  such 
service  upon  him.] 

Your  petitioner,  therefore,  prays,*  that  the  said  C.  D.,  the  executor  of  the 
last  will,  etc.,  of  the  said  A.  B.,  aforesaid,  be  required  to  show  cause  why 
an  execution  on  such  judj^ment  should  not  be  issued  [or,  ichere  notice  can  be 
personaJh/  serred,  continue,  after,"*  that  an  execution  may  issue  upon  such 
judfrment]  for  such  sum  as  the  surrogate  shall  determine,  not  to  exceed  your 
petitioner's  just  proportion  of  the  assets  of  said  decedent's  estate. 

[Signature.] 

[Give  six  days'  notice  to  the  executor  or  administrator,  ichere  practicable; 
otherivise,  an  order  to  show  cause  is  to  be  granted.] 

II.     Xotice  of  Application  to  Surrogate  for  Leave  to  Issue  Execution  upon 

Judgment   against  an  Executor  or  Administrator  as  Such. 
[Title.] 

Please  take  notice,  that  on  the  day  of  ,         ,  at         o'clock  in  the 

noon  of  that  day,  or  as  soon  thereafter  as  counsel  can  be  heard,  the  un- 
dersigned will  a[))dy  to  the  surrogate  of  county,  at  his  office  in  the  [city] 
of  ,  for  an  order  permitting  an  execution  to  be  issued  upon  the  judg- 
ment recovered  by  ]M.  N.  against  C.  D.,  in  his  representative  capacity  as  ex- 
ecutor [or.,  administrator],  of  A.  B.,  in  the  court  of  ,  and  docketed 
in  the  office  of  the  clerk  of  said  court  [or,  of  the  county  of  ],  on  the 
day  of             ,         ,  or  for  such  other  or  further  relief  as  may  be  just. 

[Date.]  [Signature  and  office  address  of], 

Attorney  for   [judgment  creditor]. 

To  C.  D.,  executor  [or,  administrator]  of  A.  B.,  deceased. 

III.   Order  to  Slioiv  Cause. 
[Title.] 

On  reading  and  filing  the  verified  petition  of  M.  X..  of  the  city  of  Xew  York, 
by  which  it  ai)i)ears  that  the  .said  M.  N..  on  the  •    day  of  .         ,  ob- 

tained a  judgment  against  the  said  C.  D.,  as  executor  of  the  said  A.  B..  de- 
ceased, in  the  supreme  court  of  this  State  [after  a  trial  at  law  upon  the 
merits],  and  that  said  judgment  was  duly  docketed  in  the  office  of  the  clerk  of 
said  court  on  the  day  of  .  -.   and   that   such   judgment  was  for 

dollars,  and  that  no  part  thereof  has  been  {)aid.  although  duly  demanded. 

[*]  Ordkkki),  that  the  said  C  1).,  executor  as  aforesaid,  jiersonally  be  and 
appear  oefore  the  surrogate  of  the  county  of  Xew  York,  at  his  office  in  the 
city  of  Xew  York,  on  the  day  of  next,  at  1 1  o'clock  in  the  forenoon 

of  that  day,  and  show  cause  why  an  execution  on  the  said  judgment  should 
not  he  issued. 

Service  of  this  ord(>r  and  the  said  affidavit  [or,  i)etitionl  upon  which  it  is 
.granted,  upon   [naming  the  persons  to  be  served]  cither  personally,  or  by  de-' 


Ko.  64.  Forms.        •  1014 

positing  it  in  a  po^t-office  at  ,  on  or  before  the  day  of  ,         ,  a 

copy  of  this  order  and  said  affidavit  [or,  petition],  contained  in  a  securely- 
closed  post-paid  wrapper,  directed  to  each  of  the  said  persons  [or  in  such  other 
manner  as   the  surrofiate  shall  designate],   shall   be   sufficient. 

[Thv  surrogate,  vpon  the  filing  of  the  petition,  may  order  executor  to  render 
an  intermediate  account.  The  order  for  such  an  accounting  may  be  as  above 
ioicn  to  the  *,  and  continue,'] 

Ordered,  that  the  said  C.  D.,  executor  as  aforesaid,  appear  in  this  court  on 
the  day  of  next  [the  return  day  of  the  above  order],  at  11  o'clock 

in  the  forenoon  of  that  day,  and  [render  an  intermediate]  account  [of  his  pro- 
ceedings]  as  such  executor. 

IV.     Undertaking  by  Legatee  or  Next  of  Kin   before  Issuing  Execution   on 

Judgment  against  Executor  or  Administrator. 
[Title.] 

Whereas,  in  an  action  in  the  court  of  the  ,  judgment  was  ren- 

dered in  favor  of  M.  X.,  as  legatee  [or,  next  of  kin]  of  A.  B.,  deceased,  and 
against  C.  D.,  as  executor   [or,  administrator],  for  the  sum  of  dollars, 

which  judgment  was  entered  and  docketed  in  the  office  of  the  clerk  of  the 
county  of  ,  on  the  day  of  ,  , 

And  Whereas,  the  said  M.  N.  has  made  application  to  the  surrogate  of  the 
county  of  ,  from  whose  court  letters  testamentary  [or,  of  administration 

with  the  will  annexed]  upon  the  estate  of  said  deceased  were  issued  to  the 
said  C.  D.,  for  leave  to  issue  an  execution  upon  the  said  judgment; 

Now,  THEREFORE,  pursviant  to  the  requirement  of  the  said  surrogate  upon 
such  application,  and  according  to  the  statute  in  such  case  made  and  provided, 
we,   G.    H.,   of   No.         ,  street,   in   the  of  ,   county   of 

and  State  of  New  York,  by  occupation  a  :  and  E.  F.,  of  No.         , 

street,  in  said  county  and  State,  by  occupation  a  ,  do  hereby  jointly 

and  severally  undertake  and  become  bound  in  the  sum  of  dollars  to  the 

said  C.  D. ;  that  if,  after  the  collection  of  any  sum  of  money  by  virtue  of  the 
execution  which  the  said  surrogate  shall,  upon  said  application,  permit  to  be 
issued  upon  the  said  judgment,  the  remaining  assets  are  not  sufficient  to  pay 
all  sums  for  which  the  said  C.  D.  are  chargeable  for  expenses,  claims  entitled 
to  priority  as  against  the  said  M.  N.  and  the  other  legacies  [or.  distributive 
shares]  of  the  same  class  as  the  said  M.  N.'s,  then  the  said  M.  N.  will  refund 
to  the  said  C.  D.  the  sum  so  collected,  or  such  ratable  part  thereof,  with  the 
other  legatees  [or,  representatives]  in  the  same  class  as  the  said  M.  N.  as  shall 
be  necessary  to  make  up  the  deficiency. 

[Date.]  [Signature.] 

[Acknowledgment,  affidavit  of  sufficiency,  and  approval,  as  in  No.  45.] 

[File  in  surrogate's  court,  and  serve  copy  icith  notice  of  filing.] 

V.     Order  that  Execution  Issue. 
[Title.] 

On  the  application  of  M.  N.,  a  creditor  of  the  said  A.  B.,  deceased,  who  ob- 
tained a  judgment  at  law  upon  the  merits  against  the  said  C.  D.,  as  executor, 
etc..  in  the  supreme  court  of  this  State,  on  the  day  of  ,       ,  for 

dollars,  no  part  of  which  has  been  paid,  an  order  having  been  heretofore  duly 
made  against  the  said  executor,  and  served  upon  him,  to  show  cause  why  an 
execution  on  the  said  judgment  .should  not  be  issued:  and  an  order  having  also 
been  made  and  served  upon  the  said  executor,  requiring  him  to  appear  in  this 
court,  on  the  day  of  last  past,  and  render  an  intermediate  account 

as  such  executor;  and  the  said  parties  having  duly  appeared,  and  the  said 
C.  D.  having  produced  and  rendered  his  intermediate  account  as  such  ex- 
ecutor aforesaid;  and  the  said  matter  having  been  heard  on  several  days,  and 
duly  adjourned  from  day  to  day  until  this  day;  and  it  appearing,  from  the 
said  account,  that  there 'are  still  in  the  hands  of  the  said  C.  D..  as  such  ex- 
ecutor, assets  of  the  estate  of  the  said  A.  B..  deoensed.  to  the  amount  of 
dollars;  and  that  the  debts  and  outstnndinsz  linbilities  of  the  said  deceased  do 
not  exceed  the  sum  of  dollars :  and  that  there  are  assets  in  the  hands  of 


J 01 5  FOK.MS.  S'K  <vO. 

the  said  executor  properly  applicable  to  the  payment  in  full  of  the  said  judj^- 
ment,  and  no  cause  to  the  contrary  being  shown; 

Okuekeu,  that  execution  be  issued  in  due  form  of  law  against  the  said  C.  D., 
executor  as  aforesaid,  for  the  whole  amount  of  the  said  judgn^.ent  and  interest. 

AxD  IT  IS  FUUTHER  OKiJEUEU,  that  the  fees  and  exi)enses  of  this  proceeding 
be  yaid  [out  of  the  estate  of  the  said  deceased]. 

No.   65. 

[Ante,  §   (588.] 

Execution  Against  Property,  of  a  Judgment  Debtor,  Having  Died  Since 

Judgment. 1 

I.     Petition. 
[Title.] 
To  the  Surrogate  of  the  county  of  New  York,: 

The  petition  of  A.  B.  respectfully  shows: 

I.  Thai  your  petitioner,  on  the  day  of  ,  ,  in  the  court 
cf  the  of  [jr,  Ix'fore  J.  P.,  Esq.,  a  justice  of  the  peace  of  the  town 
of  — or,  in  the  district  court  for  the  judicial  district  of  the  city  of 
2sew  York],  in  the  county  of  ,  reco%X'rcd  a  final  judgment  against  the 
[defendant],  the  said  Y.  Z.,  for  [or,  directing  the  payment  by  the  said  Y.  Z.  to 
the  said  A.  B.,  of]  the  sum  of  dollars  and  cents  damages 
and  dollars  :.i\d  cents  costs.  [And  add  facts  shotting  the  judgment 
to  be  a  lien  on  the  property  described,  as  for  instance:]  That  the  judgment- 
roll  upon  said  judgment  was  duly  filed  and  the  judgment  duly  docketed  in  the 
office  of  the  clerk  of  the  [city  and]  county  of  [or,  of  the  coUrt 
of  ],  on  the  day  of  ,  [aitd  in  case  of  a  judgment  of  any 
court  other  than  the  stipreme,  and  including  cases  tchere  execution  is  to  he  is- 
sued to  another  county,  add:],  and  a  transcript  of  said  judgment  was  duly 
filed,  and  the  judgment  was  duly  docketed,  in  the  county  clerk's  office, 
on  the             day  of             , 

II.  That  said  Y.  Z.  died  on  the  day  of  ,  ,  intestate,  leaving 
C.  D.  and  E.  F.  as  his  only  heirs-at-law  [or,  leaving  a  last  will  and  testament, 
which  has  been  duly  admitted  to  probate  by  the  surrogate  of  the  covmty 
of  ,  whereby  the  real  property  hereinafter  described  was  devised  to  C.  D. 
and  E.  F.],  and  letters  of  administration  [or,  letters  testamentary  under  said 
will]  were  duly  granted  upon  the  estate  of  the  said  deceased  judgn'.ent  debtor 
by  the  surrogate  of               county,  to   [naming  administrator  —  o, .  to 

the  executor  named  in  said  will],  on  the  day  of  .         .  and  the  said 

administrator  [or,  executor]  has  duly  qualified  as  such  [and  more  than  three 
years  liave  elapsed  since  the  said  letters  were  duly  granted]. 

[Or  in  cases  specified  in  the  fourth  sentence  of  Code  Civ.  Proc,  §  1380, 
substitute  the  foUouing :"] 

III.  That  said  Y.  Z.  died  intestate  at  ,  on  the  of  ,  , 
and  that,  although  three  years  have  elapsed  since  said  death,  letters  of  admin- 
istration upon  his  estate  have  not  been  granted  by  the  surrogate's  court  of  the 
county  of  ,  in  which  the  decedent  resided  at  the  time  of  his  death  [or, 
that  said  Y.  Z.  died  at  ,  on  the  day  of  ,  ,  and  resided 
ont  of  this  State  at  the  time  of  his  death  at  —  specif iiing  place  —  and  that,  al- 
thougli  three  years  have  elapsed  since  said  death,  neither  letters  testamentary 
or  letters  of  administration  have  been  granted  by  the  surrogate's  eourt.  of  the 
county  iif  ,  in  which  tlie  j)roperly  on  whicli  the  said  judgment  is  a  lien, 
is  situated]  :  and  the  said  decedent  di(l  not  leave  any  personal  property  within 
this  State  u]ion  which  to  administer  [state  eridence  or  means  of  information]. 

IV.  That  at  [or.  after]  the  time  the  said  judgment  was  duly  docketed  in 
said  county  [and  at  tlie  time  of  death],  the  said  Y.  Z.  was  the  owner  of 
real  property  situated  therein  u()on  which  the  said  judgment  was  and  still  is 
a  lien,  to  wit:   [add  a  particular  description,  if  practicable]. 


I  Co  Civ.  Proc,  §§  1379  to  '381.    No  notice  is  necessary  of  the  presentation  of  the  petition 
to  the  surrogate.    Kerr  v.  Krender,  28  Hun,  452. 


ICo.  65.  FoKiNis.  lOlG 

V.  That  [no  execution  on  said  judgment  has  ever  been  issued,  and]  Ih^  .said 
judgment  reniain.s  wiiolly  unsatisfied  and  unpaid  [or,  remains  partly  unsatis- 
fied, in  that  the  sum  of  dolhirs  is  still  due  and  unpaid  thereon]. 

VI.  That  on  the  day  of  ,  ,  an  order,  a  certified  copy  of  which 
is  hereto  annexed,  was  duly  made  by  said  courti  of  granting  your 
petitioner  leave  to  i.s.sue  execution  therefrom  on  said  judgment  [or,  if  appli- 
cation therefor  is  pending  or  not  yet  made,  state  the  faet]. 

Wherefore,  your  petitioner  prays  that  a  decree  be  made  by  this  court, 
allowing  said  judgment  to  be  enforced  by  execution  against  the  said  property 
on  which  it  is  a  lien,  with  like  efi'ect  as  if  the  said  Y.  Z.  were  still  living,  and 
that  [the  said  administrator  —  with  the  will  annexed  —  or,  executor  of  said 
Y.  Z.  and  C.  D.  and  E.  F.  [naming  all  others  whose  interests  may  be  affected 
hy  sale]  may  be  cited  to  show  cau.se  why  such  decree  should  not  be  granted, 
and  for  such  other  and  further  relief  as  may  be  ju.st. 

[Signature.] 
[yerification.'] 

[Citation  as  usual  in  surrogate's  court  directed  to  representative  and  to  all 
persons  whose  interests  would  he  affected  by  the  sale.] 

II.     Answer  of  Representative. 

The  answer  of  M.  R.  as  executor  [or,  administrator]  of  the  estate  of  Y.  Z., 
deceased,  to  the  petition  of  A.  B.,  shows : 

I.  He  denies  the  validity  of  the  petitioner's  claim  and  alleges  that  the  same 
is  illegal  and  voia  oy  reason  of  the  following  facts:  [stating  them,  as  thus], — 
that  on  the  day  of  ,  ,  and  before  the  death  of  the  decedent, 
the  said  A.  B.  received  from  said  decedent  two  certain  promissory  notes  in 
writing  [describing  them]  in  jiayment  aiid  full  satisfaction  of  the  judgment 
mentioned  in  said  petition,  or, —  that  the  obligation  of  the  decedent  upon  which 
said  judgment  was  rendered  was  that  of  a  surety:  that  as  such  he  was  dis- 
charged from  liability  by  reason  of  the  fact,  that  on  or  about  the  day 
of  ,  .  the  said  A.  B.  and  L.  F.  [principal]  entered  into  an  agreement 
by  the  terms  of  which  the  time  of  the  said  L.  F.  to  pay  the  note  in  suit  wa.s 
extended  for  the  period  of  three  months,  and  that  in  any  event  the  liability  of 
the  decedent  was  discharged  by  his  death. 

II.  That  there  is  not  money  or  other  property  of  the  estate  applicable  to  the 
payment  or  satisfaction  of  the  petitioner's  claim,  and  which  may  be  so  applied, 
without  injuriously  affecting  the  rights  of  others,  entitled  to  priority  or  equal- 
ity of  i^aymeut  or  satisfaction. 

[Signature.] 
[Verification.] 

III.   Decree  of  Surrogate's   Court  allowing  Execution  against  Property  of 

Judgment  Debtor,   having  died  since  Judgment.^ 
[Title.] 

The    written    petition    of    A.    B.,    of  ,    duly    verified    the  day 

of  ,         ,  having  been  presented  to  the  surrogate  of  the  county  of  New 

York  for  a  decree  granting  permission  to  issue  an  execution  against  the  prop- 
erty of  Y.  Z.,  deceased  [and  mention  any  other  papers  relied  on],  and  due  proof 
having  been  made  thereby  that  [here  recite  concisely  the  facts  upon  tchich  the 
application  is  based,  as  they  appear  in  the  petition]  :  and  a  citation  having 
been^duly  issued  thereupon  directing  the  said  executor  [or,  administrator]  and 
[naming  the  other  persons  cited],  the  parties  entitled  to  such  notice,  to  show 
cause  before  this  court  on  the  day  of  .  ,  why  the  prayer  of  the 

said  petition  should  not  be  granted,  and  the  said  citation  having  been  returned 
on  that  day  and  filed,  together  with  the  proof  of  said  due  service  thereof  on 


1  This  order  is  made  Jjy  the  court  from  which  the  pxeeution  is  to  be  issued.  Co.  Civ.  Proc, 
§1380.  Either  application  to  the  court  or  surrogate  may  precede  the  other,  although  it  is 
better  practice  to  apply  first  to  the  court. 

2Co.  Civ.  Proc,  §*;  1379-1381.  Three  years  must  have  elapsed  before  execution  can  issue 
where  the  lien  of  the  judgment  was  created,  as  prescribed  in  Id.,  §  1251.  Kee  Duell  v.  Alvord, 
41  Hun,  196,  and  case  cited  in  note. 


1017  F(.i;ms.  X(..  no. 

each  of  the  porisons  therein  named,  and  the  said  executor  [or,  administrator] 
havinf,'  appeared  on  tlie  return  day  of  the  said  citation,  by  A.  T.,  his  attorney 
[and  also  produced  and  filed  his  intermediate  account  pursuant  to  an  order  of 
this  court  returnable  on  that  day!,  and  [natniiig  the  parties,  if  any  appeariiKj] 
haying  also  appeared  on  said  day  by  [naniiufi  attornri/s].  their  attorneys  re- 
spectively, and  the  allef,'ations  and  proofs  of  the  respective  parties  havinfj  been 
duly  lieard  \maii  recite  {(tela  as  1o  nmonnt  due,  etc.,  established,  if  desired], 
and  due  deliberation  haviii<r  been  had  thereon:  Now,  on  motion  of  M.  N.,  Esq., 
attorney  for  tlie  said  petitioner  A.  B.,  it  is 

AD.iriKiKD  AND  nKcitKKi).  Iliat  the  said  A.  B.  be.  and  he  is  hereby,  jjer- 
.'iiittcd  to  issue  an  execution  upon  the  said  judfrment  ajrainst  the  j)roperty 
iiereinafter  described,  upon  which  the  said  judfrment  is  a  lien,  witli  like  effect 
as  if  .said  judfrment  debtor  was  still  livin<r,  for  the  sum   of  dollars  and 

cents,  together  with  interest  from  the  day  of  .  \nami)ui 

date  of  entry  of  judpment].  The  property  hereinbefore  mentioned  is  described 
as  follows:    [description]. 

[Signature  of]. 

Surrogate. 

No.    66. 

[Ante.  §  718.] 

Enforcement  of  the  Transfer  Tax. 

I.     Petition. 
[  Title.] 

To  the  Hon.  ,  Surrogate: 

The  petition  of  A.  B.  respectfully  shows : 

First.  Your  petitioner  is  one  of  the  executors  named  in  the  last  will  and 
testament  of  the  above-named  decedent,  and  as  such  is  a  person  interested  in 
the  estate  of  the  above-named  decedent. 

Second.  That  the  said  decedent  departed  this  life  on  the  day  of 

,  in  the  city  of  Xew  York,  and  that  he  was  a  resident  of  this  State   [or 
othericise,  as  the  case  may   be]. 

Third.  That  the  .said  decedent  left  a  last  will  and  testament,  whicli  was, 
on  the  day  of  .         ,  duly  admitted  to  probate,  and  that  deponent 

and  G.  H.,  of  the  city  of  New  York,  are  executors  of  said  will,  and  that  their 
post-office  addresses  are:    [naniiiifi  tliein]. 

Fourth.  That,  as  vour  petitioner  is  informed  and  believes,  the  property  of 
said  decedent,  passing  by  said  will,  or  some  portion  thereof,  or  some  interest 
therein,  is  subject  to  the  ])ayment  of  the  tax  imposed  by  the  law  in  relation  to 
taxable  transfers  of  property. 

Fifth.  That  all  the  persons  who  are  interested  in  the  said  estate,  and  who 
are  entitled  to  notice  of  all  proceedings  herein,  including  the  comptroller  of 
the  State  of  New  York   [or,  the  treasurer  of  the  county  of  ],  and  tlieir 

post-office  addresses  are  as  follows,  viz.:    [naming  them]. 

Sixth.  That  each  of  said  persons  is  of  full  age  and  sound  mind  {or  other- 
icise. as  the  case  may  be). 

Wherefore,  your  petitioner  prays  that  you  will  appoint  some  competent 
person  as  appraiser,  as  provided  by  la^^■. 

And  your  petitioner  will  ever  prav.  [Signature.] 

Petitioner. 
[^'erification.] 

II.  Order  .Appointing  Appraiser. 
[Title.] 

On  reading  and  filing  the  petition  of  A.  K.  praying  for  the  appointment 
of  an  appraiser  under  and  in  pursuance  of  the  law  in  relation  to  taxable 
transfers  of  property,  it  is 

Ordered,    and    I    hereby   direct,    that  ,    Esq..    of  ,    the    county 

treasurer    of  county,    as    appraiser,    appraise    and    fix    the    fair    market 

value    of    the    property   of    the    decedent,      [hi  counties    uhere   the   office   of 


Xo.  06.  Forms.         •  1018 

appraiser   is   salaried   say:     And    I    hereby    direct  ,    Esq.,    one    of    the 

iippraisers  appointed  by  the  State  comptroller,  to  fix,  etc.] 

It  is  further  ordered,  that  said  appraiser  shall  give  the  notice  required 
by  the  said  law,  in  the  manner  and  at  the  time  therein  set  forth  [and  said 
notice  shall  be  days],  to  the  following  persons,  and  to  all  other  persons 

known  to  have  or  claim  an  interest  in  the  property  of  ^I.  X.,  the  decedent 
in  the  above-entitled  proceeding,  subject  to  the  payment  of  said  tax,  viz.: 
[insert  names  of  persons  to  be  served  with  twtices.] 

AxD  IT  IS  FURTHER  ORDERED,  that  at  Said  time  and  place  said  appraiser 
proceed  to  value  and  appraise  the  transferred  property  of  said  deceased,  upon 
which  there  is,  or  in  any  contingency  there  may  be,  a  tax  imposed  upon  the 
transfer  thereof,  at  its  fair  market  value,  at  the  time  of  tlie  death  of  said 
deceased,  or  at  the  time  of  the  transfer  thereof  as  the  law  directs,  and 
make  a  report  thereon,  in  writing,  to  the  surrogate  of  said  county,  of  the 
value  of  said  property;  and  also  report  the  aggregate  amount  of  the  debts, 
funeral  expenses,  expenses  of  administration  and  of  judicial  settlement,  in- 
curred and  to  be  incurred,  including  commissions  of  the  executor,  [or,  admin- 
istrator], and  the  expense  of  this  proceeding,  and  the  value  of  the  legacies 
passing  under  the  will  of  said  deceased  to  the  respective  legatees  [or,  distribu- 
tive shares  passing  to  the  respective  distributees],  subject  to  taxation  herein, 
and  the  amount  of  tax  due  on  each  of  such  legacies   [or,  distributive  shares]. 

,    Surrogate. 

III.  Notice  of  Appraisal. 
[Title.] 

You  will  please  to  take  notice,  that,  by  virtue  of  an  order  of  Hon.  , 

surrogate    of    the    county    of    New    York,    made    and    dated    the  day    of 

,  ,   and  pursuant  to  the  provisions  of  article  X   of  chapter   908   of 

the    Laws    of    1890,    I    shall,    on    the  day    of  ,         ,    at        o'clock 

in  the  noon  of  that  day,  at  the  office  of  ,  Xo.         ,  street,  in 

the  city  of  New  York,   proceed   to  appraise  at  its  fair  market  value  all  the 
property  of  said  M.   X^.,  deceased,   late  of  said  city,  passing  by  his  last  will 
and  testament,  or  by  the  intestate  laws  of  the  State  of  New  York,  which  is 
subject  to  the  payment  of  the  tax  imposed  by  the  said  act. 
X"ew  York, 

[Signature.] 

Appraiser. 
To  J.  P.  and  S.  T., 

Xext  of  Kin. 

B.  L.,  Comptroller  [etc.']. 

IV.  Affidavit  as  to  Decedent's  Property. 
ITitle.] 

STATE  OF  NEW  YORK,   {  ^^  . 
County  of  ,         )     " 

A.  B.,  being  duly  sworn,  doth  depose  and  say: 

I.  I  reside  in  the  town  of  ,  in  said  coiuity  of  ;  I  am  the  executor 
[or,  administrator]  of  the  will  of  C.  D.,  late  of  the  to\^-n  of  ,  in  said 
county  of              ,   deceased. 

II.  I  further  say  that  this  deposition  is  made  for  the  purpose  of  having 
the  surrogate  of  the  county  of  determine  the  cash  value  of  the  real  and 
personal  property  of  which  said  decedent  died  seized  and  possessed,  and  the 
amount  of  tax  to  which  the  same  is  liable,  under  chapter  908  of  the  Laws 
of  1890,  and  all  acts  supplementary  thereto  and  amendatory  thereof. 

III.  I  further  depose  and  say  that  the  following  inventory  correctly  sets 
forth  all  of  the  real  property  of  which  said  decedent  died  seized,  coming  to 
my  knowledge,  and  that  opposite  each  parcel  of  real  property  I  have  con- 
scientiously set  down  the  fair  market  value  thereof  when  said  decedent  died 
[specify  it  in  detail]. 

IV.  i  further  depose  and  say  that  the  following  inventory  correctly  sets 
forth  all  of  the  personal  property  of  which  said  decedent  died  possessed, 
coming  to  my  knowledge,  and  that  opposite  each  article  of  personal  property 


10!!)  I'oKMs.  V,,.  ',(1. 

I  have  oonspiontionsly  sot  down  tlu-  fair  narkct  value  thereof,  wlien  said 
<Ieeedent  died  I •S7>f'c ;/".(/  il]. 

y.  I  further  depose  and  say  tiiat  llie  followiiif,'  eontaius  a  just  and  true 
statement  of  all  demands  against  said  deeedent  aetually  allowed  by  me  as 
valid  elaims  against  said  deeedent;  that  said  statement  sets  forth  the  name 
of  the  ereditor.  and  o])i)osilt'  tiieret(j,  the  general  nature  of  the  demand  and 
the  amount  allowed   [sixcifi/  tlicin,  fjiriiir/  nrniifs.   r.iihirr,  and  amount]. 

VI.  I  further  de])ose  and  say  tiiat  aecording  to  the  best  of  my  knowledge, 
the  following  is  a  true  and  eorrect  statement  ot  all  moneys  aetually  paid  by 
me  for  funeral  and  other  expenses  of  the  administration  of  the  estate  of  said 
<leeedent,  and  also  the  names  of  tlie  persons  to  whom  a:d  for  what  purpose 
the  same  were  paid    [specify  names,   purpose,  and  amount]. 

VII.  I  further  depose  and  say  that  the  following  statement  contains  my 
<'stimate  of  the  amount  of  moneys  to  be  expend;>d  in  the  necessary  prospective 
expenses  of  the  administration  of  the  estate  cf  said  decedent,  and  upon  the 
judicial  settlement  of  my  account   \spccifi/  flteml. 

VIII.  I  do  furtlier  depose  and  say  tliat  the  following  persons,  with  their 
names,  places  of  residence,  and  relationship  to  the  deceased  set  opposite  their 
names,  resjx'ctively,  are  Ihf  only  persons  having  an  interest  in  the  real  or 
])ersonal  property  of  said  decedent,  or  any  part  thereof,  with  a  statement 
of  the  nature  of  the  interest,  and  the  fair  market  value  thereof  when  said 
decedent  died  [specify  in  detail  their  names,  residence,  relationship,  nature 
■of  interest,  and  the  approximate  v^.lue  tJi^i-eof]. 

IX.  I  do  further  depose  and  say  that  s.iid  C.  D.  died  in  the  town  of  , 
in  said  county  of  ,  on  the  day  of  ,  ,  and  that  he  was  at 
that  time  a  resident  of  said  county. 

[Jurat.] 

V.  Report   of  Appraiser. 
[Title.] 
To  Hon.  ,  surrogate  of  county  of  New  York : 

I,   the   undersigned   appraiser,   who   was   by   an   order   of   the   surrogate   of 

county,  duly  made  and  entered  on  the  day  of  ,         ,  directed 

to  appraise  the   property  of   said   decedent,   at    its   fair   market  value   at   the 

time  of  the  transfer  thereof,  in  pursuance  of  the  laws  in  relation   to  taxable 

transfers  of  property,  do  respectfully  report : 

First.  That  pursuant  to  chapter  908  of  the  Laws  of  1800,  as  amended,  I 
duly  took  and  subscribed  the  oath  prescribed  by  statute,  and  liled  the  same 
as  therein  provided. 

t<econd.  That  on  the  day  of  ,  ,1  gave  notice  by  mail,  postage 

])repaid,  to  such  persons,  corporations,  etc.,  known  to  have,  or  claim  an 
interest  in  any  ])roperty  of  said  decedent  subject  to  the  payment  of  any  tax 
imposed  by  said  laws,  including  the  comptroller  of  the  State  of  Xew  York, 
and  those  persons  and  corporations  named  by  tiie  surrogate  in  his  said  order,  of 
the  time  and  place  at  which  I  would  appraise  said  ))roperty,  a  true  copy  of 
which  notice  together  with  proof  of  mailing  is  hereto  annexed;  that  the 
names  of  those  to  whom  I  mailed  such  notices,  projierly  addressed,  as  ap- 
pears by  proof  of  mailing,  are  as  follows;    [name  th(m]. 

Third.  At  the  time  and  place  in  said  notice   stated,  namely,   on   the 
<lay  of  ,  [and   at   other  and   subsequent  times  and  divers   ])laces   to 

which  these  proceedings  were  regularly  adjourned],  T  apjiraised  all  the  ])rop- 
erty,  real  and  jjersonal.  of  which  the  said  decedent  died  poss(>ssed,  and 
subject  to  the  jiayment  of  said  transfer  tax,  at  its  fair  market  value  at  the 
time  of  said  transfer,  as  follows,  namely; 

Personal  Estate. 

[Ft  is  desirable  that  the  appraiser  should  classify  the  properfy  in  the  fol- 
lou-ing  order:  (1)  Bonds,  (2)  Stocks,  (3)  Bonds  and  ifortyapes  on  Real 
Estate,  Protnissory  Xotes,  etc.,  (4)  Cash  in  Banks,  (5)  .4.//  other  Personal 
Property.  Briefly  describe  each  parcel,  and  specify  its  fair  market  ralue  at 
time  of  decedent's  death.] 

Fourth.  I  further  report  that  decedent'.s  estate  is  subject  to  tlie  following 
deductions  on  account  of  debts,  claims,  expenses  of  administration  and  com- 
missions, as  follows:    [specify  the  items,  icith  nature  of  each]. 


Xo.  GG.  Forms.  102O 

Rccapiluhition. 
Fifth. 

Total   amount  of  decedent's  personal  estate $ 

Total  amount  of  decedent's  real  e^^tate  devised  to  persons,  corpo- 
rations, or  institutions,  or  passing  by  the  statute  of  descent  to 
persons,  other  than  such  as  are  exempt  by  said  acts 


Total    

From  which  debts,  expenses  of  administration,  etc.,  as  enumerated 
in  the  "  Fourth  "'  finding  abo\-e,  are  to  be  deducted,  araount- 
insr  to    


Lca\ing  tlie  sum  of $ 

wliich  is  the  net  estate  transferred  bj'  testator's  will  [or,  the  intestate  laws- 
of  the  State],  as  follows:  [Here  set  forih  the  names  and  residences  of  the 
persons,  corporations,  or  institutions  receiving  any  property;  relationship  to 
decedent;  nature  of  interest,  and  the  value  of  the  property  or  interest  trans- 
ferred. ] 

Sixth.  I  further  report  that  all  of  said  persons  interested  in  said  estatfr 
are  of  sound  mind,  and  of  full  age.  except  [naniiny  them,  if  any]. 

Seventh.  I  further  report  that  the  following  appearances  were  made  before 
me  in  this  proceeding:    [naniiny  thenil. 

FAghth.   I   further  report  as  follows:     tliat  the  name  of  decedent  is  ; 

the  date  of  his  death  wp«  the  day  of  .     Decedent  was  a   resident 

of  the  town   of  ,   county  of  .  State  of  .     He   left  a    [or,   no] 

Avill,     Letters   testamentaiy    [or,   of  administration]    were    issued  by  the  sur- 
rogate of   the  county  of  .to  ,   whose   post-office   address    is 
That   the  six  months"   limitation  expires  on  the  day  of  ;    and  the 
eighteen  months'   limitation  expires  on  the              day  of 

Ninth.  I  further  report  that  attached  hereto  is  all  the  testimony  taken  by 
me,  and  the  copies  of  all  papers  presented  to  me  in  this  proceeding. 

Tenth.  I  do  further  report,  that  the  said  deceased  made  no  transfer  of  any 
property  by  deed,  grant,  bargain,  sale,,  or  gift  in  contemplation  of  death,  or 
intended  to  take  effect  in  possession  or  enjoyment  at  or  after  the  death  of 
said  deceased. 

I  further  report  that  there  was  no  necessary  litigation,  or  unavoidable  cause 
of  delay,  by  reason  of  any  claim  made  upon  the  estate  of  said  deceased,  or  any 
litigation  pending  in  which  the  estate  of  said  deceased  was  interested. 

Eleventh.  [In  counties  u-here  county  treasurer  acts  as  appraiser]  That  my 
actual  and  necessary  traveling  expenses,  including  the  fees  paid  witnesses, 
amoimt  to  dollars,  as  ajipears  bj'  an  itemized  statement  thereof,  here- 

with  presented. 

Dated  at  ,  New  York, 

All   of  which  is  respectfully  submitted,   in   duplicate,  at  the   city  of  ,. 

this         day  of  , 

[Signature.] 

VI.  Oath  of  Appraiser. 
[Title  and  Venue.'] 

I.  D.  V.  S..  who  was  appointed  the  appraiser  in  the  above  matter,  by  an 
order   made  and   entered   on  the  day  of  ,  ,   do  solemnly  swear, 

that  I  will  faithfully  and  fairly  perform  the  duties  of  such  appraiser,  and 
make  a  just  and  true  report  according  to  the  best  of  my  under.standing. 

[Jurat.]  [Signature.] 

VII.  Certificate  of  Appraiser's  Expenses. 
[Title.] 

STATE  OF  NEW  YORK.  {  ^^  , 

County  of  ,  Surrogate's  Office,  i" 

I,  .  surrogate  of  the  county  of  .  New  York,  do  hereby  certify  that 

the   actual    and   necessary   traveling  expenses   of   and   fees   paid   witnesses   by 

,  of  the  county  of  ,  N.  Y^.,  treasurer  of  county,  New  York, 


lOl'  1 


FoKMt 


No.  m. 


the  appraiser  heretofore  appointed  in  the  above-entitled  matter,  pursuant  to 
article  X  of  tlie  tax  law,  as  amended,  in  rciatiim  to  taxable  transfers,  are 
the  sum  of  dollars,  as  taxed  and  allowed  by  nie. 

The  treasurer  of  ecninty.  New  York,  is  hereby  directed  to  pay  the  said 

HUm  to  the  said  appraiser,  upon  the  presentation  of  this  certificate,  as  au- 
thorized by  said  law. 

I.\  Testimoxy  Whereof,  I  have  hereunto  set  my  hand  and  ofiicial  seal  at 
the  village  of  ,  county.  New  York,  this  day  oi  , 

,  Surrogate. 

The  foregoing  has  been  examined  and  is  hereby  audited  by  comptroller  at 
the  sum  of  dollars. 

Dated,  Albany,  N.  Y".,  this  day  of  , 

,  State  Comptroller. 

VIII.  Xotice  to  Superintendent  of  Insurance  to  Ascertain  Annuities. 

New  Yokk,  , 

In  pursuance  of  article  X  of  chapter  908,  Laws  of  18!K!,  you  are  hereby 
requested  to  determine  and  ascertain  the  values  of  the  following  estates,  an- 
nuities and  interests : 


Name. 


Age. 


Legacy  or  Estate. 


Value  or  Amount. 


To  the  Superintendent  of  the  Insurance  Department. 

[Signature  o/], 

Surrogate. 

IX.  Xotice  of  Motion  to  Confirm  Appraiser's  Report. 
lTitIe.1 

Y^ou  are  hereby  notified  that  at  the  surrogate's  court  of  the  county  of 
New  York,  to  be  held  on  the  day  of  ,         ,  at   10:30  a.  m.,  at  the 

county  courthouse  in  the  city  of  New^  Y'ork,  I  shall,  from  the  return  and 
report  of  the  appraiser  filed  herein  on  the  day  of  ,         ,  assess  and 

fix  the  cash  value  of  all  such  interest,  estate,  annuity,  legacy,  or  property  as 
you  and  each  of  you  are  given  or  entitled  to  receive  from  or  out  of  the  estate 
left  by  the  said  M.  X..  deceased,  and  the  amount  of  the  tax  to  which  the  same 
is  liable  under  article  X  of  chapter  908  of  the  Laws  of  189(i. 

[Date.]  [Signature  of]. 

Surrogate. 

X.  Order  Confirming  Ajyjxraiser's  Report. 
[Title.li 

On  reading  and  filing  the  report  of  S.  J.,  the  appraiser  herein,  and  after 
hearing  A.  A.  E.,  in  support  of  said  report,  and  B.  D.  P.,  in  opposition  thereto. 

It   is  ORDERED: 

I.  The  cash  value  at  the  date  of  decedent's  death,  of  the  property  mentioned 
and  described  in  said  rcjjort.  which  is  subject  to  the  payment  of  the  fax  im- 
posed by  law  taxing  gifts,  legacies,  and  collateral  inheritances  is  as  follows: 
{stating  it]. 

II.  That  the  tax  to  which  the  said  property  is  liable  is  as  follows,  viz.: 
\stating   it]. 

III.  That  if  said  tax  is  ])aid  within  six  montlis  from  the  day  of  , 
[date   of  decedent's  death],  a    rebate  of   five   per  cent,   thereon    will   be 

allowed,  but  if  not  paid  within  eighteen  months  after  such  date,  a  penalty 
at  the  rate  of  ten  per  cent,  per  annum  from  said  date  will  be  imposed. 

[Signature  of]. 

Surrogate. 


No.  (j{).  FoKMs.  102^ 

XI.     Petilion  by  District  Attorney  for  Appointment  of  Appraisers. 
To  the  Surrogate's  Court  of  the  county  of  : 

Tlie  petition  of  D.  N.,  of  the  city  of  .  respectfully  .shows : 

I.  That  your  petitioner  is  the  district  attorney  of  the  county  of 

II.  That  on  or  about  the  day  of  ,  ,  at  the  city  of  ^ 
M.  N.  died,  and  was  at  the  time  of  his  death  a  resident  of  the  county 
of 

III.  That  said  deceased  left  a  last  will  and  testament  which,  on  the 

day  of  ,  ,  was  duly  admitted  to  probate  by  the  surrogate  of  the- 

oounty  of  ,  in  and  by  which  he  appointed  as  the  executor  thereof,  A.  B., 

[or,  in  case  of  intestacy,  say: — that  said  deceased  died  intestate,  and  on  the 
day  of  ,  ,  letters  of  administration  were  duly  issued  to  A.  B.,] 

who  duly  qualified  as  such,  and  his  letters  are  still  in  force. 

IV.  That  said  decedent  died  seized  or  possessed  of  property  within  thi? 
State  or  subject  to  its  laws,  and  the  value  of  which  exceeded  the  sum  of  five 
hundred  dollars. 

V.  That  upon  the  death  of  said  M.  N.,  certain  of  the  property  of  said  de- 
cedent thereupon  passed  to  [yiving  names  of  legatees  or  distributees,  other 
than  those  mentioned  in  the  succeeding  paragraph]. 

VI.  That  none  of  the  persons  designated  in  the  foregoing  paragraph,  No.  V. 
of  this  petition,  stood  in  the  relation  to  the  deceased  of  a  father,  mother,  hus- 
band, wife,  child,  brother,  sister,  wife  or  widow  of  a  son,  husband  of  a  daugh- 
ter, a  child  adopted  as  such  in  conformity  with  the  laws  of  this  State,  a 
person  to  whom  said  deceased,  for  not  less  than  ten  years  prior  to  such  trans- 
fer, stood  in  the  mutually  acknowledged  relation  of  a  parent  or  a  lineal  de- 
scendant of  said  deceased,  born  in  lawful  wedlock;  nor  is  any  person  so  desig- 
nated a  bishop  or  a  religious  corporation. 

VII.  That  the  property  so  passing  or  some  part  thereof  is  subject  to  taxa- 
tion under  article  X  of  chapter  908  of  the  Laws  of  1896,  in  relation  to  tax- 
able transfers  of  property.  The  foregoing  allegations  are  made  on  information 
and  belief. 

VIII.  Your   petitioner   further   shows  that   the   treasurer   of  the   county  of 
has  notified  your  ))otitioner  in  writing  of  the  refusal  or  neglect  of  the 

persons  interested  in  said  property  to  pay  the  same,  and  that  no  part  of 
said  tax  has  been  paid,  and  your  petitioner  has  probable  cause  to  believe  that 
the  same  still  remains  due  and  unpaid. 

Wherkfore,  your  petitioner  prays  that  a  citation  issue  herein  to  [naming 
persons  in  paragraph  V.  above],  citing  them  to  appear  before  this  court  on  a 
day  to  be  designated  therein,  and  show  cause  why  the  tax  under  the  act  afore- 
said should  not  be  paid,  and  said  property  be  appraised  if  necessary  for  that 
purpose. 

[Date.]  [Signature.] 

[Verification.] 

XII.  Citation  on  Application  of  District  Attorney. 
The  People  of  the  State  of  New  York. 

Bv  the  grace  of  God,  free  and  independent, 
To  A.  B.,  C.  D.,  E.  F.,  etc.,  send  greeting: 

You  and  each  of  you  are  hereby  cited  and  required  personally  to  be  and 
appear  in  the  court  of  the  surrogate  of  the  county  of  New  York,  at  the  county 
courthouse,  in  said  county,  on  the  day  of  ,         ,  at  10:. 30  o'clock 

in  the  forenoon,  to  show  cause  why  the  tax  provided  for  by  article  X  of 
chapter  908  of  the  Laws  of  1896  of  the  State  of  New  York,  should  not  be  paid 
on  property  passing  to  you  and  each  of  you  under  the  will  of  M.  N.,  late  of 
said  county,  deceased,  proved  herein  by  decree,  entered  the  day  of  ,. 

,   and  A\hy  such   property  should   not   be   appraised   according  to  law,   if 
■necessary  for  that  purpose. 

And  such  of  you  hereby  cited  as  are  imder  the  age  of  twenty-one  years,  are 
required  to  appear  by  your  srnardinn.  if  you  have  one.  or  if  you  have  none,  to 
appear  and  apply  for  one  to  be  appointed,  or  in  the  event  of  your  neglect  or 


1023 


F 


OK.Nrs. 


Xo.  OG. 


failure  to  do  so,  a  {xnanlian  will   lie  a|>i)()int('(l  ])y  llie  surrogate  to  represent 
and  act  for  you  in  the  proceeding. 

In  Testimony  Wukkeof,  we  liave  caused  the  seal  of  the  surrogates  court 
to  be  liereunto  affixed. 

Witness,  ,  K.sq.,  surrogate  of  o\ir  said  county,  at  the  city  of  , 

the  day  of  ,  in  the  year  of  our  J^ord,  one  thousand  nine  hundred 

and 

[Si(j)taturc], 
Clerk  of  the  Surrogate's  Court. 

XIII.  Order  Assessing  Tax  in  Proceeding  hi/  Distriel  Attorney. 
[Title.] 

Upon  reading  and  filing  the  report  of  M.  C,  Die  ap])raiser  herein,  and  after 
hearing  D.  H.  on  behalf  of  D.  X.,  district  attorney  of  the  county  of  ,  in 

support  of  said  report,  and  It.  ]>.,  attorney  for  executors  in  opposition  thereto, 
it  is: 

Orueued,  1st,  that  the  cash  value,  at  the  date  of  <Iecedent"s  death,  of  the 
property  mentioned  and  described  in  said  report,  which  is  subject  to  the  pay- 
ment of  the  tax  due,  under  the  law  in  relation  to  taxable  transfers  of  prop- 
erty, is  as  follows : 

Interest  of  C.  D $ 

Interest  of  E.  F 

2d,  that  A.  B.,  as  executor  of  said  M.  X.,  deceased,  make  payment  to  X.  Y., 
the  comptroller  of  the  [State  of  X"ew  York],  of  the  sum  of  dollars,  being 

the  amount  of  the  tax  upon  the  interest  of  said  C.  D.,  and  the  sum  of 
dollars,  being  the  amount  of  tax  upon  the  interest  of  said  E.  F..  together  with 
interest  upon  eacli  of  said  sums,  at  the  rate  of  ten  per  centum  per  annum 
from  the  day  of  ,         ,  to  the  day  of  payment. 

And  it  is  ft^rtiier  ordered,  that  said  A.  B.,  as  executor  as  aforesaid,  pay 
to  D.  X".,  district  attorney,  the  sum  of  dollars  as  and  for  his  costs  and 

disbursements  herein. 

XIV.  Notice  of  Assessment  of  Tax.^ 
[Title.] 

You  are  hereby  notified  that  I  have,  by  order  made  the  day  of  , 

,  assessed  and  lixcd  tlie  cash  value  of  such  interest,  estate,  legacy,  or  prop- 
erty as  you  and  each  of  you  .are  entitled  to  receive  from  or  out  of  the  estate- 
left  by  said  ^M.  X..  deceased,  and  the  amount  of  tlie  tax  to  which  the  same  is- 
liable  under  article  X,  chapter  908,  of  the  Laws  of  189G. 


Beneflclirv. 


His  interest  or  estate. 


Cash  value  theieof.    Tax  assessed  thereon. 


To,  [Signature,] 

Surrogate. 
XV.  Notice  of  Appeal  to  Surrogate. 
[Title.] 

You  will  please  take  notice,  that  A.  R.,  sole  surviving  administrator  of  the 
goods,  etc.,  of  said  deceased,  and  M.  R.,  C.  R..  and  D.  R.,  next  of  kin  of  said 
deceased,  liercby  apjieal  to  the  surrogate  from  the  appraisal  of  the  value  of 
the  inheritance  of  said  next  of  kin.  made  and  filed  the  day  of  ,         , 

and  also  from  the  order  or  decree  of  the  surrogate's  court  made  and  entered 
the  day  of  ,         .  confirming  the  said  appraisement,  and  assessing 


iThe  subsequent  p-oceedines  a^ains    in  executor  to  enforce  the  payment  of  the  tax  is  by 
attachment  and  against  a  legatee  by  means  of  an  execution. 


:Xo.  GO.  ^oKMs.  102-i 

the  tax  to  which  tlie  property  and  interests  of  said  next  of  kin  are  liable  un- 
der article  X  of  chapter  908,  Laws  of  18!)(j,  and  from  every  part  of  said  order. 
Vou  will  please  take  further  notice,  that  the  grounds  of  said  appeal  arc  as 
follows:    [here  specify  with  particularity  each  of  the  grounds  to  be  relied  oh.]1 
Dated,  New  York, 

Yours,  etc.,  [Signature,] 

Attorney  for  the  Administrator. 

XVI.  Bond  on  Ajjpeal  from  Order  Imposing  Tux. 

[Proceed  as  in  A'o.  45,  to  the  *  and  continue  thus:  Whereas,  on  the 
day  of  ,        ,  an  order  of  the  surrogate's  court,  held  in  and  for  the  county 

<if  New  Y'orkj  was  entered  in  a  certain  matter  therein  depending  entitled  in 
the  matter  of  the  estate  of  M.  X..  deceased,  assessing  the  tax  to  which  the 
property  and  interests  of  the  collateral  next  of  kin  of  said  deceased  is  liable,  to 
wit:  on  the  interest  of  A.  B.,  $.39.5.70;  on  the  interest  of  B.  C,  $.395.70;  on 
the  interest  of  C.  D.,  .$395.70,  and  ordering  the  payment  by  the  administrator 
out  of  the  funds  of  said  estate  to  Hon.  R.  F.,  district  attorney,  the  sum  of 
dollars,  as  and  for  his  allowance  in  said  matter.  Axd  Whereas,  tlie 
said  next  of  kin  and  the  administrator  of  said  estate  have  appealed  from  said 
assessment  and  order,  pursuant  to  the  provisions  of  article  X  of  chapter  908 
of  the  Laws  of  1896, 

X'ow,  tlierefore,  the  condition  of  the  foregoing  obligation  is  such  that  if  the 
above  bounden  A.  R.,  administrator,  etc.,  of  W.  R.,  deceased,  shall  pay  all 
costs  of  said  proceeding,  and  also  v.hatever  tax  the  court  shall  finally  fix  upon 
said  several  and  respective  interests,  then  this  obligation  shall  be  void,  other- 
wise to  remain  in  full  force  and  efi'ect. 

XVII.  Order  of  Affirmance  hy  Surrogate. 
ITitle.] 

The  appeal  of  the  administrator  and  of  M.  R.,  C.  R.,  and  D.  R.,  next  of  kin 
of  said  deceased,  from  tlie  appraisal  of  the  value  of  the  inheritances  of  said 
next  of  kin,  made  and  filed  the  day  of  ,         ,  and  also  from  the 

order  or  decree  of  this  court  made  and  entered  the  day  of  ,         , 

confirming  said  appraisal  and  assessing  the  tax  to  which  the  property  and 
interests  of  said  next  of  kin  are  liable,  under  article  X  of  chapter  908  of  the 
Laws  of  1896,  coming  on  to  be  heard,  now  upon  the  facts  appearing  before 
me,  and  after  hearing  R.  L.  R.,  attorney  for  the  administrator  and  next  of 
kin,  appellants,  and  B.  F.  D.,  Esq.,  on  behalf  of  the  comptroller  of  the  State 
of  Xew  York, 

It  is  adjudged  {insert  facts  to  he  found,  as  for  instance],  that  at  the  time 
of  his  death,  the  intestate  decedent  M.  X..  was  domiciled  in  the  State  of  Vir- 
ginia; that  he  died  unmarried,  and  his  only  next  of  kin  were  his  brother,  S. 
B.  R.  (since  deceased),  his  sister,  ;M.  L.  L.,  and  the  children  of  a  deceased 
brother,  to  wit:  M.  R.,  C.  R.,  and  D.  R. 

It  is  ordered,  ad.judged,  axd  decreed,  the  property  and  interests  of  said  col- 
lateral next  of  kin  are  subject  to  the  operation  of  article  X  of  chapter  90S 
of  the  Laws  of  1896,  and  that  the  order  or  decree  of  this  court  confirming 
the  report  of  the  appraiser  and  assessing  and  fixing  the  tax  upon  the  property 
and  interests  of  said  collateral   next   of  kin,  entered  the  day  of  , 

,  be,  and  the  same  is  affirmed,  and  the  appeal  is  dismissed. 

[Signature,] 

Surrogate. 
XVIII.  yotice  of  Appeal  to  Supreme  Court. 
[Title.] 

Take  notice,  that  A.  R..  sole  surviving  administrator,  etc.,  of  said  intes- 
tate and  decedent,  and  M.  R.,  C.  R..  and  D.  R.,  hereby  appeal  to  the  appellate 
division  of  the  supreme  court  for  the  first  judicial  department  froin  the  or- 
der of  the  surrogate's   court   of  the  countv  of  ,   made   and  entered  the 


1  No  questions,  other  than  those  specified,  will  be  considered  on  appeal.  Matter  of  Davis, 
91  Uun,  53;  afifd.  149  N.  Y.  539. 


(liiy   of  ,  ,   appointing,'   an    appraiser   herein ;    and    also    ajjpeal 

from  the  order  or  decree  of  said  siirrojratc's  court  made  and  entered  the 
day  of  ,  ,  coniirniinji  tlie  report  of  said  appraiser  antl  assessiiifij  the 

tax  upon  the  properly  and  intx-rcsts  (jf  tlie  colhiteial  next  of  kin.  and  from 
every  part  of  such  orch-r :  and  also  from  the  order  or  decree  of  said  surrofrate".-» 
court,  made  and  t-ntered  the  day  of  ,         ,  dismissing;  the  apixdlant's 

api)eal  from  said  order  of  assessment,  and  adjudfrinfr  that  the  proyx-rty  and  in- 
terests of  .said  next  of  kin  arc  subject  to  the  operation  of  article  X  of  ciiapter 
t)08  of  the  Laws  of  ISOG." 
Dated,  New  York,  , 

Yours,  etc.,  [>^ig)iaturr]. 

Attorney  for  Administrator. 
To   Honorable  ,  District   Attorney,  and  to  ,   Clerk  of   Surrogate's 

Court. 

No.   67. 

[Ante,  §  782.] 

Compelling  Payment  of  Debt,  or  Legacy,   or  Share. 

I.   I'ttition  for  Payment   of  Debt. 
[As  in  next  form  to   the  asterisk,  continuing :  creditor  of  the  estate  of  M. 
X..   deceased,   late  of  ,  whoso  v/ill  was  —  thence  continuing  as  in  next 

form  from  the  dagger  to  the  §,  substitidting  six  months  for  one  year.] 

II.  [In  case  of  administrator  allege  grant  of  letters.] 

III.  [Allege  claim,  for  i)istance,  as  follows. •]    That,   on  the  day  of 
,         ,  your  petitioner,  in  an  action  brousjht  by  him  in  the  court 

again.st  said  Y\  Z.,  as  executor   [or,  administrator],  iipon  a  debt  then  justly 
due  to  him  from  the  estate  of  said  deceased,  recovered  a  judgment,  duly  giveu 
by  said  court  against  said  executor  [or,  administrator],  for  the  sum  of 
dollars:  and  that  no  part  of  the  same  has  been  paid  [except  the  sum  of 
dollars]. 

TV.  [As  in  next  form,  stihstitiitiug  claim  or  judgment  for  legacy.] 
V.  That  said  executor  advertised  for  the  presentation  of  claims  against  the 
estate  of  the  said  deceased,  and  your  petitioner  duly  presented  liis  claim, 
which  was  not  disputed,  and  your  petitioner,  after  the  expiration  of  six  months 
from  the  granting  of  sucli  letters,  demanded  payment  of  his  said  claim.  fr'>m 
the  said  executor,  who  has  hitherto  neglected  and  refused  to  pay  the  same  or 
any  part  thereof,  wherefore  your  petitioner  prays,  etc.  [as  in  the  succeeding 
form.^ 

II.  Petition  for  Payment  of  a  Legacy  or  Distributive  l^hare. 
To  the  Surrogate's  Court  of  the  countj'^  of  : 

The  petition  of  A.  B.  respectfully  shows: 

I.  That  your  petitioner  resides  at  No.  ,  street,  in  the  [city  of  New 
Y'ork]  :  and  is  a  *  [legatee  named  in  the  will  of  M.  X.,  late  of  the  city  of 
New  York,  deceased,  and  by  said  \\i\\  a  legacy  of  dollars  was  bequeathed 
to  your  petitioner]. 

II.  That  said  will  was  t  duly  admitted  to  probate  by  the  surrogate['s  court] 
of  the  county  of  ,  by  a  decree  duly  made  by  sai(l  ,  on  the  day 
of  ,  :  and  letters  testamentary  were  thereupon  and  on  said  day  [or, 
on  the  day  of  ,  ,]  issued  to  Y.  Z.,  the  sole  executor  therein 
named,  aind  more  than  one  year  has  elapsed  since  said  letters  were  granted 
[or,  if  one  year  lias  not  expired,  state  time  and  add:  That  the  payment  prayed 
for  is  necessary  for  the  supj>ort  —  or,  education  —  of  your  petitioner]. 

III.  That  said  Y.  Z.  has  filed  an  inventory  of  the  personal  projx^rty  of  said 
deceased. § 

IV.  That,  as  your  jietitioner  is  informed  and  believes,  the  said  executor 
[or,  administrator]  has  sudieient  assets  in  hand  apjilicable  to  tlie  payment  of 
your  petitioner's  legacy  [or,  distributive  share;  if  )int  enough  tn  pau  nil  in.'^ert. 
to  pay  one-  th  thereof] .  and  that  the  same  can  be  so  applied  without 
injuriously  affecting  tne  rights  of  others  entitled  to  priority  or  equality  of 
payment  with  your  petitioner. 

'     C5 


Xo.  67.  FoKMs.  1026 

V.  That  j-our  petitioner  has  applied  to  said  Y.  Z.  for  the  payment  of  said 
lej^acy  {.or,  distributive  share],  and  that  the  same  has  not  been  paid. 

Wherefokl,  your  petitioner  jirays  that  a  decree  be  made  rcquirinn;  said 
Y.  Z.  to  [render  an  account  of  liis  proceedin<rs  and]  pay  said  legacy  [or, 
share],  and  that  said  Y.  Z.  be  cited  to  show  cause  why  he  should  not  pay  said 
legacy   [or,  share].  [Signature.] 

[  Vvrificatioii.l 

ITT.  Ansicrt  of  Executor  to  PetitionA 
[Title.] 

Y.  Z.,  executor  of  the  aboA'e-named  deceased,  for  answer  to  the  petition  of 
A.  B.,  praying  for  the  payment  of  the  legacy  bequeathed  to  him  by  said  will, 
says: 

I.  That  he  admits  that  the  said  will  contains  a  bequest  of  dollars,  in 
favor  of  the  said  A.  B.,  but  notwithstanding  that  fact,  this  executor  has  foun^^ 
among  the  papers  of  tlie  said  deceased,  a  paper  purporting  to  be  a  promissory 
note,  and  to  be  signed  by  the  said  petitioner,  for  an  amount  larger  than  the 
amoimt  bequeathed  to  him,  to  wit.  the  sum  of  dollars,  payable  to  the 
order  of  the  decedent,  and  he  verily  believes  that  said  note  is  a  genuine  se- 
curitj%  and  should  be  set  off  against  the  claim  of  said  petitioner  for  said 
legacy. 

II.  That  the  petitioner,  though  named  in  the  said  will  as  a  legatee,  duly 
assigned  the  same  to  B.  D.,  of  the  city  of  New  York,  for  a  valuable  consid- 
eration. 

III.  That  by  the  express  terms  of  said  will  said  legacy  was  to  be  paid  after 
the  sale  of  certain  real  property,  therein  directed  to  be  sold,  which  sale  has 
not  vet  taken  place. 

IV.  That  the  petitioner,  A.  B.,  is  not  the  same  person  as  the  A.  B.  mentioned 
in  said  will  as  a  beneficiary  thereunder. 

Wherefore,  said  executor  asks  that  the  said  petition  of  A.  B.  be  dismissed. 

[Signature.] 
[Verification.] 

IV.   Citation    to   Pay  Creditor,  Legatee,   etc. 

[Command  of  citation:]  to  show  cause  why  a  decree  should  not  be  made 
directing  you,  as  [executor  of  the  will]  of  M.  N.,  deceased,  to  pay  the  claim 
of  A.  B.  against  the  estate  of  the  said  M.  N.,  in  the  sum  of  dollars. 

V.  Decree  for  Payment  of  Deht. 
[Title.] 

A.  B.,  of  the  city  of  New  York,  having,  on  the  day  of  ,         ,  pre- 

sented his  petition  to  the  surrogate  of  the  county  of  ,  by  which  it  ap- 

pears that  he  has  a  valid  claim  against  ^I.  N.,  late  of  the  city  of  New  York, 
deceased,  for  dollars,  with  interest  thereon  from  the  day  of 

;  and  the  said  petition  also  setting  forth  the  facts  on  which  the  said  in- 
debtedness arose,  and  also  showing  timt  more  than  six  months  have  elapsed 
since  the  granting  of  the  letters  testamentary  of  the  last  will  and  testament 
of  the  said  deceased ;  and  praying  a  decree  against  Y.  Z.,  the  executor  of 
the  said  M.  N.,  decea.sed,  for  payment  of  the  said  claim;  and  the  said  ex- 
ecutor having  been  duly  cited  to  appear  on  the  day  of  ,  last  past, 
and  show  cause  why  such  payment  should  not  be  decreed :  and  the  said  Y.  Z., 
having  appeared,  and  having  assented  to  the  said  claim  of  the  said  A.  B..  and 
having  produced  and  filed  an  account  as  such  executor;  and  the  said  matter 
having  been  heard  on  several  days,  and  duly  adjourned  until  this  day;  and 
it  appearing,  from  the  said  account  and  from  the  proofs  herein  taken,  that 
there  are  in  the  hands  of  the  said  Y.  Z.,  as  such  executor  aforesaid,  as.sets  of 
the  estate  of  the  said  M.  N.,  deceased,  to  the  amoimt  of             dollars,  and 


1  It  is  sufBciont  to  state  fac's  showing  that  the  petitioners  claim  is  doubtful,  to  warrant  a 
dismissal  of  the  proceeding. 


10:^7  Forms.  Xo.  G7. 

Iliat  the  debts  and  oiitstandini;  liabilities  of  the  said  deceased  do  not  exceed 
the  sum  of  dollars: 

It  is  OKUKKKi)  AND  DKCKKKO,  pursuant  to  the  statute  in  such  case  made  and 
})i()\  idcd,  thai  the  said  ^'.  /.,  I'xcciitcjr  as  aforesaid,  j)ay  to  the  said  A.  B.  the 
full  amount  of  his  said  claim  and  interest,  amounting  in  the  whole  to  the  sum 
of  doHars  and  cents. 

And  it  is  i-tktiiki:  okokkico,  timt  the  said  Y.  Z.  personally  pay  the  fees  of 
this  proceeding,  and  the  costs  of  the  said  A.  B.  therein  to  be  taxed. 

[Dvcnc  (or  paipncnl  .<jf  legacy  or  share:  adapt  from  above,  according  to 
petition.] 

VI.  Execution  on  Money  Decree. 

The  People  cf  the  State  of  Xew  York, 

To  the  Sheriff  of  the  county  of   [Westchester],,  greeting: 
\Vhereas,   on  the  day  of  ,  ,   the   surrogate  of  the   county  of 

[Westchester]  duly  made  a  decree,  directing  tlie  payment  by  Y.  Z.,  executor 
of  the  last  will  [etc.]  of  ]\I.  N.,  deceased,  to  A.  B.,  of  the  sum  of  dollars, 

for  a  debt  due  to  the  said  A.   15.,  and  the  sum  of  dollars,  for  his  costs 

and  ex])enses  in  the  ])roceedings  before  said  surrf)gate,  making  in  the  whole 
the  sum  of  dollars.     A.\u  Whereas,  there  is  now  actually  due  on  said 

decree  the  sum  of  dollars,  with  interest  thercdu   from  the  day  of 

You  aee  therefouk  conunanded  and  required  to  make  said  sum  of 
dollars  out  of  any  the  goods,  chattels,  and  j)ersonal  property  of  the  said  \'.  Z. 
in  your  county,  and  if  sufTicient  thereof  cannot  be  found  in  your  county,  then 
out  of  the  real  property  in  your  county  of  which  the  said  A.  B.  was  sei::ed 
and  belonging  to  him,  on  the  said  day  of  ,  ,  or  at   any   time 

thereafter,  in  ^^hose  hands  soever  the  same  may  be,  and  that  you  return  this 
execution,  with  your  proceedings  thereon,  to  the  surrogate's  court  of  said 
county,  in  sixty  days  after  the  receipt  by  you  of  the  same. 

Witness,   O.  T.   C,  surrogate  of  said  county,  at  White  TMains,   the 
day  of 

[i^iynature  of  surrogate,  or  of  clerk  to  the  surrogate's  court.] 

[Seal.] 

VTI.  Bond  to  Refund  Legacy  Paid  Pursuant  to  Decree. 

Kxow  ALL  MF.x  HY  THESE  PRESENTS,  that  we,  M.  X.,  of  the  city  of  Xew 
Y^ork,  and  J.  K.  and  L.  IVI..  of  the  same  city,  are  held  and  firmly  bound  unto 
C.  D..  the  executor  of  the  last  will  and  testament  of  A.  B.,  late  of  the  city  of 
New  York,  deceased,  in  the  sum  of  six  hundred  dollars,  lawful  money  of  the 
United  States  of  America,  to  be  paid  to  the  said  C.  D.,  as  such  executor  afore- 
said, or  to  his  certain  attorney,  successors,  or  assigns:  to  \\hich  ])ayment  well 
and  truly  to  be  made  we  bind  oursehes,  our  and  each  of  our  lieirs,  executors, 
and  administrators,  jointly  and  severally,  firmly  by  these  ])resents.  Sealed 
■with  our  sonl><.      Datr-d   tlie  day   of  ,   one   thousand  nine  hundred 

and 

Whereas,  the  said  A.  B.,  in  and  by  his  said  last  will  and  testament,  did 
give  and  bequeath  to  the  said  M.  X.  the  sum  of  one  thousand  dollars;  And 
Whereas,  the  said  legatee  has  lately  applied  to  the  surrogate  of  the  county  of 
Xew  York  [pre\ious  to]  the  expiration  of  one  year  from  the  granting  of  the 
letters  testamentary  to  the  said  executor,  to  be  allowed  to  receive  a  ))ortion  of 
the  said  lecfacy,  to  the  amount  of  three  hundred  dollars  [as  necessary  for  his 
education  —  or,  support]:  and  reasonable  notice  of  the  said  aiiplic;\tion  hav- 
ing been  given  to  tlie  said  executor,  and  the  said  surrogate  beimj  aboiit  to  al- 
low the  said  ])ortion  of  the  said  legacy  to  be  advanced  to  the  .said  legatee,  pur 
suant  to  the  statute  in  such  case  made  and  provided,  upon  the  execution  and 
delivery  of  this  obligation: 

X"ow,  THE  CONDITTON  of  this  obligation  is  such,  that  if  the  said  ^f.  X.  shall 
return  the  said  )iortion  of  the  said  legacy,  with  interest,  whenever  required, 
then  this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

Sealed  and  delivered  [etc.].  [Sipnntiirf:<!  and  seals  of  obligors.] 

[.iclcnou-ledgment  and  justification  of  sureties.] 


A' OS.  08,  69,  FoiiMs.  10£3 

No.  68. 

[Ante,  §  790.] 

Bond  to  Refund   Legacy  Directed   by  the  Will   to   be   Paid   before   the 
Expiration  of  the  Year. 

[As  in  last  above  form  to  and  including  date.l 

Whekeas,  tlie  said  A.  B.,  in  and  by  his  said  last  will  and  testament,  did 
give  and  bequeath  to  the  said  ]M.  N.  the  sum  of  live  hundred  dollars,  and  di- 
rected tlie  same  to  be  paid  to  him  in  two  months  after  the  decease  of  the  said 
A.  B. :  And  Whereas,  the  said  M.  N.  has  demanded  payment  of  the  said  leg- 
acy from  the  said  executor  before  the  expiration  of  one  year  from  the  time 
of  the  granting  of  the  letters  testamentary  of  the  said  last  will  and  testament 
to  the  said  executor,  and  the  said  executor  is  about  to  pay  the  same,  pursuant 
to  the  statute  in  such  case  made  and  provided,  upon  the  execution  and  delivery 
of  this  obligation : 

Now,  THE  CONDITION  of  this  obligation  is  such,  that  if  any  debts  against  the 
said  deceased  shall  duly  appear,  and  which  there  shall  be  no  other  assets  to 
I^ay,  and  there  shall  be  no  other  assets  to  pay  other  legacies,  or  not  sufficient, 
and  the  said  M.  N.  shall  refund  the  legacy  so  paid,  or  such  ratable  proportion 
thereof,  with  the  other  legatees,  as  may  be  necessary  for  the  payment  of  the 
said  debts,  and  the  proportional  parts  of  such  other  legacies,  and  the  costs  and 
charges  incurred  l)y  reason  of  the  said  ])ayment  to  him ;  and  if  the  probate  of 
the  said  will  shall  be  revoked,  or  the  will  declared  void,  and  the  said  M.  X. 
shall  refund  the  whole  of  the  said  legacy,  with  interest,  to  the  executor  or 
administrator  entitled  thereto,  then  this  obligation  to  be  void;  otherwise  to 
remain  in  full  force  and  virtue. 

Sealed  and  delivered  [etc.]. 

[Signatures  and  seals  of  ohligors.J 

No.  69. 

[Ante,  §  792.] 
Bond  on  Payment  of   Legacy  to   General   Guardian. 

Know   all   men    by   these    presents,   that   we,    C.    D.,    of  ,    general 

guardian  of  the  person  and  estate  of  A.  B.,  a  minor,  and  J.  K.,  of  ,  and 

L.  M.,   of  ,  are  held  and  firmly  bound  unto   the   said  A.   B.,  the  minor 

aforesaid  [continue  as  in  Form  67,  VII]. 

Whereas,  the  above-named  A.   B.   is  entitled  to  a   legacy  of  dollars, 

given  and  bequeathed  to  him  in  and  by  the  last  will  and  testament  of  G.  H., 
late  of  ,  deceased,  which  last  will  has   been  duly   admitted  to   probate 

and  record  by  the  surrogate  of  ,  and  letters  testamentary  thereon   duly 

granted  and  issued  to  W.  ^M.  and  H.  B.,  the  executors  in  said  will  named; 
And  Whereas,  the  said  A.  B.  is  a  minor,  and  the  said  C.  D.  has  been  duly  ap- 
pointed his  general  guardian;  And  Whereas,  the  said  surrogate  having  or- 
dered that  the  saia  executors  pay  to  the  general  guardian  of  the  said  A.  B.  the 
said  legacy  of  dollars; 

Now,  therefore,  tiie  condition  of  this  obligation  is  such,  that  if  the  above 
bounden  C.  D.  shall  and  will  faithfully  apply  said  legacy,  and  render  a  true 
and  just  account  of  the  application  thereof,  in  all  respects,  to  any  court  hav- 
ing cognizance  thereof,  when  thereunto  required,  then  this  obligation  to  be 
void,  else  to  remain  in  full  force  and  virtue. 

Sealed  [etc.].  [Signatures  and  seals  of  ohligors.1 

[Acktioicledgment  and  justification  of  sureties.~\ 
[Indorsed.] 

I  approve  of  the  within  bond  as  to  its  form,  manner  of  execution,  and  sufn- 
ciency  of  the  sureties. 

[Signature  of  surrogate.'] 


1020  ioKMs.  Xo.  70. 

No.  70. 

[Ante,  §   850.] 
Application  of  a  Decedent's  Real  Property  to  Pay  Debts.i 

I.    J'vtilion. 

To  the  Surrogate's  Court  of  tlie  county  of  : 

The  petition  of  A.  D.  respectfully  .shows: 

I.  That  your  petitioner  is  sole  executor  [or,  an  executor]  of  the  last  will  of 
M.  N.,  late  of  ,  deceased  [or,  an  administrator  of  the  goods,  chattels  — 
etc. —  or,  a  creditor  of  M.  N. —  e/c.]. 

II.  [In  a  case  of  testacy]   Tliat  said  M.  X.  died  on  the  day  of  , 
,  leaving  a  will  which  was  duly  admitted  to  probate  [or,  to  record],  by  an 

order  duly  made  by  the  surrogate["s  court]   of  this  county,  on  the  day 

of  ,         ,   by  which   will  the  testator   aj)pointed  your  petitioner    [or    if 

the  petition  is  hy  a  creditor,  appointed  C.  D.]  the  [sole]  executor  thereof.  [Or, 
in  a  case  of  intestacy,  II.  That  on  the  day  of  ,         ,  the  said  M.  N. 

died,  and  your  petitioner  —  or,  if  the  petition  is  by  a  creditor,  that  C.  D. 
was  thereupon  duly  appointed  administrator  of  the  goods,  chattels,  and  credits 
of  said  E.  X.,  by  an  order  duly  made  by  the  surrogate — "s  court  —  of  thi.-^ 
county,  on  the  day  of  ,         ]. 

III.  That  thereupon  your  petitioner  [or  if  petition  is  by  a  creditor,  said 
C.  D.]  duly  qualified;  and  thereupon,  by  an  order  of  said  surrogate['s  court], 
duly  made  on  the  day  of  ,  ,  letters  testamentary  [or,  of  admin- 
istration with  the  will  annexed  —  or,  of  administration]  were  duly  issued  to 
your  petitioner,  who  thereupon  entered  on  the  discharge  of  his  duties  as  such 
[or,  if  the  petition  is  by  a  creditor,  say,  duly  issued  to  said  C.  D.],  which  let- 
ters still  remain  in  force. 

IV.  [W]iere  more  than  three  years  have  elapsed]  That,  before  the  expiration 
of  three  years  from  the  time  of  said  issue  of  letters,  and  until  the  present  time 
[or,  until  the  day  of  ,  ].  an  action  was,  and  has  been,  pending 
between  your  petitioner  [or,  said  C.  D.]  as  such  executor  [or,  administrator] 
and  C.  D.,  claiming  to  be  [or,  and  your  petitioner  as]  a  creditor  of  the  estate 
of  said  decedent  [or,  if  the  creditor  teas  defendant,  insert,  in  which  said  — 
creditor  —  sought,  by  his  answer  setting  up  a  counterclaim],  to  recover  upon 
the  demand  liereinafter  mentioned:  and  that  before  the  expiration  of  said 
three  years  said  C.  D.  [or,  your  petitioner]  duly  filed  in  the  office  of  the  clerk 
of  the  county  of  ,  a  notice  of  jjcndency  of  said  action,  with  direction  to 
index  the  same  in  the  names  of  [mnius].  which  notice  specified  the  names  of 
the  parties  to  said  action,  the  object  of  the  action  [or,  the  nature  of  said 
counterclaim],  and  conlaiiiod  a  descrijition  of  the  premises  in  said  county, 
which  are  hereinafter  described,  and  that  they  would  be  held  as  security  for 
any  judgment  obtained  by  said              in  said  action. 

V.  That  an  inventory  of  the  personal  property  was  duly  made  and  filed  by 

,  on  or  about  the  day  of  ,  ;  and  that  the  personal  estate 

of  said  decedent  has  been  discovered  to  be  insufficient  for  the  payment  of  the 
debts  [or,  the  funeral  expenses  —  or    both]  of  said  decedent. 

VI.  [Where  there  has  been  udvertisement  for  claims]  That,  on  the  day 
of  ,  ,  pursiumt  to  an  order  theretofore  duly  made  by  the  said  surro- 
gate, your  petitioner  [or,  said  C.  1).]  commenced  the  j)ublication  of  notices  to 
creditors  of  said  ^I.  X.,  to  ])resont  their  claims,  and  continued  said  publication, 
agreeably  to  the  statute,  for  llie  period  of  six  months. 

VII.  [If  an  executor  or  administrator  petitions]  That  the  amount  of  personal 
])roperty  of  said  decedent,  which  has  come  to  the  hands  of  your  petitioner  as 
such  executor  [or,  administrator, —  or,  if  there  are  co-representatires  not  join- 
i)tfj  in  the  petition,  say.  to  the  hands  of  your  petitioner  and  the  said  ,  or 
to  the  hands  of  either  of  them],  is  dollars;  and  that  the  sources  and  the 
manner  in  which  the  said  sum  has  been  derived  appear  in  the  account  hereto 
annexed  [or,  by  the  final  account  of  said  ,  duly  judicially  settled  by  a 
decree  of  this  court  made  on  the  day  of  ,  ,*  of  which  accoimt 
and  decree  a  copy  is  hereto  annexed],  marked  Schedule  A. 

ISee  Co.  Civ.  Proc,  §2752. 


Is'o.  70.  Forms.  10;50 

That  your  petitioner  has  expended  of  the  said  amount,  in  the  due  course  of 
administration  of  said  estate,  the  sum  of  doUars,  and  that  the  particu- 

lars of  such  expenditure  also  appear  in  the  said  account  [vr,  copy  account  and 
decree]  hereto  annexed,  marked  Schedule  A,  leaving  in  the  hands  of  your  peti- 
tioner,  as  such   executor,   on  this  day  of  ,  ,   the   sum    of 
dollars. 

That   the   sum   of  dollars    is   still   due   and   owing   your   petitioner,    as 

[executor],  from  [etc.,  stating  any  other  available  assets],  and  there  are  no 
other  sums  yet  to  be  realized  from  the  assets  of  said  decedent. 

That  your  petitioner  has  proceeded  Avith  reasonable  diligence  in  converting 
the  personal  property  of  said  testator  into  money,  and  applying  the  same  to 
the  payment  of  debts. 

VIII.  [If  petitioner  is  a  creditor  allege  claim,  e.  g.,  thus]  That  said  dece- 
dent died  indebted  to  your  petitioner  in  the  sum  of  dollars,  and  interest 
from  the  day  of  ,  ,  upon  a  promissory  note  made  by  said  dece- 
dent payable  to  your  petitioner  or  order,  dated  the  day  of  ,  , 
and  payable  in  days  after  date;  that  the  said  claim  is  justly  due  to  your 
petitioner;  that  no  payments  have  been  made  thereon,  and  that  there  are  no 
offsets  against  the  same  to  the  knowledge  of  your  petitioner;  and  that  the 
same  is  not  secured  by  judgment  or  mortgage  upon  or  expressly  charged  on  the 
real  estate  of  the  said  deceased.  [//  a  judgment  is  shown,  state  the  amount, 
exclusive  of  costs;  and  if  a  mortgage  be  shown,  let  it  appear  that  it  is  not  a 
lien  on  the  decedent's  real  property.'] 

That  your  petitioner  has  presented  his  said  claim  to  the  said  [executor],  and 
that  the  same  has  been  admitted  by  him  to  be  a  valid  and  subsisting  claim 
against  the  said  decedent.  [And  if  an  accounting  has  been  had,  add]  That  on 
the  day  of  last  past,  the  said  C.  D.  rendered  to  such  surrogate  an 

account  of  his  proceedings  as  such  executor  [or,  administrator],  which  said 
account  has  been  judicially  settled  by  a  decree  made  by  the  said  surrogate's 
court  —  a  copy  of  which  account  and  decree  is  hereto  annexed  and  marked 
Schedule  A],  and  that  it  appears  from  the  said  account,  upon  such  settlement, 
that  there  are  not  sufficient  assets  to  pay  the  debts  of  the  said  decedent. 

IX.  That  the  unpaid  debts  outstanding  against  the  said  decedent,  and  the 
particulars  thereof,  with  the  name  and  address  of  each  creditor  or  person 
claiming  to  be  a  creditor,  as  far  as  the  same  can  be  ascertained  by  your  peti- 
tioner, together  with  the  name  and  address  of  each  person  holding  or  claiming 
to  hold  a  lien  by  judgment,  docketed  against  the  decedent  before  his  death, 
the  date  of  docketing  of  each,  and  the  portion  of  the  real  property  of  decedent 
aflfected  thereby;  also  the  amount  of  the  unpaid  funeral  expenses  of  said  de- 
cedent, and  the  name  and  address  of  each  person  to  whom  any  sum  is  due  by 
reason  thereof,  appear  in  the  schedule  hereto  annexed,  marked  Schedule  B. 

That  all  the  debts  against  the  said  decedent,  not  secured  by  mortgage,  and 
which  now  remain  to  be  paid,  so  far  as  the  same  can  be  ascertained  by  your 
petitioner,  and  as  having  been  admitted  by  him  [or,  by  said  executor  —  or,  ad- 
ministrator], upon  due  evidence,  amount  to  dollars,  exclusive  of  interest, 
as  fully  appears  by  said  Schedule  B. 

That  the  claims  against  the  said  decedent,  mentioned  in  the  Schedule  hereto 
annexed,  marked  Schedule  C,  having  been  presented  to  your  petitioner,  as  such 
[or,  to  said]  executor  [or,  administrator],  but  have  not  been  admitted  by  him, 
for  the  reason  [as  your  petitioner  is  informed  and  believes]  that  [here  indicate 
it,  e.  g.,  thus]  that* by  the  books  of  account  of  said  decedent,  it  does  not  appear 
that  such  large  sums  are  due  to  the  parties  presenting  the  claims. 

X.  That  the  following  described  real  property  is,  as  your  petitioner  is  in- 
formed and  believes,  all  the  real  property  within  the  State  of  New  York  of 
which  said  decedent  died  seized,  or  which  in  anywise  belonged  to  him  at  the 
time  of  his  death  [description  in  full,  giving  nature  and  amount  of  incum- 
brances thereon. —  If  there  are  several  distinct  parcels,  say.  Parcel  Number 
One  —  description].  The  value  of  said  premises  constituting  parcel  num- 
bered one  is,  in  the  judgment  of  your  petitioner.  dollars.  It  is  occupied 
by  L.  N.,  of             lor,  hereafter  named],  as  a  pasture  [or,  not  occupied]. 

[Where  there  are  several  parcels,  may  add :]  Said  parcel  numbered  one  is  not 
subject  to  any  charge  or  lien  [or,  is  subject  to  —  stating  the  charge  or  lien, 
e.  g.,  thus  — "a  mortgage  for  dollars,  made  by  said  decedent  to  M.   H., 


10;J1  FoKMs.  Xo.  70. 

and  duo  on  tlie  day  of  ,         ,  but  tho  same  lias  not  been   paid] ; 

and  that  said  parcel  [was  not  devised  by  said  will,  but  J  descended  to  the  iieirs 
of  saitl  decedent  hereinafter  mentioned;  and  has  not  been  sohi  by  tliem,  or  any 
of  them  \or  otherwise  statiiig  fact.i  mdterial  to  the  order  of  sule]. 

[Where  there  is  an  interest  in  an  executory  contract]  Parcel  Number 
[Two].  The  interest  of  the  said  decedent,  in  certain  real  |)ropcrty  held  by  him 
under  a  contract  madt;  by  him  witli  O.  P.,  of  ,  bearinj^  ilate  the  day 

of  ,    -     ,  for  the  purchase  by  said  decedent  from  said  0.  P.,  for  the  sum 

of  dollars,  of  the  said  last-mentioned  real   property,  being  the  followinf,' 

■described  premises:    [description  in  full]. 

The  sum  of  dollars  was  paid  by  said  decedent  thereon;   and  the  sums 

remaining,'  unpaid,  which  have  heretofore  become  due,  or  hereafter  are  to  be- 
come due,  on  said  contract,  are  as  follows:  [enumerating  them,  with  date 
when  each   was  or  is  to  be  due]. 

The  value   of  the  interest  of  said  decedent   in  the   last-mentioned   premises 
under  said  contract  is,  in  the  judgment  of  your   petitioner,  the  sum  of 
dollars. 

The  value  of  said  last-mentioned  premises  is,  in  the  judgment  of  your  peti- 
tioner, dollars  [if  there  are  several  distinct  parcels,  state  value  of  each]. 

[State  sitiiatio)i  as  to  improvemeyit  or  othericise,  and  occupancy  or  other- 
wise, as  in  other  cases  above.] 

XI.  That  none  of  the  aforesaid  real  jiroperty  of  decedent  was  devised  ex- 
pressly charged  with  the  payment  of  debts  or  funeral  expenses,  nor  is  such 
property  subject  to  a  valid  power  of  sale  for  the  payment  of  such  debts,  claims, 
or  expenses. 

XII.  That  the  names  and  ages  of  the  husband  [or,  wife]  and  of  the  heirs  and 
devisees  of  the  said  decedent,  and  of  every  other  person  claiming  under  them, 
or  either  of  them,  and  their  residences  are  as  follows,  viz.:  [stating  them  and 
their  relation  to  decedent.  If  ani/  are  infants,  or  absentees,  state  the  facts, 
name  of  guardian,  etc.,  as  in  No.  Ifl]. 

XIII.  That  no  previous  application  has  been  made  for  a  decree  authorizing 
the  disposition  of  the  real  property  of  said  decedent,  for  the  payment  of  his 
debts  or  funeral  expenses. 

WiiEUEFORE,  your  petitioner  prays  that  a  decree  be  made  directing  the  dis- 
position [or,  sale  —  or,  mortgaging  —  or,  leasing]  of  the  said  real  property  of 
said  decedent,  or  so  much  thereof  as  may  be  necessary  for  the  payment  of  his 
debts  [or,  funeral  expenses  —  or  both]  ;  and  that  [names]  may  be  cited  to  show 
cause  why  such  a  decree  should  not  be  made.  [Signature.] 

[Verification.] 
[Annex  schedules    ivith  signature  of  petitioner  to  each.] 

II.  Creditor's  Notice  of  Pendency  of  Action.^ 
[Title.] 

Notice  is  hereby  given,  under  and  in  pursuance  of  section  2751  of  the  Code 
of  Civil  Procedure  of  the  State  of  New  York,  of  an  action  brought  by  J.  S.. 
plaintiff,  against  A.  P.,  as  executor  of  the  last  will  and  testament  of  [or,  ad- 
ministrator of  the  estate  of]  M.  N.,  deceased,  late  of  the  city  of  ,  county 
of  ,  and  State  of  New  York,  to  recover  judgment  upon  the  following 
demand:    [describe  claim    briefly]. 

The  following  real  property,  ownied  by  the  decedent  in  his  lifetime  and  at 
the  time  of  his  death,  situate  in  the  of  ,  bounded  and  described  as 

follows:  [describe  it  by  metes  and  bounds],  is  aflFected  by  said  action,  and  such 
real  property  will  be  held  as  security  for  any  judgment  obtained  in  the  action. 

[Date.]  [Signature], 

Plaintiff's  Attorney. 

III.   Order  for  Executor  or  Administrator  to  Account. 
ITitle.] 

E.  G..  claiming  to  be  a  creditor  of  A.  B.,  late  of  the  city  of  New  York,  in 
the  county  of  New  York,  deceased,  having  presented  his  petition  to  the  surro- 


1  See  Co.  CiT.  Proc,  §  2751. 


Xo.  70.  Forms.  1032 

gate's  court,  duly  verified,  praying  for  disposition  of  the  real  estate  of  said 
decedent  for  payment  of  his  debts,  and  the  said  petition  not  enumerating  the 
said  debts  particularly  or  stating  the  same  in  detail, 

Xow,  on  motion  of  L.  R.,  counsel  for  said  petitioner,  it  is  hereby 

Ordered,  that  P.  M.,  the  executor  of  the  will  [or,  administrator  of  the 
estate]  of  said  decedent,  show  cause  before  said  surrogate's  court,  at  the  surro- 
gate's office,  in  the  county  of  New  York,  on  the  day  of  ,  ,  at 
10:30  o'clock  in  the  forenoon  of  that  day,  why  he  should  not  be  required  to 
render  an  account  of  his  receipts  and  disbursements  as  such  executor  [or,  ad- 
ministrator], and  to  file  a  statement  of  any  and  all  of  the  claims,  debts,  or 
demands  against  said  decedent  presented  to  and  kno\\Ti  by  him,  and  to  render 
an  account  of  all  personal   property  of  said  decedent. 

Let  a  copy  of  this  order  to  show  cause  be  served  upon  said  P.  M.,  executor, 
personally,  on  or  before  the  day  of 

[Signature], 
Surrogate. 
IV.  Order  for  Citation. 
[Title.] 

On  reading  and  filing  the  petition  of  A.  B.  [the  executor],  aforesaid,  verified 
the  day  of  ,  ,  and  presented  this  day  of  ,  ,   and 

praying  for  authority  to  mortgage,  lease,  or  sell  the  real  property  of  said  de- 
cedent for  the  payment  of  his  del)ts  [or,  funeral  expenses- — or  both],  it  ap- 
pearing to  the  surrogate  that  said  petition  has  been  presented  within  three 
years  from  the  time  the  letters  testamentary  [or,  of  administration]  on  the 
estate  of  said  decedent  were  granted;  and  the  surrogate  being  satisfied  by  the 
said  petiticfn    [and  by  the  affidavit  of  C.   D.,  verified  the  day  of  , 

,  and  filed  herewith,  and  by  the  testimony  of  E.  F.,  a  witness  produced 
before  and  examined  by  said  surrogate],  and  by  due  inquiry  by  him  made,  that 
all  the  facts  specified  in  section  2754  of  the  Code  of  Civil  Procedure  have  been 
ascertained,  as  far  as  they  can  be  upon  diligent  inquiry,  and  are  stated  in 
said  petition: 

[Or,  uhere  petitioner  nris  ignorant  of  an  essential  fact,  add,  except  as  here- 
inafter stated:  and  it  being  alleged  in  said  petition  that,  upon  diligent  inquiry, 
the  said  petitioner  is  unable  to  ascertain  —  indicating  the  fact,  e.  g. —  the 
names  of  all  the  heirs  of  said  M.  X.,  and  of  every  person  claiming  under  them 
or  either  of  them, —  and  the  surrogate  having  inquired  into  the  matter  and 
being  satisfied,  by  the  allegations  of  the  petition  and  the  testimony  of  W.  W., 
and  the  affidavit  of  A.  F.,  verified  the  day  of  ,         ,  and  filed  here- 

Avith.  that  such  names  cannot  be  ascertained  with  reasonable  diligence:] 

And  it  appearing  to  the  surrogate,  in  the  manner  aforesaid,  that  the  debts 
[or,  funeral  expenses  —  or  both]  of  said  decedent  cannot  be  paid  without  re- 
sorting to  the  real  property  [or,  interest  in  real  property  —  or  both]  of  said 
decedent : 

Now,  on  motion  of  A.  T.,  attorney  for  said  petitioner, 

It  is  ordered,  that  a  citation  issue  out  of  this  court  vipon  said  petition,  re- 
quiring [names]  to  appear  before  said  surrogate,  on  the  day  of  , 
,  at  o'clock  in  the  noon,  and  then  and  there  to  show  cause 
why -authority  should  not  be  given  to  the  said  executor  [or,  administrator]  to 
mortgage,  lease,  or  sell  so  much  of  the  real  property  of  the  said  decedent,  as 
shall  be  necessary  to  pay  his  debts  [or,  funeral  expenses  —  or  both].  [Where 
there  are  narties  in  interest  not  nained  in  the  petition']  And  it  further  appear- 
ing to  said  surrogate,  in  the  manner  aforesaid,  that  U.  V.,  of  the  city,  county, 
and  State  of  ,  and  W.  X.,  of  the  city,  county,  and  State  of  ,  not 
named  in  the  petition  [or,  certain  persons],  whose  names  and  addresses  cannot 
with  reasonable  diligence  be  ascertained,  claim  an  interest  in  the  property 
mentioned  in  the  petition  as  [or,  under  the]  heirs  [or,  devisees]  of  said  de- 
cedent ;  let  said  citation  be  directed  also  to  said  U.  V.  and  W.  X.  [or,  to  the 
.  —  inserting  a  general  designation  of  the  class]. 

[If  advertisement  of  claims  is  not  alleged]  And  it  not  appearing  that  due 
advertisement  for  claims  against  said  estate  has  been  had.  and  the  time  for 
presentation  thereof  elapsed,  let  said  citation  be  directed  also  generally  to 
all  other  creditors  of  said  decedent  M.  N.,  as  well  as  to  those  named  in  said 
petition. 


1033  FoK.Ms.  Xo.  70. 

V.  The  Citation. 
[The  command  of  citation  is:]  To  sliow  cause  why  a  decree  should  not  be 
made  directing  the  disposition  [or  according  to  the  prayer  of  the  petition,  tlie 
sale  —  or,  the  mortfra<^inf,'  —  or,  the  leasin<x]  of  the  real  property  of  the  said 
decedent  M.  X.,  or  so  much  thereof  as  may  be  necessary  for  tlie  payment  of 
his  debts  [or,  funeral  expenses  —  or  both], 

yi.  Bond  of  Executor  or  Administrator. 

[As  in  Xo.  45,  to  and'  including  date] 

Whereas,  the  above  bounden  A.  B.  [executor,  etc.,  describing  estate],  lately 
api)li('d  [or  if  creditor  apptied,  state  the  fact]  to  the  surrogate['s  court]  of 
the  county  of  ,  for  authority  to  dispose,  by  mortgage,  lease,  or  sale,  of  as 

much  of  tlie  real  property  of  tiie  said  M.  X.,  deceased,  as  shall  be  necessary  to 
pay  his  debts  [or,  funeral  expenses  —  or  both];  AxD  Whereas,  such  proceed- 
ings in  due  form  of  law  have  been  thereupon  liad.  that  the  said  surrogate  has 
decreed  a  [sale]  of  so  mucli  of  the  real  property  whereof  the  said  decedent  died 
seized  as  shall  be  sufficient  to  pa_f  the  debts  [and  funeral  expenses]  of  the  said 
decedent,  which  the  surrogate  has  adjudged  valid  and  subsisting  pursuant  to 
tiie  statute, 

Xow,  THE  coxDiTiox  of  this  obligation  is  such,  that  if  the  said  A.  B.  shall 
faitlifully  ])erform  the  duties  imposed  upon  him  by  said  decree,  and  shall  pay 
into  the  said  surrogate's  court,  within  twenty  days  after  the  receipt  thereof  by 
him,  all  money  arising  from  any  such  mortgage,  lease,  or  sale,  and  shall  de- 
liver to  the  said  surrogate,  within  the  same  time,  all  the  securities  taken  there- 
upon, and  shall  accoimt  for  all  money  received  by  him,  whenever  he  is  required 
so  to  do  by  a  court  of  competent  jurisdiction,  then  this  obligation  to  be  void> 
otherwise  to  remain  in   full   force  and  effect. 

[Sealed   and  delivered   in   presence   of]  [Signature   and  seals."] 

[Affidavit  of  sufficiency,  as  in  Xo.  45.] 
[Bond   of  freeholders    same   as  above   mutatis   mutandis.] 

VII.  Order  Appointing  Special  Guardian  of  Infants.] 
[See  ante,  Xo.  11,  IV.] 

VIII.   Order  for   Trial  by  Jury    in   a   Proceeding   to  Sell   Real  Estate  to   Pay 

Debts. 
[Title.] 

A.  B.,  having  presented  to  the  surrogate,  upon  the  return  of  a  citation  to 
the  creditors,  heirs-at-law,  and  administrator  of  the  estate  of  the  above- 
named  deceased,  a  clai;n  against  tlie  said  deceased,  arising  upon  a  promissory 
note  claimed  to  have  been  made  by  the  said  decedent  in  his  lifetime,  of  whicii 
the  following  is  a  copy: 

[Here  insert  copy  of  note,  or  account.'] 

And  C  D..  the  said  administrator,  having  dispiited  said  claim  and  alleging 
that  said  decedent  did  not  maki'  said  note,  and  that  he  did  not  deliver  to  the 
payee;  and  the  surrogate  having  decided  tliat  the  issue  sliould  be  tried  at  a 
circuit  court  to  be  held  within  this  county  fin  the  county  court  of  tiie 
county] ; 

It  is  ordered,  that  such  controverted  questions  of  fact,  to  wit:  whether 
the  said  decedent  made  said  promissory  note  in  his  lifetime,  and  whetlicr  he 
delivered  said  promissory  note  in  his  lifetime,  to  the  payee,  for  value,  be 
tried  by  a  jury  at  a  circuit  court,  to  be  held  as  aforesaid. 

[Signature  of]. 

Surrogate. 
IX.  Order  Appointing  .Ippraisers. 
[Title.] 

All  the  facts  specified  in  section  2759  of  the  Code  of  Civil  Procedure, 
having  been   satisfactorily  establislied   in   this   matter.  .   the   said    surro- 

gate of  said  county  ,   in  order  to   inquire  and  determine  whether  suffi- 


No.  70.  ImjMs.  1034: 

■cient  mone.v  can  be  raised  advantageously  to  the  persons  interested  in  the 
real  property,  by  a  mortgage  or  lease  of  the  real  property  of  which  the  said 
<J.  D.  died  seized,  or  of  a  part  thereof,  does  hereby  order  that  0.  P.,  Q.  K.,  and 
iS.  T.,  three  competent  and  disinterested  persons,  be,  and  they  are,  hereby 
appointed  to  examine  and  appraise  each  parcel  of  real  property  of  which  the 
said  decedent  died  seized,  and  each  parcel  of  real  property,  mentioned  and 
described  in  the  petition  in  this  matter,  and  its  rental  value  at  its  just  and 
fair  market  value;  and  it  is  further  ordered  that  they,  the  said  appraisers, 
shall  forthwith  so  appraise  the  same,  and  make  a  report  thereof,  signed  and 
verified  by  at  least  two  of  them,  describing  each  parcel,  and  stating  its  value 
and  rental  value,  and  file  the  same  in  the  surrogate's  office.  The  premises 
to  be  appraised  are  described  as  follows,  to  wit:  [describe  property  by 
metes  and  bounds]. 

X.  Oath  of  Appraiser. 
STATE    OF    NEW    YORK,  )  ^^  . 
County  of  j  )     " 

I,  O.   P.,  an  appraiser  duly  appointed  by  the  surrogate   of  the  county  of 

,   do   swear   and  declare,  that  I   will   truly,  honestly,  and   impartially 

examine   and   appraise  each   parcel    of  the   real    property   of   C.    D.,    deceased, 

and   its  rental  value,  at   its  just  and  fair  market  value,   to  the   best  of  my 

knowledge  and  ability. 

[Jurat.] 

XI.  Report  of  Appraisers. 
[Title.] 

We,  the  undersigned,  persons  duly  appointed  by  an  order  of  this  court, 
bearing  date  the  day  of  ,         ,  to  examine  and  appraise  each  parcel 

•of  the  real  property,  of  which  the  said  C.  D.,  deceased,  died  seized,  and  its  ren- 
tal value  at  its  just  and  fair  market  value,  and  each  parcel  of  real  property 
mentioned  and  described  in  said  order,  at  its  rental  value  at  its  just  and  fair 
market  value,  do  hereby  report: 

First.  That  we  have  examined  and  appraised  each  parcel  of  real  property 
of  which  the  said  C.  D.  died  seized,  and  its  rental  value  at  its  fair  market 
value,  which  are  the  same  parcels  of  real  property  and  all  thereof,  mentioned 
and  described  in  said  order. 

Second.  That  parcel  No.  1  consists  of  about  six  acres  of  land,  upon  which 
are  two  buildings  [or,  otherwise  describing  property]  ;  that  about  three  acres 
of  the  same  are  under  cultivation  and  the  balance  is  [describing  it]  ;  that 
the  fair  market  value  of  said  parcel  is  the  sum  of  dollars;  and  the  annual 

rental  value  is  the  sum  of  dollars,  [and  so  on  with  respect  to  each  parcel]. 

Third.  And  we  do  further  report,  that  we  have  each  been  actually  engaged 
in  examining  and  appraising  said  real  property,  and  making  this  report,  ten 
•days'  time.  . 

All  of  which  is  respectfully  submitted. 

Verification    of  Report, 
f  Venue.] 

O.  P.,  Q.  R.,  and  S.  T.,  appraisers  of  the  real  property  of  C.  D.,  being 
severally  duly  sworn,  deposes  and  says,  each  for  himself,  that  he  has  examined 
and  truly,  honestly,  and  impartially  appraised,  to  the  best  of  his  ability,  each 
parcel  of  the  real  property  of  the  said  deceased,  as  hereinafter  set  forth,  and 
its  rental  value  at  its  just  and  fair  market  value,  and  that  the  foregoing 
appraisal  is  in  all  respects  correct  and  true. 

[Jurat.] 

XII.  Decree  for  Disposal  of  Real  Property.^ 
ITitle.] 

A.  B.,  of  ,  the  executor  of  the  will    [or,  administrator  —  or,  a   cred- 

itor—  of  the  estate]  of  M.  N..  deceased,  late  of  ,  having  heretofore,  and 

within  three  years  after  the  issue  of  letters  on  said  estate,  duly  presented  to 


1  This  decree  should  be  recorded. 


lO'jo  Pcjkms.  Xo.  to. 

the  surrogate['s  court]  of  the  count}'  of  ,  his  petition,  dated  tlic  day 

-of  ,         ,  jjraying  for  a  decree  for  tlie  sale,  iiKjrtf^aging,  or  leasing  of  the 

decedent's  real  projierty  to  i)ay  iiis  del)ls  [or,  funeral  expenses]  ;  and  the  said 
surrogate  having  Ijeen  duly  satisfied,  upon  propi-r  inquiry  and  evidence,  that  a 
proper  case  was  made  and  duly  jiresented,  and  having  thereupon  caused  a 
citation  to  be  issued  out  of  this  court,  re<iuiring  [luancs]  to  apjK'ar  before  him, 
the  said  surrogate,  ui)on  such  a])plication  ;  and  the  said  citation  having  been 
returned  on  that  day,  and  tiled,  together  with  proof  of  due  service  thereof  on 
each  of  the  persons  therein  named;  aiul  the  said  surrogate  having,  by  an  order 
duly  made  and  entered  herein,  on  the  day  of  ,         ,  appointed  S.  (j. 

s|H'eial  guardian  for  the  minors  I.  F.  and  J.  F.,  for  the  |)rotection  of  their  in- 
terests herein;  and  the  said  A.  B.  having  appeared  by  A.  T.,  his  attorney  and 
counsel,  and  C.  D.,  one  of  the  heirs  of  the  said  decedt-nt.  having  also  appeared 
by  B.  T.,  his  attorney  and  counsel,  and  the  said  guardian  having  appeared  in 
person,  and  the  j)roper  ])rocee(lings,  in  due  form  of  law,  having  b.een  there- 
upon had  [and  duly  adjourned  to  this  day]  ; 

i  ir/irrc  heirs  or  devisees  —  or  their  assifpis  not  cited  —  have  intervened] 
And  said  Y.  Z.   [or,  one  Y.  Z.  of  ,  claiming  as  ],  having  filed  an 

answer,  verified  the  day  of  .         .  contesting  the  necessity  of  ap- 

plying said  property  to  the  payment  of  debts  or  funeral  expenses,  and  the 
validity  of  the  alleged  debts,  and  tlie  reasonableness  of  the  said  alleged  ex- 
penses; and  setting  up  a  counterclaim  against  the  demand  of  tlie  petitioner: 
[Where  creditors  not  cited  have  intervened]  And  C.  D.,  of  the  city,  county 
and  State  of  ,  a  creditor  of  the  said  decedent,  having  also  appeared  and 

become  a  party  hereto  by  presenting  and  proving  his  debt; 

[Or,  Arid  the  matter  being  regularly  called  in  open  court  by  said  surrogate, 
and  no  one  ayipearing  in  opposition  thereto,  and  the  surrogate  having,  upon 
the  return  of  the  citation  as  aforesaid,  proceeded  to  hear  the  allegations  and 
proofs  of  the  parties  —  or,  and  it  having  been  thereupon  referred  by  said  sur- 
rogate to  R.  F.,  Esq.,  as  referee  herein,  to  take  proof  of  the  facts  and  circum- 
.«tances,  and  claims  against  the  estate  of  said  ^f.  X.,  and  report  the  evidence 
thereon  —  and  to  examine  the  accou?it  of  the  said  A.  B..  and  report  thereon  — 
the  said  referee  having  duly  made  his  report  as  ordered,  and  the  same  having 
been  duly  confirmed  in  all  respects:] 

And  after  due  examination  so  as  aforesaid  had.  it  having  been  established 
to  the  satisfaction  of  said  surrogate: 

1.  That  the  said  petitioner  hns  fullv  complied  with  the  requisite  provisions 
of  the  statutes  concerning  the  disposition  of  a  decedent's  real  property  for 
the  payment  of  debts  or  funeral  e\i)ensps;  and  that  the  proceedintrs  herein 
have  been  in  conformity  to  title  5  of  cliapter  IS  of  the  Code  of  Civil  Pro- 
cedure. 

2.  That  the  following  claims,  for  the  purpose  of  jinying  which  this  decree 
is  made,  are  A'alid  and  subsisting  debts  against  said  decedent's  real  propertv. 
and  [that  the  charge  for  funeral  expenses  below  n^entioned  is  just  and  reason- 
able, and  that  all  said  claims  are]    justlv  due  and  owing. —  to  v-'^ : 

[Enumerate  them,  vith  statement  of  nature,  amount,  and  when  due,  in 
form  of  a  schedule.] 

3.  That  the  claims  above  allowed  amount  in  the  aggregate  [exclusive  of  in- 
terest] to  dollars;  and  that  none  of  them  are  secured  by  any  judgmeit 
or  mortgage  [which  is  a  lien  u|)on  the  decedent's  real  property],  nor  ex]>resslv 
.charged  by  said  decedent's  will  ujxm  his  real  property,  or  upon  any  interest  in 

real  property  [except  the  del)t  of  said  Q.  T\..  wliieh  was  express! v  charged  unon 
the  real  jirojx^rty  of  said  decedent :  but  the  remedies  of  said  Q.  R..  by  virtue 
of  which  charge,  have  been  exhausted  —  indicntinfj  how:"] 

4.  That  the  following  liens  by  judgment  have  been  established,  as  valid 
and  subsisting  debts  against  the  estate  [set  forth  i)i  schedule  form  a  list  of 
persons  holding  such  judgments,  the  date  of  doclcet  of  each,  and  a  siKcifica- 
tion  of  the  property  affected  h}/  each   judpmrnt]. 

5.  Tliat  the  property  hereinafter  described  was  not  effectually  devised  or 
■expressly  charged  with  the  payment  of  debts  or  funeral  ex|x»nses.  and  is  not 
subject  to  a  valid  jiower  of  sale  for  the  payment  tbereof  [or,  that,  although 
the  property  hereinafter  described  is  expressly  charged  with  the  payment  of 


ISTo.  70.  Forms.  ^  1036- 

the  debt  of  said  Q.  II.,  it  is  not  practicable  to  enforce  the  charge,  for  the  rea- 
son that  —  etc. —  and  the  said  *.,).  R.  has  ofl'ectually  relinquished  the  same]: 

(i.  That  all  the  personal  property  of  said  decedent  which  could  have  been 
a])i)lied  to  the  payment  of  his  debts,  jud<,niient  liens,  and  funeral  expenses  has 
been  so  applied  [or,  that  the  executor  of  the  will  —  or,  administrator  of  the 
estate  —  of  said  M.  X.  has  proceeded,  with  reasonable  diligence,  in  convert- 
ing the  personal  property  into  money,  and  applying  it  to  the  payment  of  the 
debts,  liens,  and  fimeral  expenses  of  said  decedent!,  and  that  it  is  insufficient 
for  the  pi.yment  of  the  same,  as  established  by  this  decree: 

And  said  surrogate  liaving  thereupon  duly  inquired  whether  sufllcient  money 
can  be  raised  advantageously  to  tlie  persons  interested  in  said  real  property^ 
by  a  mortgage  or  lease  of  the  real  property  of  which  the  said  decedent  disd 
seized;  or  of  a  part  thereof,  and  having  ascertained  *  that  sufficient  money 
cannot  be  so  raised  advantageously  as  aforesaid: 

t  jSTow,  on  motion  of  A.  T.,  attorney  for  said  A.  B., 

It  is  ordekei),  adjxdged,  and  decreed: 

1.  That  the  claims  of  [insert  names  of  all  creditors  ichose  claims  are  al- 
loiced]  hereinbefore  named,  in  the  amounts  hereinbefore  respectively  stated, 
are  valid  and  svibsisting  debts  against  said  decedent's  estate:  that  the  claim 
of  said  S.  T.  is  a  reasonable  charge  for  the  funeral  expenses  of  said  decedent ; 
and  that  the  claim  of  W.  S.  hereinbefore  named  is  rejected.J 

2.  That,  for  tlie  purpose  of  paying  t!ie  debts  hereinbefore  established,  a  sale- 
of  the  following  descrilied  real  property,  of  which  said  decedent  died  seized, 
or  so  much  thereof  a?  may  be  necessaiy  to  pay  such  debts,  be  made  by  A.  B., 
the  said  executor  [or,  administrator],  upon  his  executing  and  filing  with  the 
surrogate  of  this  county,  the  bond  prescril)ed  by  law,  in  the  penalty  of 
dollars,  and  with  sureties;  or,  in  case  of  his  failure  so  to  do,  by  a  free- 
holder to  be  appointed  by  the  surrogate  as  prescribed  by  law  [if  at  a  private 
sale  add:  at  a  price  not  less  than  the  value  thereof,  as  appraised  pixrsuant  to 
statute! . 

The  premises  ^o  to  be  pold  are  bounded  and  described  as  follows:  [descrip- 
tion; if  there  are  several  distinct  parcels,  it  is  convenient  to  enumerate  them; 
see  petition']. 

[tT7(e)-e  part  cannot  he  sold  irithout  prejudice']  And  it  apDearin'j  to  the 
said  surrogate  that  a  sufficient  part  of  said  real  property  [or,  interest  in  real 
property — or  both]  to  pay  the  debts  [or,  funeral  expenses  —  or  hoth'\  of  said 
(iecedent.  to  which  it  is  justly  applicable,  cannot  be  sold  separately,  without 
manifest,  prejudice  to  the  persons  interested  in  said  real  property  [if  hecai'.fie 
fitle   is   in    controversy,   add,   by   reason   of   a    controversy   between  and 

—  and  others  —  as  to  the  decedent's  title  thereto  or  interest  therein]. 
IT  TS  FrRTHER  ORDERED,  AD-JT'DGED.  AND  DECREED,  that  [here  direct  Sale  of  sev- 
eral parcels  toaether,  or  postponement  of  sale  as  to  part']. 

[Where  the  order  of  sellinq  several  distinct  parcels  is  to  he  fixed]  And  it 
.appearing  to  the  said  surrogate  tliat  it  is  just  that  the  sale  of  the  several  dh- 
tinct  parcels  be  made  as  hereinafter  directed  [or,  state  devise  or  alienation, 
e.  (J.,  thns:  that  the  house  and  lots  in  the  village  of  ^T.,  nvim.bered  parcel 
above,  were  devised  by  the  said  !M.  X.  to  Y.  Z.,  and  have  not  been  sold  by  him; 
and  that  the  three  lots  in  the  town  of  O.,  numbered  iiarcels  two  to  fouT  above, 
descended  to  the  heirs  of  said  decedent :  and  that  the  lot,  parcel  two,  has  not 
been  sold  by  the  said  heirs,  and  the  lots,  parcels  three  and  four,-  have  been  sold 

by   them],    IT   is    hereby   Ft'RTITER   ordered,    AD.TUDGED,    AND    DECREED,    that    the 

sale  of  said  premises  [so  far  as  necessary  to  raise  the  said  sum  of  dol- 

lars] be  made  in  the  following  order:    [indicatinq  separate  parcels']. 

[Where  interest  under  a  contract  is  sold  siihiect  to  payments]  AxD  IT  l.s 
FURTHER  ORDERED,  ADJUDGED,  AXD  DECREED,  that  the  Sale  of  the  interest  of  said 
decedent  in  the  premises  [or,  tlie  parcel  numbered  herein]  shall  be  made 

subject  [to  all  ]iayments  heretofore  due  upon  said  contract  and  now  unpaid, 
as  well  as]  to  all  payments  hereafter  to  become  due  upon  said  contract ;  and 
that  the  purchaser  and  purchasers  of  said  interest  must,  before  the  sale  is; 
confirmed,  execute  to  the  said  executor  [or,  administrator]  his  or  tlieir  bond 
agreeably  to  the  statute,  and  with  sufficient  sureties,   in  the  penalty  of 

[at  least  doiihle  all  payments  ahove  required  to  he  made]  dollars. 


10;i7  FuKMs.  Xu.  To. 

[Whcr<^  guardian  (hfilres  1o  hmj]  And  <'!.  (';..  tlip  froncral  puardian  of  the  in- 
fant I.  F.,  is  lieifby  autliorized,  as  such,  to  purchase  all  or  any  pari  of  said 
jironiiscs  at  tlic  sale  hcrchy  decreed,  but  in  his  name  (jf  ollice  and  for  the  bene- 
fit of  his  ward. 

[Where  sale  is  subject  to  judfjincnt  lints]  And  it  appearing;  to  Ix-  for  the 
best  interest  of  all  parties  interested,  it  is  okdkkku,  that  said  sale  be  made 
subject  to  the  lien  of  the  jud<;;monts  hereinabove  specified,  and  hereby  estab- 
lished for  specify  any  one  or  more  jvdijnients,  subject  to  which  the  sale  may 
be  madel. 

XI 11.  Decree  for  Lease  or  Mortgage. 

[As  in  last  form  to  the  asterisk,  continuing]  that  sudicient  money  can  l)e  so 
raised  advanta<i;eously,  as  aforesaid,  by  a  niort<rage  [or,  lease]  of  said  ])roperty, 
on  the  terms  hereinafter  prescribed:  [continue  as  in  last  form,  from  the  dag- 
ger to  the  double  dagger;  and  then  direct  that  the  executor  or' administrator, 
•etc.,  on  giving  bond,  etc.,  etc.,  mortgage  or  lease]. 

XIV.  Order  Directing  Execution  of  Decree. 
ITiile.] 

A  decree  having"  theretofore  been  made  herein  by  the  said  surrogate ['s 
•courtl,  entered  the  day  of  ,         ,  upon  a  petition  duly  presented  and 

the  due  citation  of  the  proper  persons,  authorizing  the  sale  [or,  the  mortgage 
—  or,  lease]  of  certain  real  i)ro])erty  of  said  decedent,  in  said  decree  described, 
for  the  payment  of  his  debts  or  funeral  expeuNes ;  and  A.  B.,  the  [executor] 
therein  named.  ha\  ing  duly  given  and.   071  the  day  of  ,  .  filed 

in  the  office  of  the  said  surrogate,  the  bond  required  by  law  and  by  said  de- 
cree [and,  if  penalty  icas  fixed  by  separate  order,  add,  and  by  the  order  of 
said   surrogate  —  or,  surrogate's   court. —  entered   herein   on   the  day   of 

,         ,]   -with  the  requisite  justification  of  sureties  and  approval  of  the 
surrogate:      X"o\v.  on  motion  of  A.  T.,  attorney  for  said  A.  B. : 

It  is  ordered,  that  said  A.  B.  proceed  to  execute  the  said  decree  with  re- 
spect to  all  the  real  jiroperty  therein  mentioned  [or  give  other  directions]. 

XV.    Order  Appointinq   Freeholders   to    Sell. 
[Title.] 

A  petition  having  been  filed  in  the  ofTice  of  the  surrogate  of  county, 

•on  the  day  of  ,         ,  by  A.  B..  the  executor  of  C.  D.,  deceased,  pray- 

ing for  authority,  pursuant  to  the  statute,  to  mortgage,  lease,  or  sell  so  much 
■of  the  real  estate  of  the  said  deceased  as  should  be  necessary  for  the  payment 
of  his  debts,  and  such  proceedings  liaving  been  had  thereon  that,  on  the 
<isiy  of  ,         ,  authority  was  given  to  the  said  A.  B.,  the  executor  afore- 

said, to  sell  the  real  estate  mentioned  in  the  said  petition,  upon  his  executing 
a  bond  in  a  ])enalty  of  dollars,  A\ith  sureties,  and  conditioned  as  required 

by  the  statute,  and  the  said  A.  B.  having  neglected  to  execute  such  bond 
"within  a  reasonable  time,  to  wit,  since  the  day  of  ,  .  and  it  ap- 

pearing  that    R.    S.    is   a   disinterested   freeholder   of  the  town   of  ,   and 

that  he  is  nominated  by  a  majority  in  numbers  and  amount  of  creditors  of 
the  said  C,  D.,  deceased, 

Ordered,  that  the  said  R,  S.  be,  and  he  hereby  is,  appointed  in  place  of 
the  said  A.  B.  to  make  such  sale,  upon  his  executing  a  bond  in  the  penalty 
of  dollars,  with  sureties,  and  conditioned  as  required  by  the  statute. 

XVI.   Xotice  of  Sale. 
{Title.] 

In  pursuance  of  an  order  of  the  surrogate's  court  of  the  county  of  Xew 
York,  duly  made  and  entered  on  the  day  of  ,  .  the  undersigned 

freeholders,  appointed  by  said  order  for  the  purpose  of  selling  certain  propeity 
bfdonging  to  the  estate  of  M.  X'.,  deceased,  at  the  front  door  of  the  courthouse 
in  the  city  [or.  town]  of  ,  county  of  ,  at   12  o'clock,  noon,  on  that 

day,  will  sell  the  following  described  real  estate,  to  wit:    [Describe  the  several 


:su.  ;0.  Forms.  103S 

parcels  to  he  sold,  as  in  order  of  sale  and  petition,  and  describing  the  buildings 
on  each  parcel], 

[Date.]  [^ignature.'\^ 

XVII.  Report  of  .S'aZe. 
[Title] 
To  ,  Surrogate  of  the  county  of  : 

I.  C.  D.,  the  executor,  etc.,  of  A.  B..  late  of  ,  deceased,  report  and  re- 

turn my  proceedings  under  the  decree  of  sale  of  the  real  estate  of  the  said. 
deceased,  granted  by  the  surrogate  of  county,  on  the  day  of  ^ 

,  as  follows: 

I  caused  a  notice  that  the  said  real  estate  would  be  sold  at  public  auction, 
at  the  ,  in  the  town  of  ,  on  the  day  of  ,  at  12  o'clock, 

noon,  of  that  day,  to  be  posted  for  six  weeks  previous  to  the  day  appointed  for 
the  said  sale,  at  three  of  the  most  public  places  in  the  town  of  ,  in  which 

all  the  said  real  estate  is  situated,  and  the  same  notice  to  be  published  for  six 
weeks  successively,  previous  to  the  day  appointed  for  the  said  sale,  in  the 
newspaper  entitled  the  .  printed  in  the  town  of  ,  a  copy  of  which 

said  notice,  with  the  proof  of  such  posting  and  publication  thereof,  is  hereunto 
annexed. 

That,  at  12  o'clock,  noon,  on  the  said  day  of  ,  at  the  in  the- 

town  of  ,  wherein  the  premises  ordered  to  be  sold  are  situated,  I  sold,  at 

public  auction,  the  Avhole  of  the  real  estate  mentioned  and  described  in  said 
order  of  sale  as  follows,  and  which  real  estate  is  mentioned  and  described  in. 
said  order  of  sale  as  follows:    [Description  of  property.'] 

XVIII.   Order  Confirming  or   Vacating  Hale.^ 
[Title.] 

A  decree  having  been  duly  made  by  the  surrogate  ['s  court]  of  the  county  of 
,  on  the  day  of  ,  ,  authorizing  the  said  A.  B.    [executor 

of  the  will]  of  ]\I.  X..  deceased,  to  dispose  of  the  said  decedent's  real  property 
mentioned  and  described  in  the  said  decree,  to  raise  money  to  pay  the  debts 
[or,  funeral  expenses  —  or  both']  therein  mentioned  and  established,  and,  after 
bond  duly  given  by  said  A.  B.,  an  order  for  the  execution  of  said  decree  having 
been  duly  made  by  said  surrogate ["s  court],  on  the  day  of  ,  ; 

and  said  A.  B.  having  [this  day]  made  and  filed  a  report  of  the  [sale]  made 
pursuant  to  said  decree,  showing  that  after  having  posted  and  published  due- 
notice  of  the  time  and  place  of  holding  the  said  sale,  according  to  law,  he  did, 
on  the  day  of  ,  at  o'clock,  ,   the   time   mentioned   in   said 

notice,  and  between  the  hours  of  nine  in  the  morning  and  sunset  of  the  same 
day,  at  the  [city  salesrooms],  in  the  [city  of  Brooklyn,  covmty  of  Kings], 
the  place  mentioned  in  said  notice,  sell  at  public  auction,  by  C.  &  il.,  auc- 
tioneers, the  following  described  premises,  being  parts  and  portions  of  the 
premises  meationed  and  described  in  said  order,  to  wit:  [description']  ;  to- 
gether with  all  and  singular  the  tenements,  hereditaments,  and  appurtenances 
to  the  said  premises  belonging,  or  in  anywise  appertaining,  to  R.  W.  D.  and 
M.  J.  D.,  for  the  sum  of  dollars  per  lot    (amounting  in  the  aggregate 

to    the   sum   of  dollars),    they   being    the   highest   bidders    therefor,   and 

that  being  the  highest  sum  bid  for  the  same  [and  so  on  icith  different  parcels'] : 

[Where  there  was  adjournment]  And  said  report  further  showing  that,  after 

selling  the  lots  and  parcels  of  land  aforesaid,  the  sale  of  the  residue  of  said 

premises   ordered  to  be   sold,  was   duly  adjourned   to   the  day  of  , 

,  at  same  hour  and  place ;  and  that  on  the  said  day  of  ,  , 

between  the  liour  [and  so  on  as  before'] : 

And  said  A.  B.  having  this  day  appeared  in  person,  and  by  A.  T.,  his  at- 
torney  and   counsel,   and   due   proof   of  service   of   notice  of   this   motion   on 


lEach  of  the  freeholders  must  si?n. 

2  This  orfler  is  made  on  notice.  As  the  surrograte  must  "  inquire  into  the  proceedingrs,'"  an 
affidavit  of  the  fairness  of  the  sale  may  be  presented  on  the  motion  to  confirm  the  sale,  to 
the  effect  that  the  affiant  attended  and  was  present  at  the  sale;  that  the  sale  was  com- 
menced at  12  o'clock,  noon,  on  the  premises.  In  said  town  of  .  on  the  day  of 

;  that  the  sale  was  legally  made  and  fairly  conducted,  to  the  best  of  his  knowledge  and 
b=>lief:  and  that  the  real  estate  was  sold  to  E.  F  for  the  sum  of  four  tliousard  dollars,  that 
being  the  highest  sum  bid  for  the  same,  and  he  being  the  highest  bidaei  therefor. 


1039  FoKMs.  So.  :<». 

[natncs],  agreeably  to  the  order  licrein  iiiado  on  the  day  of  ,  , 

liiiviiif^  l)ecii  now  icad  and  lilcd,  and  no  one  anpeaiiiif^  to  oppose  [or,  and 
luniiifi  been  lieard  in  ojjposition  to)  tlie  conlinnation  of  said  sale;  anil  the  said 
surrogate  having  duly  inquired  into  the  proceedings  [and  liaving  examined  the 
said  exeeutor  and  other  person  on  f)ath,  res|)eeting  the  same]  :  and  it  aj)i)earinfr 
by  proof  satisfactory  to  the  said  surrogate,  that  the  proceedings  were  fair, 
and  that  all  the  acts  were  done  which  are  required  by  law  to  be  done,  after 
the  said  order  directing  the  execution  f)f  the  decree  to  authorize  the  said  surro- 
gate to  make  this  order  of  confirmation,  and  that  said  sale  was  legally  made 
and  fairly  conducted,  and  that  the  sums  bid  for  the  said  several  lots  and  par- 
cels were  not  disproportionate  to  tiieir  value  respectively.  Now,  on  motion  of 
A.  T..  attorney  for  said  A.  15., 

It  is  oudkkici):  1.  That  the  said  sale  of  the  said  several  parcels  of  said  real 
j)ro])erly  so  as  aforesaid  made  by  said  A.  B.,  and  his  said  report  thereof,  and 
e\('rvthing  therein  contained,  be,  and  the  same  is,  hercl)y  ratified  and  con- 
tinned: 

2.  That  the  said  A.  B.  [executor]  as  aforesaid,  execute  and  deliver  the  proper 
conveyances  of  the  said  several  lots  and  parcels  to  the  purchaser  or  purchaser.s 
thereof  [respectively],  at  such  sale,  upon  compliance  on  the  part  of  said  pur- 
chaser or  purchasers  [respectively]  with  the  term.s  and  conditions  upon  which 
such  sales  were  made. 

3.  That  the  said  A.  B.  forthwitli  deposit  the  proceeds  of  said  sale  with  the^ 
treasurer  of  the  county  of  .  to  the  credit  of  this  proceeding,  subject  to 
the  further  order  of  this  court,  and  that  the  said  A.  B.  take  from  said  treas- 
urer a  receipt  therefor,  and  forthwith   return  said  receipt  to  tliis  court. 

[Where  the  sale  is  to  be  vacated,  say,  for  instance :']  And  it  appearing  from 
iiKjuiry  by  the   surrogate   that   the  sale  thereof   mentioned   in    said   report  to 
,  the  purchaser,   for  the   sum  of  dollars   was  less  than  the  value 

thereof  at  the  time  of  the  sale,  and  that  a  sum  exceeding  that  amount  by  at 
least  ten  per  cent.,  exclusive  of  the  expenses  of  a  new  sale,  may  be  obtained 
\\\w\\  a  re-ale  thereof. 1 

It  is  ordered,  that  the  said  sale  be,  and  the  same  is,  hereby  vacated,  and 
that  the  premises  aforesaid  be  resold  pursuant  to  the  statute  in  such  case  made 
and  provided.  \_8ignature'\, 

Surrogate. 

XIX.  Representative's  Deed. 
This  indenture   [ctc.'\   witnesseth : 

Whereas,  on  the  day  of  ,         ,  a  decree  be  made  and  entered  by 

the  surrogate's  court  of  the  county  of  ,  in  the  words  and  figures  follow- 

ing, to  wit:  [Recite  or  hrieflji  refer  to  the  order  for  sale.]  Axd  Whereas,  the 
whole  of  the  premises  described  in  the  said  decree  having  accordingly  been 
sold  at  public  vendue,  by  the  said  party  of  the  first  part,  on  the  day  of 

,  ,  at  ,   in  the  county  of  ,   that  being  the  county  where 

the  said  premises  are  situated,  due  notice  of  the  time  and  place  of  holding  such 
sale  ha\ing  been  given  according  to  law:  AxD  Where.^s,  the  said  party  of  the 
first  part  did  make  return  of  his  jiroceedings  upon  such  order  of  sale  to  the 
said  surrogate  in  pursuance  of  the  said  order,  and  of  the  statute  in  such  case 
made  and  provided:  And  Whereas,  afterward,  the  said  surrogate,  after  ex- 
amining the  said  proceedings,  did  make  an  order  in  the  words  and  figures 
following,  to  wit:    [Recife  or  brief!;/  refer  to  the  order  of  con/iriuation.] 

And  Whereas,  the  said  party  of  the  first  part  did,  at  the  said  sale,  sell  to 
the  said  party  of  the  second  part,  he  being  the  highest  l)idder  for  the  sanie. 

Xow,  THIS  iXDEXTrRE  further  witnesseth:  That  the  said  jiarty  of  the  first 
part,  in  pursuance  of  the  said  sale,  and  of  the  said  orders  of  the  said  surro- 
gate, aiul  in  ]iursuance  of  tlie  statutes  of  this  State  in  such  case  made  and 
])i-o-\  idi'd.  and  also  for  and  in  consideration  of  the  sum  of  <lollars.  lawful 

money  of  the  United  States  of  America,  to  him  in  hand  ])aid  by  the  said  party 
of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged,  hath  bargained, 
sold,  and  conveyed,  and  by  these  presents  doth  bargain,  sell,  and  convey,  imto 
the  said  party  of  the  second  part,  his  heirs  and  assigns  forever  [description  of 


IFor  other  reasons  for  vacating  a  sale,  see  Co.  Civ.  Proc,  §  2775. 


Xo.  71.  Forms.  10-iO 

jiroperty],  tof^othor  with  tho,  privilof^es  and  appurtenancos  thereunto  belonging, 
(*r  in  any  way  appertaining,  and  all  tiie  estate,  right,  and  interest  wiiicli  the 
■said  B.  ^r.,  (h'eeased,  at  the  time  of  iii.s  death,  liad  of,  in,  a!id  to  tlie  same,  free 
mid  diseliarged  from  all  claims  for  dower  of  R.  ]M..- widow  of  the  said  B.  'SI., 
<leeeased;  .subject,  however,  to  all  charges  by  judgment,  mortgage,  or  other- 
■\vise,  upon  the  lands  so  sold,  existing  at  the  time  of  the  death  of  the  said 
B.  M. ;  to  iiave  and  to  hold  the  above-described  and  conveyed  premises,  with 
the  appurtenances,  and  all  the  estate,  right,  and  interest  which  the  said  B.  M., 
at  the  time  of  his  death,  had  therein,  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns  forever,  as  fully  and  amply  as  the  said  party  of  the  first 
])art  might,  could,  or  ouglit  to  sell  and  convey  the  same,  by  virtue  of  the  orders 
iibove  recited,  and  of  the  statutes  of  this  State  made  and  provided,  or  other- 
Tvise.    In  Witness  Whereof  [etc.l. 

No.   71. 

[Ante,   §   893.] 

Distribution  of  Proceeds  of  Sale. 

I.  Notice  to  Widow  as  to  Satisfaction  of  Her  Doicer. 
[Title.'] 

Take  notice,  that  C.  D.,  the  executor  [etc.],  has  brought  into  the  office  of  the 
surrogate  of  the  county  of  New  York,  the  moneys  arising  from  the  sale  lately 
made  by  him  of  the  real  estate  of  the  said  intestate,  pursuant  to  an  order 
authorizing  such  sale,  heretofore  granted  by  the  said  surrogate,  and  that  the 
said  surrogate  will  satisfy  your  claim  of  dower  upon  the  lands  so  sold,  by  the 
payment  to  you  of  such  svun  in  gross  as  he  shall  ascertain  to  be  equal  to  the 
value  of  your  right  of  dower  in  the  gross  proceeds,  according  to  the  principles 
applicable  to  life  annuities,  if  you  shall  consent,  before  or  on  the  day  of 

,  instant,  at  ten  o'clock  in  the  forenoon,  to  accept  such  sum  in  lieu  of 
your  said  dower,  by  an  instrument  under  seal,  acknowledged  or  proved  and 
certified  in  like  manner  as  a  deed  to  be  recorded;  and  that  if  such  consent  be 
not  given  within  the  time  above  mentioned,  then  the  said  surrogate  will  set 
ai)art  for  investment  one-third  of  the  gross  proceeds  of  the  property  to  which 
your  riglit  of  dower  attaches. 

[Date.']  [Signature.] 

To  .J.  D.,  the  widow   [etc.]. 

II.  Consent  of  the  'Widow  to  Accept  a  Gross  Sum. 

Whereas,  A.  B.,  the  sole  executor  [etc.],  has  recently  sold  the  real  estate 
whereof  the  said  C.  D.  died  seized,  upon  an  order  of  the  surrogate  of  the 
county  of  ,  authorizing  him  to  sell  the  same  for  the  payment  of  the  debts 

of  the  said  deceased,  and  has  brought  the  moneys  arising  from  such  sale  into 
the  office  of  the  said  surrogate  for  the  purpose  of  distribution. 

Xow,  these  presents  witness,  that  I,  .J.  D.,  widow  of  the  said  C.  D.,  de- 
ceased, do  hereby  consent  to  accept,  in  lieu  of  my  dower,  such  sum  in  gross  as 
shall  be  ascertained  to  be  equal  to  the  value  of  my  right  of  dower  on  the  gross 
proceeds  of  said  property,  according  to  the  principles  applicable  to  life  annui- 
ties. And  these  presents  farther  witness,  that  I,  the  said  -T.  D..  widow  as 
aforesaid,  do  hereby  acknowledge  that  I  have  received  from  .  siirrogate 

of  the  county  of  ,  the  sum  of  dollars,   pursuant  to  the  foregoing 

consent,  in  full  discharge  and  satisfaction  of  all  my  right  and  claim  of  dower 
upon  the  lands  so  sold  as  aforesaid. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and  seal   [etc.]. 

[Signature  and  seal.] 
[Authentication  as  of  deed.] 

III.  Order  for  Publication  of  Xofice  of  Distribution. 
[Title.] 

A.  B.,  executor  [etc.],  having  brought  into  the  office  of  the  surrogate  the 
moneys  arising  from  the  sale  of  the  real  estate  of  the  said  C.  D.,  lately  made 


1041  FoKMS.  Xo.  71. 

by  liiin  upon  tlio  order  of  thn  surrogate;  and  the  proceeds  of  tlie  sale,  after 
making  the  necessary  deductions  therefrom,  being  sufficient  to  pay  all  the 
debts  of  tlie  said  C.  1).,  deceased, 

It  is  ordered,  that  such  proceeds  be  divided  among  the  creditors,  accord- 
ing to  law,  at  the  surrogate's  odice.  in  the  town  of  ,  on  the  day 
of  next,  and  tliat  notice  of  tlie  time  and  place  of  making  such  dis- 
tributi<Mi  !)(•  i)ublishe(l  at  least  once  in  each  of  the  six  weeks  immediately 
preceding  said  day,  in  the  newspaper  entitled  the  "  ,"  printed  in  the 
county  of  [the  surrogate, —  and,  also,  in  the  newspaper  entitled  the  " 
the  said  last-named  newspaj)er  being  deemed  by  the  surrogate  most  likely 
to  give  notice  to  the  creditors]. 

IV.  Notice  of  Distribution. 
[Titled 

Notice  is  hereby  given,  that  the  balance  remaining  of  the  proceeds  of  the 
sale  of  the  real  estate  of  C.  D.,  late  of  ,  deceased,  lately  made  under  the 

order   of   the   surrogate   of   the   county   of  ,   by   A.    B.    [executor,    ctc.^, 

will  be  distributed  by  the  said  surrogate  among  the  creditors  of  the  said 
deceased,  in  proportion  to  their  respective  debts,  according  to  law,  at  the 
surrogate's    office    in  on  day    of  ,  ,   at    ten   o'clock    in    the 

forenoon  of  that  day.  All  persons  interested  in  the  same  may  attend  on  that 
day,  and  creditors  who  have  not  proved  their  claims  may  attend  and  prove 
tlie  same  before  said  surrogate.  [Signature  o/"], 

{Date.^  Surrogate. 

V.  Order  for  I'ublication  of  Xoticc  of  Distrihution  of  Surplus  Money  Paid 

into  Surrogate's  Court. 
[Titlc.'\ 

Certain  surplus  money  having,  by  an  order  of  the  [supreme]  court,  been 
paid  into  this  surrogate's  court,  as  prescribed  by  section  27!)8  of  the  Code  of 
Civil  Procedure,  and  a  verified  petition  for  the  disposition  of  real  property 
of  -aid  decedent,  as  prescribed  in  title  ."i  of  chapter  18,  of  the  said  Code,  hav- 
ing been  presented  to  this  court  by  A.  B..  executor  [etc.],  before  the  distribu- 
tion of  said  money ;  which  petition  prays  for  a  decree  directing  the  distribu- 
tion of  said  surphf^  money  among  the  persons  entitled  thereto,  as  if  it  was  the 
proceeds  of  tlio  said  decedent's  real  property  sold  pursuant  to  a  decree  of  the 
said  surrogate's  court ; 

It  is  therefore  ordered,  that  [nooning  parties  interested]  and  each  and 
<'very  other  person,  who  A\ould  be  entitled  to  share  in  the  distribution  of  the 
proceeds  of  a  sale  of  the  real  property  of  the  said  decedent,  sold  pursiiant  to 
n  decree  of  the  said  surrogate's  court,  made  in  pursuance  of  title  ;"),  cha]>- 
ter  18,  of  said  Code,  and  all  creditors  of  the  said  decedent  and  of  his  estate, 
tmd  all  persons  interested  in  the  distribution  bv  the  surrogate's  court.,  of  the 
proceeds  of  the  said  sale  of  said  real  property,  and  in  said  surplus  jnoney, 
show  cause  before  said  surrogate's  court,  of  said  county  of  ,  at  the  sur- 

rogate's office,   in  the  village  of  ,   in   said   county,   on   the  day  of 

,         .  at  o'clock  in  the  forenoon,  why  the  said  proceeds  of  said  sale, 

and  the  said  surplus  money  so  paid  into  this  surrogate's  court,  as  aforesaid, 
should  not  be  distributed  among  the  said  creditors  of  the  said  decedent,  anil 
the  said  other  persons  interested  therein,  according  to  law:  and  why  the  same 
should  not  be  distributed  ])ursuant  to  section  27'J9  of  the  Code  of  Civil  Pro- 
cedure. And  it  is  ordered  that  a  citation  be  made  and  issued  by  the  surro- 
gate's court  of  said  county,  or  by  the  surrogate  of  said  coimty,  to  each  and 
all  the  above-named  and  above-described  creditors  and  persons,  citing  them 
to  show  cause,  at  said  last-mentioned  time  and  ]>lace,  why  such  a  decree  of 
distribution  should  not  be  made:  and  that  service  of  said  citation  may  1h^ 
made  upon  all  the  ]>ersons  designated  therein,  by  jniblisliing  the  same  in  two 
newspapers,  as  follows,  to  wit:   in  the  ,  publislicd   in  the  town  of 

in  said   county,   and   in   the  ,   published   in   the   town   of  .   in   said 

coimty.  at  least  once  in  each  of  the  four  successive  weeks  immediately  pre- 
ceding the  day  of  ,  ;  except  that  personal  service  must  be  made 

Q6 


^\).  71. 


Forms. 


1042 


iipon  tho  husband,  wife,  heirs,  and  devisees  of  tlie  decedent,  and  also  upon- 
every  other  ])erson  claiming  under  them,  or  eitlier  of  them,  who  resides  in  the 
State  of  New  York. 

VI.  Citation — Distribution  of  Surplus  Money. 
The  People  of  the  State  of  New  York, 

To  G.  H.,  E.  F.  [etc.],  creditors,  heirs,  and  next  of  kin  of  C.  D.,  late  of  the 
town  of  ,  deceased: 

WiiEKEAS,  certain  real  property  described  as  follows,  viz.:  {description'\ 
Avhich  belonged  to  the  estate  of  (.'.  D.,  a  decedent,  liaviny  been  sold,  in  an  ac- 
tion in  the  supreme  court,  wherein  M.  N.  was  plaintiff  and  0.  P.  and  others 
were  defendants,  which  action  had  for  its  object  the  sale  of  said  real  property 
to  satisfy  a  mort<;age  thereupon,  which  mortjjage  was  made  and  executed  by 
the  decedent,  C.  D.,  durinj^  his  lifetime,  and  was  not  paid,  and  was  existing 
thereon  at  the  time  of  his  death ;  And  Whereas,  letters  testamentary  upon  the 
estate  of  said  decedent    were  on  the  day  of  ,         ,  and  within  four 

years  before  the  said  sale  issued  from  a  surrogate's  court  of  this  State,  hav- 
ing jurisdiction  to  grant  them;  and  the  surplus  money  arising  from  and  upon 
such  sale,  having,  by  an  order  of  judgment  of  the  supreme  court,  made  in  said 
action,  on  the  day  of  ,         ,  been  paid  into  the  surrogate's  court 

of  the  county  of  ,  from  which  such  letters  issued;  And  Whereas,  there 

being  no  Hers  upon  the  said  real  property,  chargeable  upon  the  said  proceeds 
of  or  on  such  surplus  money,  which  existed  at  the  time  of  said  decedent's 
death;  And  Whereas  A.  B.,  executor  of  the  will  of  said  deceased,  has  made 
and  presented  to  the  surrogate's  court  of  said  county  a  duly  verified  petition 
bearing  date  the  day  of  ,  ,  praying  for  the  disposition  of  the 

said  property,  as  prescribed  by  title  5  of  the  Code  of  Civil  Procedure, 

Therefore,  you,  and  each  of  you,  are  hereby  cited  and  required  to  show 
cause,  at  a  surrogate's  court  to  be  held  at  the  surrogate's  office  in  the  vil- 
lage of  ,  in  and  for  the  county  of  ,  on  the  day  of  ,  , 
at  o'clock  in  the  forenoon,  why  the  said  surplus  money  remaining  of  the 
proceeds  of  the  said  sale  of  the  said  real  property  of  the  said  C.  D.,  late  of 
the  town  of  ,  in  the  county  of  ,  deceased,  lately  made  under  the 
.said  order  or  judgment  of  the  sui)renie  court,  and  so  transferred  to  the  said 
surrogate's  court  as  aforesaid,  shall  not  be  distributed  by  the  surrogate's 
court  of  the  countv  of  ,  among  the  creditors  of  the  said  decedent,  and 
other  persons  interested  therein,  in  proportion  to  their  respective  debts, 
claims,  and  interests,  and  according  to  law,  and  why  said  siirplus  moneys  shall 
not  be  distributed,  as  prescribed  in  and  by  title  5  of  the  Code  of  Civil  Pro- 
cedure. 

In  Testimony  Whereof  [etc.]. 

Vn.  Entry  of  Demands  Found  Due. 
[Title.] 

On  the  hearing  for  distribution,   in  pursuance  of  notice,   on  the  day 

of  ,  ,  and  at  the  times  and  places  to  which  such  hearing  was  ad- 

journed, and  on  the  hearing  on  the  order  of  sale,  the  following  demands  of  the 
following  named  persons  have  been  and  were  established  as  valid  and  subsist- 
ing demands  against  the  said  C.  D.,  deceased,  and  are  the  only  demands  estab- 
lished. That  said  persons'  names  are  mentioned  in  the  first  column  of  the 
following  list,  and  the  amount  duo  to  each  in  the  second  column,  opposite  each 
name,  and  the  amount  to  which  each  is  entitled  on  this  distribution,  tliis  day 
ordered,  in  the  third  column,  opposite  each  name,  which  is  as  follows,  that 
is  to  say: 


Names. 

Amount  due. 

Amount  entitled. 

104;i  Fou.M«.  Xo.  72. 

Virr.   Order  of  Distribution.^ 
[Title.} 

Notice,  that  distribution  of  the  proceeds  arising  from  the  sale  [or,  the  mort- 
gage—  or,  lease]  of  the  real  estate  in  this  matter,  would  be  made  on  the 
day  of  ,  ,   liaving  been  duly   published,  and  the  said  proceeds 

having  been  ])aid  into  the  surrogate's  court,  amounting  to  dollars,  from 

which   is  to   be  deducted   the   sum   of  dollars,   the   charges   and   exjjenses 

of  the  sale  for,  mortgage  —  or,  lease]  of  the  premises  and  the  actual  disburse- 
ments of  this  j)roceedi)ig,  leaving  in  the  hands  of  tiie  surrogate  for  di^t ributi(jn 
the  sum  of  dollars. 

It  is  okdichki):  I.  That  out  of  said  balance  there  be  j)aid  to  J.  1).,  widow 
te<c.],  the  sum  of  dollars,  which  sum  slie  has  consented,  by  a  paper  duly 

executed  and  authenticated  by  her,  to  accept  in  lieu  of  her  dOwer  in  the  prem- 
ises so  sold  [or  dirfct  deduction  of  one-third  for  investment  in  case  of  widow 
not  conseiiting.] 

II.  That  out  of  the  remainder  of  the  said  sum  there  be  paid  to  J.  W.  S.. 
the  attorney  of  the  jjetitioncr,  the  sum  of  dollars,  cost^5  awarded  to  him  in 
the  decree  of  sale. 

III.  That  out  of  the  remainder  of  the  money  there  be  paid  to  P.  C.  K.,  the 
sum  of  dollars  for  tlie  funeral  expenses  of  the  decedent,  as  established 
by  the  first  decree  herein. 

IV.  That  the  remainder  of  the  money,  to  wit,  dollars,  be  distributed 
among  the  creditors  of  tlie  deceased,  whose  debts  have  been  established  and 
above  recorded,  in  the  i)roportion  as  sot  opposite  their  respective  names  in  the 
left-hand  column  above  recorded,  that  is  to  say.  each  to  receive  the  amounts 
set  opposite  their  respective  names  in  said  left-hand  column,  as  the  share  of 
each  on  this  distribution. 

V.  That  the  surplus,  to  wit,  the  sum  of  dollars,  be.  distributed  to 
and  among  the  heirs  [or,  devisees]  of  the  said  decedent,  that  is  to  say:  [See 
ante,  §  901.] 

No.   72. 

[Afite,  §  940.] 
Proceedings   for  Voluntary   or   Compulsory   Accounting. 

I.  Petition  for  Voluntary  .Accounting. 
To  the  Surrogate's  [Court]   of  the  county  of   [Xew  York] : 

The  petition  of  C.  D.,  of  ,  respectfully  shows: 

I.  That  letters  testamentary,  [etc.. —  or,  of  administration  —  etc.]  of  A.  B., 
late  of  ,  deceased,  were  granted  to  your  petitioner  on  the  day  of 

,  .     That  the  persons   interested   in   the  estate  of  said  deceased,  as 

creditors,  legatees,  next  of  kin,  or  otherwise,  and  their  places  of  residence,  to 
the  best  of  the  knowledge,  information,  and  belief  of  your  petitioner,  are  as 
follows,  to  wit:  [give  names  and  residences  of  pcrso)is  interested  in  the  es- 
tate.] 

II.  That  the  names  and  residences  of  the  sureties  in  the  official  bond  of 
your  petitioner  are  as  follows:    [stating  them.] 

III.  All  the  above  are  of  full  age  and  of  sound  mind,  except  [state  facts  in 
regard  to  any  who  are  infants,  lunntics,  etc.,  as  in  petition  for  probate,  Xo. 
16]. 

IV.  That  more  than  twelve  months  have  elapsed  since  said  appointment 
I  or,  i),  case  of  admi)iistra1or,  say,  that  a  notice  requiring  all  creditors,  or 
persons  claiming  to  be  creditors,  to  present  their  claims  to  the  petitioner,  has 
been  duly  jtublished  according  to  law,  and  the  period  of  such  publication  has 
expired  1,  and  your  petitioner  is  desirous  of  rendering  an  account  of  all  his 
jiroceedings  to  the  surrogate  of  the  coimty  of  Xew  Vork,  by  whom  your  peti- 
tioner was  appointed,  and  for  that  purpose  prays  that  a  citation  issue  to  all 


1  Consult  Co.  Civ.  Proc,  §  2793,  as  amended  by  L.  1894,  c.  735. 


Xo.  72.  Forms.  1044 

persons  interested  in  the  estate  of  said  deceased,  to  attend  a   final   judicial 
settlement  of  tlie  account  of  the  proceedings  of  your  petitioner. 

[Date]  l^'iig  nature.] 

IVcrification.] 

II.  Citation. 
[See  No.  5,  ante.] 

III.  Waiver  of  Service  of  Citation. 

To  the  Surrogate's  Court  of  the  county  of  New  York: 

C.  D.,  as  executor  under  the  last  will  and  testament  of  A.  B.,  deceased,  hav- 
ing filed  an  account  of  his  proceedings  as  sucli,  we.  the  undersigned,  being  per- 
sons interested  as  [legatees]  in  the  estate  of  said  A.  B.,  deceased,  do  hereby 
severally  waive  the  issue  and  service  of  a  citation  in  the  above-entitled  matter, 
and  consent  that  a  decree  be  made,  settling  the  account  of  said  C.  D.  as  filed. 

[Date.]  [Signatures.] 

[Acknowledgment  as  of  a  deed.'] 

IV.  Petition  for  Compulsory   Accounting. 
[Adapt  from  Xo.  G7.] 

V.     Ansicer  to  Petition  for  Compulsory  Acco^lnting. 
[Title.] 

The  answer  of  C.  D.,  executor  [or,  administrator]  of  the  will  of  A.  B.,  de- 
ceased, to  the  petition  of  N.  M.  K.,  shows: 

I.  That  on  or  about  the  day  of  ,  ,  proceeding  was  insti- 
tuted in  this  court  by  this  respondent  for  a  final  judicial  settlement  of  his  ac- 
counts as  executor  of  A.  B.,  deceased,  to  which  the  petitioner  was  made  a 
party,  and  that  such  proceedings  were  therein  had,  that  on  the  day 
of  '  ,  ,  a  decree  was  duly  entered,  finally  and  judicially  settling  his 
said  accounts,  and  discharging  him  from  all  liability  by  reason  of  his  acts  as 
such  executor. 

II.  That  this  proceeding  was  commenced  after  the  expiration  of  seven  year.s 
from  the  grant  of  letters  to  this  respondent  [or,  that  the  claim  of  the  peti- 
tioner did  not  accrue  within  seven  years  before  the  commencement  of  this  pro- 
ceeding, etc.] 

[Verification.] 

VI.  Order  that  Executor  File  His  Account. 
[Title.] 

The  petition  of  X.  M.  K.,  of  the  city  and  county  of  Los  Angeles  and  State  of 
California,  as  a  legatee  under  the  last  will  and  testament  of  N.  M.  K.,  late  of 
the  city,  county,  and  State  of  New  York,  deceased,  duly  verified,  having  been 
heretofore  duly  filed  on  the  day  of    ■         ,         ,  in  the  above-entitled  pro- 

ceeding, praying  for  a  judicial  settlement  of  the  account  of  C.  R.  K.,  as  ex- 
ecutrix of  the  last  will  and  testament  of  the  said  X.  M.  K.,  deceased,  stating 
that  she  resides  at  Pau,  France,  and  a  citation  having  been  thereupon  issued 
directed  to  said  executrix  and  served  by  publication  and  requiring  her  to  show 
cause  on  the  day  of  ,  ,  at  half-past  ten  o'clock  in  the  forenoon 

of  that  day,  before  the  said  surrogate,  at  the  said  surrogate's  court,  held  at  the 
county  courthouse  in  the  said  city  of  New  York,  why  she  sliould  not  render 
and  settle  her  said  account,  and  the  said  X.  M.  K  having  appeared  at  the  said 
time  and  place  by  W.  M.  S.,  Esq.,  his  attorney,  no  one  appearing  for  the  said 
executrix  [or,  if  the  executrix  presents  a  cross-petition  for  a  voluntary  ac- 
counting tinder  §  2728  of  the  Code,  say:]  and  the  said  executrix  having  also 
appeared  at  said  time  and  place  by  P.  &  B.,  Esqrs..  her  attornevs,  and  having 
presented  and  offered  to  file  a  written  petition,  duly  verified,  praying  that  her 


1045  FcjRMs.  Xo.  7J. 

account  may  l)e  judicially  settled,  and  that  tlie  proper  persons  as  prescril)e<l  by 
statute  may  be  cited  to  attend  sucli   settienient  : 

Now,  on  motion  of  1'.  &.  ii..  attorneys  f(jr  said  executrix,  after  hearing 
W.  M.  S.,  Ivs(|.,  attorney  for  said  petitioner,  in  opposition  th;Teto.  it  is  liereljy 

Okukkki),  that  tiie  said  C.  U.  K.  render  and  tile  an  account  of  her  proceed- 
ings as  executrix  of  tiic  last  will  ami  ti-stanient  of  X.  M.  K.,  deceased,  on 
or  before  the  day  of  ,  ,  at  half-past  ten  o'clock  in  the  forenoon, 

at  the  said  surro<^ate"s  court  in  tlie  coui'thouse  in  the  said  city  of  New  York, 
for  the  j)urpose  of  acconntinji;  her  as  said  executrix. 

Wl.   Order    to    ^hoic    Vuiisv    irhi/    mi     I ntcnncdiatc    Account    should    not    6c 

Rendered. 
lTille.-\ 

It  appearin<r  to  me  that  the  hist  will  and  testament  of  >aid  decedent  was 
duly  admitted  to  probate  by  the  surroj^atcs  court  of  the  eonnty  of  New  York, 
on  the  day  of  ,  ,   and   that   letters  testamentary   thereon   were, 

on    the  day    of  ,         ,    duly    issued    to    E.    G.,    of    said    county    of 

New  York  [_o>',  that  letters  of  administration  on  the  ^oods,  chattels,  and  credits 
of  the  said  decedent  intestate  were  duly  issued  by  the  surroj^ate's  court,  etc.], 
executor  named  in  said  will,  rnd  that  no  account  of  the  proceedings  of  said 
executor  has  ever  been  tiled  by  the  said  executor,  and  thai  eighteen  months 
have  elapsed  since  the  said  letters  were  issued,  and  that  no  special  proceed- 
ing upon  a  petition  for  a  jtidicial  settlement  of  the  accounts  of  said  executor 
or  otherwise  is  pending: 

I  i:o  iiEREHY  CKDER  AND  DIRECT  that  the  Said  executor  show  cause  before  me, 
at  the  said  surrogate's  court,  held  at  the  county  courthouse,  in  the  city  of 
New   York,   on   the  day   of  .         ,   at   half-|)ast   ten   o'clock   in   thn 

forenoon  of  that  day,  or  as  soon  thereafter  as  counsel  can  be  heard,  why  he 
should  not  render  an  intermediate  account  of  his  ]iroceedings  as  executor  as 
aforesaid,  and  that  a  citation  be  issued  to  him  for  that  purpose. 

VITT.  Order   DiscJiarr/inf/    Order    to   8how    Cause    irJii/   Fntermediate   Account 

should  not  be  Filed. 
[Title.'i 

A  citation  in  pursuance  of  an  order  duly  made  l)y  me  as  surrogate  of  the 
<Mty  and  county  of  New  York  having  been  duly  issued,  requiring  E.  G..  as 
I'xecutor  of  the  last  will  and  testament  of  L.  R..  deceased,  to  show  caus« 
before  me  as  such  surrogate  why  he  should  not  render  an  intermediate  account 
of  his  proceedings  as  such  executor.*  and  good  cause  having  been  then  shown, 
why  sucli  accoimt  should  not  be  rcTidered  [or.  if  account  has  been  filed,  recite 
that  fact,  as  thus:]  and  such  account  having  'jeen  filed,  and  it  appearing  to  me 
sufiicient. 

It  is  ordered,  that  the  said  order  and  citation  to  show  cau-^e  be  and  the 
same  are  hereby  discharged. 

[Signafure.] 

Surrogate. 

IX.  Order  for  Intermediate  Account. 
\.Tifle.'\ 

[As  in  the  preceding  form  to  the  *,  continuing]  another  said  citation 
liaving  been  served  u])on  the  said  executor,  E.  G.,  as  apjiears  by  due  ])roof  of 
service  thereof  filed  therein,  and  he  having  failed  to  apjiear  or  render  such  ac- 
count of  ])roceedings  as  executor  aforesaid,  or  to  show  cause  why  he  should 
not  render  the  same,  and  he  not  having  presented  a  petiticni  as  prescribed  in 
section  272!)  of  the  Code  of  Civil  Procedure.  I  do  hereby  order  and  direct  the 
said  E.  G..  as  executor  as  aforesaid,  to  render  and  file  an  intermediate  ac- 
count of  his  proceedings  as  such  executor,  within  days  from  the  date 
"hereof,  and  to  attejid  before  me  at  said  surrogate's  court,  on  the  day  of 
,  and  from  tijne  to  time  for  that  ])un)ose,  and  in  case  of  dis- 
obedience of  this  order  a  warrant  of  attachment  will  issue  against  him. 


Ko.  72.  •         Forms.  104G 

X.  Statement  of  Account. 
To  the  Surrogate  of  the  county  of  New  York: 

I,  C.  D.,  of  ,  do  render  tlie  following  account  of  my  proceedings  as 

[executor,  etc.],  of  A.   B.,  deceased:      On  the  day  of  ,  ,   letters 

[testamentary]  were  issued  to  mc.     On  the  day  of  ,  ,  I  caused 

an  inventory  of  the  personal  estate  of  the  deceased  to  be  filed  in  this  office, 
Avhich  personal  estate  thei'ein  set  forth  amounts,  by  appraisement  of  tlie 
appraisers  duly  appointed,  to  dollars. 

Schedule  A,l  hereto  annexed,  contains  a  statement  of  all  the  property  con- 
tained in  said  inventory,  sold  by  me  at  public  (n-  private  sale,  with  the  prices 
and  manner  of  sale;  which  sales  Avere  fairly  made  by  me,  at  the  best  prices 
that  could  then  be  had  with  due  diligence,  as  I  then  believed ;  it  also  contains 
a  statement  of  all  the  debts  due  the  said  estate  and  mentioned  in  said  inven- 
tory, which  have  been  collected,  and  also  of  all  interest  for  moneys  received  by 
nie,  for  which  I  am  legally  accountable. 

Schedule  B,  hereto  annexed,,  contains  a  statement  of  all  debts  in  said  in- 
A'entory  mentioned,  not  collected  or  collectible  by  me,  together  with  the  rea- 
sons Avhy  the  same  have  not  been  collected  and  are  not  collectible;  and  also  a 
statement  of  the  articles  of  personal  property  mentioned  in  said  inventory  un- 
sold, and  the  reasons  of  the  same  being  unsold,  and  their  appraised  value ;  and 
also  a  statement  of  all  property,  mentioned  therein,  lost  l)y  accident,  without 
any  wilful  default  or  neciigence,  and  the  cause  of  its  loss  and  appraised  value. 
No  other  assets  than  those  in  said  inventory,  or  herein  set  forth,  have  come  to 
my  possession  or  kno'wledge,  and  nil  the  increase  or  decrease  in  the  value  of 
any  assets  of  said  deceased  is  allowed  or  charged  in  said  Schedules  A  and  B. 

Schedule  C,  hereto  annexed,  contains  a  statement  of  all  moneys  paid  by  me 
for  funeral  and  other  necessary  expenses  for  said  estate,  together  with  the  rea- 
sons and  objects  of  such  expenditure. 

[On  or  about  the  day  of  ,   in  the  year         ,   I  caused  a  notice 

for  claimants  to  present  their  claims  against  the  said  estate  to  us  within  the 
period  fixed  by  law,  and  at  a  certain  place  therein  specified,  to  be  pTiblished  in 
two  new  papers,  according  to  law,  for  six  nu)ntlis,  pursuant  to  an  order  of  the 
surrogate  of  the  county  of  Xew  York,  to  which  order,  notice,  and  due  proof  of 
publication  herewith  filed,  T  refer  as  part  of  this  account.2 

Schedule  D.  hereto  annexed,  contains  a  statement  of  all  the  claims  of  cred- 
itors presented  to  and  allowed  by  me,  or  disputed  by  me,  and  for  which  a  judg- 
ment or  decree  has  been  rendered  against  me,  together  with  the  names  of  the 
claimants,  the  aeneral  nature  of  the  claim,  its  amount,  and  the  time  of  the 
rendition  of  the  judgment ;  it  also  contains  a  statement  of  all  moneys  paid  by 
me  to  the  creditors  of  the  deceased,  and  their  names,  and  the  time  of  sucli 
payment. 

Schedule  E,  hereto  annexed,  contains  a  statement  of  all  moneys  paid  to  the 
legatees,  Avidow,  or  next  of  kin  of  the  deceased. 

Schedule  F,  hereto  annexed,  contains  the  names  of  all  persons  entitled  as 
widow,  legatee,  or  next  of  kin  of  the  deceased,  to  a  share  of  his  estate,  with 
their  places  of  residence,  degree  of  relationship,  and  a  statement  of  which  of 
them  are  minors,  and  whether  they  have  any  general  guardian,  and  if  so,  their 
names  and  places  of  residence,  to  the  best  of  my  knowledge,  information,  and 
belief. 

,S''hedule  G,  hereto  annexed,  contains  rt  statement  of  all  other  facts  aflfecting 
my  administration  of  said  estate,  my  righls,  and  those  of  others  interested 
therein 


1  This  and  the  other  schedules  described  in  the  statement  of  accoifnt  are  not  appli'^able,  of 
course,  to  all  eases,  as  accounts  must  preatly  vary  in  the  nature  of  their  contents;  but  indi- 
cate, in  general,  the  kind  of  information  which  the  account  and  schedules  should  disclose. 

2This  allegation  is  not  necessary,  as  a  failure  to  publish  notice  to  creditors  is  not  a  bar  to 
a  j\idicial  settlement  of  the  representative's  claim.  The  petition  should  state  one  of  the  three 
grounds  specified  in  Co.  Civ.  Proc,  §2723.  In  proceedingrs  for  compulsory  aceountiner,  an 
order  should  be  entered,  preliminary  to  is^uiner  citation,  to  the  foUowinfr  effect:  It  is 
ORPERED,  that 'aid  C.  D.  render  an  account  of  his  proceedings  [as  executor  of  the  will]  of 
said  A.  B.  to  this  court,  on  the  day  of  .  .at  o'clock  in  the  noon,  and 

file  the  same  herein  on  or  before  that  time;  flnd  that  the  said  C.  D.  personally  ^e  and  appea  • 
before  said  surrorate  at  that  time,  nnd  attend  from  time  to  time  for  the  purpose  of  said 
aceoim  .  as  th->  surrogate  may  decide;  anl  that,  in  case  of  disobedience  to  this  order,  an  at- 
tachment may  issue  agamst  him. 


1047  FoKMs.  Xo.  72. 

I  iliarpo  myself  ris  follows: 

Willi   aiiiounl  of  inventory    $ 

Willi  amount  of  iiicreose,  as  sliowii  l>y  Exhibit  A 

1  credit  myself  us  follows: 

Willi  amount  of  loss  on  sales,  as  per  Schedule  B $ 

\\  itli  amount  of  del)ts  not  collected,  as  per  Schedule  iJ.  . 

Witii  amount  of  Schedule  V 

With  amount  of  Schedule  J) 

\Vith  amount  of  Schedule  E 

Leaviiif?  a  balivnce  of $ 

to  be  distributed  to  those  entitled  thereto,  sulijcct  to  the  deductions  of  the 
amount  of  my  commissions,  and  the  ex])enses  of  this  accountinj;.  The  said 
fcchedules,  which  are  severallj'  sij^ned  by  me,  are  part  of  this  account. 

[Signature.] 

XI.  Oath  to  Accoutits. 
[Title  and  Venue. '\ 

I,  C.  D.,  executor  of  A.  B.,  beinj;  duly  sworn,  say,  that  the  charges  made  in 
the  foregoing  account  of  jiroceedings,  and  schedules  annexed,  for  moneys  paid 
by  me  to  creditors,  legat(>es,  and  next  of  kin,  and  for  necessary  expenses,  are 
correct:  that  I  hav(>  been  charged  therein  all  the  interest  for  moneys  received 
by  me  and  embraced  in  said  account,  for  wliich  I  am  legally  accountable;  that 
the  moneys  stated  in  said  account  as  collected,  were  all  tliat  were  collectible, 
according  to  the  best  of  my  knowledge,  informal  ion.  and  belief,  on  the  debts 
stated  in  such  account  at  the  time  of  this  settlement  thereof;  that  the  allow- 
ances in  said  account  for  the  decrease  of  the  value  of  any  assets,  and  the 
charges  therein,  for  the  increase  in  such  value,  are  correctly  made;  and  that  I 
do  not  know  of  any  error  in  said  account,  or  anything  omitted  therefrom,  which 
may  in  any  wise  prejudice  the  rights  of  any  party  interested  in  said  estate. 
And  deponent  further  says,  that  the  sums  under  twenty  dollars,  charged  in  the 
said  account,  for  which  no  vouchers  or  other  evidences  of  payment  are  pro- 
duced, or  for  which  he  may  not  be  able  to  produce  vouchers  or  other  evidences 
of  payment,  have  actually  been  ])aid  and  disl)ursed  by  him  as  charged:  and  that 
said  account  ccmtains,  to  the  best  of  my  knowledge  and  belief,  a  full  and  true 
statement  of  all  my  receipts  and  disbursements  on  account  of  the  estate  of 
said  decedent,  and  of  all  money  and  other  ])ro]>erty  belonging  to  said  estate 
which  have  come  into  my  hands,  or  which  have  been  received  by  any  other  per- 
son by  my  order  or  authority  for  my  use.  and  that  I  do  not  know  of  any  error 
or  omission  in  the  account  to  the  prejudice  of  any  creditor  of,  or  person  inter- 
ested in.  the  estate  of  the  decedent. 

[Jurat.]  [8ig)iatHre.] 

XII.  Anstcer   Containinq   Objections   to   Account.^ 
[Title] 

J.  K.  and  L.  M.  [next  of  kin  —  or,  legatees  named  in  the  will  —  or  othrru-ise 
<is  intt  rented  —  of  said  deceased],  contesting  the  account  filed  by  C.  D..  admin- 
istrator of  the  estate  [or,  executor,  etc.],  of  said  deceased,  allege  that  the  said 
account  is  erroneous,  in  that  it  fails  to  charge  the  executor  with  the  following 
items: 

First.   An    item   of  dollars,   a   claim   against   the   said   executor,    for   a 

debt  owing  to  tiie  deceased  in  his  lifetime. 

Srcond.  The  proper  sum  received  or  chargeable  against  said  executor  for 
interest. 

That  the  said  account  is  further  erroneous  in  the  following  particulars: 

First.  That  the  item  of  dollars,  for  funeral  exiH^nses,   is  extravagant, 

and  not  according  to  the  station  of  the  deceased. 

Second.  That  the  item  of  paid  to  R.  S.  is  erroneous,  in  that   the  pre- 

tended claim  was  not  due,  and  was  barred  by  the  statute  of  limitations.  [And 
so  continue.']  [Signature    of]. 

[Date.]  Attorney. 

1  In  New  York  county  a  copy  of  these  objections  should  be  served  on  the  attorney  for  the 
accouDting  party. 


2s  0.  72.  FoKM.S.  104:8 

XIII.  A/fiditfit    for    Order    Directing   Executor    to    Attoul. 
[Title  and   I'c^Mc.J 

N.  B..,  being  'iul}'  sworn,  says:  That  he  is  one  of  the  attorneys  for  the  peti- 
tioner herein;  that  this  is  a  proceeding  to  compel  an  accounting  by  ]\I.  L.,  as 
executor  of  B.  II.  L.,  deceased;  tluit  dei)onent  procured  an  order  of  this  court 
dated  on  the  dai>   of  ,  ,  requiring  said  M.  L.  to  file  his  account 

as   such  executor,  and   the   same  was,   on   the  day   of  ,  ,  duly 

served  upon  him;  that  pursuant  t(j  said  order,  said  account  was  duly  filed  oil 
the  day   of  ,         ,   to   which   objections    were   filed   by   deponent    on 

the  day  of  ,  ,  that  the  proceeding  has  now  been  set  down  per- 

emptorily  for   hearing   for   the  daj^   of  ,         ,   but   said   accounting 

party  refuses  to  attend  upon  the  hearing,  as  deponent  is  informed,  unless  or- 
dered to  do  so  by  this  court  [as  appears  by  the  annexed  letters  from  his  coun- 
sel]. Deponent,  therefore,  asks  for  an  order  pursuant  to  the  terms  of  sec- 
tion 2375  of  the  Code,  requiring  the  attendance  of  said  accountant  upon  the 
hearing. 

[Jurat.]  [Signatitrc.] 

XIV.  Order  Directing  Executor  to  Attend. 
[Title.] 

On  reading  and  filing  tlie  annexed  affidavit  and  on  motion  of  X.  R.,  attorney 
for  the  petitioner. 

Ordered,  that  executor  of  B.  R.  L.,  deceased,  attend  at  the  surrogate's  court, 
to  be  held  at  the  county  courtliouse  in  the  city  of  New  York,  on  the 
day  of  ,         ,  at  10:30  o'clock  in  the  forenoon,  to  be  examined  under  oath 

touching  his  receipts  and  disbursements,  or  touching  any  other  matter  relating 
to  the  above  estate,  and  his  account  heretofore  filed  herein. 

[May  add  clause  as  to  mode  and  su/ficiencij  of  service.] 

[Signature.] 

XV.  Order  of  Reference. 
[Title.] 

The  said  C.  D.,  executor  aforesaid,  having  filed  his  account,  and  objections 
thereto  having  been  also  filed ;   and  tlie  parties  in  interest  appearing, 

Ordered,  1.  That  the  said  account  be  referred  to  J.  K.,  Esq.,  and  he  is 
hereby  appointed  referee  to  examine  said  account  [and  to  hear  and  determine 
the  questions  arising  upon  the  settlement  of  said  account]. 

2.  Tiiat  the  hearing  be  had  before  said  referee,  at  such  time  and  place,  in  the 
city  of  X'ew  York,  as  he  shall  appoint,  and  upon  due  notice  to  all  parties  who 
have  appeared  herein ;  and  make  report  of  his  proceedings  and  determination 
to  this  court,  with  all  convenient  speed,  and  on  the  coming  in  of  said  report, 
notice  is  to  be  given  to  the  parties  that  have  appeared,  of  motion  to  be  made 
before  the  surrogate  on  the  question  of  confirming  such  report,  or  for  such 
other  or  further  order  as  may  be  proper. 

XVI.  Referee's  Report.^ 
[Title.] 

I.  The  subscriber,  referee  appointed  by  the  surrogate  of  the  eovmty  of  X^ew 
York,  to  examine  the  accounts  of  C.  D.,  administrator  of  the  estate  of  A.  B., 
deceased,  and  to  make  report  thereon,  do  hereby  respectfully  report  that  I 
have  examined  the  said  accounts,  and  have  been  attended  upon  said  exami- 
nation by  the  said  administrator  and  by  J.  B.,  the  widow  of  the  said  deceased, 
and  by  C.  F.,  the  guardian  ad  litem  of  the  minor  children  of  the  sa^d 
deceased,  and  by  P.  B..  on  the  part  of  the  executrix  of  F.  C,  deceased,  a 
creditor;  that  the  accounts  of  the  said  administrator,  presented  by  him,  are 
correct,  with  the  following  exceptions,  that  is  to  say: 

1.  That  the  claim  made  by  A.  C.  executrix,  and  J.  L.,  executor,  of  F.  C, 
deceased,  should  have  been  allowed  by  the  said  administrator  at  $696.29, 
instead  of  $101.48. 


1  In  New  York  county  the  referee's  report  will  be  confirmed,  of  course,  unless  exceptions 
are  filed  within  eight  days  after  written  notice  of  filing  and  a  copy  of  the  report  has  been 
served  upon  the  opposing  party. 


1<»4;>  FoKM.s.  :\o.  12. 

2.  That  from  tlie  bill  of  particulars'  of  the  item  of  $05.13,  charf^od  in  said 
administrator's  ac-ciuiit  for  casii  paid  J.  11.,  attorney,  etc.  [wiiicii  l>ill  of 
particulars  is  annexed  to  the  saiil  administrator's  account  and  marked  G], 
there  should  be  deducted  the  sum  of  $;"),  the  second  item  in  said  bill,  which 
ought  to  be  paid  by  the  administrator  jtersonally,  and  not  charged  to  the 
estate. 

I  do  also  furtlici-  report  tliat.  frtiin  the  testimony  taken  before  mi-,  it 
appears  that  the  said  administrator  has  used  due  diligence  in  endea\oring  to 
collect  the  debts  due  to  .the  estate,  and  that  he  has  collected  all  of  the  same 
that    were   collectible. 

1  further  report  that  tiic  following  arc  just  claims  against  the  said  estate 
with  the  e.xcejition  that  the  administialor  has  paid,  as  slated  in  his  account, 
to  S.  II.,  $-22. oO:  and  to  Mrs.  A.  C.  executri.x,  etc.,  of  F.  C,  deceased.  $:{7."i. 
which  amounts  are  to  be  severally  deducted  from  their  respective  distributive 
shares  of  said  estate,  that  is  to  say:  [fipccify  creditors  and  amounts  of  their 
claims]. 

There  is  also  a  suit  now  pending  in  the  superior  court  of  the  city  of  New 
York,  brought  by  said  administrator  against  H.  L.,  a  debtor  of  said  estate, 
who  defends  said  suit  on  the  ground  that  he  paid  the  demand  to  the  widow 
of  the  deceased  before  the  appointment  of  the  said  administrator. 

The  charges  in  said  accounts  of  the  said  administrator,  for  moneys  ])aid 
for  necessary  expenses,  not  hereinbefore  particularly  referred  to.  are  correct, 
and  also  that  the  fixtures,  stock,  etc.,  at  the  factory  belonging  to  the  estate, 
'vere  sold  in  the  usual  manner  at  public  auction,  and  that  tlie  ordinary  means, 
by  advertising,  etc..  and  due  diligence  and  prudence  were  used  in  obtaining 
a  just  price  for  the,  same. 

I  do  hereby  further  report,  that  the  whole  amount  of  the  assets  which  have 
come  to  the  hands  of  the  said  administrator  is  .$1,294.57;  that  the  amount 
of  the  administrator's  commission  is  .$57.36;  that  the  amount  which  I  have 
allowed  as  properly  paid  for  necessary  expenses  is  .$404.08,  leaving  a  balance 
applicable  to  the  ])ayment  of  debts  and  the  expenses  of  this  accounting,  and 
any  other  necessary  expenses  that  may  yet  be  incurred,  of  .$833.13. 

And  I  further  report,  that  all  the  claims  presented  against  the  estate,  and 
allowed,  amoimt  to  $953.42,  of  which  a  portion  has  been  paid,  as  above  stated. 

All  which  is  respectfully  submitted. 

[Date.]  [Signature.] 

XVII.  Report  of  Special  (liiardian. 
[Title.] 

I,  E.  S.,  heretofore  appointed  the  special  guardian  of  the  infants,  ^M.  I.  X.. 
-T.  B.  X.,  and  K.  G.  X.,  for  the  purpose  of  appearing  for  them  and  jirotecting 
their  rights  and  interests  in  this  proceeding,  do  hereby  respectfidly  report 
that  I  have  examined  the  accounts  of  W.  H.  G.,  as  executor  of  [or.  as  trustee 
for  A.  B..  under]  the  last  will  and  testament  of  F.  C.  G..  deceased,  and  that 
the  same  are  in  all  respects  correct,  so  far  as  they  affect  the  interests  of  the 
said  infants. 


Dated, 


[Authentication    as    in    a    deed.] 


XVIII.  Exceptions  to  Referee's  Report. 
[Title.] 

The  contestant,  I.  W.  S.,  excepts  to  the  rejiort  of  ,T.  K.,  Esq.,  referee  herein, 
dated  and  filed  the  day  of  .  .in  the  following  respects: 

I.  That  said  referee  reported  that  the  account  of  C.  D.,  the  [executor], 
presented  before  him,  and  by  him  examined,  was  correct  and  just,  and  that 
the  sum  of  should  be  credited  and  allowed  as  charged  in  said  accoimt. 
Whereas,  he  should  have  found  and  reported  that    [etc.]. 

II.  That  said  referee  omitted  to  Hnd  and  report  that  the  said  C.  D., 
executor,  etc.,  was,  and  is,  indebted  to  said  estate  for   [etc.,  statinq  details.] 

[Date.] 

[Signature.] 


Ko.  72.  FoKMs.  1050 

XIX.  Motion   to  Confirm  Referee's  Report. 
[Title.] 

Take  notice,  that  upon  the  report  of  tlie  referee  herein,  and  upon  all  the 
papers  filed  and  proceedings  had  in  this  matter,  a  motion  will  be  made  at  a 
.surrogate's  court,  to  l)e  held  [etc.],  for  an  order  confirming  said  report,  and 
also  for  a  decree  judicially  settling  the  account  of  said  [executor],  and 
directing  distribution  to  the  parties  entitled  thereto,  and  for  such  further 
or  other  order  or  decree  herein  as  may  be  just  and  proper. 

XX.  Affidavit  of  Regularity  to  Obtain  Decree  where  there  is  no  Contest. 
[Title  and  Venue.] 

A.  B.,  being  duly  sworn,  says,  that  he  is  the  attorney  for  the  executor  of 
the  above-named  decedent;  that  all  the  parties  to  this  proceeding  have  been 
duly  cited  or  have  duly  waived  the  issuance  and  service  of  a  citation,  approved 
the  accounts  filed  herein,  and  consented  to  the  entry  of  a  decree  approving  and 
settling  the  same,  in  the  manner  and  form  following,  to  wit: 

[As  to  service  on  adults  and  infants:]  I.  By  service  of  a  copy  of  the 
citation  issued  herein  upon  the  following  persons,  in  the  manner  prescribed 
by  sections  2.520,  2.526,  and  2527  of  the  Code  of  Civil  Procedure,  as  more  fully 
appears  by  the  proof  of  service  thereof,  made  in  the  manner  and  form  pre- 
scribed by  law,  and  filed  herein  on  the  day  of  ,  ,  viz.:  [here 
state  the  names  of  the  persons  served,  and  ichen  and  ivhere  the  service  took 
place.] 

[Nonresidents :]  II.  By  service  thereof  without  the  State,  or  by  publication 
in  pursuance  of  an  order,  made  herein  on  the  day  of  ,  ,  under 

sections  2522  and  252.3  of  the  Code  of  Civil  Procedure,  as  more  fully  appears 
by  the  proof  of  service  thereof,  made  in  the  manner  prescribed  by  law  and 
filed  herein  on  the  day  of  ,  ,  viz.:    [stating  names,  etc.]. 

[Parties  icho  tvaive  or  consent:]  III.  Personally,  or  by  attorney,  by  duly 
«xpcuted  Avaivers  of  the  issuance  and  service  tliereof,  containing  an  approval 
of  the  account  filed  herein  and  a  consent  to  the  entry  of  a  decree  approving 
and  settling  the   same,   and  filed   herein   on   the  day  of  ,         ,   by 

IV.  That  no  notice  of  appearance  has  been  filed  herein,  except  by  [stating 
ihem]. 

V.  That  all  of  the  persons  named  above  are  of  full  age  and  sound  mind 
excepting  those  hereinbefore  stated  to  be  otherwise,  and  comprise  all  the 
parties,  as  deponent  verily  believes,  who  have  any  interest  in  this  proceeding.! 

[Jurat.] 

XXI.  Decree  Hettling   Account  and  Ordering  Distribution. 
[Title.] 

C.  D.,  the  executor  [etc.],  having  heretofore  made  application  to  the 
surrogate  of  the  county  of  ,  for  a  judicial   [or,  final]   settlement  of  his 

account  as  such  executor,  and  a  citation  having  been  thereupon  issued,  pur- 
suant to  statute,  directed  to  all  persons  interested  in  the  estate  of  said  de- 
ceased, citing  and  requiring  them  and  each  of  them  personally,  to  be  and 
appear  before  the  said  surrogate,  at  his   ofiice  in  ,  on   the  day  of* 

,  ,   at  eleven  o'clock   in  the   forenoon   of   that   day,   then   and    there 

to  attend  such  judicial  settlement;  and  the  said  citation  having  been  returned, 
with  proof  of  the  due  service  thereof  on  [nayyiing  the  person]  :  and  the  said 
executor  having  appeared  on  the  return  day  of  said  citation,  in  person,  and 
^.v  [give  appearances]  ;  and  the  said  executor  having  rendered  his  account, 
under  oath,  before  the  said  surrogate,  and  the  said  account  having  been  filed, 
together  with  the  vouchers  in  support  thereof,  and  no  objection  having  been 
made  to  the  said  account  [or,  objections  to  the  said  account  having  been  filed 
by  J.  B. —  and  recite  reference,  if  any,  and  referee's  report  and  exception]  ; 
and  the  said  matter  having  been   duly  adjourned  to  this  day,   the  said  sur- 


1  Where  a  person  cited  is  fn  infant,  a  lunatic,  an  habitual  drunkard,  or  for  any  cause,  men- 
tally incapable  adequately  to  protect  his  rights,  it  must  so  appear  in  the  aflfldavit.  The  age 
of  the  infant  must  also  be  statt  d. 


1051  Forms.  No.  I'l. 

ro-jjalt',  after  havinjr  cxair.inod  tlic  said  aocount  and  vouchers,  now  here  finds 
tlie  state  and  condition  of  the  saiil  account  to  be  as  stated  and  set  fortli 
in  the  folhjwing  summary  statement  thereof,  made  by  the  said  surrogate  as 
finally  settled  and  adjusted  by  him,  to  be  recorded  with  and  taken  to  be  a 
part  of  the  decree  in  tiiis  matter,  to  wit: 

A  summary  statement  of  the  account  of  C.  U.,  executor  [etc.],  made  by  the 
surrogate  as  finally  settled  and  allowed. 

The  said  executor  is  chargeable  as  follows;  [adapt  from  sunniianj  as  in 
Xo.  72,  IX.].  , 

And  it  appearing  that  the  said  [executor]  has  fully  accounted  for  all  tiie 
moneys  and  property  of  the  estate  of  said  deceased,  wliicli  iiave  come  into  liis 
hands  as  such  executor,  and  his  account  having  been  adjusted  by  the  said 
suiidgate,  and  a  summary  statement  of  the  same  having  been  made  as  above 
and  herewith  recorded,  it  is  hereby  Okokkkd,  AiuroGKi).  and  ukckeku,  that  the 
said  account  be,  and  the  same  is  hereby,  finally  and  judicially  .settled  and 
allowed  as  filed  and  adjusted. 

And  it  is  further  ordered,  adjudged,  axd  decreed,  that  out  of  the  balance 
so  found,  as  above,  remaining  in  the  hands  of  the  said  executor,  he  retain 
the  sum  of  dollars  for  the  commissions  to  which  he  is  entitled   on  this 

accounting;    and    that    he    pay    into    this    court    the    sum    of  dollars    for 

the  expenses  of  this  accounting. 

[fn  case  a  distribiifio)i  of  the  fund  is  also  desired,  continue  as  folloics :] 

And  it  is  further  ordered,  that,  out  of  said  balance,  the  said  executor 
invest  and  keep  invested  the  sum  of  .$;5(), ()()(),  in  bonds  secured  by  mortgages  of 
real  estate  in  the  cii>'  of  New  York,  the  income  tliereof  to  be  ])aid  to  C'-  B., 
the  widow  of  said  testator,  during  her  natural  life,  ])ursuant  t(  the  directions 
and  provisions  of  the  said  will  of  the  said  testator;  and  after  the  death  of 
the  said  widow,  that  the  said  executor  distribute  the  said  principal  sum  in 
the  manner  directed  in  and  by  the  said  last  will  and  testament. 

And  it  is  further  ordered,  that  the  said  executor  pay  to  R.  B.,  a  son  of 
the  said  testator,   the    sum   of  dollars,    whicli.   with    the   sum    of   $4,000 

heretofore  received  by  him,  will  be  in  full  of  his  share  of  the  residuary  estate 
of  the  said  testator,  distributable  upon  this  accounting    [(uid  so  on]. 

[If  upon  a  final  accoiinting,  say:]  And  it  is  further  ordered,  that  upon  so 
doing  he  be  discliarged  as  executor  of  the  last  will  and  testament  of  A.  1?., 
deceas(>(l,  and  freed  of  and  from  all  res))onsibility  to  any  person  interested  in 
said  will  on  account  of  liis  acts  and  doings  thereunder. i 

[Sig)iafi(rc]. 

Surrogate. 

XXII.   Discharge    of    Representative. 

Whereas,   on   the  day   of  ,         ,   C.    D.   was   duly   appointed   the 

executor  of  the  last  will  and  testament  of  A.   B.,  late  of  the  county  of 
deceased,  and  wlio  departed  this  life  on  the  day  of  .  ,  and  which 

said  last  will  and  testament  was  duly  admitted  to  probate  by  the  surrogate 
of  the  county  of  ,  aforesaid,  on  the  day  of  ,  ,  and  by 

liim  recorded  in  his  office ;  and 

Whereas,  Since  said  C.  D.  was  so  appointed  such  executor  he  has  duly 
.settled  with  and  paid  to  the  undersigned,  one  of  the  legatees  named  in  said 
will,  his  bequest,  legacy,  and  distributive  share  of  the  estate  of  said  deceased, 
and  is  desirous  of  being  discharged  from  said  trust. 

Now,  THEREFORE,  I,  the  Undersigned  R.  S.,  being  of  full  age,  in  consideration 
of  the  aforesaid  premises  aiid  of  the  sum  of  dollars,  to  me  in  hand  i)aii'  by 

the  said  ('.  1).,  as  such  executor,  as  aforesaid,  the  receipt  wliereof  I  do  hereby 
acknowledge.  I  do  hereby  forever  release  and  discliarg(»  said  C.  D.  as  such 
executor,  of  and  from  all  claims,  demands,  and  liabilities  of  every  name 
and  nature  to  me  by  reason  of  any  and  all  matters  in  any  way  relating  to  said 
i'xecutorship. 

And  to  this  end  I  do  hereby  re<|uest.  authorize,  and  empower  the  surrogate 
of  said  comity  of  ,  u])on   filing  this    instrument    in   writing,   to  enter  in 

his  book  of  minutes  the  proper  order  or  decree,  fully,  finally,  and  in  all  things 


1  For  various  directions  as  to  disposal  of  assets,  see  ante,  §  lox!  et  seq. 


Xu.  7;3.  ioK-Ms.  1052 

releasin*^  and   (lischr.r<iing  said  C.  D.   as   sucli   executor,  as  aforesaid,   of  antl 
from   all   claiins,  demands,  and  liability  of  every  name  and  nature  to  me  by- 
reason  of  any  and  all  matters  in  any  wny  relating  to  said  executorship. 
In  Witness  Whekeof  [etc.]. 

No.  73. 

[Ante,  §  943.] 

Accounting  of  Testamentary  Trustees. 

I.  Petition. 
\Title.] 
To  the  Surrogate  of  the  county  of  : 

The  petition  of  A.  B.  and  C.  D.,  trustees  for  Y.  Z.,  under  the  will  of  M.  N.^ 
deceased,  respectfully  chows: 

I.  That  under  and  by  virtue  of  the   will   of  M.  X.,  late  of  the   county   cf 

,   deceased,  duly  admitted  to   i)robate   by   the   surrogate's    court   of  thtj- 
county  of  ,   the   said   testator   gives   to   your   petitioners,   who    are    [th& 

(jnly  two]  the  executors  named  in  said  will,  who  have  qualified  as  such  [hero 
state  the  bequest  in  trust,  e.  g.,  thus],  all  his  personal  estate,  not  otherwise- 
effectually  disposed  of,  in  trust,  to  divide  the  same  into  as  many  shares  of 
equal  value  as  the  said  testator  had  children  living  at  the  time  of  his  decease, 
and  to  set  apart  one  of  such  shares  for  each  child,  to  receive  the  interest  and 
income  of  each  share,  and  to  apply  the  same  to  the  use  of  such  child  during 
his  or  her  natural  life.  And  the  said  testator,  by  his  said  will,  further  gives, 
to  your  petitioner-  all  his  real  estate,  not  otherwise  effectually  disposed  of,  ia 
trust,  to  receive  the  rents,  issues,  and  ])rofits  thereof,  and  apply  tlie  same, 
deducting  all  just  and  lawful  charges  after  the  decease  of  the  testator's  wife, 
in  equal  parts,  to  the  use  of  each  of  his  children,  living  at  his  decease,  during 
his  or  her  natural  life. 

II.  That  testator's  wife  died  on  the  day  of  ,  ,  and  said  tes- 
tator left  him  surviving  three  children  only,  one  of  whom  is  Y.  Z.,  who  is  the 
only  person  entitled,  either  absolutely  or  contingently,  by  the  terms  of  the- 
will  or  by  operation  of  law,  to  share  in  the  fund  or  in  the  proceeds  of  the 
pr-cperty  held  by  your  petitioners  as  a  part  of  their  said  trust. 

III.  That  in  the  latter  part  of  the  year  ,  your  petitioners,  as  executors 
of,  and  trustees  under,  the  will  of  the  said  il.  X..  deceased,  rendered  to  the 
surrogate  of  the  county  of  ,  a  full  account  of  their  proceedings  as  such 
executors  and  trustees,  to  the  day  of  ,  ,  and  including  all  their 
jiroceedings,  to  said  date,  with  respect  to  both  the  real  and  personal  estate 
of  said  testator,  and  that  a  decree  of  said  surrogate's  court  judicially  settling- 
said  account,  was  duly  made  and  entered  on  the  day  of  ,  ;  and 
that  in  and  by  said  decree,  your  petitioners  were  directed  t  to  set  apart  and 
invest,  as  trustees  for  testator's  son,  the  above-named  Y.  Z.,  certain  asset-s^ 
and  securities  in  said  decree  mentioned,  and  amounting  in  the  aggregate  to 
the  simi  of  dollais,  and  hold  the  said  assets,  securities,  and  cash  so  set 
apart,  upon  the  trust  contained  in  and  established  by  the  fifth  paragraph 
of  said  will  of  the  decedent,  for  the  benefit  of  the  said  Y.  Z.,  as  one  of  the 
surviving  children  of  the  said  decedent. 

IV.  That  immediately  upon  the  entering  of  said  decree,  your  petitioners 
invested,  as  trustees  for  the  above-mentioned  Y.  Z.,  the  assets  and  securities 
in  said  decree  mentioned,  and  have  so  held  the  same  tf  upon  the  trust  for  his 
benefit,  as  provided  for  by  the  above-mentioned  provision  of  the  last  will  and 
testament  of  the  said  M.  X.,  deceased,  relative  to  his  personal  estate,  and 
have  also  continued  to  execute  the  above-mentioned  trust  ifor  his  benefit  in  the 
real  estate  of  the  said  testator. 

V.  That  your  petitioners,  as  trustees  of  the  said  trusts,  for  the  said  Y.  Z., 
in  the  real  estate  of  the  said  testator,  as  well  as  in  the  personalty  set  apart 
by  said  decree,  desire  to  render  an  account  of  all  their  proceedings  as  such 
trustees,  from  the  date  of  the  above-mentioned  account  and  decree  to  and 
including  the  day  of 

VI.  That  the  only  person  interested  in  such  a  proposed  accounting  of  your 
petitioners  is  the  above-named  Y.  Z.,  a  resident  of  the  city,  coimty,  and  State 
of  Xew  York,  but  at  present  temporarily  absent  in  Europe. 


Wherefore,  your  petitioners  pray  that  tlieir  account  of  their  said  pro- 
ceedinj^s,  as  .such  trustees,  may  be  judicially  settled,  and  that  [jiamrs]  may 
be  cited  to  attend  such  settlement. 

[Date.]  [iiignature.] 

[\'eri/ication.'] 

II.  Account  of  Procfcdings. 
ITitle.] 

We,  A.  B.  and  C.  J).,  trustees  of  Y.  Z.,  under  the  will  of  M.  X.,  hereby 
render  the  following  account  »f  our  proceedinffs,  as  such  trustees,  down  to 
the  day  of  , 

I.  By  the  decree  of  the  surrogate's  court  of  Ihc  coimty  of  .  made 
and  entered  on  the  day  of  ,  ,  in  the  matter  of  our  final  ac- 
counting,' as  executors  of,  and  trustees  under,  the  will  of  the  said  M.  X., 
deceased,  we,  as  such  executors,  were  directed  [continue  as  in  previous  form 
from  dagf/er  in  par.  Ill,  to  the  double  dufiger  in  par.  IV.  thence  continuing], 
and  the  same  or  so  much  thereof  as  are  held  by  us,  constitute  the  capital  of 
the  said  trust  for  Y.  Z.,  as  is  more  fully  shown  in  tlie  schedule  of  assets 
hereto  annexed. 

II.  In  addition  to  the  above-mentioned  trust,  said  will  further  gives  all 
testator's  real  estate  to  his  qualified  executors  in  trust,  to  receive  rents, 
issues,  and  profits  tliereof,  and  after  death  of  testator's  wife.  Avhich  occurred 
in  ,  ,  to  ai)])ly  the  same,  after  deducting  all  just  and  lawful  charges, 
in  equal  parts,  to  the  use  of  his  children  living  at  his  decease,  during  their 
respective  lives,  and  of  which  said  children  three  were  living  at  the  time  of 
testator's  death,  and  are  now  living,  one  of  whom  is  the  above-mentioned 
Y.  Z.  And  in  the  above-mentioned  accounting,  on  which  the  decree  of  Decem- 
ber, ,  was  entered,  is  included  a  full  account  of  all  our  proceedings  to  the 
said  day  of  December,  ,  relative  to  said  real  estate  trust  for  the  said 
Y.  Z. ;  and  the  following  account  embraces  all  our  proceedings  as  trustees, 
as  well  of  the  personalty  as  of  the  realty  of  the  above-mentioned  trusts  for 
the  said  Y.   Z.,   from  the  said  day   of  ,         ,   to  and   including  the 

day  of  , 

[Here  will  folloiv  schedules,  for  instance,  as  follows:] 

Schedules  A,  hereto  annexed,  contain  a  statement  of  all  rents,  interest,  or 
other  income  belonging  to  the  said  trust  for  the  benefit  of  the  said  Y.  Z., 
received  by  us,  as  trustees  of  the  said  trust,  during  the  period  of  time  em- 
braced in  this  accounting  —  that  is  to  say: 

Schedule  A,  Xo.  1,  contains  a  statement  of  all  interest  or  other  income 
from  personal  estate  received  or  collected  by  us. 

Schedule  A,  Xo.  2.  contains  a  statement  of  all  rents  from  leasehold  premises 
received  or  collected  by  us. 

Schedule  A,  Xo.  3,  contains  a  statement  of  all  other  rents  received  or 
collected  by  us. 

Schedule  B,  hereto  annexed,  contains  a  statement  of  loss  incurred  on  the 
sale  of  certain  assets  formerly  held  by  us  as  trustees  of  the  said  trust  for 
Y.  Z. 

Schedules  C,  hereto  annexed,  contain  a  statement  of  all  amounts  of  income 
expended  by  us,  for  the  necessary  expenses  and  disbursements,  in  the  man- 
-agement  and  execution  of  said  trusts  for  the  said  Y.  Z. —  that  is  to  say: 

Schedule  C,  Xo.  1,  contains  a  .statement  of  all  charges  against  the  income  of 
the  personal  estate  paid  l)y  us. 

Schedule  C,  Xo.  2,  contains  a  statement  of  all  charges  against  the  income 
from  leasehold  estate  i)aid  by  us. 

Schedule  C,  Xo.  3,  contains  a  statement  of  all  charges  against  the  real  estate 
paid  by  us. 

Schedule  E,  hereto  annexed,  contains  a   statement  of  all  amounts  of  prin- 
cipal paid  by  us  to  the  said  Y.  Z..  under  the  power  and  authority  vested   in 
us  by  the  fifth  paragraph  of  testator's  will   [««  ^vell  as  by  virtue  of  the  judg- 
ment of  the  supreme  court  of  the  State  of  Xew  York,  entered  on   the 
<iay  of  ,  .   on   remittitur  from  the   court  of  appeals   of  the   State  of 

New  York,  in  an  action  in  which  the  said  Y.   Z.   and  others  were  plaintiffs. 


Xo.  74.  Forms.  1054 

and  we,  as  executors  of,  and  trustees  under,  the  will  of  A.  B.,  deceased,  and 
others  were  defendants]. 

Scliedule  F,  hereto  annexed,  contains  a  statement  of  all  amounts  of  income 
paid  by  us  to  the  said  Y.  Z.,  on  accoimt  of  the  income  of  the  trusts  held  for 
his   benefit. 

Scliedule  G,  hereto  annexed,  contains  a  statement  of  the  various  assets  now 
constituting  the  capital  or  principal  of  the  personalty  of  the  said  trust  for 
Y.  Z..  as  well  as  the  amount  of  the  present  capital  of  said  trust.  It  also 
contains  a  brief  description  of  the  parcels  of  real  estate  held  for  his  benefit,, 
under  and  by  virtue  of  the  above-mentioned  trust. 

As  to  the  income  of  the  said  trust  for  Y.  Z.. 

We,  as  such  trustees,  charge  ourselves  as  follows: 
With  amount  of  income,  personal  estate.  Schedule  A,  Xo.   1 .  .  .  .   $ 

"  "  "  rents,  leasehold  premises,  Sch.  A,  Xo.  2. 

"  "  "  rents,  Schedule  A,  Xo.  3 


We  credit  ourselves  as  follows: 
With  charges  against  income,  personal  estate.  Schedule  C,  Xo.  1 .  .    $ 
"            "                     "                leasehold  premises,  Sch.   C,  Xo.  2.. 
"  "  "  real  estate.  Schedule  C,  Xo.  3 

"      payments  on  account  of  income $ 

Leaving  a  balance  of $ 

which  is  distributable,  after  the  deduction  of  the  amount  of  our  commissions 
for  receiving  and  paying  out  said  inpome  and  expenses  of  this  accounting. 

The  said  several  schedules  hereto  annexed,  and  signed  by  us,  form,  and  are 
to  be  taken  as,  a  part  of  this  account. 

[Date.l  [Signatures  of], 

Trustees. 
[Decree  thereon   may  readily  he  adapted  from   Yo.   72,  XXI.] 

No.-  74. 

[Ante,  §  1019.] 
Appointment  of  Guardian  of  Infant  Over  Fourteen. 

I.  Petition   by   Infant. 
To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  A.  B.,  of  ,  respectfully  shows: 

I.  That  your  petitioner  is  a  resident  of  the  county  of  ,  and  is  a 
minor  over  fourteen  years  of  age,  and  was  sixteen  years  of  age  on  the 

day  of  ,  last  past.     That  your  petitioner  is  entitled  to  certain  property 

and  estate,  to  wit:  [specify  it  briefly  and  state  value:]  and  that  to  protect 
and  preserve  the  legal  rights  of  your  petitioner,  it  is  necessary  that  some 
proper  person  should  be  duly  appointed  the  guardian  of  his  person  [or,  prop- 
erty—  or,   person  and  property]   during  his   minority. 

II.  That  such  a  general  guardian  has  not  been  duly  appointed,  either  by  a 
court  of  competent  jurisdiction  of  this  State,  or  by  the  will  or  deed  of  the 
father  or  mother  of  your  petitioner,  admitted  to  probate  or  authenticated 
and  recorded  as  prescribed  by  law.  [Or,  that  G.  G.,  of  ,  was  appointed 
general  guardian  of  your  petitioner  by  —  state  manner  of  appointment,  as 
above, —  and  —  died  on  the  day  of  ,  , —  or,  became  incompetent  — 
or,  disqualified  —  by  reason  of  the  following  facts  —  stating  them. —  or,  re- 
fuses to  act  —  or,  was  removed  by  the  court  of  ,  on  the  day 
of             ,          , —  or,  his  term  of  office  expired  on  the              day  of              .  .] 

[If  the  petitioner  is  a  married  icoman,  add:]  That  your  petitioner  is  a 
married  woman,  being  the  wife  of  ,  who  resides  at  ,  in  the  State 

of  .     If   a    nonresident,    and    the   petition    relates    to   personal   property 

only,  add:  That  the  only  property  of  your  petitioner,  within  this  State,  is 
the  personal  property  above  described,  which,  as  your  petitioner  is  informed 


1055  Forms.  Xo.  74. 

and  advised  by  her  counsel  ,  of  ,  is  not  subject,  by  iha  law  of  her 

residence,  to  the  control  or  disposition  of  her  said  husband.  That  the  law  of 
said  State  —  here  pUud  the  stalute  or  rule  of  lair,  Hitting  it  forth  at  linyth.\ 

III.  [titate  whether  father  or  mother  of  petitioner  is  living,  e.  g.,  thus: 
That  the  father  of  your  petitioner  died  on  the  day  of  ,  ,  and 
E.  15.,  the  mother  of  your  petitioner,  is  livin;,'  and  resides  at  ,  in  the 
county  of  ;  that  the  appointment  of  a  pers.m  other  than  petitioner's 
said  motlier  as  such  jreneral  {.'uardian,  is  expedient  by  reason  of  the  following 
circumstances  —  stating  them, —  and  your  petitioner  prays  that  the  said  K.  15., 
the  mother  of  your  petitioner,  and  said  G.  G.  and  ,  your  petitioner's 
husband,  may  be  cited  to  show  cause  why  the  decree  prayed  for  herein  should 
not  be  made] 

IV.  That  tlie  only  relatives  of  your  petitioner,  residing  within  the  county 
of  [surrogate's  county]  are  [stating  names  —  or.  if  there  are  none  such,, 
state  names  and  addresses  of  other  nearest  relatives.] 

WiiEKKFORE.  your   petitioner  prays   that  ,  of  ,   [merchant.]    may 

be  appointed  the  general  guardian  of  your  petitioner's  person  and  property 
[or  state  either  separately],  and  that  a  citation  may  be  issued  requiring^ 
[names']  to  show  cause  why  a  decree  to  that  eflect  should  not  be  made,  and 
for  such  other  relief  as  may  be  proper. 

[Date.]  '  ,  [Signature.] 

[Verification.] 

[Antiex  affidavit  of  third  person,  as  follows:] 

M.  N..  being  duly  sworn,  says,  that  he  is  acquainted  with  the  property  an  J 
estate  of  the  above-named  infant,  and  that  the  same  consists  of  [real  and] 
personal  estate;  and  that  the  personal  estate  of  said  infant  does  not  exceed 
the  sum  of  dollars,  or  thereabouts:    and  that  the  annual    rents   of  the- 

real  estate  of  the  said  infant  do  not  exceed  the  sum  of  dollars,  or  there- 

abouts. 

[Indorse  on   petition,  the  following   consent:] 

I,  C.  D.,  above  named,  do  hereby  consent  to  be  appointed  the  guardian  of 
the  person  and  estate  of  the  above-named  infant  during  his  minority. 

[Signature.] 

II.  Consent  of  Parent  to  Appointment  of  Third  Person. 

I,  the  undersigned,  father  [or,  mother]  of  the  minor  above  named,  do 
herebN  consent  and  pray  that  C.  D.  be  appointed  the  general  guardian  of  the 
person  and  estate  of  said  minor. 

[Date.]  [Signature.] 

[Acknowledgment  as  of  a  deed.] 

III.  Oath  of  Guardian. 
[Venue.] 

I.  C.  D.,   do  solemnly  .swear  and  declare,  that  I  reside  at  Xo.         ,  , 

in  the  ,  and  am  over  the  age  of  twenty-one  years,  and  that  I  will  well, 

faithfully,  and  honestly  discharge  the  duties  of  guardian  of  the  persons  and 
estate  of  [naming  ^/ic'»!,]  infants  according  to  law. 

[.fur  at.]  [Signature.] 

IV.  Decree  Appointing   General   Guardian. 
[Title.] 

On  reading  and  filing  the  petition  of  A.  B.,  an  infant  over  the  age  of  four- 
teen years,  residing  in  the  county  of  ,  duly  verified  on  the  day  of 
,  ,  praying  the  appointment  of  ,  as  general  guardian  of  his 
person  [or,  property  —  or,  person  and  property]:  and  a  citation  having 
been  duly  issued  directing  [names],  the  parties  entitled  to  notice  of  this 
application,  to  show  cause  why  a  decree  should  not  be  made  as  prayed  in 
said  petition,  and  the  same  being  now  here  returnable;  and  the  surrogate, 
having  duly  inquired  into  the  circun'istances,   and  heard  the  allegations  and 


No.  74.  Forms.  105 G 

proofs  of  the  parties  and  of  ,   and  being  satisfied  that  the   allegations 

of  the  petition  are  true  in  fact,  and  that  the  interests  of  the  infant  will  be 
promoted  by  the  appointment  of  a  general  guardian  of  his  person  [or,  property 
— or,  person  and  property]  ;  and  on  reading  and  filing  the  bond  executed  by 
said  to  said   infant,  with  sufficient  sureties  approved  by  said  surrogate, 

It  is  ordered  and  decreed,  that  said  be,  and  he  is  hereby,  appointed 

the  general  guardian  of  the  person  [oj\  property  —  or,  person  and  property] 
■of  said  infant,  M.  N.,  and  that  letters  of  guardianship  issue  accordingly. 

V.  Bond  of  General  Guardian  of  Infant's  Property. 
Know  all  men  by  these  presents, 

That  we,  C.  D.,  of  No.         ,  street,  in  the  city  of  New  York,  and  E. 

¥.,  of  No.         ,  street,  in  said  city,  and  G.  H.,  of  No.         ,  street, 

in  said  city,  are  held  and  firmly  bound  unto  A.  B.,  of  the  city  of  New  York, 
an  infant  under  [or,  over]  fourteen  years  of  age,  in  the  sum  of  [four]  thou- 
sand dollars,  lawful  money  of  the  United  States,  to  be  paid  to  the  said  infant, 
his  executors,  administrators,  or  assigns;  to  which  payment,  well  and  truly  to 
be  made,  we  bind  ourselves,  our  and  each  of  our  heirs,  executors,  and  adminis- 
trators, jointly  and  severally,  firmly  by  these  presents.     Sealed  with  our  seals. 

Dated  the  day  of  , 

\Vhereas,  by  an  order  of  the  surrogate's  court  of  the  county  of  [New  York], 
made  the  d?y  of  ,  the  above-bounden  C.  D.  was  appointed  general 

guardian  of  the  property  of  the  above-named  A.  B.,  an  infant  [etc.]  upon 
executing  a  bond  to  the  said  A.  B.,  with  the  said  C.  D.  and  E.  F.  as  his 
sureties,  in  the  penalty  and  on  the  conditions  therein  mentioned. 

Now,  therefore,  the  condition  of  this  obligation  is  such,  that  if  the 
above-bounden  C.  D.  shall  in  all  things  faithfully  discharge  the  trust  reposed 
in  liim,*  as  guardian  of  the  property  of  the  said  infant,  and  obey  all  lawful 
directions  of  the   surrogate  of  the  coimty  of  ,   touching   the   trust,   and 

shall,  in  all  respects,  render  a  just  and  true  account  of  all  money  and  othe" 
property  received  by  him,  and  of  the  application  thereof  and  of  his  guardian- 
ship, whenever  he  is  required  so  to  do,  by  a  court  of  competent  jurisdiction,'^ 
then  this  obligation  to  be  void,  else  to  remain  in  full  force  and  virtue. 

[Signatures  and  seals.'] 
[Sealed  and  delivered  in  the  presence  of] 

[Affidavit   of  sufficiency  as  in  No.  45.] 

VI.  Bond   of   General   Guardian   of  Infant's   Person. 

[Same  as  in  preceding  form  substituting  person  for  property,  and  for 
matter  between  the  asterisks  the  folio  icing :']  as  guardian  of  the  person  of  the 
said  infant,  and  shall  duly  account  for  all  money  and  other  property  which 
may  come  to  his  hands,  as  directed  bv  the  surrogate's  court  of  the  countv 
of 

VII.    Letters   of   Guardianship. 
The  People  of  the  State  of  New  York, 
To  A.  B.,  send  greeting: 

Whereas,  an  application,  in  due  form  of  law,  has  been  made  to  our  sur- 
rogate of  the  county  of  New  York,  to  have  said  A.  B.  appointed  the  guardian 
of  G.  G.  C,  a  minor  over  fourteen  years  of  age. 

And  Whereas,  said  A.  B.  has  agreed  and  consented  to  become  such 
guardian,  and  has  duly  executed  and  delivered  a  bond  pursuant  to  law,  for 
the  faithful  discliarge  of  his  duty  as  such  guardian,  and  we,  being  satisfied  of 
the  sufficiency  of  said  bond,  and  that  .said  A.  B.  is  a  good  and  reputable 
person,  and  is  in  every  respect  competent  to  have  the  custody  of  the  person 
and  estate  of  said  minor,  do  by  these  presents  allow,  constitute,  and  appoint 
you,  the  said  A.  B.,  the  general  guardian  of  the  person  and  estate  of  said 
minor,  during  his  minority,  hereby  requiring  you,  the  said  guardian,  to 
safely  keep  the  real  and  personal  estate  of  said  minor  which  shall  hereafter 
come  to  your  custody,  and  not  suffer  any  waste,  sale,  or  destruction  of  the 


1057  FoKMs.  Xos.  75,  70. 

same,  but  to  keep  up  and  sustain  his  lands,  tenements,  and  hereditaments,  by 
and  witii  the  rents,  issues,  and  profits  tliercof,  or  witli  siit-h  (jtlier  moneys 
belonf,'inf,'  to  Iiim  as  shall  come  to  your  possession,  and  to  deliver  the  same 
to  him  when  lie  l)ecomes  of  full  a<^e,  or  to  such  other  j^uardian  as  may  br* 
hereafter  appointed,  in  as  {^ood  order  and  condition  as  you  receive  the  same, 
and  also  to  render  a  just  and  true  acccmnt  of  all  moneys  and  projterty 
received  by  you,  and  the  application  thereof,  and  of  your  {guardianship  in  all 
respects,  to  any  court  having  co<,mizance  thereof,   when   thereunto   recjuired. 

In  Testimony  Wiierkof,  we  have  caused  the  seal  of  oihce  of  the  surrof/ate's 
court  of  the  county  ol  New  York  to  be  hereunto  affixed. 

Witness,  Hon.  ,  surrogate  of  said  covmty,  at  the  city  of  New  York, 

the  day  of  ,  in  the  year  of  our  Lord,  one  thousand  nine  hundred 

and 

[Signature,] 

Clerk  of  the  Surrogate's  Court. 

No.   75. 

[Ante,  §  1017.] 
Appointment  of  Temporary  Guardian  of  Infant  Under  Fourteen. 

To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  A.  B.  respectfully  sliows: 

I.  That  your  petitioner  resides  at  ,  in  the  county  of  ,  and  is  the 

[state  relationship}  of  M.  K.,  an  infant  under  fourteen  years  of  age,  who 
resides  at  No.         ,  street,  in  the  of  ,  and  was  years  of 

age  on   the  day  of  ,   last   past;   tliat  said   infant   is   the   owner  of 

property,  now  situated  at  ,  in  the  county  of  ,  to  wit:    [specify  it 

briefly,  and  state  value  of  rents  and  profits  of  real  property]. 

[Continue  as  in  No.  74,  substituting  "said  infant"'  for  "your  petitioner," 
and  "temporary"  for  "general''  guardian,  concluding  thus:]  \Viiehefore, 
your  petitioner  prays  that  some  suitable  person,  to  be  nominated  by  the  sur- 
rogate, may  be  appointed  guardian  of  the  person  [or,  property  —  or,  person 
and  property]  of  said  infant,  to  serve  until  said  infant  attains  the  age  of 
fourteen  years,  and  a  successor  to  said  guardian  is  appointed  and  has  quali- 
fied; and  that  a  citation  may  be  issued  to  [names]  to  show  cause  whj  a 
decree  should  not  be  made  appointing  such  a  guardian. 

[Date.]  [Signature.] 

[Add  affidavit  and  consent  of  proposed  guardian,  as  in  No.  74,  I.] 

[The  decree  for  appointment  of  temporary  guardian  can  be  adapted  from 
No.  74,  IV.] 

[For  letters  of  guardianship  on  the  foregoing  petition,  see  No.  74,  VII.] 

No.  76. 

[Ante,  §  1061.] 

Application  for  Letters  of  Testamentary  Guardianship.^ 

I.   Consent  of  Guardian  to  Act. 
[Title  and  Venue.] 
To  the  Surrogate's  Court  of  the  county  of  New  York: 

Whereas,  by  and  under  the  last  will  and  testament  of  C.  D.,  deceased,  which 
said  last  will  and  testament  was  duly  admitted  to  probate  on  the  day  of 

,  ,  I  am  named  as  testamentary  guardian  of  the  jjerson  and  estate 

of  E.  G.,  a  minor  child  of  said  deceased; 

Now  I,  A.  B.,  of  the  city  of  New  York,  do  hereby  accept  the  appointment  of 
such  testamentary  guardian,  and  do  consent  to  act  as  such,  during  the  mi- 
nority of  said  E.  (}..  the  minor  aforesaid,  and  pray  that  letters  of  testamentary 
guardianship    may  issue  to  me  in  pursuance  of  said  appointment. 

[Date.]  [Signature.] 

ISee  Laws  1893,  eh.  175. 

67 


'No.  77.  FoKiis,  1058. 

II.  Oath. 
[Venue] 

I,  A.  B.,  the  testamentary  guardian,  named  in  the  last  will  and  testament  of 
C.  D.,  late  of  the  city  of  New  York,  deceased,  do  depose  and  saj',  tliat  I  am  a 
resident  of  the  city  of  New  York,  State  of  New  York ;  that  I  am  over  twenty- 
one  years  of  age,  and  that  I  will  faithfully  and  honestly  discharge  tlie  duties 
of  testamentary  guardian  of  E.  G.,  the  minor  child  of  said  deceased. 

[Jurat.]  [Signature.] 

III.  Letters  of  Testamentary  Guard  kinship. 

The  People  of  the  State  of  New  Y'ork, 

To  A.  B.,  of  the  city  of  New  \"ork,  the  testamentary  guardian  named  in  the 
last  will  and  testament  of  L.  R.,  deceased,  for  E.  G.,  a  minor  child  of  said 
deceased,  send  greeting: 

Whereas,  the  last  will  and  testament  of  said  L.   R.,   deceased,   was  duly 
admitted  to  probate  by  the  surrogate  of  the  county  of  New  Y'ork,  on  the 
day  of  ,         ,  in  and  by  which  said  A.  B.  is  named  as  the  testamentary 

guardian  of  E.  G.,  the  said  minor. 

And  Whereas,  said  A.  B.  has  agreed  and  consented  to  become  such  guardi.in 
and  has  duly  taken  an  oath,  according  to  laAV,  that  he  will  well  and  faithfully 
discharge  his  duty  as  such  testamentary  guardian,  and  we  being  satisfied  tiiat 
said  A.  B.  is  a  good  and  reputable  person,  and  is  in  every  respect  competent  to 
have  the  custody  of  the  person  and  estate  of  said  minor,  do  by  these  presents 
allow,  constitute,  and  appoint  you,  the  said  A.  B.,  the  testamentary  guardian 
of  the  person  and  estate  of  said  minor,  during  her  minority,  hereby  requiring 
you,  the  saic  guardian,  to  safely  keep  the  real  and  personal  estate  of  said 
minor,  which  shall  hereafter  come  to  your  custody,  and  not  suffer  any  waste, 
sale,  or  destruction  of  the  same,  but  to  keep  up  and  sustain  her  lands,  tene- 
ments, and  hereditaments,  by  and  with  the  rents,  issues,  and  profits  thereof,  or 
with  such  other  moneys  belonging  to  her  as  shall  come  to  your  possession,  and 
to  deliver  the  same  to  her  when  she  becomes  of  full  age,  or  to  such  other  guard- 
ian as  may  be  hereafter  appoinied,  in  as  good  order  and  condition  as  you 
receive  the  same,  and  also  to  render  a  just  and  true  account  of  all  moneys  and 
property  secured  by  you,  and  the  application  thereof,  and  of  your  guardian- 
ship in  all  respects,  to  any  court  having  cognizance  thereof  when  thereunto 
required. 

In  Testimony  Whereof  we  have  caused  the  seal  of  office  of  the  surrogate'* 
court  of  the  county  of  New  York  to  be  hereunto  affixed. 

Witness,  Hon.  ,  surrogate  of  said  county,  at  the  city  of  New  Y'ork, 

the  day  of  ,  in  the  year  of  our  Lord,  one  thousand  nine  hundred 

and 

[Signature], 
Clerk   of  the   Surrogate's   Court. 

No.   77. 

[Ante,  §  I05I.] 

Ancillary  Letters  of  Guardianship. 

I.   The  Petition. 

To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  A.  B.  respectfully  shows: 

I.  That  your  petitioner  resides  at  ,  in  the   State   of  ;   and,   on 

the  day  of  ,         ,  was  duly  appointed  the  general  guardian  of  the 

property  of  M.  N.,  an  infant,  who  was  years  of  age  on  the  day  of 

,  last,  and  who  then  was,  and  still  is,  residing  at  ,  in  said  State  of 

,  by  the  court  of  ,  a  court  of  competent  jurisdiction  within 

the  State  where  said  ward  resides.  That  hereto  annexed  are  duly-authenti- 
cated exemplified  copies  of  the  records  and  other  papers  showing  that  yo\ir 
petitioner  has  been  so  appointed,  and  has  given  the  security,  as  hereinafter 
alleged. 


J05U  FoiiMs.  Xu.  77. 

II.  That  your  petitioner  lias  duly  f^ivf-n  security  in  .said  State,  as  rei|uired 
by  law,  in  the  sum  of  dollars,  which  is  at  least  twice  the  value  (»f  the 
personal  jjroperty,  and  of  the  rents  and  prolits  of  the  real  proiX-Tty,  of  said 
Avard. 

III.  That   said   infant    .M.   X.   is  entitled  to   ])roperty  within   the   county   of 
,  and  State  of  New  York,  to  wit:    {.specify  it  and  stale  value].     [(Jr,  is 

entitled  to  maintain  an  action  in  the  courts  of  the  State  of  New  York  atrainst 
one  Y.  Z.,  who  resides  at  .  in  the  State  of  ,  for  the  following  cause 

of  action  —  recite  hriejiij  the  facts  eonstitutituj  the  cause  of  action,  and  show- 
ing jurisdiction  of  Xcic  York  courts']. 

IV.  That  no  debts  are  due  from  said  ward's  estate  to  residents  of  the  State 
of  Xew  York  [except  as  follows  —  specif ij  amount  of  debts,  and  name  and  resi- 
dence of  creditor]. 

WiiKKKFOUK.  your  petitioner  prays  that  ancillary  letters  of  guardianship  of 
the  ])ro])erty  of  said  infant  M.  X.  may  be  granted  to  your  petitioner  accordingly. 
[Duic.']  [>ii(jnature.] 

[Verification.'] 

II.  Decree  Granting  Ancillarg  Letters. 
[Title.] 

On  reading  and  filing  the  petition  of  A.  B.,  duly  verified  on  the  day  of 

,  ,  by  which   it  appears  that  the  petitioner  was  duly  appointed  the 

general  guardian  of  the  property  of  il.  X".,  an  infant,  residing  at  ,  in  the 

State  of  ,  by  a  decree  or  order  duly  given  or  made  on  the  day  of 

,         ,  by  the  court  of  ,  a  court  of  competent  jurisdiction  within 

the  State  where  said  ward  resides,  to  which  petition  are  annexed  exemidified 
copies  of  the  records  and  other  papers  showing  such  appointment  and  dub' 
authenticated :  and  that  said  A.  B.  has  there  given  the  security  required  by 
the  .statutes  of  this  State  in  such  a  case  [and  a  citation  having  been  duly  is- 
.sued  thereupon  to  —  names — ,  directing  them  to  show  cause  why  the  prayer  of 
tlie  petition  should  not  be  granted,  and  having  been  duly  returned  and  filed 
with   ])r()of  of  due  service  thereof]  : 

[And  it  appearing,  upon  due  inquiry,  that  all  the  debts  due  or  to  become  due 
from  said  ward's  estate  to  residents  of  the  State  of  Xew  Y'ork  have  been  fully 
paid : ] 

And  the  said  surrogate  being  satisfied  that  all  the  facts  alleged  in  said  peti- 
tion are  true,  and  that  the  case  is  within  section  2838  of  the  Code  of  Civil  Pro- 
cedure, and  that  it  will  be  for  the  said  ward's  interest  that  ancillary  letters  of 
guardianship  issue  to  the  petitioner : 

Xow,  on  motion  of  A.  T.,  attorney  for  petitioner. 

It  is  ORnERED  Axu  DECREED,  that  the  exemplified  copies  of  tlie  foreign  letters 
of  guardianship,  annexed  to  said  petition,  be  recorded  in  the  office  of  said  sur- 
rogate: and  that  ancillary  letters  of  guardianship  be  granted  to  the  petitioner 
accordingly. 

III.  .Incillari/  Letters  of  (luardia)iship. 
The  People  of  the  State  of  Xew  Y'ork, 
To  A.  B.,  send  greeting: 

Whereas.  A.  B.,  who  has  been  duly  apjiointed  the  general  guardian  of  the 
property  of  ^I.  X^.,  a  minor,  by  a  court  of  competent  jurisdiction  within  tiie 
State  of  ,  where  the  said  minor  resides,  has  presented  to  the  surrogate'.s 

court  of  the  cf)unty  of  X'ew  "N'ork  a  petition  for  his  aiijiointment  as  ancillary 
guardian  of  said  minor: 

And  Whereas,  our  surrogate  has,  on  the  day  of  .         .  made  a 

decree  granting  such  ])etition,  and  directing  that  such  ancillary  letters  o.' 
guardiansliip  issue  to  the   petitioner, 

^^'E.  in  ))ursunnce  of  said  decree,  do  by  these  presents  issue  these  letters, 
constituting  and  appointing  you.  the  said  A.  B.,  the  ancillary  guardian  of  said 
minor,  imtil  anoth(  r  iruardian  shall  be  ajipointed.  hereby  requiring  you.  the 
!-;>,id  guardian,  to  safely  keep  the  real  and  personal  estate  of  said  minor  whicli 
*ihall  hereafter  come  to  your  custody,  and  not  sullcr  anv  waste,  sale,  or  de- 


JSTo.  78.  FoKMs.  lUGO 

striiction  of  the  same,  but  to  keep  up  and  su>itain  his  lands,  tenements,  and 
lieredilainents,  by  and  witli  the  rents,  is.sues,  and  profits  thereof,  (jr  with  sucli 
other  moneys  belonj^irig  to  him  as  shall  come  to  your  possession,  and  to  deliver 
the  same  to  him  when  he  becomes  of  full  aj^e,  or  to  such  other  guardian  as 
may  be  hereafter  appointed,  in  as  good  order  and  condition  as  you  received  the 
same,  and  also  to  render  a  just  and  true  account  of  all  moneys  and  property 
received  by  you,  and  the  application  thereof,  and  of  your  guardiansjiip  in  all 
respects,  to  any  court  having  cognizance  thereof,  when  thereunto  required. 

In  Testimony  Whereof,  we  have  caused  the  seal  of  office  of  the  surrogate's 
court  of  the  county  of  New  York  to  be  hereunto  affixed. 

Witness,  Hon.  ,   surrogate  of   our  said  county,   at  the  city  of  New 

York,    the  day   of  ,    in   the  year   of   our    Lord,   one   thousand   nine 

hundred  and 

[Signature], 
Clerk  to  the  Surrogate's  Court. 

No.   78. 

[Ante,  §   1030.] 

Annual  Inventory  and  Account  of  Guardian. 

I.  Order  to  File  Inventory,  etc. 
[Title.'] 

On  reading  and  filing  the  report  of  X.  Y.,  [the  guardian  accounting  clerk  in 
said  surrogate's  office],  whereby  it  appears  that  A.  B.,  the  general  guardian 
of  M.  N.,  infant,  has  failed  to  render  the  annual  inventory  and  account  re- 
quired by  law,  Ordered,  that  said  A.  B..  the  general  guardian,  aforesaid, 
file  with  the  guardian  accounting  clerk  of  tliis  court  his  annual  inventory  and 
account  as  prescribed  by  sections  2842,  2843,  and  2845  of  the  Code  of  Civil 
Procedure. 

II.  Affidavit  of  Failure  to  File  Inventory. 
[Title  and  Venue.'] 

X.  Y^.,  being  duly  sworn,  says  that  he  is  a  clerk  in  the  office  of  the  surrogate 
of  the  city  and  county  of  New  York,  specially  appointed  and  designated  by 
the  surrogate  of  said  city  and  county  to  make  the  examination  provided  for 
by  section  2844  of  the  Code  of  Civil  Procedure  as  to  the  accoimts  and  inven- 
tories of  guardians  required  to  be  filed  in  the  month  of  January,  ,  pur- 
suant to  section  2842  of  said  Code,  and  that  he  duly  took  and  filed  the-  oath 
prescribed  by  section  2844,  and  duly  made  and  filed  with  said  surrogate  a  cer- 
tificate and  report  of  the  examination  made  by  him  pursuant  to  said  appoint- 
ment and  designation. 

That  A.  B.  was,  on  the  day  of  ,         ,  duly  appointed  guardian  of  the 

property  of  M.  N.,  an  infant,  by  letters  of  guardianship  duly  issued  from  said 
court.  That  deponent  in  the  course  of  said  examination  has  made  examination 
and  inquiry  respecting  the  hling  by  said  guardian  of  the  annual  account  or  in- 
ventory required  by  said  section  2842  to  be  filed  in  the  month  of  January,  , 
and  finds  and  states,  and  he  has  so  certified  and  stated  in  the  aforesaid  certifi- 
cate and  report,  that  said  guardian  has  never  filed  such  account  or  inventory. 
That  on  the  day  of  ,  ,  an  order  was  made  by  the  said  surro- 
gate requiring  the  said  guardian  to  file  said  account  or  inventory,  and  the  said 
order  was  .served  on  the  said  guardian  on  the  day  of  ,  ,  and  he 
has  failed  to  comply  with  the  same,  and  deponent  has  made  and  filed  with  the 
said  surrogate  a  certificate  to  this  effect. 

[Jurat.]  [Signature.] 

III.  Order  upon  Foregoing  Affidavit. 
[Title.] 

It  appearing  from  an  examination  duly  made  imder  my  direction  pursuant 
to  section  2844  of  the  Code  of  Civil  Procedure,  as  to  the  filing  of  their  annual 
accounts  and  inventories  in  the  month  of  .January.  .  bv  guardians  of  the 
estates  of  their  waids.  theretofore  appointed  by  said  court,  that  the  said  A.  B., 
the  guardian  of  the  property  of  M.  N.,  an  infant,  has  failed  and  omitted  to 


JUGl  F(ji:.M.s.  S'.K  7'J. 

file  the  annual  account  or  invcniory  required  to  be  filed  in  the  month  of  Janu- 
ary, ,  and  an  order  havin;^  heeii  made  on  tlie  day  of  ,  re(|uirin<^  said 
guardian  to  lile  sueli  an  aecoimt  and  inveiilnrv,  and  it  ai)[)earing  that  saiil 
order  was  soved  upon  the  said  L,aKn(iiaii  on  the  ihiy  of  ,  and  that 
he  has  failed  to  eonii)ly   with   tlie   same; 

It  is  okdkiuci),  tluit  O.  P.  l)e  and  lie  is  hereby  appointed  tin;  special  guardian 
of  the  said  M.  X.,  infant,  for  the  jjurpose  of  filing  a  petition  in  his  behalf  for 
the  removal  of  his  said  guardian  and  prosecuting  the  necessary  proceedings 
for  the  purpose. 

IV.  Aiuiual  Iitrcntory  and  Account. 
[Title.'] 

I,  A.  B.,  of  ,  the  general  guardian  of  M.  X.,  infant,  do  make,  render, 

and   file  the  following  inventory  and  account: 

On  the  ua\'  of  ,  ,   i   was  duly  appointed  the  general  guardian 

of  M.  X.,  an  infant,  by  the  surrogate  of  the  county  of 

.SciiKOi'LE  A,  hereto  annexed  (as  part  of  said  inventory),  contains  a  full  and 
true  statement  and  deserijjtion  of  each  article  or  item  of  personal  pro])erty  of 
said  M.  X.,  received  by  me  since  ,  the  date  of  my  appointment  [or,  last 

account],  and  of  the  value  of  each  article  or  item  so  received. 

ScilEiHTLE  B,  hereto  annexed  (as  part  of  said  inventory),  contains  a  full  and 
true  statement  and  list  of  the  articles  or  items  of  said  property  now  remaining 
in  my  hands. 

SciiEDiLE  r,  hereto  aniu^xed  (as  part  of  said  inventory),  contains  a  full  and 
true  statement  and  list  of  the  articles  or  items  of  said  propertj'  now  remaining 
in  my  hands. 

SciiEiJt'LE  D,  hereto  annexed  (as  part  of  said  inventory),  contains  a  full  and 
true  statement  of  the  amount  and  nature  of  each  investment  of  money  made 
by  me.  and  of  the  manner  in  which  the  fund  is  at  present  invested 

Said  ScnEDULE.s  A,  B,  C,  and  D  constitute  said  inventory,  and  are  respect- 
ively signed  bj'  me. 

SciiEurLE  E,  hereto  annexed,  and  signed  by  me,  is  a  full  and  true  account, 
in  form  of  debtor  and  creditor,  of  all  my  receipts  and  disbursements  of  money, 
since  .  tlie  date  of  [as  ahove],  and  distinctly  states  the  amount  of  the  bal- 

ance remaining  in  my  hands,  to  be  charged  to  me  in  the  next  year's  account, 
as  the  sum  of  dollars;  all  of  which  is  respectfully  submitted. 

[Date.'\  [Signature.] 

[Verification  as  folloirs:]  I,  A.  B..  being  duly  sworn,  say.  that  I  am  the  gen- 
eral guardian  of  M.  X'.,  an  infant;  that  the  foregoing  inventory  and  account 
contain,  to  the  best  of  my  knowledge  and  belief,  a  full  and  true  statement  of 
all  my  receipts  and  disbursements  on  account  of  my  ward;  and  of  all  moneys 
and  other  ])ersonal  jiroperty  of  my  ward  which  have  come  to  my  hands,  or  have 
been  received  by  any  other  person  by  my  order  or  authority,  or  for  my  use. 
since  ,         ,  and  of  the  value  of  all  such  property;  together  with  a  full 

and  true  statement  and  account  of  the  manner  in  which  T  have  disposed  of  the 
same,  and  of  all  the  property  remaining  in  my  hands  at  the  present  time;  and 
a  full  and  true  description  of  the  amount  and  nature  of  each  investment  made 
by  me  since  ;  and  that  I  do  not  know  of  any  error  or  omission  in  the 

inventory  or  account  to  the  prejudice  of  my  ward. 

[Jurat.]  [Signature.] 

No.   79. 

[.Intc,   §   1033.] 

Accounting  of  General  Guardian. 

I.  Petition   for  Vohintan/  .iccoiDiting. 
[Title.] 

To  the  Surrogate's  Court  of  the  city  and  comity  of  Xew  York: 

The  petition  of  A.  B..  residing  at  X'o.  .  street,  in  the  city  of  New 
York,  respectfully  showeth  that  letters  of  guardianship  upon  the  estate  of 
M.  N.,  infant  over  [or,  under]  the  age  of  fourteen  years,  were  granted  to  your 


[N'o.  79.  FouMs.  10G2 

petitioner   on   the  day   of  ,         ,   1)y   this   court;    that   said    infant 

resides  at  No.  ,  street,  in  said  city  of  New  York. 

Tliat  the  sureties  in  the  official  bond  of  your  petitioner  as  such  guardian  are 
the  following  persons  [giving  names  and  residcnccs'\. 

That  said  infant,  on  the  day  of  ,         ,  attained  the  age  of 

years.  And  your  petitioner  is  desirous  of  rendering  an  account  of  all  his  pro- 
ceedings as  such  general  guardian  to  the  surrogate's  court  of  this  city  and 
county,  and  of  having  the  same  judicially  settled  and  of  being  discharged  from 
his  duties  and  lial)ilitics.  And  for  that  i)ur])Ose  ])rays  that  a  citation  may  be 
issued  to  the  above-named  person  to  attend  such  settlement. 

[Date.'\  [^Signature.] 

[Verificaiio)i.'\ 

II.  Petition  by  Ward  for  Order  to  Account. 
To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  M.  N.,  of  the  town  of        ■     ,   in   the  countv  of  ,   re- 

spectfully shows  that  letters  of  general  \_or  othericise]  guardianship  of  the 
property  and  estate  of  your  petitioner,  an  infant  under  [or,  over]  the  age  of 
fourteen  years  were  granted  to  A.  B.,  of  the  town  of  ,  in  the  county  of 

,  on  the  day  of  ,         .     That  your  petitioner,  on  the 

day  of  ,  ,   attained   the  age   of  twenty-one  years,   and  that   his   said 

guardian  has  rendered  no  account  of  his  proceedings  as  such. 

Your  petitioner  desires  said  A.  B.  to  render  an  account  of  all  his  j^i'oceed- 
ings  as  such  guardian,  and  for  that  purpose  prays  that  a  citation  issue  to 
him  requiring  him  to  appear  in  this  court  at  a  certain  day  to  be  therein  spe- 
cified, and  render  an  account  of  his  proceedings  as  such  guardian,  and  that 
such  other  and  further  proceedings  may  be  had  thereon  as  shall  be  just  and 
equitable. 

[Date.]  [Verification.'] 

III.  Account  of  Proceedings 
[Title.] 
To  the  Surrogate's  Court  of  the  city  and  county  of  Xew  York: 

I,  A.   B.,   residing  at  No.         ,  street,   in   the   city   of   New    I'ork,    do 

hereby  render  the  following  account  of  my  proceedings  as  general  guardian  of 
M.   N.,   infant :      On   the  day  of  ,  ,  letters   of  guardianship    on 

the  estate  of  said  infant  were  granted  to  me  by  this  court.      On  the 
day  of  ,         ,  I  caused  to  be  filed  in  the  office  of  the  surrogate  of  this 

county  a  true  and  full  inventory  and  account  of  each  article  or  item  of 
personal  property  belonging  to  said  infant,  pursuant  to  sections  2842  and  2843 
of  the  Code  of  Civil  Procedure;  and  annually  thereafter,  to  wit:  on  the  [speci- 
fying the  dates  on  ichich  the  guardian  had  previously  filed  his  annual  inven- 
tory], I  caused  to  be  filed  in  the  office  of  said  surrogate  annual  inventories  and 
accounts  of  the  personal  property  of  said  infant,  as  prescribed  by  the  sections 
of  the  Code  of  Civil  Procedure  above  specified:  the  last  of  which  said  inven- 
tories and  accounts  was  so  filed  on  the  day  of  ,  ,  and  the 
value  of  the  personal  property  of  said  infant  then  remaining  in  my  hands 
amounted  to  the  sum  of             dollars. 

ScHEDVLE  A.  hereto  annexed,  contains  a  statement  of  all  property  belong- 
ing to  my  ward,  Avhich  came  into  my  hands  upon  assuming  the  office  of  gen- 
eral guardian. 

Schedule  B,  hereto  annexed,  contains  a  statement  of  all  projierty  which 
has  come  into  my  hands  since  said  day  of  ,         ,  together  with  a 

statement  of  all  the  debts  due  said  ward,  collected  by  me,  and  also  of  all 
moneys  and  interest  received  by  me  for  which  I  am  legally  accountable. 

Schedule  C,  hereto  annexed,  contains  a  statement  of  all  property  of  said 
ward  now  remaining  in  my  hands,  and  a  full  and  true  description  of  the 
amount  and  nature  of  each  investment  made  by  me  since  my  appointment. 

Schedule  D,  hereto  annexed,  contains  a  statement  of  all  property  charged 
in  schedules  A  and  B,  not  now  remaining  in  my  hands,  together  with  a  state- 
ment of  the  manner  and  purposes  of  its  disposal. 


1003  FoKMs.  X...  7'.». 

SciiEorLE  E,  hereto  annexed,  eontains  a  statement  in  form  of  debit  and 
credit  of  all  moneys  received  and  disbursed  by  me  on  account  of  said  ward, 
since  tiie  said  day  of  ,         ,  and  distinctly  states  the  balance  now 

remaininfj  in  my  hands. 

SciiEDiLE  F,  hereto  annexed,  contains  the  name,  ape,  and  place  of  residence 
of  the  ward  for  whom  I  have  acted  as  general  guardian. 

Schedule  G,  hereto  annexed,  contains  a  statement  of  all  other  facts  affect- 
ing my  administratif)n  as  such  general  guardian. 

I  charge  myself  as  follows: 

Witli  amount  of  property,  as  per  Schedule  A $ 

"  increase,       "  "  B 

Total    $ 

I  credit  myself  as  follows: 

With  amount  as  per  Schedule  D $ 

"  "       of  disbursements,  as  per  Schedule  E 

Total    $ 


Leaving  a  balance  of  dollars  to  be  distributed  to  said  ward,  subject  to  the 
amount  of  my  commissions  and  the  expenses  of  this  accounting.  The  said 
schedules,  Avhich  are  severally  signed  by  me,  are  a  part  of  this  account. 

[Signature], 
General  Guardian  of  ,  infant. 

IV.  Oath  to  Account. 
[Venue.] 

I,  A.  B.,  the  general  guardian  of  M.  X.,  infant,  being  duly  sworn,  do  depose 
and  say,  that  the  foregoing  account  and  schedules  contain,  to  the  best  of  my 
knowledge  and  belief,  a  full  and  true  statement  of  all  my  receipts  and  disburse- 
ments on  account  of  said  ward;  and  of  all  moneys  and  other  personal  property 
of  the  said  ward,  which  have  come  to  my  hands  or  have  been  received  by  any 
other  person  by  my  order  or  authority,  or  for  my  use,  since  my  appointment; 
and  of  the  value  of  all  such  property,  together  with  a  full  and  true  statement 
and  account  of  the  manner  in  whicli  I  have  disposed  of  the  same,  and  of  all  the 
property  remaining  in  my  hands  at  the  present  time,  and  a  full  and  true  de- 
scription of  the  amount  and  nature  of  each  investment  made  by  me  since  my 
appointment ;  and  I  do  not  know  of  any  error  or  omission  in  the  foregoing 
account  and  schedules  to  the  prejudice  of  said  ward. 

[Jurat.]  [Signature], 

General  Guardian. 

V.  Decree  Settling  Guardian's  Account. 
[Title.] 

A.  B.,  general  guardian  of  ^f.  X.,  infant,  having  heretofore  made  application 
to  the  surrogate  of  the  city  and  county  of  Xew  York,  for  a  judicial  settlement 
of  his  account  as  such  general  guardian,  and  a  citation  having  been  thereupon 
issued,  pursuant  to  statute,  directed  to  said  ^M.  X..  citing  and  requiring  him 
personally  to  be  and  appear  before  the  said  surrogate,  at  his  oflice  in  the  city 
of  Xew  York,  on  the  day  of  ,         ,  last  past,  at  ten  o'clock  in  the 

forenoon  of  that  day,  then  and  there  to  attend  such  judicial  settlement,  and 
the  said  citation  having  been  returned  with  proof  of  the  due  service  thereof  on 
said  M.  X.,  and  the  said  general  guardian  having  appeared  on  the  return  day 
of  said  citation,  by  G.  H.,  his  attorney  [name  other  appearances,  if  anif],  and 
the  said  general  guardian  having  rendered  his  account  under  oath,  before  the 
said  surrogate;  and  the  said  accoimt  having  been  filed,  together  with  the 
vouchers  in  support  thereof,  and  [recite  the  filing  of  objections  and  reference, 
if  anif],  and  the  same  matter  having  been  duly  adjotirned  to  this  day.  the  said 
surrogate,  after  having  examined  the  said  account  and  vouchers,  now  here  finds 
the  state  and  condition  of  the  said  account  to  be  as  stated  and  set  fortli  in  the 


JS^o.  80.  FouMs.  1064 

followinjj  summary  statement  thereof,  made  by  the  said  surrogate  as  settled, 
and  adjusted  by  him,  to  be  recorded  with  and  taken  to  be  a  part  of  the  decree 
in  this  matter,  to  wit: 

A  sximmary  statement  of  the  account  of  proceedings  of  A.  B.,  general  guard- 
ian of  M.  N.,  infant,  made  by  the  surrogate  as  judicially  settled  and  allowed. 

The  said  general  guardian,  A.  B.,  is  chargeable  as  follows:  [give  summary  as 
in  account  of  proceedings^. 

And  it  appearing  that  the  said  general  guardian  has  fully  accounted  for  all 
the  moneys  and  property  of  the  estate  of  said  infant,  which  have  come  into  his 
hands  as  such  general  guardian,  and  his  account  having  been  adjusted  by  the 
said  surrogate,  and  a  summary  statement  of  the  same  having  been  made  as 
above  and  herewith  recorded,  It  is  hereby  ordered,  adjudged,  and  decreed, 
that  the  said  accoimt  be  and  the  same  is  hereby  judicially  settled  and  allowed 
as  filed  and  adjusted. 

And  it  is  further  ordered,  adjudged,  and  decreed,  that  [add,  if  desired, 
clauses  as  to  payments  to  infant  on  attaining  majority,  and  as  to  a  final  dis- 
charge of  the  guardianl. 

VI.  Discharge  of  Guardian  hy  Ward,  after  Reaching   Majority. 
[Title.'] 

I,  M.  N.,  of  the  county  of  ,  New  York,  do  hereby  declare  and  state  the 

fact  to  be  that  I  became  of  the  full  age  of  twenty-one  years  on  the  day  of 

,  .  And  further  that  since  I  so  became  of  full  age  my  general 
guardian,  A.   B.,  who  was  so  appointed  by  the  surrogate   of   said   county  of 

,  on  the  day  of  ,         ,  has  had  an  accounting  and  settlement 

with  me  of  and  concerning  all  matters  in  any  way  relating  to  my  said  guard- 
.ianship,  and  that  on  such  settlement  said  A.  B.  did  pay  to  me  the  sum   of 

dollars,  and  which  sum  of  money  I  did  and  do  now  receive  in  full  of 
all  claims  and  demands  of  every  name  and  nature  against  said  A.  B.,  as  my 
said  general  guardian,  and  to  the  end  that  said  A.  B.  may  be  in  all  things 
fully  and  finally  discharged  from  said  trust  and  from  all  liability  to  me  by 
reason  of  such  guardianship;  I  do  hereby  request,  authorize,  and  empower  the 
surrogate  of  said  county  of  ,  iipon  filing  this  instrument  to  enter  the 

proper  order  or  decree  fully,  finally,  and  in  all  things  releasing  and  discharg- 
ing said  A.  B.  of  and  from  all  claims,  demands,  and  liability  to  me  by  reason, 
of  any  and  all  matters  in  any  way  relating  to  my  guardianship. 
In  Witness  Whereof  [etc.]. 

[Acknowledgment.'] 

No.  80. 

iAnte,  §  1045.] 

Revocation  of  Letters  of  Guardianship. 

I.  Petition. 
[Title.'] 

To  the  Surrogate's  Court  of  the  county  of  : 

The  petition  of  R.  M.,  an  infant,  respectfully  shows: 

I.  That  your  petitioner  is  an  infant  under  [or,  over]  the  age  of  fourteen- 
years  [or,  state  relationship  to  infant  —  or,  that  petitioner  is  a  surety  of 
guardian]. 

II.  That  on  the  day  of  ,  ,  one  M.  G.,  of  W.,  in  the  county 
of  S.,  was,  by  a  decree  of  this  court,  appointed  general  [or,  temporary] 
guardian  of  the  personal  property  [or  either]  of  your  petitioner  [or,  said  in- 
fant], and  letters  of  guardianship  were  thereafter  issued  to  said  M.  G.  by 
this  court. 

III.  [Set  forth  ground  of  removal,  e.  g.,  thus:]  That  said  guardian  has  re- 
moved from  the  State  of  New  York,  and  now  resides  at  ,  in  the  State 
of 


10()5  F()i;.Ms.  Xo.  81. 

Wherefore,  your  petitioner  prays  the  decree  of  this  court  revoking  said 
letters  of  jriiiircliaiisliip:  and  tliat  said  guardian  may  be  cited  to  show  cause 
why  such  a  decree  siiould  not  be  made. 

[Date.]  [Signature.] 

[Verification.] 

II.  Citation, 
[.idapt  from  ahorr  pitition   and  Xo.   5.] 

III.  Order   Removiuy   (luardian. 
[Title.] 

On  reading  and  filing  the  citation  heretofore  issued  in  this  matter,  return- 
able this  day,  with  i)roof  of  the  due  service  thereof  on  M.  G.,  the  guardian  of 
the  above-named  minor:  and  the  said  M.  G.  [not]  iiaving  appeared,  and  tlie 
surrogate  being  satisfied,  after  hearing  proofs  and  allegations  of  the  parties, 
as  to  the  truth  of  the  matters  stated  in  the  petition  of  A.  B.  in  this  proceeding, 
it  is 

Ordered  and  decreed,  that  the  said  M.  G.  be  removed  from  the  office  of 
guardian  of  the  person  and  estate  of  said  minor,  and  that  his  appointment 
heretofore  made  be  revoked.  [Hignaturc], 

Surrogate. 

No.   8i. 

{Ante,  §  1042.] 

Resignation  of  Guardian. 

I.  Petition. 
[Title.] 
To  the  Surrogate  of  the  county  of  : 

The  petition  of  M.  G.,  of  the  town  of  W..  county  of  S.,  respectfully  shows: 

That  heretofore  your  petitioner  was,  on  the  day  of  ,         ,   duly 

appointed  by  the  surrogate  of  said  county  the  guardian  of  person  and  estate 
of  R.  M.,  a  minor,  and  has,  as  your  petitioner  verily  believes,  conducted  her- 
self honestly  in  the  execution  of  her  trust. 

That  A.  G.  M.  and  E.  R.  M.  are  the  next  of  kin  of  said  minor,  residing  in 
this  county,  above  the  age  of  fourteen  years;  and  that  0.  B.  and  D.  R.  are  the 
sureties  in  the  official  bond  of  your  petitioner. 

That  your  petitioner  is  desirous  of  resigning  her  trust  as  such  guardian,  and 
that  her  letters  be  revoked,  for  the  reason  that  she  has  removed  from  this 
State  [or,  is  about  to  remove  —  or  other  caufie],  and  she  prays  that  she  may 
be  permitted  to  render  an  account  of  her  proceedings  as  such  guardian,  and 
that  the  same  be  judicially  settled,  to  the  end  that  a  successor  may  be  ap- 
pointed, and  that  your  petitioner  may  be  relieved  therefrom. 

[Date.]  ^  [Signature.] 

[Verification.] 

II.  Citation. 
[Adapt  from   Xo.  5.] 

III.  Order  for  Delivery  of  .Isscts  to   Surrogate. 
[Title.] 

It  appearing  to  the  satisfaction  of  the  surrogate,  that  M.  G.,  guardian  of 
the  above-named  minor,  lias,  in  all  respects,  conducted  liersdf  honestly  in  the 
execution  of  her  trust:  that  she  has  rendered  a  full,  just,  and  true  account  of 
her  proceedings  as  such,  and  that  the  interests  of  the  said  minor  would  not  be 
prejudiced  by  allowing  the  guardian  to  resign  her  trusi,  it   is 

Ordered,  that  said  M.  G.,  who  has  accounted,  deliver  over  all  the  books, 
papers,  money,  choses  in  action,  or  other  property  of  said  minor,  appearing 
in  her  hands  by  her  said  account  to  the  surrogate,  and  that  she  take  duplicate 
receipts  for  the  same.  [Signature], 

Surrogate. 


Xo.  62.  Fomis.  lOGG 

IV.  Decree  Revoking  Letters. 
[Title.] 

M.  G.,  guardian  of  ths  above-named  minor,  having  heretofore  petitioned 
this  court  to  be  allowed  to  resign  her  trust,  and  the  said  minor  having  been 
cited,  and  also  the  sureties  in  the  official  bond  of  the  petitioner,  and  such 
further  proceedings  having  been  had  tliat  the  said  M.  G.  rendered  her  account 
as  such  guardian,  and  the  said  AI.  G.  having,  in  accordance  with  the  order 
of  this  court,  delivered  over  to  the  said  surrogate,  all  the  books,  papers, 
moneys,  choses  in  action,  or  other  property  of  said  minor,  and  having  hied  in 
this  court  one  of  the  receipts  taken  therefor,  it  is 

Ordered  and  decreed,  that  the  said  M.  G.,  on  her  own  application,  has  been 
and  is  permitted  to  resign  her  trust  as  guardian  of  the  said  minor,  and  she 
is  discharged  from  any  further  custody  or  care  of  said  minor,  or  of  his  estate, 
and  the  letters  issued  to  said  guardian  be  and  the  same  are  hereby  revoked. 

[May  provide  for  a  successor,  as  thus:]  And  it  is  further  ordered,  that 
L.  R.,  of  ,  be  and  he  is  hereby  appointed  the  successor  of  the  said  JNI.  G., 

as  guardian  of  the  said  R.  M.,  upon  his  taking  the  oath  and  giving  the  bond 
required  by  law,  and  that  upon  so  doing  letters  of  guardianship  issue  to  him 
as  such  guardian. 

No.   82. 

[Ante,  §  1093.] 

Enforcement  of  Orders  and   Decrees   by   Attachment. 

I.  The  Attachment. 

The  People  of  the  State  of  New  York,  to  the  Sheriff  of  the  county  of  , 

greeting : 

We  command  you,  that  you  attach  W.  B.,  the  administrator  [etc.]  of  M.  B., 
deceased,  if  he  shall  be  found  in  your  bailiwick,  and  bring  him  jjersonally  be- 
fore our  surrogate  of  the  county  of  ,  at  the  surrogate's  office  of  the 
county  of  ,  on  the  day  of  ,  ,  to  answer  unto  us  for  cer- 
tain trespasses  and  contempts  against  us  in  not  complying  with  the  exigency 
of  a  citation  heretofore  duly  issued  by  our  surrogate  of  the  county  of  , 
directed  to  him,  requiring  him  to  apjiear  before  said  surrogate  on  a  certain 
day,  now  past,  and  render  an  account  of  his  proceedings  as  such  adjninistrator 
as  aforesaid,  or  show  cause  why  an  attachment  should  not  be  issued  against 
him,  and  duly  and  personally  served  on  the  said  W.  B.  more  than  days 
before  the  return  day  thereof,  as  appears  by  satisfactory  proof  of  such  service 
duly  taken  and  had  before  our  said  surrogate,  and  for  disobedience  to  which 
citation  this  attachment  is  issued.  Letters  of  administration  [etc.]  of  said 
M.  B.,  dei..eased.  having  been  heretofore,  in  due  form  of  law,  granted  and  is- 
sued by  our  said  surrogate  to  the  said  W.  B.  And  you  are  to  make  and  return 
to  our  said  surrogate,  in  the  surrogate's  court  of  the  county  of  ,  on  the 
day  of  ,  ,  at  the  surrogate's  office  in  aforesaid,  a  certifi- 
cate inider  your  hand,  of  the  manner  in  which  you  shall  have  executed  this 
writ;  and  ha\e  you  then  and  there  this  writ. 

In  Testimony  Whereof,  we  have  caused  the  seal  of  office  of  our  said  surro- 
gate to  be  hereunto  affixed. 

[l.  s.]      Witness   [etc.].  [Signature  of  surrogate.] 

[Indorsement :]    Let  the  administrator  within   named  give   a  bond   for  his 
appearance  to  answer  on  the  return  day  of  the  within  writ,  in  the  penalty  of 
dollars,  with  two  sufficient  sureties. 

[Hignature  of  surrogate.] 

II.  Order  Directing  Interrogatories. 
[Title:  Matter  of  Accounting,  etc.] 

It  appearing  to  the  court  that  W.  B.,  the  administrator  [etc.],  being  in 
contempt  for  not  a[)pearing.  personally  or  otherwise,  and  rendering  an  accoimt 
of  his  proceedings  as  such  administrator,  pursuant  to  a  citation  for  that  pur- 


lOOT  FoKMS.  Xo.  s2. 

])o.se  duly  issued  and  served  upon  liiiii,  a  writ  of  altafhnicul  liad  is-infd  a;,'ainsL 
iiini,   directed  to  tlie  sherilF  of  county,   rcturnaltle   tiiis   day.    wluTcupon 

llie  sheriff  returned  that  he  iiad  attaclied  the  said  \V.  B.,  and  liad  k-t  him 
at  lar<,'e  on  liail,  according'  to  a  bond  returned  witli  sucli  attachment  [or,  taken 
liis  l)ody,  and  tliat,  for  want  of  hail,  he  had  him  in  custody  before  the  court]  ; 
and  he  denying'  that  lie  is  <iuilly  of  the  misconduct  allejjjed  a-^'ainst  him: 

It  is  ouui:ueu,  that  interrogatories  specifying  the  facts  and  circumstance-; 
alleged  against  the  said  W.  B.  be  forthwith  filed  in  this  oflice,  and  that  a  copy 
thereof  be  served  on  the  said  W.  B. ;  and  that  he  j)ut  in,  immediately  after 
the  service  upon  him  of  such  copy,  written  answers  to  such  interrogatories, 
upon  oath,  and  lilo  the  same  in  this  office. 

And  it  is  fi'UTIIKU  ohdkkicd,  that  the  said  sherill'  detain  the  said  \V.  B.  in 
his  custody  until  the  further  order  of  this  court. 

III.  Interroqatories. 
[Title. 1 

Interrooatoriks  to  he  exliibited  for  the  examination  of  \V.  B.,  tin-  admin- 
istrator [etc.'\,  pursuant  to  an  order  made  in  tliis  matter  on  the  day 
of            ,         ; 

First   Intcrrogatorij.     ^^  ere  you,  or  were  you  not,  on  or   about   the 
day  of  ,  last,  or  at  any  other  and  what  time,  served  with  a  citation  to 

appear  personally  before   the  surrogate  of  county,   on   the  da\'  of 

inst.,  at  ten  o'clock,  A.  m.,  at  the  courthouse  in  ,  and   render  an 

account  of  your  proceedings  as  administrator  [rtc]  of  'SI.  B.,  deceased? 
\\nien  and  by  whom  was  snch  service  made?  Answer  tliis  interrogator}'  fully 
and  particularly. 

Second  Intcrrofiatort/.  Is  not  the  citation  now  shown  and  read  to  you  the 
ono  served,  and  the  cojiy  whereof  was  so  left  with  you?     Answer  full\. 

Third  Interrofiatory.  Did  you,  or  not,  personally  or  otherwise,  apjiear  or 
render  your  account  as  such  administrator  or  otherwise,  pursuant  to  the  exi- 
gency of  said  citation?  Did  you.  on  that  day.  show  cause  why  an  attachment 
should  not  be  issued  against  you?    Answer  fully. 

[t^iffnature  of  siirropate.] 

IV.  Anstvers  to  Interrogatories. 
[Title.] 

Answers  to  the  interrogatories  exhibited  and  filed  in  the  above  matter, 
vnder  the  oath  of  W.  B.,  the  administrator  aforesaid. 

To  the  first  interrogatory  he,  answering,  says:  I  was,  on  or  about  tlie 
day  of  ,  last,  duly  served  with  such  a  citation  as  is  referred  to  in  this 

ii-terrogatorv.  A  copv  of  the  citation  was  left  with  me.  The  service  was 
made  by  H.  S. 

To  the  second  interrogatory  he,  answering,  says:  It  is  the  same  citation  ajid 
of  which  a  copy  was  left  with  me. 

To  the  third  interrogatory  he,  ansMcring.  says:  T  did  not.  personally  or 
otherwise,  appear  or  render  any  account  as  such  administrator,  or  otherwise, 
pursuant  to  the  exigency  of  the  said  citation.  I  di^l  not,  on  that  day,  show 
cause  why  an  attachment  should  not  issue  against  me. 

[Jurat.]  [Signature] 

V.  Coiutnitment. 
[Title.] 

A  writ  of  attachment  having  been  heretofore  issued,  out  of  and  under  tho 
*-eal  of  this  court,  agaiiist  W.  B.,  the  administrator  [etc.]  of  M.  B..  deceased, 
for  his  contempt  in  not  ap])earing  and  rendering  an  account  as  such  admin- 
istrator  as   duly   cited   and   ordered   to   do,   directed   to   the   sheriff   of 
county,   and  returnable  the  day  of  .   instant,  and   the  said  sherifT 

Laving  returned  that  he  had  nttach.ed  said  W.  B..  and  taken  his  body,  and  thai, 
for  want  of  bail,  he  had  him  in  custody  before  the  court  \nr,  and  had  let  him 
at  large  on  bail,  according  to  a  bond  returned  with  such  attachment!  ;  and 
the  said  W.  B.  havinrz  been,  bv  virtue  of  such  attachment,  nersonallv  before 


Xo.  83.  "  FoKMs.  1068 

the  ooint,  on  this  doy,  and  denyino-  the  alleged  contempt,  it  was  thereupon 
ordered  that  interrogatories  specifying  the  facts  and  circumstances  alleged 
against  the  said  W.  B.  shoiild  be  forthwith  filed  in  this  office,  and  that  a  copy 
thereof  should  be  served  on  him,  and  that  the  said  W.  B.  should  put  in  writ- 
ten answers  to  sucli  interrogatories,  upon  oath,  immediately  after  the  service 
of  such  interrogatories  upon  hiin,  and  file  the  same  in  his  office.  And  it  now 
appearing,  from  said  interrogatories  and  answers  thereto,  and  proofs  in  this 
matter,  that  the  said  W.  B.  has  committed  the  contem])t  with  which  he  is 
charged,  and  this  court  now  adjudging  him  to  have  been  guilty  of  the  mis- 
conduct alleged,  and  that  such  miscon<luct  was  calculated  to,  or  did,  actually 
defeat,  impair,  impede,  or  prejudice  the  rights  of  the  legatees  under  the  will 
in  this  matter. 

It  is  ordered,  that  a  tine  of  $25  be,  and  the  same  is  hereby,  imposed  upon 
the  said  W.  B.  for  his  said  misconduct. 

And  it  is  further  ordered,  that  the  said  W.  B.  do  pay  the  charges  and  fees 
for  serving  the  citation  in  this  matter,  amounting  to  $10,  and  also  pay  to  the 
sheriiT   of  the  county  of  his  legal  charges   and   fees   for  executing   said 

warrant  of  attachment. 

And  it  is  fi'iither  ordered,  that  the  said  W.  B.  be,  and  he  is  hereby,  di- 
rected to  stand  committed  to  the  common  jail  of  the  county  of  ,  there 
to  remain  charged  upon  this  contempt,  until  he  shall  have  rendered  an  ac- 
count of  his  proceeding  as  such  administrator  [etc.]  of  said  M.  B.,  deceased, 
and  paid  such  fine,  charges,  and  costs ;  unless  the  court  shall  see  fit  sooner 
to  discharge  him.     And  that  a  warrant  issue  for  that  purpose. 

[Signature  of  surrogate.'] 

No.   83. 

[Ante,  §  1094.] 

I.  Order  to  Pay  Money. 
[Title.] 

On  reading  and  filing  the  order  to  show-  cause  herein,  dated  ,         ,  and 

the  affidavits  of  ,  on  Avhicli  the  same  was  based,  and  due  proof  of  the 

due  service  thereof  on  John  Jones,  temporary  administrator ;  and  on  read- 
ing and  filing  the  affidavit  of  John  Jones,  submitted  in  opposition  to  said 
motion,  aftei;  hearing  for  the  motion,  and  no  one  appearing  on  behalf  of 

said  Jones  to  oppose. 

Ordered,  that  the  said  motion  be,  and  the  same  hereby  is.  granted. 

Ordered,  that  John  Jones,  as  temporary  administrator  of  the  above  estate, 
pay  to  ,  administrator  with  the  will  annexed,  of  ,  deceased,  or  to 

Messrs.  Jackson  &  ^Martine,  his  attorneys,  within  five  days  from  the  service 
on  him  of  a  copy  of  this  order,  the  sum  of  tA\-o  thousand  dollars,  and  that 
upon  such  paym.ent,  and  production  of  a  receipt  showing  the  same,  to  the  ref- 
eree to  whom  has  betm  referred  the  settlement  of  said  temporary  adminis- 
trator's account,  the  said  administrator  be  credited  with  that  amount,  the  said 
sum  of  $2,000.  After  the  same  is  so  placed  in  the  hands  of  said  administrator, 
to  bo  subject  to  the  payment  of  sucli  sum  as  may  be  found  due  said  tem- 
]'orary  administrator  for  commissions,  disbursements,  or  any  other  lawful 
costs  and  charges.  [Signature  of]. 

Surrogate. 

n.  Order  for  Warrant  of  Commitment  for  Nonpayment  of  Money. 
[Title.] 

Oil  reading  and  filing  the  alTidavits  of  ,  administrator  with  the  will 

annexed  of  ,  deceased,  and  tlie  affidavit  of  ,  showing  due  personal 

service  on  said  John  Jones,  of  a  certified  copy  of  the  order  made  herein,  on  thfr 
day  of  ,         ,  and  that  more  than  five  days  have  elapsed  since  such 

service;  and  also  showing  a  demand  of  the  payment  of  the  moneys  mentioned 
:n  said  order  of  said  -John  Jones  personally,  and  also  showing  the  violation 
by  said  .John  Jones  of  said  order,  and  his  neglect  and  refusal  to  pay  said 
jnoneys  or  any  part  thereof,  which  said  order  directed  said  John  Jones  to  pay 


IOC!)  F(.i;.Ms.  Xo.  S-t. 

the  said  ,   as   administrator,   otc,   Avitliin   fivo   days   from   the   sorvioo  on 

)iim  of  a  copy  of  said  or(icr,  tin-  sum  of  two  tlioiisand  dollars;  and  on  rcadinj^ 
also  the  order  of  tlic  j^'inoral  term  of  the  supicmc  court,  lirst  dej>artment, 
•dated  the  day  of  ,         ,  alhrmin^  said  order  of  ,         ,  and  the 

<;osts  of  this  proceedinfj;   to  eomjiid   sueli   payment,   being  now   fixed   at 
<lollars. 

No^^■,  on   motion   of  Messrs.   Jaekson   &   Martine,   attorneys   for   said  , 

administrator  as  aforesaid, 

It  is  o.>ii)i;UEi),  that  a  precept  he  issued  out  of,  and  under  tlie  seal  of  this 
court,  directed  to  the  sheiitV  of  the  ef)iuity  of  New  ^'ork,  commandinj;  liim  to 
take  the  hody  of  the  said  John  Jones,  if  he  shall  he  fouml  in  his  bailiwick, 
and  cominit  him  to  the  common  jail  of  said  county  of  New  York,  and  to  keep 
and  detain  liim  therein,  under  his  custody,  until  he  shall  \y.iy  the  sum  of  two 
thousand  dollars,  as  reijnired  by  said  order,  and  also  the  further  sum  of 
dollars,  for  the  costs  and  expenses  of  the  proceeding  to  compel  such  payment, 
together  witli  the  sheriff's  fees  on  such  precept. 

III.   Warrant  of  Commitment. 
The  People  of  the  State  of  New  York, 

To  the  Sheritf  of  the  county  of  New  York,  greeting: 

Whereas,  on  the  day  of  .         ,  by  a  certain  order  made  in  our 

surrogate's  court  for  the  county  of  New  York,  in  a  certain  proceeding  depend- 
ing therein,  entitled  "In  the  Matter  of  the  Accounting  of  John  Jones,  as 
temporary  administrator  of  the  estate  of  ,  deceased,"'  it  was  ordered  that 

the  said   John   Jones   pay  to  ,   administrator   with    the   will   annexed    of 

,  deceased,  or  to  IMessrs.  Jackson  &  Martine,  liis  attorneys,  the  sum  of 
two  thousand  dollars,  within  five  days  from  the  service  upon  him  of  a  copy 
of  said  order. 

And  Whereas,  it  appears  that  a  certified  copy  of  said  order  has  been  sei-ved 
upon  said  John  Jones  more  than  five  days  since,  and  that  a  personal  demand 
lias  been  made  on  the  said  John  Jones  for  the  payment  of  the  said  sum  of 
two  thousand  dollars,  by  and  on  behnlf  of  the  said  ,  administrator,  as 

ii foresaid,  and  by  and  on  behalf  of  ^fr^ssis.  Jackson  &  IMartine,  his  attorneys. 
fl.nd  that  the  said  John  Jones  has  hitherto  neglected  and  refused,  and  still 
neglects  and  refuses  to  pay  the  same. 

Am)  Whereas,  an  order  was  made  herein  on  the  day  of  .         . 

<lirecting  a  warrant  to  issue  to  commit  the  snid  Jolui  Jones  to  tlic  cdinmon 
jail  of  the  said  comity,  there  to  be  kept  and  detnined  until  he  shall  pay  the 
s.aid  siun  of  mone\',  together  Avilli  the  sherilf's  fees  herein. 

Now,  therefore,  we  comn'.and  you,  thnt  vou  take  the  body  of  the  said  John 
Jones,  if  he  shall  be  found  in  your  bailiwick,  and  commit  him  to  the  com- 
mon jail  of  the  county  of  New  S'ork,  and  keep  and  detain  him  therein,  under 
your  custody,  until  he  shall  have  fully  paid  the  said  sum  of  two  thousand 
<lollars,  as  required  by  said  older,  and  also  your  fees  hereon,  or  until  the  said 
-John  Jones  be  dischaiged  according'  to  law. 

And  you  are  to  return   this  writ  and  mandate  on   the  day  of  , 

,  to  this  court,  together  with  a  cortiilcate,  under  your  hand,  of  the  man- 
ner in  which  you  shall  have  executed  the  same. 

Witness,  ,  surrogate  of  tiie  county  of  New  York,  at  th(>  comity  court- 

house, in  the  city  of  New  York,  the  day  of  , 

\_8eal.^  [Signature  of}. 

Surrogate. 
No.   84. 

[Ante,  §  1122.] 
Probate  of  Heirship. 

I.    The  Petition. 

XAllege  death  and  other  jurisdietional  fact.<i.  aft  in  A'0.5.  10  and  42.1 
J_ff  the  court  has  already  acqtdred  jurisdirt'ov   of  the  estate]   That  on  the 
daj'  of  ,         ,  this  court  acquired  jurisdiction  of  the  estate  of  said 


'No.  84.  Forms.  1070 

M.  X.,  by  virtue  of  the  aforesaid  facts  and  the  following  facts,  to  ^vit:  that, 
on  said  day,  a  verified  petition  for  a  decree  awarding  t!ie  issue  of  letters  of 
administration  \or,  of  temporary  aduiinistration  —  or,  for  a  decree  admitting- 
to  nroiiate  a  paper  Avritinij  propounded  as  the  last  will  and  testan.ent  of  said 
M.  X.l,  was  dulv  filed  in  this  court,  by  C.  D.,  stating  the  foregoing  facts,  and 
tliereupon  all  t!ie  aforesaid  [heirs  and  next  of  kin  and  widow]  were  duly 
cited  or  aiipearcd  in  this  court  to  show  cause  \\hy  such  a  decree  should  not  be 
made.  [Or  if  no  .mrrofiate's  cov.rt  has  acquired  jurisdiction,  allege,  instead: 
That  your  petitioner  is  informed  and  believes,  tliat  no  application  has  been 
made  by  any  one,  to  any  survogate's  court  in  this  State  having  jurisdiction, 
for  probate  oi  any  alleged  a^  ill  of  said  M.  X.,  or  for  letters  of  administration 
or  temporary  administration  on  his  estate:  and  your  petitioner  verily  believes, 
that  no  surrosfate  or  surrogate's  court  of  this  State  has  acquired  jurisdiction 
of  the  estate  of  said  M.  X.j 

That  the  said  il.  X.  died  seized  in  fee  of  the  following  described  premises: 
[description  in  full,  with  location  shoicing  the  county^. 

[State  interest  or    hare  of  parties  claiming;  inheritance ;  see  No.  16.] 

\\nEREFORE,  your  petitioner  prays  that  a  decree  be  made  herein,  establish- 
ing the  right  of  inheritance  to  said  re;?]  property:  and  that  all  the  heirs  of  the 
decedent  may  be  cited  to  attend  the  probate  of  that  right. 

[Date.]  [l^ignature.] 

[Verificalion.] 

II.  Citation  to  Attend  Prolate  of  Heirship. 

[The  command  is:]  to  be  and  appear  personally  before  our  surrogate  at  hi.^ 
office  [etc.],  then  and  there  to  attend  to  the  probate  of  the  right  of  inheritance 
of  the  heirs  of  il.  X.,  deceased,  in  said  real  property. 

III.  Decree  of  Probate  of  Heirship. 
[Title.] 

[After  reciting  the  filing  of  the  petition,  the  issue  and  service  of  citation,, 
and  the  appearances  on  the  hearing,  proceed  as  foUoics:]  And  the  said  surro- 
gate having  heard  the  allegations  and  proof  of  the  parties,  and  there  being  no 
contest  respecting  the  heirship  of  any  party,  nor  respecting  the  share  to  which 
any  party  is  entitled  as  an  heir  of  said  M.  X.,  and  the  surrogate  having  in- 
quired into  the  facts  and  circumstances  of  the  case;  and  the  said  A.  B.,  having 
established,  by  satisfactory  evidence,  that  on  or  about  the  day  of  , 

,  said  ]\I.  X.  died  at  [the  city  of  Xevv  York],  which  at  the  time  was  his 
place  of  residence  [or  other  facts  giving  the  surrogate's  jurisdiction]  ;  and 
that  said  M.  X.  died  seized  of  the  real  property  in  said  citation  mentioned  and 
hereinafter  described;  and  that  said  M.  X.  died  intestate  [or,  without  having 
devised  the  real  property  in  said  citation  mentioned  and  hereinafter  described, 
to  any  specific  person  or  persons]  ;  that  there  are  [five]  and  only  [five]  heirs, 
of  the  said  M.  X.  entitled  to  inlierit,  in  the  manner  hereinafter  mentioned,  the 
real  property  in  ,  of  which  M.  X.  died  seized  and  intei-tate  [or,  without, 

etc.,  as  ahore]  ;  and  that  said  heirs  are  L.  X.,  aged  years,  a   [son]   of 

said  deceased,  who  resides  at  [Paris,  in  the  Republic  of  France]  ;  K.  X.,  aged 

years,   a    [daughter]   of  said   deceased,  who  resided   at  X''o.         , 
street,  in  the  city  of  Brookl^Ti,  county  of  Kings,  and  State  of  Xew  York  [and 
so  on],  each  of  whom  are  proved  to  be  entitled  to  one- [fourth]   share  in  said 
real  property;  and  O.  P.,  aged  years,  and  Q.  P.,  aged  years,  who 

reside  at  Xo.  ,  street,  in  said  city  of  ,  who  are  [grandchildren 

of  said  deceased,  and  children  of  his  deceased  daughter  J.  P..  formerly  J.  X.], 
each  of  whom  are  proved  to  be  entitled  to  one- [eighth]  share  in  said  real 
property.     Xow,  on   motion  of  A.  T.,  attorney   [etc.]. 

It  is  ordered,  adjudged,  axd  decreed,  1.  That  the  right  of  inheritance  of 
[naming   heirs],  in   and  to  the  real  property  situated  in   the  of  ; 

of  which  :M.  X.,  late  of  the  [city  and  county  of  Xew  York],  died  seized,  and 
which  is  hereinafter  described,  has  been  established  to  the  satisfaction  of  the 
surrogate  of  [Xew  York]  county,  in  accordance  with  the  fact  hereinbeforo^ 
recited;  and  that  said  L.  X.,  K.  X.   [etc.],  are  each  entitled  to  one  undivided 


1071 


iMjII.MS. 


No.  s; 


[fourth]  part  or  share,  and  said  O.  P.  and  Q.  P.  are  eacli  entitled  to  one  un- 
divided [eighth]  part  or  share  of  said  real  property,  which  said  real  property 
is  l>ounded  and  described  as  follows:    [descriptioti.] 

•J..   That   said  pay  to  the  sum  of  dollars,   for   his   costs  and 

disbursements  herein. 

[Signature.} 

No.   85. 

[Ante.  S   1118.] 


Bill  of  Costs.i 


[Title] 

COSTS. 

Costs  pursuant  to  section  2561 
of  the  Code  of  Civil  Pro- 
cedure     

Contest    

No  contest   

Days  occupied  in  the  trial  or 
hearing,   less   tico,  and  less 

adjournments    

^^otion  for  new  trial   

Allowance  to  accounting  party 
under  sectif'/  25(52,  Code  of 
Civil  Procedure,  viz. : 

Days  occupied  in  trial  or  hear- 
ing, less  adjournments 

Days  necessarily  occupied  in 
preparing  account 

Days  necessarily  occupied  in 
otherwise  preparing  for 
trial    

Total  Costs  and  Allowance.. 
Disbursements 


disbursements. 


For  servinf^  citation  on  par- 
ties     

For  publication  citation.  Law 
Journal    

For  publication  citation 

For  referee's  fees 

For  ajipraiser's  fees   

For  stenographer's  fees 

For  affidavits  and  acknowledg- 
ments   

For  postage    

For  certified  copies,  orders 

For  certified  copy  decree 

For  satisfaction  of  decree 

For  certificate  of  filing  satisfac- 
tions    

For  necessary  copies  of  papers, 
as  follows: 


For  attendance  of  witnesses. 


Total 


STATE   OF  NEW   YORK,  )  ^^  . 
County  of  ,         j-  ■  •  •  • 

A.  B.,  being  duly  sworn,  says  that  he  is  [managing  clerk  for]  the  attorney 
and  counsel  for  [the  executors]  in  the  above-entitled  proceeding;  that  the 
foregoing  disbursements  have  been  actually  made  or  will  be  necessarily  in- 
curred therein,  by  or  in  behalf  of  the  said  [executor].  That  such  disburse- 
ments are  correctly  stated,  and  are  for  reasonable  and  necessary  expenses  in 
this  proceeding. 

Deponent  further  says  that  the  time  stated  in  the  foregoing  bill  of  costs  as 
having  been  occupied  as  therein  specified,  was  actually,  substantially,  and 
necessarily  so  occupied  and  employed  in  this  matter  by  deponent,  and  that 
the  time  occupied  on  each  day  in  the  rendition  of  the  services  aforesaid,  and 
their  nature  and  extent  in  detail  are  as  hereinafter  set  forth,  (tpposite  the  date 
of  the  rendition  of  the  services  and  imder  the  appropriate  head  of  particular 
class  of  services  rendered  in  the  above-entitled  proceeding. 

That  no  compensation  has  been  paid  or  given  out  of  the  funds  of  the  estate 
of  the  said  deceased,  for  or  on  account  of  the  services  specified  herein. 

[Jurat.] 

1  No  indorsement  of  this  bill  is  required.  See  §§  2561  and  2562  of  the  Co.  Civ.  Proe.  and 
Rule  22  of  Surrogate's  Court,  of  New  York  county. 


JSJo.  86.  Forms.  1072 

No.   86. 

[Ante,  §  1128.] 
Appeals.! 

I.   Notice  of  Appeal. 

J^Title  as  in  surrogate's  court,  in  name  of  the  proceeding  therein.'] 

Take  notice,  that  S.  R.,  one  of  the  legatees  named  in  the  last  Avill  of  M.  N., 
deceased,  appeals  to  the  general  term  of  tlie  supreme  court,  in  the  [first]  de- 
jiartment,  from  the  decree  entered  herein  on  tlie  day  of  ,         ,  and 

from  each  and  every  part  thereof  [or,  if  from  a  portion  only,  specify  what 
portion]. 

[Date.]  [Signature   and   address  of]. 

Attorney  for  S.  R. 
To  Hon.  ,  Surrogate  of  [Xew  York]  county. 

0.  P.,  Attorney  for  X.  Y., 

Executor,  etc.,  of  A.  B.,   deceased. 
[Xames  of  parties,  if  any,  who  have  not  a2)peared  by  attorneys.] 

II.  Undertaking  on  Appeal. 
ITitle.] 

Whereas,  on  the  day  of  ,         .  this   court   made   a   decree    [or, 

order]   in  this  matter  [state  briefly  the  result  sufficieyitly  to  identify  it]. 

And  Whereas,  W.  V.,  feeling  aggrieved  thereby,  intends  to  appeal  there- 
from to  the  supreme  court: 

Xow,  THEREFORE,  we,  E.  F.  [specifying  residence  and  occupation],  and  G.  H. 
[specifying  residence  and  occupation],  hereby,  pursuant  to  the  statute,  jointly 
and  severally  undertake  to  and  with  the  people  of  the  State  of  Xew  York,  that 
the  appellants  will  pay  all  costs  and  damages  which  may  be  awarded  against 
them  upon  the  appeal,  not  exceeding  two  hundred  and  fifty  dollars. 

[Date.]  [Signatures.] 

[Acknowledgment ;  Affidavit  of  sufficiency;  and  Approval  of  judge.] 

III.  Same,  on  Appeal  from  Money  Decree. 

Whereas,   etc.,   [reciting  decree  and  appeal,  as  above]. 

Xow,  THEREFORE,  we  [specifying  residence  and  occupation  of  stireties], 
liereby,  pursuant  to  the  statute,  jointly  and  severally  undertake  to  and  with 
the  people  of  the  State  of  Xew  York,  in  the  sum  of  dollars,  that  if  the 

decree,  or  any  part  thereof,  is  affirmed,  or  the  appeal  is  dismissed,  the  appel- 
lants will  pay  all  the  costs  and  damages  which  may  be  awarded  against  them 
upon  the  appeal,  and  will  pay  [or,  deposit  —  or,  distribute]  the  sums  so  di- 
rected to  be  paid  [or,  collected]  by  the  decree  [or,  and  will  deliver  the  prop- 
erty so  directed  to  be  delivered  by  the  decree],  or  the  part  thereof  as  to  which 
the  said  decree  is  affirmed. 

[Date.]  [Signature.] 

1  For  forms  of  notice  of  appeal  ia  proceedings  to  enforce  transfer  tax,  see  Form  66, 
XV  and  XVIII,  ante. 


INDEX   TO    FORMS 


[1078] 


INDEX  TO  FORMS. 


[References  are  to  pages.] 

ACCOUNTING,    voluniary,  petition  for,  1043. 

citation,   1044. 

waiver  of  service  of  citation,    1044. 
compulsory,  petition  for,   1044. 

answer   of    representative,    1044. 

order  for   account inj^,    1044. 
intermediate,  order  to  sliow  cause  for,  1045. 

order  discharging  order  to  show  cause,  1045. 

order   for  account,    1045. 
account,  form  of,   1040. 
oath  to  account.s,  1047. 
objections  to,  1047. 
affidavit  for  order  directing  examination  of  executor,  1048. 

order  thereon,   1048. 
order  of   reference,    1048. 
referee's  report,    1048. 
report  of  special  guardian,   1049. 
exceptions   to   referee's   rejiort,    1049. 
notice  of  motion  to  confirm  report,   1050. 
afTidavit  of  reguhirity,  wiicre  no  contest,   1050. 
decree   settling    accounts,    1050. 
release  of  representative,   1051. 
testamentary  trustee,  petition  for  voluntary,   1052. 

account,   105.3. 
guardian.     Sec    Guardian. 
ADMINISTRATOR.     See  Letters. 

with  will  annexed.     See  Letters, 
de  ho)iis  iioii.     See  Letters. 
ANCILLARY,  administrator.     See  Letters. 
execulor.     See  Letters. 
administrator  c.  t.  a.     See  Letters. 
guardian.      See   Guardian. 
APPEAL,  notice  of,    1072. 

in  transfer  tax  proceeding.     See   Transfer  Tax. 
undertaking  on,  general  form,   1072. 

a])peal  from  money  decree,  1072. 

appeal  in  transfer  tax  proceeding,   1024. 
APPEARANCE,  notice  of,  05.3. 
ATTACHMENT  to   enforce   decree,    10(5(5. 

order   directing   interrogatories,    1066. 
interrogatories.   1007. 
answer  to   interrogatories,   1067. 
commitment,    1067. 

BOND,  of  executor  or  administrntor.  085. 
affidavit  of   surety,   086. 
petition  for  leave  to  dci'osit  securities,  to  reduce  penalty  of,  907, 

order   allowing   deposit.    007. 

receipt  of  depositary  of  securities,  098. 

1"1075] 


1076  Index  to  Forms. 

BOND  —  coniimicd. 

petition  to  compel  filing  of  new  bond,  998. 

order  thereon,  999. 

decree  revoking  letters  on  failure  to  give  new  bond,  999. 
release  of  sureties,  petition  for,  999. 

citation  thereon,  999. 

decree   releasing  sureties,   999. 
action  on,  after  letters  revoked,  petition  for  leave,  1000. 

order   permitting  suit,    1001. 

same;  in  action  by  the  People,  1001. 
of  representative  on  sale  of  lands,  etc.,  1033. 
of  guardian  of  property  and  person,  1056. 
of  legatee,  on  payment  within  year,   1027,    1028. 
of  general  guardian  on  receipt  of  legacy,   1028. 

CERTIFICATE,  of  disqualification  of  surrogate,  947. 

of  appraiser's  fees  in  transfer  tax  proceedings,  1020. 

of  probate,   971. 
CITATION,  AND  SERVICE  THEREOF. 

petition  for  citation,  general  form,  949. 

order  for  citation,  949. 

citation,  general   form  of,  949. 
to  attend  probate,  950. 

order  for  service  by  publication,  951. 
same ;  shorter  form,  952. 

affidavit  for  additional  service  on  infant  or  incompetent,  950. 

order  for  additional  service,  950. 

affidavit  of  personal  service,  953. 

of  mailing,  in  case  of  publication,  953. 

waiver  of  service,  954,  1044. 

admission  of  service,  954. 

See  Various  Proceedings. 
COMMISSION,  interrogatories  upon,   957. 

waiver   of   cross-interrogatories,   958. 
COMMITMENT.     See  Attachment ;  Money. 
COMPROMISE    OF   DEBTS.     See   Debts". 
COSTS,  bill  of,  1071. 

DEBTS,  publication  of  notice  to  creditors,  application  for,  1009. 

order  to  publish,  1009. 

notice  to  creditors  to  present  claims,  1009. 

proof  of  claim,  1010. 

notice  of  rejection  of  claim,  1010. 

consent  to  determination  of  claim  by  surrogate,   1010. 

agreement  to  refer  claim,  1010. 

order  of  reference,   1010. 

report  of  referee,  1011. 

judgment   on  report,   1011. 
compromise  of,  petition  for  leave,  1011. 

order  authorizing  compromise,  1012. 
execution  on  judgment  against  executor,  petition  for  leave  to  issue, 
1012. 

notice  of  application,  1013. 

order  to  show  cause.  1013. 

undertaking  by  legatee,  etc..  before  execution,   1014. 

order  that  execution  issue.  1014. 

on  judgment  against  decedent,  petition  for,  1015. 

answer  of  representative.  lOlfi. 

decree  allowing  execution.  1016. 
compelling  payment  of.  petition  for,  1025. 

citation   thereon.   1026. 

decree  for  payment,  1026. 

execution  to  enforce  decree,  1027. 


Index  to  I^'okms.  1077 

DEBTS  —  contimtrd. 

application  of  real  estate  to  pay,  petition  for,  1029. 

creditor's  notice  of  j)endeney  of  action,  W.i\. 

order  directinff  accounting  by  representative,  1031. 

order  for  citation,    10:52.  ^ 

citation,  10:i:i. 

bond  of  representative,   ]0.'J3. 

order  ap])ointing  special  <ruanlian,  1033. 

order  for  jury  trial,   1033.  i 

order  appointing  appraisers,  1033. 

oath  of  ai)praisers,   1034. 

report  of  appraisers,    1034. 

verification  of  rejiort,   1034. 

decree  directing  sale,  etc.,   1034. 

decree  for  lease  or  mortgage,  1037. 

order  directing  execution  of  decree,   1037. 

order  a])pointing  freeholders,   1037. 

notice  of  sale,  1037. 

report  of  sale,  1038. 

order  contirming  or  vacating  sale,  1038. 

representative's  deed,  1039. 

notice  to  widow  as  to  satisfaction  of  dower.  1040. 

consent  of  widow  to  accept  gross  sum.  1040. 

order  for  publication  of  notice  of  distrilnition,  1040. 

notice  of  distribution,   1041. 

order  for  ])ublication  of  notice  of  distribution  of  surplus  money 
paid  into  8urrog-ate"s  Court,  1041. 

citation   in  such  cnse,   1042. 

entry  of  demands  found  due,   1042. 

order  of  distribution,  1043. 
DEED  of  representative  of  lands  sold,  etc.,   1039. 
DEPOSIT  of  property,  where  executors  disagree,  petition,  1006. 
order  to  show  cause,  1006. 
order  for  deposit,  1006. 
DEPOSITIONS.     See  Examination ;  Prolate. 
DISCOVERY  of  property  withheld,  petition  for  inquiry,  1007. 
citation  thereon.    1007. 
order  for  examination,  1007. 
answer  to  ])etition.   1007. 

order  as  to  requisites  of  bond  to  prevent  decree,  1008. 
bond  to  prevent  decree,   1008. 
decree  for  delivery,   1008. 
warrant   to   seize   property,  1008. 

EXAMINATION  of  infirm  witnesses,  affidavit  to  obtain,  956. 

order  for  examination,   950. 

notice    of,    950. 

record  of,  957. 

certificate  of  surrogate  to,  957. 

of  foreign  witness,  interrogatories.  957. 

waiver   of  cross-interrogatories,    958. 

of  executor  on  accounting,  affidavit  and  order  for,  1048. 

of  witnesses  on  probate.     See  Probate. 
EXECUTION.     See  Dchts. 

GUARDIAN,  petition  of  infant  for.   1054. 
affidavit  of  third  person.    1055. 
consent   of   appointee,    1055. 
consent  of  jiarent.  etc.,   1055. 
oath  of  guardian,    1055. 
decree  appointing,   1055. 
bond  of  guardian  of  j)ropcrty.   1056. 
bond  on  receipt  of  legacy,  1028. 


1078  Index  to  Forms. 

GUARDIAN  —  continued. 

bond  of  guardian  of  person,  1050. 
letters  of  guardianship,   1050. 
temporary,  petition  for,   1057. 
testamentary,   consent   of   guardian,   1057. 

oath,  1058. 

letters,   1058. 
ancillary,  petition  for,    1058. 

decree,  1059. 

letters,  1059. 
inventory  of,  order  to  file,   1000. 

affidavit  of  failure  to  file,  1000. 

order  appointing  special  guardian  to  prosecute,  1060. 

annual  inventory,  1001. 
accounting,  petition  for  voluntary,   1061. 

petition  for  compulsory,  1002. 

account,  1002. 

oath  to  account,  1063. 

decree  settling  account,  1063. 

release  of  guardian  by  ward,  1064. 
revocation  of  letters,  petition,  1064. 

citation,  1065. 

order  revoking  letters,  1065. 
resignation,  petition  for,  1065. 

citation,  1065. 

order  for  delivery  of  assets  to  surrogate,  1066. 

decree  accepting  resignation,    1066. 

HEIRSHIP,  probate  of.     See  Prolate. 

INTERROGATORIES.     See  Attachment;  Commission. 
INTERVENTION  OF  PARTIES.     See  Probate. 
INVENTORY,  application  for  appointment  of  appraisers,  1001. 

order  thereon,   1001. 

oath  of  appraiser,  1001. 

notice   of    appraisal,    1002. 

inventory,  1002. 

oath  to  inventory.  1004. 
petition  for  further  time  to  return  inventory,  1004. 

order  thereon,  1004. 

affidavit  of  failure  to  return,  1004. 

order  to  return  or  show  cause,   1005. 
petition  for  order  to  set  apart  exempt  articles,   1005. 

citation  thereon,  1005. 

decree  to  set  apart  or  pay  value,  1005. 
of  guardian.     See  Guardian. 

JURY  TRIAL,  order  for,  in  proceedings  to  sell  lands,  etc.,  1033. 

LEGACY,  petition  for  payment  of,  1025. 

citation  thereon,  1026. 

answer  of  executor,  1020. 

decree  for  payment,  1026. 

bond  to  refund  legacy  paid  pursuant  to  decree,  1027. 
to  refund,  where  legacy  paid  within  year,   1028. 
on  payment  of  legacy  to  general  guardian,  1028. 
LETTERS,  testamentary,  renimciation  of,  973. 

retraction  of  renunciation,   074. 

oath  of  executor  or  administrator,  074. 

petition   to  compel  executor  to  qualify.   074. 

order  thereon.  975. 

order  that  execiitor  be  deemed  to  have  renounced,  975. 

form  of  letters  testamentary,  975. 


Index  to  Forms.  1079 

LETTERS  —  continued. 

supplementary,  petition  for,  975. 

order  for  supplementary  letters,  975. 
affidavit  of  intention  to  object  to  issue  of  letters,  976. 
objections  to  f^rant  of  letters,  970. 
answer   to   objections,   977. 
order  for  inciuiry  and  stay  of  letters,  977. 
order   on    ol)jections,   977. 
ancillar}/,  on  foreign  probate,  petition  for,  978. 
allidavit  as  to  heirs,  legatees,  etc.,  979. 
exemplification  of  record,  979. 
citation,  979. 
decree,  979. 
letters,  form  of,  980. 
administration  c.  t.  a.,   petition  for,  980. 
renunciation  of,  981. 
decree,  981. 
letters,  form  of,  981. 
ancillari/  letters  of  administration  c.  t.  a.,  petition  for,  982. 

letters,  form  of,  982. 
administrativn,  letters  of,  petition  for,  982. 
renunciation  of,  983. 
consent  that  another  be  joined,  98.3. 
allidavit  as  to  heirs,  etc.,  983. 
citation,  983. 
decree,  983. 
letters,  form  of,  984. 
same;  shorter  form,  985. 
administration  de  bonis  non,  petition  for,  986. 
decree,  986. 
letters,  form  of,  986. 
ancillary  letters  of  administration,  petition  for,  987. 
decree,  987. 
letters,  form  of,  987. 
public  administrator,  letters,  etc.,  notice  of  application,  990, 

affidavit    on    application  for,  990. 
temporary  administration,  notice  of  motion  for,  990. 
allidavit  for  use  on  motion,  990. 
petition,  in  case  of  absentee,  991. 
order  for  letters,  991. 
letters,  form  of,  992. 
guardianship.     See  Guardian, 
revocation  of.  petition  for,  994. 

order  enjoining  executor,  994. 

order  revoking  letters,  995. 

order  revoking  letters  for  failure  to  give  new  bond,  999. 

upon  resignation,  petition  for,  995. 

order  for  accounting  for  ])urpose  of  discharge.  996. 

decree  allowing  resignation  and  discharge,  996. 

of  letters  of  guardianship.     See  Guardian. 

MONEY,  order  for  payment  of,  1068. 

order  for  warrant  of  commitment,  1068. 
warrant  of  commitment,  1069. 

PROBATE  PEOCEFDlNfJS,  petition  for  probate,  959. 
same;  shorter  form,  961. 
affidavit  as  to  heirs  and  legatees,  961. 
petition,  where  citation  not  necessary.  062. 

for  proof  of  nuncupative  will.  062. 

for  proof  of  lost  or  destroyed  will.  90.3. 

for  leave  to  file  exemplified  copy  of  will,  963. 
citation,  950. 


lOSO  Index  to  Porms. 

PROBATE  PROCEEDINGS  —  con  tinned. 

answer  to  petition  for  probate,  964. 
notice  requiring  examination  of  witnesses,  967. 
order  that  testimony  be  taken  bj'  clerk,  967. 
deposition  of  subscribing  witness  as  to  execution,  967. 

as  to  custody  of  will,  968. 

as  to  handwriting  of  testator,  968. 

as  to  handwriting  of  attesting  witness,  968. 
notice  of  hearing  of  objections,  petition  of  executor  as  to,  965» 
order  directing  giving  of  notice  of  hearing,  966. 
notice  of  hearing,  966. 
petition  for  leave  to  intervene,  966. 
order  allowing  intervention,  967. 
consent  of  special  guardian  to  act,  969. 

report  of  special  guardian,  969.  5 

decree  granting  or  refusing  probate,  969. 

same;  where  there  is  no  contest,  970. 

establishing  lost  or  destroyed  will,  970, 
certificate  of  probate,  971.  , 

revocation  of  probate,  petition  for,  971. 

decree  revoking  or  confirming  probate,  972.  , 

of  heirship,  petition  for,  1069. 

citation,  1070. 

decree,  1070. 

See  Letters. 
PUBLIC  ADMINISTRATOR,  proceedings  by,  988. 

affidavit  for  order  to  sell  perishable  property,  988. 

order  thereon^  988. 
petition  to  seize  property  to  prevent  waste,  989.  j 

affidavit  to  accompany  petition,  989. 

order  thereon,  989. 
letters  of  administration  to.     See  Letters. 

REAL  ESTATE,  sale  of,  to  pay  debts.     See  Debts. 
REFERENCE,  order  of,  to  determine  questions  of  fact,  958. 

same,  on  consent,  959. 

on  accounting.     See  Accounting. 

of  claim  against  estate.     See  Debts. 
RELEASE,  of  executor,  etc.,  1051. 
RESIGNATION.     See  Guardian;  Letters. 
REVOCATION.     See  Guardian;  Letters. 

SPECIAL  GUARDIAN,  petition   for  appointment,  954. 

consent  of  appointee,  general  form,  954. 

affidavit  of  qualification,  955. 

affidavit  of  person  with  whom  infant  resides,  955. 

order  appointing  special  guardian,  955. 

report  of  special  guardian  on  probate,  969. 

appointment  of,  on  failure  of  general  guardian  to  file  inventory,  1060. 
SUBPCENA  from  Surrogate's  Court,  955. 

TEMPORARY  AD:MINISTRATI0N.  letters  of.     See  Letters. 

petition  of  administrator  to  pay  debt,  99.3. 

decree  thereon.  99.3. 
TESTAMENTARY  TRUSTEE,  accounting  of.     See  Accounting. 

resignation  and  revocation  of  letters.     See  Letters. 
TRANSFER  OF  PROCEEDINGS  TO  ANOTHER  COURT. 

certificate  of  disqualification  of  surrogate.  947. 

petition  for  order  establishing  authority  of  another  officer  to  act,  947. 

order  thereon,  948. 

order  transferring  proceedings  to  Supreme  Court,  948. 

notice  of  removal  of  proceeding.  948. 

order  remitting  proceedings  to  Surrogate's  Court,  948. 


Index  to  Forms.  lOSl 

TRANSFER  TAX,  pptition  by  pxpcutor  for  appraisal,  1017, 
order  appoiiitin<^  appraiser,   1017. 
notice  of  appraisal,  1018. 

aflidavit  1)V  executor  as  to  decedent's  property,   1018. 
report  of  apj)raiser,  1019. 
oatli  of  a|)|)raiser,  1020. 
oertilieate  of  ajjpraiser's  expenses,  1020. 

notice  to  superintendent  of  insurance  to  value  annuities,  1021, 
notice  of  motion  to  confirm   report,   1021. 
order  confirniinfr  report,  1021. 
petition  by  district  attorney  for  appointment  of  appraiser,  1022. 

citation  thereon,  1022. 

order  assessinjj  tax  in  .such  proceeding,  1023. 
notice  of  assessment  of  tax,  102.3. 
notice  of  apj)eal  to  surro<jatc.  102.3. 
order  of  aflirmance  Ity  surrogate,  1024. 
notice  of  aj)pcal  to  Supreme  Court,  1024. 
bond  on  appeal,  1024. 

UNDERTAKING,  on  appeal,  generally,  1072. 

on  appeal,  in  transfer  tax  proceeding,  1024. 
by  legatee  before  execution,  etc.,  1014. 

WITNESS.    See  Examination. 


GENERAL  INDEX. 


[References  arc  to  sections.] 

ABATEMENT  AND  REVIVOR : 

of  probate  proceedings,  101. 

of  proceediiijLf  to  revoke  probate,  101. 

of  other  proceedings,   103. 

to  vhoni  right  to  proceed  survives,  103. 

of  proceedings  for  accounting,   102. 

of  accounting  by  executor  of  deceased  executor,  923,  n. 

surrogate  may  not  of  his  own  motion  order,  102. 

death  must  have  occurred  after  jurisdiction  acquired,  102. 

of  actions  by  public  administrator,  37'J. 

of  action,  etc.,  by  or  against  executor,  5G4. 

of  appeal  from  Surrogate's  Court,  1136. 

substitution  in  case  of  death  before  appeal,  1136. 
provision  in  case  of  death  before  hearing,  1136. 
effect  of  failure  to  substitute,  1130. 
proceedings  in  such  case,   1130. 
ABSENTEE : 

appointment  of  temporary  administrator  on  estate  of,  403. 
county  treasurer  to  apply  for  letters.  404. 
application  for  letters  on  estate  of,  must  be  by  petition,  405. 
petition  for,  contents  of,  406. 
mode  of  proof,  405. 
no  statutory  rules  of  priority,  406. 

realty  of,  autliority  of  temporary  administrator  over,  413. 
acts  of  administrator   bind,   413. 

family  of,  provision  for,  by  temporary  administrator,  415. 
grounds  for  revocation  of  letters  on  estate  of,  436. 
ACCOUNTS : 

of  executors  and  administrators,  form  of,  9/8 
rule  in  New  York  county  as  to,  917,  Ji. 
subject-matter  of,  978. 
verification  of,  982. 
vouchers  to  be  tih'd  with,  983. 
when  voucliers  dispensed  with,  983. 
of  testamentary  trustees,  915,  924,  929. 

See  Accounfiufjs,  etc. 
of  tenii>orary  administrators,  422. 
of  guardians   t)y   will,    1(104. 
of  general  guardians,  annual   inventory,   1030. 
final  account,  1033. 
See  (1  iKirdinns. 
of  juddic  administrator.  395. 

of  c(mnty  treasurer  acting  as  piddle  administrator,  384. 
grounds  for  opening.     See  Dccrc. 
effect  of  settlement  of.     See  Account infjs,  etc. 
ACCOUNTING,  ACTION  FOR: 

jurisdiction  of.  belongs  to  what  court.  62,  908. 
when  court  of  equity  will  not  act,  62,  908. 
[1083] 


1084  General  Index.  ^T!^l  T 

to  sections. 

ACCOUNTING,  ACTION  FOR  —  con  i  iniicd. 

Avhen  it  may  compel,  62,  908. 

where  one  assumes  to  act  as  executor,  908,  n. 

in  cases  of  dissension  between  executors,  908. 

questions  of  individual   right,  908. 

in  ca.ses  where  surrogate  is  witliout  jurisdiction,  908. 

in  case  of  foreign  executor  or  estate,  908. 

in  case  of  devastavit,  908. 

special  reasons  must  be  proved,  908. 

surrogate's  jurisdiction,  in  general,  concurrent,  908. 

who  may  maintain,  908,  n.,  935,  n. 

not  allowed  at  same  time  with  surrogate's  accounting,  908,  n.,  931,  n. 

effect    of    judgment    decreeing    distribution    upon    surrogate's    juris- 
diction, 931,  n. 

against  trustee  or  guardian  by  sureties,  908,  /). 

executors  and  administrators  deemed  trustees,  908. 

plaintiff  mav  elect  as  to  mode  of  procedure,  908. 
ACCOUNTINGS  IN  SURROGATES'  COURTS : 

jurisdiction  of  surrogate  to  direct  and  control,  909. 

jurisdiction,  in  general,  concurrent  with  that  of  Supreme  Court,  908^ 
909. 

authority  of  surrogate  pending  accounting  in  Supreme  Court,  909,  931. 

effect  of  judgment  of  Supreme  Court  directing  distribution,  931,  n. 

locality  of  the  jurisdiction,  910. 

in  case  of  executor  of  executor,  910. 

the  different  kinds  of,  911. 

"  final  accounting  "  explained,  912. 

meaning  of  "  final  "  imder  former  statutes,  912. 

two  modes  of,  under  Revised  Statutes,  912,  n. 

general  object  of,  912. 

power  of  courts  of  other  States  to  discharge  executors,  etc.,  appointee! 
in  this  State,  910,  n.,  919,  h. 
Intermediate  accoiniting,  definition  of.  911.  913. 

distinguished  from  final  accounting,  911,  912. 

voluntary,  permitted  at  any  time.  913. 

when  compellable  in  surrogate's  discretion,  914. 

on  applying  for  execution  on  judgment  against  representative,  914. 

on  applying  for  execution  on  judgment  against  decedent,  914. 

on  proceeding  to  obtain  legacy  or  share,  914. 

after  eighteen  months  from  letters,  unless  judicial  settlement  pend- 
ing, 914. 

surrogate,  no  power  to  refer,  817,  n. 

by  testamentary  trustees,  91.5,  924. 

may  be  on  surrogate's  motion,  916. 

surrogate's  limited  authority  in  such  cases,  917. 

rule  in  New  York  county  as  to  form  and  contents  of  account,  917,  n. 

authority  of  surrogate  exhausted  when  account  filed,  917. 

may  be  contested  by  any  party  interested,  918. 

consolidation  of  proceeding,  918. 
limitation  of,  918. 

effect  of,  on  power  of  surrogate,  918. 
Judicial  settlement,  meaning  of,  912  n. 

whose  accounts  subject  to,  919. 

executor  or  administrator  must  have  received  letters,  919. 

where  one  year  has  elapsed  since  letters,  919,  928,  941. 

where  notice  to  creditors  published,  919.  941. 

where  letters  have  been  revoked,  919,  928. 

in  case  of  resignation,  919. 

where  one  assumes  to  act  as  executor,  etc.,  919. 

one  tortiously  interfering,  and  subsequently  qualifying,  919. 

one  named  in  will  but  not  qualifying,  919. 

one  of  two  cannot  petition  for,  920. 


Keferences  are  c  •.■,•,..,     }^-,,-^  tna- 

to  sections.  Glm.kal  Isdlx.  108; 

ACCOUNTINGS  IN  SURKCKiATKS'  COURTS  —  con ^ui wed. 
nor  be  rorjuired  to  account  alone,  !)20. 

but  he  may  voluntarily  account  for  his  separate  acts,  920. 
exeoitor,  etc.,  of  deceased  executor,  !)21,  923. 
what  such  executor  must  account  for,  !)23,  n. 
compellinj,'  delivery  of  trust  property,  i)22. 
where  executor  is  also  trustee,  924,  n. 
where  executor  acts  under  a  deed  of  trust,  924,  n. 
in  what  cases  had  voluntarily,  919. 

after  one  year  from  letters,  919,  941. 

where  notice  to  creditors  published,  919,  941. 

upon  resif^nation,  919. 

where  letters  revoked,  919,  923,  n. 

where  real  pro])erty  sold  under  a  power,  919. 

by  executor  of  deceased  executor,  923. 

by  temporary  administrator,  when,  926. 

by  administrator  with  will  annexed,  927. 

by  testamentary  trustees,  924,  929. 
in  what  cases  compellable,  928  et  seq. 

by  executors  and  administrators,  928. 

after  one  year  from  letters,  928. 

after  cessation  of  powers  for  any  cause,  928. 

after  sale,  etc.,  of  real  estate,  under  decree,  928. 

after  sale  under  will,  926. 

executor  of  deceased  executor,  921,  923. 
when  compellable,   921. 

where  letters  revoked,  92 3«. 

by  testamentary  trustees,  924,  929. 

representative  of  deceased  trustee,  921,  923,  92.5. 

where  trustee  ap])ointed  by  Supreme  Court,  925. 

temporary  administrators,  926. 

■when  accounting  a  matter  of  right,  933. 

successive  accountings,  930. 

limitation  of  proceeding,  932. 

period  of  limitation  extended  by  act  of  executor,  932,  951,  ». 

in  case  of  trustees,  no  lapse  of  tiine  a  bar,  932. 

when  order  to  account  discretionary,  944,  953. 

when  must  be  made,  933,  944,  954.  ' 
"who  may  compel,  933. 

creditor  or  person  interested  in  estate,  933. 

post-testamentary  child,  933. 

suretj'  in  accountant's  bond,  465.  933. 

representative  of  such  surety,  933. 

accounting  of  testamentary  trustee,  9.34. 

of  ro|)resentative  of  deceased  representative,  921,  923. 
at  whose  instance,  934. 

"  persons  interested "  defined,  98.  143,  934,  936. 

creditors,  936. 

co-repre.sentative  may  compel,  935. 

successor  of  representative  nu\y  comi)el,  935,  n. 

surviving  executor,  935,  n. 

legatees  and  distributees,  937. 

assignees  of  creditors,  legatee,  or  next  of  kin,  938. 

trustee  in  bankruptcy  of  legatee,  921,  n.,  938. 

receiver  of  legatee.  938. 

persons  entitled  to  next  eventual  estate.  939. 

intervention  of  third  persons,  958. 

surrogate  of  his  own  motion  may  compel,  916. 
petition  for  voluntary  accoimting.  940. 

time  for  filing.  '.t41. 

pendency  of  compulsory  proceeding  no  bar,  940. 


1086  Gekekai.  Index.  ''tZTdJ^^ 

ACOOUNTIXGS  IX  SURROGATES'  COURTS  —  continued.       . 
requisites  of,  940. 

in  case  of  resignation,  942. 

in  case  of  revocation  of  letters,  942. 

where  testamentary  trustee  petitions,  943. 

where  one  of  two  executors,  etc.,  petitions,  920,  940. 
co-executors  to  be  cited,  99,  920,  940. 
Change  of  compulsory  to  voluntary,  955. 
when  made,  955. 

Avhen  consolidation  cannot  be  effected,  955. 
proceeding  in  such  case,  955. 
supplemental  citation  in  such  case,  955. 

of  proceeding  by  or  against  representative  of  deceased  represen- 
tative, 956. 
intervention  of  third  persons,  105,  958. 
petition  to  compel,  944. 
prayer  of,  944. 

Avhen  citation  must  issue  on,  944. 
requisites  and  object  of,  944,  946. 
where  accounting  of  trustee  is  sought,  945. 
time  of  filing,  944. 
allegation  of  interest  in,  947. 
citation,  to  whom  issued,  940. 

on  voluntarj'  accounting.  940,  957. 

by  executors,  etc.,  \I57. 

where  proceedings  are  consolidated,  955. 

on  accounting  of  representative  of  deceased  executor,  etc.,  923> 

on  revocation,  942. 

on  resignation,  942. 

on  accounting  by  testamentary  trustee,  943. 

where  one  of  two  executors  petitions,  99,  920,  940. 
on  compulsory  accounting,  944. 

if  distribution  desired,  all  parties  must  be  cited,  944,  n. 
proceedings  on  return  of.  on  voluntary  accounting,  974. 
effect  of  default  of  persons  cited,  974. 
special  guardian  for  infant  parties,  974. 

report  by,  974. 
supplemental,  when  to  be  issued,  955,  1008. 
answering  petition  and  citation  to  compel,  948. 
representative's  answer  to  petition.  948. 
traversing  allegation  of  interest,  947.  949. 
grounds  of  opposition  to  petition,  948. 

fact  that  petitioner's  claim  is  dispvited,  no  defense,^  949,  n. 
so,  too,  an  allegation  of  release  by  petitioner,  949. 
pleas  to  the   jurisdiction.  948. 
pleas  in  abatement.  931,  948,  950. 
defense  of  prior  accounting,  950. 
pendency  of  action  for  accounting.  931. 
outlawry  of  petitioner's  claim,  951. 
statute  of  limitations.  932. 
statute  must  be  pleaded,  951. 
counterclaim  cannot  be  set  up,  950. 
denial  of  assets,  952. 
order  directing  account,  954. 

attachment  for  failure  to  obey,  954. 
executor  bound,  without  service  of,  954. 
filing  the  account,  959. 

proceedings  on  neclect  to  file  account.  954. 
examination  of  account  and  accountant,  960,  976,  n, 
filing  objections  to  account,  961. 
who  may  file,  961. 
by  persons  not  parties,  disregarded,  961,  n. 


References  arc  r' .x-.-,. .  t    l.,,.^^  -k^.w-' 

to  sections.  Gj..nj.kal  I.ndlx.  10b ^ 

ACCUUNTlXCiS  IX  SUREOOATES"  C0\JRT:S  —  continued. 

form  of  objections,  901. 

may  be  required  to  be  verified,  87,  n.,  962. 

further  objections   may   be   filed,   i)Gl,   n. 

rule  in  New  York  county  as  to  filing  objections,  961,  n. 

serviiiir  copy  of  ol)jections,  9G2. 

account  and  objections  considered  as  pleadings,  961,  n. 
referrinf,'  tlie  account,  963. 

surro<,'ate  no  power  to  refer  intermediate  account,  817,  n. 

no  power  to  I'eter  a  disputed  claim,  when,  963,  n. 

proceedinfis  before  referee,  975. 

powers  of  tlie  referee,  964. 

may  allow  filing  of  further  objections,  961,  n. 

may  allow  amendments,  961,  n. 

referee  subject  to  surrogate's  direction,  965. 

report  must  be  passed  on  by  surrogate,  965. 

surrogate  may  send  back  report  for  further  findings,  118,  119,  965. 

or  he  may  himself  modify  it,  965. 

report  of  referee  and  its  confirmation,  977. 

after  report  filed,  referee  cannot  act,  977,  n. 

rule  in  New  York  county  as  to  confirmation  of  report,  977,  n. 

filing  of  exceptions  to  report,  977. 

principles  goA-erning  confirmation.  977. 
principles  governing  settlement  of  account,  966. 

Avhat  assets  to  be  accounted  for,  529. 
issues  triable  on  accounting,  967. 

limits  of  surrogate's  power  in  decreeing  distribution,  968. 

imjieacliing  inventory,  985,  986. 

disjnited  claims  of  creditors  and  others,  49,  968,  969. 

equitable   interests.   9GS. 

validitv  of  assignments,  968. 
of' release,  47,  949.  968. 

claims  of  legatees  or  distributees,  9()8,  969. 

no  distribution  unless  all  parties  cited,  944,  n. 

amount  of  advances  to  legatee's,  969,  n. 

cannot  question   decree   of   Supreme   Court,   951,  n. 

power  to  construe  will,  253,  254,  970. 

right   to  inheritance  of  heirs-at-law,   970. 

reimbiirsenient  for  advances  to  beneficiaries,  971. 

taxability  of  legacy  or  distributive  share.  969. 

claims  l)y  and  against  representatives,  972. 

joint  claims  duo  from  representative  and  another,  972. 

contra,  as  to  joint  claims  against  estate,  972. 

on  accounting  by  testamentary  trustees,  973. 

burden  of  proof,  on  Avhom,  976,  984. 

additional  allowance  for  expenses,  552,  989. 
decree  on,  must  direct  distribution,  1006,  1008. 

must  contain  summaries  of  account,  1007. 

Avhen  may  direct  delivery  of  specific  property,  1009. 

must  direct  retention  for  undetermined  claim,  1010. 

direction  as  to  disposition  of  infant's  share,  1011. 

direction  to  deposit  moneys,  etc.,  with  county  treasurer,   1012. 

direction  as  to  payment  of  unclaimed  legacy,  1012. 

may  construe  will,  253,  254,  970. 

conclusive  efTect  of,  directing  payment.  1013.  1075. 

direction  for  payment,  satisfied  only  by  compliance.  1013. 

efTect  of,  to  protect  or  charge  accounting  party,  1073. 

on  voluntary  accoimting  of  trustees,  924. 

on  accounting  of  one  of  two  executors.  1074.  n. 

on  accoimting  of  testamentary  giiardian.   1065. 

how  far  conclusive,  in  general.  1074. 

upon  parties  not  cited,  1013,  n. 


10S8  Gexeea.  I^EX.  *KS»r 

ACCOUNTINGS  IN  SURROGATES'  COURTS  —  continued. 

upon  sureties  in  accounting  party's  bond,  1076. 

effect  of,  as  bar  to  action,  1074,  1075,  n. 

on  subsequent  accountings,  930,  1074,  n. 

conclusive  as  evidence  onl}',  1070. 

opening,  vacating,  etc.,   1077. 
form  and  matter  of  account,  'J78. 

items  on  debtor  side,  978. 

items  on  creditor  side,  979. 

classes  oi  credits  enumerated,  979. 

expenses  of  accounting  should  not  appear,  979,  n.,  1115,  ». 

credits  subtracted  from  debits,  979. 

entry  of  imsold  and  exempt  articles,  979. 

statement  of  articles  set  apart,  979. 

facts  additional  to  the  pecuniar}'  items,  980. 

separate  trusts,  how  stated,  981. 

verification  of  account,  982. 
form  of,  982. 
vouchers;  to  be  filed,  983. 

when  dispensed  with,  983. 

effect  of  lack  of,  984. 

proof  on  nonproduction  of,  984. 

production  of,  when  deemed  waived,  984. 
relation  of  inventory  to  account,  985. 
inventory  prima  facie  evidence  of  what,  985. 
inventory  not  conclusive  against  either  party,  985. 
assets  not  in  inventory,  987. 
rectifying  erroneous  debits,  986. 
impeaching  inventory,  985,  986. 

who  may  impeach,  986. 
chattels  subject  to  life  estate,  987. 

remedy  of  remainderman,  987. 
ACCUMULATION: 

of  rents,  etc.,  restrictions  on  power  of  testator  to  direct,  260,  262,  n. 

of  income,  262. 

implied  directions  for  accumulation  also  prohibited,  262. 

legacy  not  void,  because  of,  262. 

of  income  of  personalty,  when  valid,  262, 

when  must  commence,  262. 

for  minors,  when  must  terminate,  262. 

how  far  void,  where  ownership  suspended,  262. 

effect  of  void  direction  for,  on  will,  263. 
ACKNOWLEDGIVIENT : 

bv  representative,  of  debt,  etc.,  effect  of,  630,  860. 
ACTION:' 

to  determine  validity  of  devise,  60,  137. 

who  cannot  bring,  60,   137. 

proof  in,  137,  n. 

judgment  in,  137. 
to  establish  will,  61,  134. 

limitation  of,  565. 

where  original  cannot  be  produced.  61,  134. 

of  personalty,  of  nonresident,  61,   135. 

judgment  in,  136. 

lost  or  destroyed  will,  59,  61,  134,  234. 

limitation  of  such  action,  234,  n.,  565,  n, 

judgment  in  such  action,  230. 

jurisdiction  of  Federal  courts.  63. 
to  determine  validitv  of  probate,  60,  138. 

by  whom  brought,  138. 
il  issues  in,  138. 

triable  bv  jurv.  138. 

effect  of  Verdict,  138. 


VoZ'^^Snl"  G^''^-'-  IN"^^-  10S3 

ACTION  —  continued. 

vcidict  may  bf  directed,   138,  n. 
liiiiilalioii  of^  138. 
to  revoke  probate,  424. 
to  reeover  a  chattel  from  representative,  505. 

limitation  of,  505. 
to  collect  assets,  505. 

limitation  of^  505. 

legatee  cannot  maintain,  99,  n.,  503,  n. 
by  and  against  execntors  generally,  504  et  seq. 

between  co-executors,  525. 

survival  of  rights  of  action  to  representatives,  541  et  seq. 

joinder  of  parties  and  causes  of  action,  508. 

against  executor,  etc.,  personally  when,  507,  n. 

rules  of  survival  and  revivor,  504. 

pleadings ;  set-off,  509. 

judgment  against  representatives  generallj',  570,  677. 

action  on  judgment  by  representatives,  570. 

by  and  against  foreign  executors,  etc.,  518,  567. 

by  and  against  tem])orary  administrators,  418. 

by  and  against  ])ublic  administrator,  395. 

costs  in  actions  l)y  rc|)reseiitativc,  571,  (ioO,  657. 

execution  thereon,  078,  079. 

security  for  costs  in  such  actions,  572. 
on  claim  rejected,  050. 

limitation  of,  039,  040. 
for  distributive  share,  833,  «. 
for  accounting.  02,  908. 
for  legacy  after  one  year,  778. 

■when  accrues,  778. 

lies  N.hen.  778. 

defenses  to,  779. 

execution  in,  leave  to  issue,  779. 

undertaking  before  execution,   682,   778,   779. 

form  of  undertaking,  082. 
for  legacy  charged  on  land,  739. 
to  construe  will,  by  whom  maintained.  257,  280. 
by  heirs-at-law,  for  reimbursement,  after  lands  sold,  etc.,  907. 
to  vacate  appointment  of  guardian,  not  maintainable,  1025. 
on  surrogate's  decree.  1087. 

limitation  of,  1087. 
on  ofTicial  bond  of  surrogate,  30,  31. 

leave  to  prosecute,  31,  32. 

proof  in  action  on,  33. 

defenses,  34. 

execution,  35. 

apportionment  of  recovery,  30. 

of  executor,  administrator,  or  guardian,  467,  1085. 

after  execution  unsatisfied,  407. 

after  revocation  of  letters,  407. 

of  temporarv  administrator,  400,  h. 
ACTING  SURROGATE.  "  See  Surrogate. 
ADEMPTION : 

distinction  between,  and  revocation,  and  satisfaction,  750. 

of  s])eciflc  legacies,  751. 

of  demonstrative  legacies,  752. 

of  general  legacy,  751. 

of  legacy  to  debtor,  748. 

bv  advancement,  not  applied  to  devises.  753. 
ADJOrRX:\IENT: 

failure  to  adjoiirn  to  a  day  certain,  eflfect  of,  71. 
pro])er  j)ractice.  in  such  case.  71. 
surrogate's  ])ower  to  order,  52. 

G9 


-innn  iPt^^-t^t,  *t    Tatt^t:,^  References  are 

1090  (UENEKAL  Index.  '  ,,„.,v,„„ 


to  sections. 


ADMINISTRATOR: 

when  to  be  appointed,  337. 
origin  of  ollice  of,  515. 
qualitj'  of  title  of,  514. 
takes  no  title  to  lands,  530. 
representative  character  of,  51G. 

no  distinction  in  general  between  executor  and,  515. 
when  title  vests,  304,  510,  521. 
no  rights  before  grant  of  letters,  304,  502. 
authority  by  letters  relates  only  to  personalty,  304. 
is  a  trustee  for  benefit  of  persons  interested,  510,  522. 
foreign,  rights  of,  in  this  state,  318,  518,  507. 
who  competent  and  qualified  to  act  as,  343,  301. 
grounds  of  incompetency  enumerated,  301. 
competency  of  corporations,  301. 
-y  of  infants,  301. 

of  married  women,  344,  n. 
oath  of,  302. 

presumption  as  to,  in  collateral  actiop,  302. 
bond  of,  303,  470. 

must  be  joint  and  several,  303,  470. 

to  be  filed  with  surrogate,  303,  470. 

penalty  of,  303,  470. 

modified  security  on  limited  letters,  300,  471. 

restraint  upon  rej)resentative  in  such  case,  471. 

modified  security  on  consent  of  next  of  kin,  472. 

minimum  amount  of  such  security,  472. 

special  on  selling,  etc.,  lands,  809,  874,  870. 

condition  and  jjenalty  of  such  bond,  473,  876. 
letters  of,  surrogate's  jurisdiction  to  grant,  338. 

nature  and  extent  of  jurisdiction,  338. 

exclusive  and  concvirrent  jurisdiction,  339. 

when  jurisdiction  acquired,  342. 

extends  to  estates  of  all  residents,  338. 

and  to  those  of  nonresidents  leaving  assets  here,  338. 

residence  defined,  341. 
■when  letters  granted  to,  338. 

estate  may  be  settled  without  letters,  when,  304,  n. 

in  case  of  resident,  338. 

married  women  leaving  no  descendants,  346. 

in  case  of  unmarried  illegitimate,  343,  n. 

in  case  of  alien  intestate,  344. 

to  nonresident,  343. 

to  minor's  guardian,  343. 
order  of  preference  among  relatives,  343. 

other  than  relatives,  344. 

persons  in  same  class,  345. 

selection  discretionarj',  345. 

pub-lie  administrator,   343,   344,  346,  n.,  378. 

county  treasurer,  344,  378. 
to  surviving  husband,  340. 
to  married  women,  344,  n. 
to  divorced  wife,  347. 
nonresident  alien  not  entitled  to,  361. 
joinder  of  person  not  entitled,  348. 
jj  preference  not  to  be  delegated,  349. 

may  be  limited,  300. 
modified  security  in  such  case,  360. 
when  grantee  entitled  to  receive,  359. 
foundation  as  well  as  evidence  of  authority,  364,  366. 
relate  solely  to  personalty.  364. 
priority  among  different  letters,  364a. 


to  sections..  Cje.nlkal  Index.  1091 

.ADMINISTRATOR  —  contimicd. 

are  conclusive  evidence  of  authority  until  revoked,  3G4a. 

retroactive  ertect  of^  ;i(i4o. 

ell'ect  of  ffrant  of,  l)y  way  of  estoppel,  3G5. 

collateral  inipeaciiiiient  of,  3(i(J. 

burden  of  prtxif  on  ])arty  attacking,  366. 

record  of,  as  evidence,  3G7. 

renunciation  of  rij,dit  to,  352. 

mode  of,  prescrilxMl,  352. 

must  be  liled,  352. 

absolute  or  qualified.  35C. 

retraction  of,  353. 
petition  for,  who  may  a|)})ly,  350. 
mode  of  application,  351. 
contents  of  petition,  351. 
citation,  presumptive  jjroof  requisite  for,  354. 

not  to  issue,  of  course,  354. 

when  imnecessary,  354. 

examination  of  witnesses  to  ascertain  facts,  354. 

cases  where  it  must  issue,  355. 

letters  revoked  when  one  having  prior  right  not  cited,  355. 

when  to  issue  in  surrogate's  discretion,  355. 

who  to  be  cited,  355. 

contents  and  service  of,  35(i. 

to  creditors,  to  be  published,  355,  n. 

due  citation,  how  proved,  1081. 
appearance  by  person  not  cited,  357. 
hearing,  proceedings  on,  358. 
two  kinds  of,  358. 
stay  on  allegation  of  will.  358. 
questions  of  marriage,  legitimacy,  etc.,  358. 
presumption  in  such  case,  358,  n. 

decree  may  be  made  on  presenting  petition,  when,  354,  355. 
proof  prerequisite  to,  354,  358. 
always  to  be  made,  354. 

may  be  made  without  examining  grantee,  when,  358,  359. 
may  award  letters  to  any  party  entitled,  350. 
formal  defects  in  letters  may  be  remedied.  3(it;. 
Revocation  of  letters,  power  of  surrogate,  44,  50,  59,  425,  429. 
power  confined  to  our  courts,  424. 
by  action,  424. 
by  motion,  425. 
incidental,  420. 

on  failure  to  give  additional  security,  463. 
on  application  of  surety.  42().  4(i5. 
by  subsequent  probate  of  will.  427. 
pending  appeal  from  decree  declaring  will  void,  427. 
summary,  for  misconduct,  428. 
cases  of  misconduct  enumerated,  428. 
petition  for,  429,  437,  438. 
who  may  apjdy,  429,  437. 
how  application  made.  429. 

surrogate  no  )>  nver  to  grant,  unless  conferred  by  statute,  429. 
power  of.  discretionary.  420. 
petition  for  accounting  by  successor,  444. 
right  to  reai)pointment.  447. 
cessation  of  powers.  44S. 

does  not  afl'ect  validitv  of  prior  acts,  130.  448. 
effect  of.  448,  1072. 

no  .stay,  though  decree  appealed  from,  441.  448. 
incompetency  and  disqualification  as  cau.se  for,  430. 
malfeasance,  dishcnesty,  etc.,  431. 


1092  Geheeai.  Index.  ^KSJ" 

ADMINISTRATOR  —  continued. 
gross  negligence,  431. 
particular  grounds  stated,  431. 
willful  violation  of  law,  432. 
false  suggestion  of  fact,  433. 
pendency  of  action  for,  no  bar,  437. 
citation  and  service,  438. 
proceedings  upon  the  hearing.  439. 
dismissing  proceeding,  notwithstanding  proof,  440. 
decree  of  revocation,  441. 

must  be  recorded,  441. 
resignation,  on  petition  of,  442. 

granting  discretionary,  442. 

petition  and  order,  443. 

proceeding  same  as  on  accounting,  443. 

citation  and  service,  443. 

accounting  on,  444. 

appointment  and  powers  of  successor,  445. 
See  Letters. 
ADMINISTRATOR,  ANCILLARY.     See  Ancillary  Letters. 
ADMINISTRATOR  DE  BONIS  NON: 
meaning  of  term.  3G8. 
when  to  be  appointed,  368. 

has  no  greater  rights  than  his  predecessor,  369,  n. 
may  compel  delivery  of  trust  property  by  predecessor,  922. 
powers  of,  369. 
petition  for  letters,  etc.,  370. 
bond  of,  370,  n. 
penalty,  370,  n. 
form  of  letters,  370. 

public  administrator  may  be  appointed,  370,  n.,  378,  n. 
ADMINISTRATOR,  TEMPORARY: 

Appointment  of,  in  what  cases  allowed,  403. 

on  delay  in  granting  letters  or  probate,  403. 
on  estate  of  absentee,  etc.,  403. 
extent  of  surrogate's  power  as  to,  403. 
power  is  discretionary,  403,  407. 

proceedings  for  letters  in  chief  must  be  pending,  403. 
power  to  make,  not  lost  by  removal  to  another  court,  405,  n. 
not  appointed  pending  appeal  from  decree  revoking  letters,  441. 
appeal  from  decree  of  probate,  not  ground  for,  403. 
pending  application  for  letters  of  administration,  403. 
pending  application  for  modified  security,  403,  472. 
Letters  to,  from  Surrogate's  Court,  404. 
who  may  apply  for,  404. 
when  county  treasurer  may  apply  for,  404. 
on  decedent's  estate,  mode  of  applying  for,  404. 

notice  of  such  application,  403,  405. 

notice,  how  served,  410. 

manner  of  giving  notice  may  be  prescribed  by  surrogate,  410. 

may  be  granted  on  affidavits,  405. 

grant  of,  without  notice,  irregular,  405,  n. 

proof,  how  made,  405. 

much    slighter    proof    of    death    sufficient,    than    for    permanent 
letters,  405,  n. 
on  absentee's  estate,  application  for.  is  by  petition,  405. 

contents  of  petition  and  proceedings  in  such  case,  405. 

citation  on  such  petition,  405. 
form  of  letters  not  specified  in  statute,  409. 
effect  of  letters,  409.' 

public  administrator  may  apply  for.  402,  404. 
grant  of,  not  reviewable,  on  appeal,  407. 


References  are  General  Index.  1093 

to  sections. 

JiDMINISTKAT  OR,  TEMPORARY  —  continued. 
Competency  and  <ju(ilific(itio)i  of,  408. 

no  statutory  rules  as  to  priority,  400. 
who  eligible  as,  408. 

executor  naiiied  in  will  may  Ijc  a])]iointed,  408. 
party  to  contest  not  ineliyihle,  408. 
usually  a  disinterested  person  sliould  he  selected,  408. 
in  Kings  county,  ])ublic  adminislrator  may  be  appointed,  408. 
bond  of,  same  as  ordinary  administrator's,  475. 
Powers  and  duties  of.  411,  412. 

authority  over  ))ersonalty,  411. 

sales  on  surrogate".s  order,  after  appraisal,  411. 

paying  funeral  expenses,  414. 

or  other  administrative  expenses,  414. 

but  not  expenses  of  probate,  414,  870,  n.,  lllG. 

payment  of  legacy  or  distributive  share,  414. 

must  preserve  estate,  not  administer  it,  412. 

providing  for  alisentec"s  family,  415. 

acts  of,  bind  absentee,  41. '5. 

advertising  for  claims,  4lG. 

effect  of,  410. 
paying  debts  on  surrogate's  order,  417. 
petition  to  compel  such  payment,  417. 
order  on  such  petition,  417. 
duty  as  to  deposit  of  monej-s,  419. 

attachment  for  default  as  to  deposit,  420. 

practice  in  New  York  county,  420,  n. 

effect  if  Avarrant  not  served,  420,  421,  428. 

such  moneys,  how  withdrawn,  419. 
liable  for  interest  on  funds  retained,  419.  420,  010,  n. 
authority  over  realty  of  decedent,  412,  595,  n. 

of  absentee,  413. 

lease  of,  on  surrogate's  order,  412. 

term  of  such  lease,  412. 

cannot  sell  realty,  412. 
actions  by  and  against,  418. 

leave  necessary  to  sue,  when,  418. 

right  to  sue  cannot  be  questioned  collaterally,  418,  n. 
Accountincjs  hi/,  422,  920. 

compellable  at  any  time,  422,  920. 
on  revocation  of  letters,  422. 
bond  of,  not  to  be  canceled  on,  422. 
sureties  in  official  bond  of,  continue  liable,  422.  n. 
disputed  claims  Ijy  and  against,  adjusted  on,  422,  n. 
inventory  by,  may  be  compelled,  500. 
conclusive  effect  of  decree  on,  1074,  n. 
Compensation  of,  4'23. 

same  as  ordinary  n<linini--tra1or,  42.3. 

when  permanent  letters  issued,  entitled  to.  in  one  capacity  only,  423. 

must  elect  as  to,  423. 

apportionment  of  commissions  among  several.  423,  n. 

not  entitled   to  expenses   incurred  on  applying  for  his  appointment, 

423.  n. 
based  upon  property  specifically  beciueathcd,  423,  n. 
Revocation  of  leltcj's,  421. 

on  estate  of  decedent,  421. 

on  issuance  of  permanent  letters.  421. 

for  default  as  to  deposit,  etc..  421,  428. 

of  absentee,  when.  421.  428. 

on  resiofnation.  421. 

effected  by  decree  revokiiiL;  IcKcrs,  421. 

surrender  of  estate  on.  421. 

Avho  may  petition  for,  in  ease  of  absentee,  421. 


1094 


r^  ^    T,.^^^  References  are 

General  Index.  '  ,,„,:,.,^ 


to  sections. 


ADMINISTRATOR  WITH  WILL  ANNEXED: 
office  of,  considered  gcneralU',  32G. 

distinguished  from  administrator  de  bonis  von,  320,  n. 

in  general,  included  in  term,  '•  administrator,"  32t). 

receiver  with  powers  of,  when  appointed  by  Supreme  Court,  326,  n. 
Appointment  of,  by  surrogate,  327. 

failure  of  will  to  appoint  executor,  327. 

cessation  of  office  of  executor,  etc.,  327. 

application  by  one  not  having  prior  right  to,  33L 
when  must  be  by  petition,  331. 
citation  in  such  case,  33 L 

renunciation  required  of  all  others  having  prior  right,  331. 

practice  in  New  York  county,  331,  ». 

notice  of,  discretionary,  where  no  petition,  331. 

to  what  surrogate  application  made.  330. 

questions  determinable  by  surrogate,  330,  n. 
Letters  of,  who  entitled  to,  328. 

under  Revised  Statutes,  328. 

statutory  order  of  preference,  328. 

priority  among  applicants  of  same  class,  329. 

no  discrimination  between  males  and  females,  329. 

among  creditors,  329. 

"  proper  person,"  Avhen,  329. 

when  to  public  administrator,  328. 

on  proof  of  foreign  will,  333. 

when  issuable,  in  general,  330. 
Qualificotions  of,  332. 

official  oath,  332. 

must  be  filed  before  letters  issue,  332. 

bond  like  ordinary  administrator's,  332. 

penalty,  how  fixed,  332. 
Poicers  and  duties  of,  326,  334. 

governed  bj-  will,  334. 

statute  requires  will  to  be  performed,  335. 

construction  of  this  statute,  33.5. 

bound  by  decree  against  predecessor,  334. 

may  enforce  obligations  of  testator,  334. 

may  compel  accounting  by  representatives  of  predecessor,  334. 

restrictions   as   to   lands,   discretionary   powers,   gifts   in   trust,   etc., 
33-5,  527. 

unless  ordered  sold  for  payment  of  debt,  335. 

estate  of,  in  real  property.  335,  527. 

estate  of,  in  personal  property,  335,  527. 

liability  upon  his  own  contracts,  336. 

but  not  for  defaults  of  his  predecessor,  336. 

ancillary  letters  to,  312. 

accounting  bv,  927. 
ADMISSION: 

of  service  of  citation,  76. 

by  representative,  of  debt,  effect  of,  630,  637,  860. 
ADOPTION: 

of  children,  surrogate  may  cancel  for  cause,  46. 

name  of  child  after,  815. 

relation  of  parties  after,  815. 

child  has  right  of  inheritance,  815,  819. 

exception  to  such  rule,  815. 

rights  of  heirs,  etc.,  of  adopted  child,  815. 

legacy  to  child,  exempt  from  transfer  tax,  706. 

advance:ment: 

what  is.  233.  753.  811,  830. 

effect  of.  on  heir's  share  of  real  property,  811. 

when  to  be  deducted,  811. 


References   are  General   Ixuex.  101i5 

to  sections. 

ADVANCK.MKXT  —  conlhined. 

how  adjustedj  812. 

effect  of,  on  distributive  share,  830. 

effect  of,  on  le{,'acy,  751,  7.'>3. 

when  presunii'd  .satisfaction  of  le^'acy,  753. 

testator  must  stand  in  loco  parentis,  753. 

evidence  of,  753. 

reckoned  as  surjtlus  of  porsonalty,  811,  n. 

when  gift  not  deemed,  753. 

principle  of,  not  a])i)lied  to  devises,  753. 

allowed  representative  in  accounting,  9G9,  «.,  971. 
See  Legacy. 
^ADVERTISING  FOR  CLAIMS: 

applications  for  leave  to  publish,  036. 

may  be  published  at  any  time  after  letters,  636. 

in  what  i)apors  ])ul)lisli('d.  (;3(i. 

notice  to  creditors,  and  contents  of,  030. 

errors  in  notice  immaterial,  030. 

no  absolute  obligation  to  give,  636. 
See  Debts. 
AFTER-BORN  CHILD.     See  Posthumous  Child;  Post-testamentary  Children. 
AGE: 

disqualification  of  surrogate  by  reason  of  old,  7. 

at  what,  testator  competent  to  make  will,  208. 
policy  of  statute,  208,  n. 

testamentary,  burden  on  proponent  to  prove,  187,  208. 
nonage,  how  ]iroved,  208,  n. 
question  of,  as  afl'ecting  ])robate,  208,  211,  n. 
fraud  in  e.xecution  of  will  not  presumed  from  old,  210. 

of  infants,  how  proved,  77,  n.,  208,  n. 
ALIEN: 

meaning  of  term,  305. 

ancestor,  inheritance  througli,  810. 

nonresident,  incompetent  as  executor,  etc.,  305. 

may  dispose  of  jiroperty  here,  by  will.  209. 

nonresident,  entitled  to  be  cited,  when,  92,  n. 
ALLEGATIONS  AFTER  RKOBATE: 

contesting  will  on,  277. 
See  Probate. 
ALLOWANCE.     See  Costs,  etc. 
ALTERATIONS.     See  Will. 
AMBIGUITIES: 

latent  and  patent,  discussed,  270. 

extrinsic  evidence  to  explain,  270. 
See  Will. 
AMENDMENT : 

of  pleadings  and  proceedings,  57. 

surrogate's  power  to  allow,  57.  , 

of  inventory,  498,  50.3. 

of  objections  to  account,  901. 

of  papers  on  appeal  from  Surrogate's  Court,  1138. 
ANCIENT  WILL: 

what  is  an.  132,  252. 

presumption   as  to  genuineness  of,  132,  252. 

record  of.  as  evidence,  252. 
ANCILLARY  GUARDIAN.     See  (liiardian.  General. 
ANCILLARY  LETTERS  OF  ADMINISTRATION: 

jurisdiction  to  grant,  when  possessed,  371. 

which   Surrogate's  Court    has  jurisdiction  to  grant.  371. 

object  of,  to  protect  claims  of  domestic  creditors,  314. 

when  letters  ancillary  and  when  principal,  371,  n. 

in  what  cases  issuable,  372. 


1096  Genekal  Ixdex.  Rcfa-nw,.  are 

to    SVdKjIt.'S. 

ANCILLARY  LETTERS  OF  ADMINISTRATION  —  coH^/n/aJ. 
petition  for,  373,  718. 
proof  requisite,  where  decedent  resident  of  foreign  country,  373. 

in  case  of  resident  of  another  State,  373. 
to  whom  issued,  372. 

where  two  or  more  are  named  in  tlie  foreign  letters,  372. 
cases  where  letters  shall  not  be  issued,  372. 
bond  of  grantee,  316,  477. 

penalty  of,  316,  373,  n.,  ill. 
rights  and  powers  of  grantee  over  domestic  assets,  318. 
domestic  assets,  how  disposed  of,  317,  795,  n. 
qualifications  of  grantee,  310. 
rights,  powers,  and  duties  under,  318. 
with  will  annexed,  312. 
ANCILLARY  LETTERS  TESTAMENTARY: 

practice  to  grant  independently  of  statute,  312. 

which  Surrogate's  Court   has  jurisdiction,    312.    313. 

when  granted,  312. 

application  for,  how  made,  313. 

notice  of,  to  creditors,  314. 

proceedings  on  hearing,  314. 

to  whom  granted,  315. 

where  two  or  more  named  in  foreign  letters,  315. 

qualification  of  grantee,  315. 

bond  of  grantee,  316. 

sale  of  realty  not  authorized  under,  318. 

domestic  assets,  how  disposed  of  under,  317. 

See  Ancillary  Letters  of  Administration. 
ANNUAL  ACCOUNTING.     See  Guardians;  Trustees,  etc. 
ANNUAL  RESTS.     See  Commissions ;  Trustees,  etc. 
ANNUITY.     See  Legacy. 
ANTENUPTIAL  AGREEMENT: 

power  of  surrogate  to  construe,  47,  n. 
waiver  of  widow's  right  to  exempt  articles  by,  507,  n. 
APPEALS  FROM  SURROGATES  COURT: 

jjrocedure  under  Revised  Statutes,   1130. 
To  the  Hupreme  Court,  under  the  Code,  1128. 
changes  effected  by  the  Code,  1128. 
not  governed  by  genei-al  chapter    (12)    of  Code,  1128. 
lies  from  what,  1129. 

every  final  decree  of  Surrogate's  Court,  1129. 

orders  aflfecting  substantial  right,  1129,  1130. 

meaning  of  substantial  right,   1130. 

from   decree   of   surrogate   thougli   docketed    in    Supreme    Court, 
1129,  n. 

order  appointing  special  guardian,  when,  1134,  n. 

order  directing  accounting,  when,  1130. 

order  for  new  trial  in  jjroceeding  to  sell,  etc.,  865,  1146. 

order  awarding  proceeds  of  sale  for.  debts,  896. 

examples  of  appealable  orders,  1130. 
.     order  for  execution  on  judgment  against  executor,  how  far,  681. 

when  discretionary  orders  reviewable,   1130. 

from  surrogate's  finding  of  sufficiency  of  assets,   1130. 

order  denying  motion   for  commission,   1130,  n. 
when  does  not  lie,  1130. 

from  order  or  decree  on  default,  1129,  1131. 

from  decision  on  which  i:o  order  is  entered.  1120. 

from  ex  parte  order  on  ground  of  irregularity,  1129,  n. 
remedy  in  such  cnse.  1129.  n. 

order  appointing  guardian,  1130. 

order  of  reference..  1130. 

order  appointing  temporary  administrator,  407. 


APPEALS  l-'KO-M  SUni{0(;.\TE'8  COX'WT  —  conlimied. 

iiistaiu-e  of  iioiiaijpt'alable  orders,  W'MK 

wlien  discrt'tioiiai y  orders  not  reviewaltle,  1130. 
wlio  may  appeal,  11:51. 

persons  not  j)arties,   11:32. 

intervention  of  sueh  jtersons  in,  11:52,  11.3:3. 

special  j,niardian,  1131. 

legatees,  1131. 

repre.sentative  on  accounting, '  1131. 
on  ])rol)ate,   1131,   n. 

creditors,  1132. 

attorney,  asserting  lien  for  services,   1131,  n. 
respondent;  wlio  necessary,  1133. 

necessary,  brought  in  by  ajjpellate  court,   1133. 

surrogate  cannot   order   intervention    i)ending,    1133,  n. 

infants,  rejjresented  by  sjiecial  guardian,   1134. 

a])]iointnient  of  special  guardian  by  appellate  court,   1134. 

designation  of  parties  and  proceeding,  1135. 

substitution  of,  in  case  of  death  before  appeal,  11 30. 

provision  in  case  of  death  before  hearing,  1136. 

effect  of  failure  to  substitute,   1130. 
proceeding  in  such  case,  1130. 

to  whom  ai)plication  for  substitution  made,   1130. 

undertaking  on,   in   such   case,    1130,  n. 
limitation  of  time  for  taking,  by  parties,   1137. 

by  strangers,  1137. 

in  such  ease  time  computed  from  entry  or  order  or  decree,  1137. 

■where  title  acquired  by  assignment.   1137. 

omission  to  take,  in  time,  fatal,   1137. 

motion  to  dismiss  where  not  taken  in  time,  1137. 

enlarging  time,  ctiring  defects  on,  etc.,  1138. 

under  the  Revised  Statutes,   1137,  n. 
perfecting    appeal,    1139. 

notice  of,  how  served,  1130. 

where  resj^ondent,  appearing  personally,   cannot  be   found,  1130. 

security  to  perfect,  requisites  of.   1140. 

giving  of  midertaking  may  be  \\aived,  1140,  n. 

service  of  notice  and  filing  of  securitv  ends  surrogate's  jurisdic- 
tion,   1140,    n. 

no  securitv  required  of  public  administrator  of  Xew  York,  395. 
1140.  ■«. 
stay  of  proceedings  on,  1141. 

how  effected,  1141. 

on  appeal  from  decree  directing  payment.   1141. 

in  proceeding  for  leave  to  issue  execution.   1141. 

perfected  appeal  effects,  when,  1142. 

in  jirobate  ca^es,  etc.,  letters  may  issue.   1142. 

decree  revoking  letters,  etc.,  1142. 

decree  of  removal,  1142. 

effect  of  pending  appeal  on  proceeding  to  revoke  probate,  1142. 

order  granting  letters  of  administration,  r.  t.  a.,  1142,  n. 

order  appointing  temporary  administrator,  1130.   ».,   1142. 

order  appointing  appraiser,  1142. 

order  requiring  executor  to  file  a  bond.  1142,  n. 

undertaking  for,  generally.   1141. 
in  commitment  cases,   1141. 
papers  on  api>eal.  1143. 

case  to  l)e  n;ade  and  settled.   1143. 

exceptions,  necessitv  of.  1143. 

request  for  findinir."  114.  11",.   1143. 

in  absence  of  findinirs,  nothing  to  review.    114.   1143.  ». 

extending  time  to  n^ake  case,  1143. 

settlement  of  case,  1143. 


1098  Gk.nkkal   Index.  References  are 

to  sections. 

APPEALS  FROM  SURROGATE'S  COUllT  —  continued. 
detenuination    of,    principles    froverniiif^.    1144. 

appellate  court  mav  send  back  to  have  findings  stated  separately, 
114,  n. 

appeal  may  be  dismissed  for  lack  of  necessary  parties,  1133. 

effect  of  not  returning  evidence,   1144. 

dismissal   of,  if  not  taken  in  time.   1137. 

when  no  reversal  for  error  in  evidence,  1144. 

findings  of  referee  not  disturbed  unless  contrary  to  the  evidence, 
119,  n. 

what  appeal  brings  up  for  review,  1129,  1144. 

questions  not  considered  below,  not  reviewable,  1144,  n. 

former  discrimination  as  to  probate  cases  abrogated,  1145. 

same  power  to  determine  facts,  ag  surrogate,   1145. 

or  to  take  further  testimony,   1145. 

or  appoint  a  referee,  1145. 

on  appeal  from  order  opening,  etc.,  decree,   1145. 

may  be  a  reversal,  affirmance,  or  modification,   1145. 

or  may  grant  a  new -hearing,  1145. 

proceedings  may  be  remitted  to  surrogate,  1145. 

Avhen  proceedings  must  be  so  remitted,   1145. 

Avhen  probate  directed,  on  appeal  from  decree  refusing,  1145. 

affirmance  where  evidence  evenly  balanced,  1144,  n.,  1145. 

where  decree  affirmed  in  part  and  reversed  in  part,  1143,  n. 

costs  on.     See  Costs  on  Appeal. 
in  probate  cases,  special  regulations  as  to,  114G. 

jury  trial  on  reversal  or  modification,   1146. 
not  a  requirement,  when,  114(1. 

review  of  verdict  after  jury  trial  in  Supreme  Court,  164,  1146. 
To  Court  of  Appeals,  from  Appellate  Division,  when  lies,  1147. 
order  directing  account  not  appealable,  953. 
nor  order  of  Appellate  Division  reversing  surrogate  upon  the  facts, 

1129,  n.,  1147. 
what  questions  reviewable  on,  114S. 
security  to  perfect,  1141,  n. 
how  far  evidence  will  be  looked  into,  1148. 
matters  of  discretion  not  reviewable,  1148. 
proceedings  after  determination  of,   1149. 

Appellate  Division  order  to  be  filed  with  surrogate,  1149. 

where  proceedings  remitted  by  Court  of  Appeals,  1149. 

powers  of  surrogate  after,  1149. 

surrogate  cannot  rehear,  after  affirmance,  1149. 
APPEARANCE: 

of  parties  in  Surrogate's  Courts,  85  et  seq. 

effect  of,  85. 

in  person,  85. 

by  attorney,  85. 

of  infants  by  special  guardian,  108. 

of  nonresident  aliens,  by  consul,  85,  n. 

of  idiots,  lunatics,  etc..   108. 

not  a  \\aiver  of  irregular  service,  85,  n. 

answering  petition  equivalent  to,  85,  «. 

party  though  not  cited  may  appear,  105,  154a,  357,  958. 

See  Parties. 

apportion:mext: 

of  commissions.     See  Commissions. 
of  rents,  492,  532,  n. 
of  dividends,  749. 
APPRAISER : 

of  decedent's   assets,  494. 
oath  of,  494. 


RcJn-nH-c.  are  Gexekai.    Ixdkx.  1099 

to  aevtionii. 

APPRAISER  —  conlimted. 

compensation  of,   494. 

fixing  compensation  of,  494. 
of  value  of  estate  sul)ject  to  transfer  tax,  719. 
APPRAISAL.     See   Assets;   Real   ICstntc,   etc.;   Transfer   Tax. 
ARHITRATIOX: 

executor  may  submit  claim  to,  029,  n. 
ARREST.     See  Attachment ;  Decrees  and  Orders. 
ASSETS: 

Avhat  are,  to  be  accounted  for,  529. 

interference  with,  before  probate,  1.30,  131,  .540,  n. 

pos.session  of,  by  executor  before  probate,   1.31,  502. 

comins  into  State  after  death,  jurisdiction  of  surrogate  over,  141,  142, 

3.38. 
how  disjmsed  of.  bv  ancillary  executor,  etc.,  317,  79.5,  n. 
defined,  338,  480.  ' 

nine  classes  enumerated  in  statute,  488. 
object  of  statutory  enumeration,  488. 
statute   list    not    exhaustive,    488. 
interest  in  lands.   489,   530. 

leases  for  years,  489. 

estate  from  year  to  year.  489. 

estate  pottr  autre  vie,  489. 

remainder  in  term  for  years,   489. 

devised  for  years  to  executor  to  pay  debts,  489. 

church  pew,  not,  4^9. 

proceeds    of    base    fee    not,    489. 

parol   lease,   489. 

lease   for   indefinite   period,   480. 

devised  for  life,  then  to  be  sold,  489. 

proceeds   of  realty,   sold   before   resident's   death.   489. 

vendee's  interest  in  executory  contract  for  land,  not,  493,  ?i.,  530. 

proceeds  of  partition  sale,  489,  n. 
^fixtures,  defined,  490. 

declared  assets,  490. 

when  annexed  for  trade  or  manufacture,  are.  490. 

others  excluded,  490. 

as  to  certain,  rule  between  landlord  and  tenant  applies.  490. 

as  to  others,  rule  iM'twcen  grantor  and  grantee  ai)])lies,  490. 

power  of  testator  to  declare  l)y  will  what  .shall  be  deemed,  490. 

effect  of  contract  of  affixment,  490. 
•good-will  of  testator's  business,  534. 
Tight  to  use  of  name,  not,  534. 
literary  projierty,  535. 
insurance  policy  p.iyable  to  executors,  536. 

interest  in  policv  on  life  of  another,  53G. 

on  life  of  nonresident^  529.  n. 

payable  to  widow,  etc..  how  far,  53(5. 

special  statutes  as  to  such,  530. 

when   s])ecifically   beciueathed,   530. 

against  fire,  distinction  as  to  time  of  loss.  537. 

depends  on   cliaracter  of  proi)erty   insured.  537. 

fire  policy  taken  out  by  executor,  etc..  537. 
benefit  association  fund,  when  not,  537<'. 
Irust  deposit.  493.  n..  537«. 
pension  money,  when,  538. 

■government  payment  of  Alabama  claim,  not,  538,  n. 
damages  for  decedent's  death,  not,  539. 
contracts  of  decedent.  541    rt  seq. 
wrongs  to  decedent's  pro])erty,  543. 
wrongs  to  his  person.  544. 
things  in  action,  540. 


1100  GE.BRAI.  i™ex.        '^i:'zZnr 

ASSETS  —  continued. 

disaffirming  decedent's  wrongful  acts,  545. 

crops  and  produce,  certain,  declared  assets,   491. 

cultivated  and  spontaneous,  distinguished,  491. 

cultivated,  are,  491. 

spontaneous,  when  severed,  are.  491. 

sale  of,  efl'ects  a  severance,  when,  491. 

status  of  growing  grain  on  land  devised,  491. 

growing  grass,  491,  n. 

fruit  when  gathered,  491. 
rents  are,  if  accrued  at  time  of  death,  492. 
I  must  have  been  payable  before  death,  492. 

rule  not  affected  by  extension  of  payment  of,  492. 

though  if  received  after  death  must  be  accounted  for,  492» 

effect  of  rule  as  to  apportionment  of,  492. 

rents  under  lease  from  Indians,  492,  n. 
things  in  action  and  other  property,  49.3. 

representative's  debt  to  decedent,  when  not,  496. 

gifts  to  representative  by  decedent,  when,  529,  n. 

gift  for  life  of  rents,  not,  532. 
'  appraisal  of,  494. 

appraisers  to  be  appointed,  494. 
oath  of,  494. 
compensation,  494. 
taxing  bill  of,  494. 

notice  of,  494. 

who  entitled  to  notice  of,  494. 

notice  must  be  posted,  494. 

effect  of  failure  to  post  notice  of,  494. 

where   assets   are   in   different   places,   494. 

made  in  whose  presence,  494. 
inventory  of,  duty  of  representative  to  make,  486. 

penalty  for  not  joining  in,  487. 

contents  and  form  of,  495. 

disputed  questions  as  to  existence  of  assets,  495. 

assets,   how   enumerated   in,  495. 

statement  of  values,  495. 

specification  as  to  choses  in  action,  495. 

not  only  property  exhibited,  but  all  property,  529,  n. 

claims   against   representative    included,    496. 
effect  of  bequest,  on  such  claims,  496. 

foreign  assets  may  be  included,  497,  529,  n. 

representative  not  bound  to  include  such  assets,  497. 

duplicates  to  be  signed  by  appraisers,  498. 

executor   must  verify   and   file,    498. 
_  must  be  filed  within  three  months  from  issue  of  letters,  49S» 

mistakes  in,  may  be  corrected,  498,  503. 

report  of  appraisers  receivable  as,  498,  n. 

unverified  list  of  assets,  not  treated  as  inventory,  498,  n. 

supplemental,  when  necessary,  499. 

when  to  be  returned,  499. 

when   sup]demental    inventory   compellable,   499. 
'■■.  oath  to  inventory,  498. 

^  compelling  return  of  a  sufficient,  500. 

T'  petition  to  surrogate  for,  500. 

who  may  present  petition,  500. 

order  to  return,  or  show  cause  against  attachment,  500. 

order  of  surrogate  on  motion,  500. 

application,  when  to  be  made.  501. 

limitation  of  proceedings.  501. 

service  of  order  to  show  cause,  501. 

disobeying  order,  how  punished,  502. 


mcrcncesare  Geneual  Index.  1101 

to  sections. 

ASSETS  —  continued. 

order  for  attaclnnont  must  bo  personally  served,  502. 

excusing  failure  to  return,   5U3. 

defenses  to  apjjlication,  503. 

questions   arising  on   hearing,   503. 

extending  time  to  return,  503. 

refcroneo  on  ajjplication.  503,  n. 

disposal  of  assets  no  oxcuse  for  failure  to  file,  503. 

amending  inventory.  4!)8.  503. 

surrogate  may  award  costs,  5(t4. 

rule  in  New  York  county,  504. 
defaulting    representative,    how    discharged    from    imprisonment, 

505. 
revoking  letters  after  thirty  days'  imprisonment,  505. 

where  citation  cannot  bo  served,  etc..  505. 
exempt  articles,  estate  of  representative  in.  500. 

executor,  etc.,  entitled  to,  in  order  to  inventory,  506. 

takes  as  trustee,  506. 

interest  of  widow,  etc.,  in,  507. 

Avaiver  of  right  by  antenuptial  agreement,  507,  n. 

enumeration  of.  508. 

vidow  may  sell  before  inventory,  507. 

testator's  will  cannot  defeat,  507. 

what  ownership  of  testator  necessary  to  enlitle  widow  to,  507. 

right  to,  of  widow's  surviving  minor  children,  508. 

appraiser's  estimate  of  value  of,  508. 
surrogate  may  correct,  508. 
proceedings  void,  if  articles  exceed  statute  limit.  508. 
additional,  selected  in  ap])raisor's  discretion,   508. 
executor  lial)le  for  excessive  payment,  508. 
decedent  must  "  have  a  family,"  509. 
need  not  have  children.  509. 
nor  be  a  householder.  509. 
nor  be  living  with  his  family,  509. 
comj)elling  setting  apart  of,  506,  510. 

petition  for,  510. 

who  may  present.  510. 

decree  may  direct  payment  of  value.  508,  510. 

same  relief  allowed   on  judicial  settlement  of  account,  510, 
9S5,  11..  1009,  n. 
effect  of  inventory  as  evidence,  511.  085. 
intended  for  whose   ])rotection.  511. 
only  presumptive  against  person  filing,  511.  985. 
how  rebutted  in  action  or  special  proceeding,  511. 
not  evidence  against  successor.  511. 
not  conclusive  against  either  party.  985. 
former  rules  of  evidence  preserved.  511.  n. 
•where  inventory  made  by  co-executors.  511. 
is  prima  facie  evidence  of  what.  512.  985. 
formerly  inii)eachable  onlv  on  accoinitins,  512. 
omission  of  executor  to  claim  set-off  to  his  debt,  512. 
of  acknowledirtiiejit   of  barred  claim.  512. 
Avhere  de])osit  in  failins'  bank  entered  as  cash,  512. 
relation   of   inventory   to   account,   985. 
assets  not  in  inventorv.  512.  987. 
rectifying  erroneous  debits.  512.  986. 
im]ieachnient  of,  on  accounting.  512,  985.  986. 
chattels  subject  to  life  estate.  987. 
discovery  and  collection   of  assets.  573. 
proceediniTs  before  letters.  562. 
pursuit  of  legal   remedies  in  general.  562. 
special  proceeding  for.  573. 

See  Discopery,  etc.:  Distrihiition. 


1102  General  Index.  References  are 

to  sections. 

ASSIGNEE: 

of  creditor,  as  party  to  proceedings,  97. 
of  legatee,  as  party  to  proceedings,  97. 
validity  of  transfer,  97. 
when  may  be  questioned,  97. 
of  executor's  commissions,  standing  of,  54,  n, 
payment  of  distributive  share  to,  97. 

of  legatee,  when  may  not  compel  pavment  of  legacy,  97,  968. 
ATTACHMENT: 

for  failure  to  return  inventory,  502. 

for  failure  to  obey  order  to  account,  954. 

for  neglect  of  temporary  administrator  as  to  deposit,  etc.,  420. 

etiect,  if  warrant  of,  not  served,  420,  421,  428. 
enforcement  of  decrees  and  orders  by,   1084. 

by  execution  against  person,    1084. 

on  return  of  execution  against  property,  1094. 

without  execution,  1094,  n. 

by  proceedings  to  punish  for  contempt,  1089,  1093. 

practice  in  such  cases,  1093. 

warrant  of,   1097. 

fine  and  imprisonment,  1095,  1098. 
AUDITOR: 

olTice  of,  no  lonirer  exists,  964.  «. 
ATTESTATION.     See  Will. 
ATTORNEY: 

disqualification  of  surrogate  in  proceedings  where  he  has  acted  as,  7« 

clerk  of  court  cannot  act  as,  22. 

surrogate  cannot  act  as.  in  his  own  court,  7,  8. 

surrogate's  partner  cannot  act  as,  85. 

appearance  by,  in  Surrogate's  Court,  85. 

control  of  surrogate  o\er,  48. 

substitution  of,  power  of  surrogate  as  to,  48,  552. 

ser\'ice  of  papers  on,   in  surrogate's  proceedings,  80. 

and  testator,  privileged  communication  between,  174,  176. 

emplovment  of,  when  allowed  as  administrative  expense,  552,  555,  »., 

1115. 
claim  of,  for  services  is  primarily  against  executor  personally,  552. 
lien  of.     See  Executors,  etc.;  Surrogate's  Court. 
ATTORNEY-GENERAL : 

citation  to,  on  probate,  104,  n.,  158. 

when  may  intervene  on  probate,   104,  n. 

may  compel  public  administrator  to  account,  384. 

BENEFICIARY: 

when  may  sue  for  protection  of  trust,  002,  n. 
BENEVOLENT  SOCIETIES: 

bequests  to,  restrictions  on.  260  ct  seq. 
BEQUEST.     See  Legacy. 
BOARDING-HOUSE: 

keeper  of.  to  report  to  public  administrator,  388. 
BOND  (OFFICIAL)  : 

of  surrogate,  28. 

where  to  be  filed,  28. 

form  and  penalty,  28. 

county  clerk,  judge  of  sufficiency  of,  28. 

justification  of  sureties,  28. 

filing  and  recording.  28. 

copy  of,  evidence,  28. 

nf  temporary  surrogate.  28. 

of  officer  acting'  as  surrogate,  28.  29. 

liability  on.  30. 

for  fund  received  from  predecessor,  30,  66,  n. 


References  are  Geneual   Index.  1103 

to  sections. 

BOND   (OFFICIAL)  —  cnntinurd. 

action  on;   leave  to  biin^'  from  wliat  co\irt,  30,  31. 
k'a\e  may  be  j^iven  without  notice,  31. 
aliidavit  on  applyinj^  for  such  leave.  31. 
vacatin<(  order  jujivinir  leave,  entered  without  notice,  31. 
order  for  prosecution,  32. 
proof  in  action  on,  33. 
defenses  to.  34. 
execution  in,  35. 
apportioninj,'   recovery  in,   3G. 
of  administrator  of  intestate,  470. 

statute   rccpiires,   470. 

to  lie  tiled  with  surrogate.  470. 

form  and  condition  of.  470. 

must  be  joint  and  scAeral,  470. 

penalty  of,  how  determined,  470. 

rights  and  liabilities  of  sureties  on,  4G6. 

modified  security  on  limited  letters,  471. 

restraint  u])on  representative  in  such  case,  471. 

moditied  security  on  consent  of  next  of  kin,  472. 

minimum  amount  of  such  sccuritj',  472. 

may  be  inci'eased,  470,  n. 

special,  on  selling,  etc.,  lands,  S<i9,  874,  876. 

condition  and  jienalty  of  such  bond,  473,  876. 
of  administrator  with  will  annexed,  474. 

requisites  of,  same  as  executors,  474. 
of  temporary  administrator,  475. 

sureties'  in,  not  discharged  on  accounting  of  principal,  422,  n. 

requisites  same  as  ordinary  administrators,  475. 

efl'ect  of  recitals  in,  on  sureties,  422,  n. 
of  administrator  de  bonis  non,  470. 

requisites  same  as  ordinary  administrators,  476. 

where  estate  partly  administered,  476. 

penalty  in  such  case.  476. 
of  ancillary  executor  or  administrator.  477. 

requisites  same  as  domestic  administrator,  316,  477. 

s])ecial  penalty  of.  316,  477. 

when  special  penalty  not  required.  477. 
of  executors,  in  general,  not  required,  302,  473. 

when  necessary,  before  letters  will  be  granted,  302,  473. 

when  required  of  nonresident  executor,   302,  473. 

provision  as  to,  in  will,  473. 

on  stny  of  letters,  473. 

preventing  revocation  by  giving,  440,  473. 

form  and  penalty  of,  473. 

liability  on,  46G. 

special,  on  selliiig,  etc..  lands.  SOO.  874.  S76. 

condition  and  penalty  of  such  bond.  473.  876. 

court  not  authorized  to  impose  condition  not  directed  by  will  or 
law,  473. 
of  general  guardian  of  property,  478,  1027. 

form,  cotulition  and  jienalty  of.  478. 

on  receiving  legacy,  etc.,  478.  ». 

where  trust  com|)any  ajqiointed.   1027.  ». 

surrogate  may  liniit  penalty  ot.  478. 

amount  of  security  on  limited  letters,  479. 

liabilities  of  sureties  nn.  480. 

for  proceeds  of  real  property  paid  to  guardian.  478,  n. 
of  general  guardian  of  ]ierson,  481. 

sTirrogate  u'iiy   renuire.   481.   1027. 

form,  condition  and  penalty  of.  481. 
of  guardian  by  will  or  deed.  4  83. 

surrogate  may  require,,  482. 


1104  Genbbal  Inbex.  "f^l^iZr 

BOND  (OFFICIAL)  —continued. 

upon  whose  application,  482. 
in  what  cases  required,  482. 

required  only  in  cases  where  executor  required,  482. 
requisites  same  as  surrogate's  guardians,  482. 
rights  and  liabilities  ot  sureties  on,  482. 
failure  to  give,  ground  for  removal,  482. 
of  guardian  ad  litem,  483. 

no  statute  as  to,  in  Surrogate's  Court,  483. 
of  testamentary  trustee,  484. 

surrogate  may  require,  when,  484. 
upon  whose  application,  484. 
requisites  of,  same  as  executor's,  484. 
failure  to  give,  ground  for  removal,  484. 
only  those  appointed  by  will  may  be  required  to  give,  484. 
only  required  in  a  case  \\herc  executor  required,  484. 
breach  of  trust,  not  a  ground  for  requiring,  484. 
of  freeholder,  selling,  etc.,  lands,  877. 
of  county  treasurer  acting  as  juiblic  administrator,  382. 
form  and  general  requisites  of,  456. 
must  be  joint  and  several,  4.57. 
must  be  e'xeculed  as  a  daed  to  be  recorded,  456. 
number  and  qualifications  of  sureties,  457. 
atlidavit  by  sui'eties,  457. 
justification  of  sureties,  457. 
as  to  husband  or  wife  as  surety,  457,  n. 
where  bond  is  over  .$5,000,  457. 
rule  in  New  York  county.  457,  n. 
bond  by  surety  company,  456,  458. 
how  such  bond  executed,  458. 
bonus  to  surety  comjiany.  459. 
deposit  of  securities  to  reduce  penalty  of,  460. 
such  securities,  how  withdrawn,  460. 
order  therefor.  460. 
approval  and  filintr,  461. 
liability  of  surety  in,  406.  468. 

petition  for  new  bond  or  sureties,  462. 

who  may  present  such  petition,  462. 

citation   (m  such   petition,   462. 

order  thereon.  -iOS. 

dismissal  on  fling  bond,  463. 

effect  of  failure  so  to  renevA',  463. 

no  provision  for  renewal  on  death  of  surety,  462,  n. 

petition  by  sureties  to  be  released,  464. 

who  may  present  sucli  petition,  464. 

accountiiig  required.  465. 

sureties  released  oi-  letters  re-\'oked,  465. 

to  what  bonds  remedy  applicable,  464. 

extent  of  liability  on.  466. 

W'here  di'ierent  letters  issue,  466. 

remedies  a\'ailable  on.  467. 

not  barred  by  principal's  imprisonmf^nt,  469. 

action  on,  after  execution  imsatisfied,  467. 

to  be  in  whose  name.  467. 

defenses  in  such  action,  469. 
action  on,  by  successor.  467. 

for  what  causes  permitted,  467. 

recovery  therein,  467. 
action  on,  after  revocation,  467. 

by  whom  maintained,  467. 

leave  to  bring.  467. 

recovery  therein  i>:"<l  into  court.  467. 

distribution  of  such  recovery,  467. 


References  are  /i„  t  -•-.-.- 

to  sections.  General  Index.  llUo 

]JOX])  ■(  oFKlCr.M,)  —  conlimird. 

condition  of  surety's  iial.ility,  408. 

sureties  in.  (.oiichuled  U\   decree,  400. 

rights  of  surety  on  [liiyiny-  judgment  in  such  action,  409. 

wlien  riglit  of  action  accrues,  408,  n. 

surety's  i<j:noranee  or  mistake  no  defense,  409. 

sureties  estopped  to  d<'ny  jurisdiction,  409. 

contribution  bv  co-sureties,  409. 
BOOKS  AND  rAl'KKS:" 

books  to  be  kept  by  surrogate,  24. 
to  be  projierly  indexed,  24. 
always  to  l)e  open  for  inspection,  24. 
custody  and  renewal  of  surrogate's  records,  27. 
surrogate  to  preserve  ])apers,  20. 
to  be  delivered  by  surrogate  to  his  successor,  26. 
discovery  of,  for  use  on  trial.  127. 
power  of  surrogate  to  direct  deposit  of,  127. 
BURDEN  OF  PROOF.    See  Evidence. 
BURIAL  PLOT: 

expense  for,  ^hen  allowed  against  creditors,  550. 

CANOXS  OF  IXTFRPRKTATIOX: 

of  wills.     See  Wills. 
CASE : 

on  appeal:  when  required.  1143. 

how  made  and  settled,  1143. 

exceptions  on  making.  1143. 

request  for  findings  on  making,  1143. 

enlarging  time  for  excepting  and  making,  1143. 

settlement  of,  1143. 
CAVEAT : 

against  probate,  before  Revised  Statutes,  133. 

by  whom  filed,  133. 

abolished,  133. 
CERTIFICATE : 

of  surrogate's  disqualification,  11. 

indorsed  on  will,  after  probate,  240. 
contents  of,  240. 
CHARGE : 

of  legacies  on  land.     See  Lefjacy. 

of  debts  on  land.     See  Real  Estate,  etc. 
CHARITABLE  BEQUEST: 

to  literary  institutions,  200. 

I'cstrictions  on,  200  et  serf. 

limitations  on,  2()7. 

how  far  valid.  207. 

to  foreign  charities,  207. 

exempt  from  inheritance  tax.  708. 
CHILDREX: 

meaning  of,  in  will,  269,  «. 

exempt  from  legacy  tax,  wlien.  705. 

adopted.     See  Adoption. 
CITATIOX : 

poAver  of  surrogate  to  issue,  52. 

special  proceedimrs  commenced  by,  08,  69. 

petition  a  proliniinary  to,  72. 

issuing  of,  72.  73,  74. 

order  for.  unnecessary,  73. 

form  and  contents  of.  74. 

varies  according  to  prooeeding  in  which  employed,  74. 

returnable,  before   \\'hom,  74. 

return  da>'  of.  74. 

proceedings  on  return  of,  85. 

70 


^^^^  /->(  T  Referenccfi  are 

1106  General  Index.  ^^  section,. 

CITATION  —  continued. 

to  a  class  wIhtp  names  are  unknown,  75. 
original  to  be  filed,  85. 
service  of,  7(5. 

n^ay  be  served  in  any  county  of  the  State,  76. 
must  be  served  within  sixty  days,  70. 
personal,  within  State  upon  natural  person,  7G. 

upon  corporations,  infants,  and  incompetents,  77. 
by  whom  made,  159. 
rule  in  New  York  county,  76,  n. 
substituted,  when  permitted,  78. 
by  publication,  when  permitted,  79. 
how  such  service  made,  82,  83. 
without  the  State,  82. 

within  the  State,  in  such  case,  void,  76,  n. 
wliere  residence  or  person  unknown.  80. 
contents  of  order  of  publication,  81. 
delivery  or  deposit  of  copy  in  such  case.  81. 
when  copies  of  papers  must  'be  served.  82. 
when  service  of  publication  complete,  81,  n. 
provision  for  publication  in  State  paper,  repealed,  S3,  n. 
return  of  such  service,  82,  n. 
irregularities  in,  waived  by  answering,  76,  n. 
classes  of  persons  to  be  served  with,  on  probate,  157. 
on  public  "administrator,  when,  158. 
on  consul,  for  nonresident  alien,  when,  76,  n. 
on  attorney-general,  when    104,  «.,  158. 
proof  of  service,  76. 
admission  of  service,  76. 
waiver  of  service,  84. 
when  jurisdiction  complete-,  76.  «. 
on  probate,  contents  and  service  of,  159. 
for  revocation  of  probate,  283. 
persons  to  be  served,  282. 

effect  of  service  of.  on  executor's  proceedings,  284. 
for  ancillarv  letters.  314. 
CLAIMS  OF  CREDITORS.     See  Debts. 
CLASS: 

legacy  to  a,  269. 
citation  to,  75. 
CLERK: 

for  surrogate's  office,  20,  21. 
of  Surrogate's   Court,   20,   21. 

appointment  and  powers  of,  20,  21. 
removal  of,  20. 

surrogate's  liability  for  acts  of.  23. 
.additional  powers  of,  in  probate  cases.  21. 
disabled  to  act  in  certain  cai-acities    22. 
requiring  security  from,  by  surrogate,  20,  23. 
fees  of,  39. 

employment  of.  by  executors,  etc.,  558. 
See  (Surrogates'  Coiirfa. 
CODICII  : 

defined,  231. 
how  executed,  231. 
eflect  of.  on  will.  223.  231. 
effect  of  revoking  will  upon.  226. 
republication  of  will  by.  197.  231. 
term  "  will  "  includes,  232. 
revocation  of,  230. 
propounding,  232. 

instrument!  referred  to  in  will  distinguished  from,  233. 
See  Probate;  Will. 


COLLATERAL  IXHERITAXCF.  TAX.     See  Travsfcr  Tax. 
COLLATKHA L  RELA TI VKS : 

right  of,  to  share  in  intestate's  real  property,  801. 

to  share  in  intestate's  assets,  83 L 
doctrine  of  n-prcsentation  stated,  S()2,  81S. 
limitation  on  representation  among,  818. 
computing  degrees  of  kindred,  820. 
table  showing  mode  of  distribution  among,  820. 

See  Intestate  Sucressioti. 
COLLEGES  AXD  UXIVEESITJES: 

bequest  to,  264. 
COMMISSIOX": 

to  take  testimony,  surrogate's  power  to  issue,  124,  127. 
(X)MMISSIOXS: 

law  in  force  at  accounting  goA-erns,  990,  n.,  1002, 
Of  testamentarij  tnistees.  same  as  those  of  executor,  etc.,  990. 
Of  executors  and  adminifitrators,  rate  of,  988, 
ground  of  right  to,  991. 
when  surrogate  no  poA\er  to  withhold,  991. 
doctrine  of  common  law  as  to,  991. 
statute  allowance  exclusive,  991,  992. 
transferal)le  nature  of  right  to,  991,  n.,  100.5,  n. 

of  i-isolvent  executor,  etc.,  to  be  applied  on  iiis  debt  to  estate,  991,  n, 
election  between,   and  provision  for,   in  will,   .5.57,  n..  992. 
time  within  whicli  election  to  be  made  not  limited,  992,  n. 
compensation  by  will  regardless  of  statute,  99.3. 
when  representative  e«topped  from  claiming,  994. 
assignee  of,  cannot  objec't  to  order  denying,  54,  /(. 
forfeiture  of.  on  resigning  before  completed  administration,  995. 

by  refusing  to  join  in  inventory,  99.5. 

gross  mismanagement  of  e.state,  995. 

wrongfully  witiiholding  assets,  995.  n. 
double,  when  executor  acting  as  trustee  entitled  to,  990. 

allowed  only  where  the  two  oftlces  are  separable,  990,  997. 

where  oflice  of  trustee  succeeds  that  of  executor,  997. 

when  annual  income  exceeds  ."^lOO-OOO,  999. 

when  executor  acting  as  guardian,  entitled  to,  1040,  n. 
half,  when  only  allowable,  998. 

\\hen  each  of  several  exeeiitors,  etc.,  entitled  to,  998. 
full  commissions  on  estates  over  .$100,000,  999. 

apportionment    in    such   case   where   more   than   three   executors, 
etc..  999,  100.3. 

value  of  estate  in  sur-h  case,  how  and  when  estimated,  999. 

must  be  "over  all  debts,''  999, 

real  estate  equitably  converted  regarded  as  personalty,  999. 
on  successive  letters,  in  one  capacity  only,  1000. 

at  election  of  executor,  etc.,  1000. 

applies  only  where  two  .sets  of  letters  are  issueH,  1000. 
on  trust  income,  999,  1001. 

"out  of  Avhat  fuiKl  pai.l,  1001. 
annual  rests.  1001. 

when  not  alloved.  1001. 
basis  for  computing.  1002. 

on  securities,  1002. 

rents  of  land  occujiied  by  life  tenant.  100?.  n. 

on  proceeds  of  laiul  directed  to  bo  sold.   1002. 

real  property  unsold  not  to  be  consi(h'red.  1002. 

on  debt  due  representative  from  estate,   1002. 

on  amount  charged  against  representative  for  losses.  1002. 

on  assets  havinjr  onlv  a  constructive  value.   1002.  n. 

on  purchase  price  of  land  sold,  subiect  to  mortsrage,  1002. 

assets  spoei Really  beoueathed  not  subject  of,   1002. 

nor  projierty  inventoried  but  not  sold,  1002. 


iinQ  n,^NT,.,.  »r    TA-nr-^'  References  avc 

1108  •  brKNLKAL   l^DEX.  ^^  sections. 

COMMISSIONS  —  continued. 

legacies  not  subject  to  charge  for,  1002. 
nor  deductions  for  advances,  1002,  n. 

reinvestment  of  principal  not  ground  for  allowing,  1002. 
amounts  paid  in  satisfaction  of  dower.  1002. 
apportioning  among  several  representatives,  999,  1003. 

of  tliree  commissions,  1004. 
payable  only  on  accounting,  lOOo. 
counsel  fees  and  expenses  -in  addition  to.  552,  989. 
Of  guardian  of  infant,  same  as  executors,  1038. 
not  allowed  for   extra   services,    1039. 
not  to  be  computed  till  end  of  guardianship,  1040. 
principles  governing  computation  of.  1040. 
when  denied  compensation.  10.38,  n. 
of  temporary  guardian,   1040. 
on  annual  statements,    1041. 
of  testamentary  guardian,  lOGG. 
Of  public  administrator,  in  New  York  county,  386,  397. 

in  Kings  county,  402. 
Of  county  treasurer,  on  transfer  taxes  collected,  734. 

as  public  administrator,  384,  385. 
Of  comptroller,  on  transfer  taxes  collected,  734. 
COMPROMISE: 

of  debt  due  estate,  surrogate's  power  to  authorize,  629. 
of  claim  against  estate,  surrogate  has  no  power  to  direct,  629. 
executor  may,  600,  ??.,  629. 

application  to  surrogate  for  leave  to,  how  made,  629. 
when  called  in  question,  629. 
CONDITIONAL  WILL.     See  Will. 
CONSOLIDATION: 

of  proceedings  on  probate,  155. 

on  accounting  of  representative,   955. 

of  representative  of  deceased  representative,  956. 
when  cannot  be  effected,  955. 
proceeding  in  such  case,  955. 
supplemental  citation  to  issue  on,  955. 
CONSTRUCTION.     See  Will. 
CONSUL: 

foreign,  right  of,  to  intervene,  150. 

right  of,  to  letters  on  estate  of  alien,  344,  470,  n. 

to  assets  of  alien,  344,  n.,  1012,  v. 
to  appear  for  foreigner  in  proceedings  bv  public  administrator, 
391,  n. 
CONTEMPT : 

power  of  surrogate  to  punish  for,  52,  1089. 

in  disobeying  order  or  decree,  attachment  for,  954,  1089,  1093,  1095. 
attachment  for,  when  issuable,   1094. 
for  not  returning  inventory,  502. 
for  not  filing  account  when  ordered,  954. 
for  default  as  to  deposits,  420. 
discretion  of  court,  1096. 
fine  or  imprisonment,    1095. 
service  of,  1097. 
commitment  under,  1096,  1098. 
See  Attachment ;  Decrees. 
CONTEST.     See  Probate. 
CONTESTANT.     See  Probate. 
CONTRACTS: 

survival   of  rights  under,  541. 

by  decedent  for  purchase  of  land,  executor  may  perform,  630,  n. 
extent  of  executor's  liability  upon  decedent's  contracts,  637. 
upon  their  own,  606. 


CONVEKSIOX : 

of  real  into  personal   property,  2(i0,   ')i9. 
wlien   real  estate  is  an  asset,  and  vice  versa,  531. 
COPARTNKKSJUP.     See  Assets;  Debts;  Executors,  etc. 
COROXKK: 

in  Now  York,  to  rcpmt   iii(|iiest.s  to  jJiiblie  administrator,  388. 
CORPOliATlUN: 

service  of  citation   on,   77. 

what  a  sullicient   ilesi<;nation  of,   in   will,   274. 
bequests  to,  validity  of,  208. 
COSTS: 

in  action  hy  or  affainst  executor,  etc.,  .571,  G56. 

plaintiil'.  when  to  <,Mve  security  for,  572. 

in  action  on  claim  unreasonably  resisted.  0.5G,  n. 

personal   liability  of  rejircsentative   for,  057. 
on  reference  of  disj)utcd  claim,  (i.iC),  (!57. 

whether  discrcl  ionary  or  of  rif^lit,  050,  057. 

referee's  fees  and  disbursements,  t)5I),  n. 

question  for  the  court,  not  the  referee,  GGO. 

certificate  for,  GGO. 
in  Surrooates'  Courts,  1099  et  seq. 

of  appeal  from  Surrogates'  Courts.     See  Costs  of  Appeal. 
COSTS  IN  SURROGATE'S  COURT: 

Award  of,  under  former  laws,  1009  ef  seq. 

general  sections  of  Code  inapplicable  to,  110.3. 
formal  rules  as  to.  su]ierseded  by  Code,  1103. 
security  for,  surrotrate  cannot  require,  1103,  n. 
by  intermediate  order,  1104. 

is  discretionary,  and  may  be  awarded  to  any  party,  1104. 

maximum  amoimt  of,  1104,  1117. 

upon  motion  for  new  trial  upon  a  case, '1117. 

on  disnussal  of  proceedings.  1105. 

may  be  absolutely,  or  to  abide  event,  1104. 

how  collected.    1104. 

want  of  jurisdiction  as  affect ing,  1105. 
by  decree,  generally  discretionary  \\ith   surrogate,    HOG,    1118. 
when  a  matter  of  right,  1100. 

on  special  direction  of  appellate  court.   1100.   1107. 
to  successful  party  07i  jury  trial,  of  course,  HOG. 
in  contested  |)robate  case,  restricted,   lUXi. 
to  contestant  on  probate,  HOG,  1H2. 

in  general  cannot  be  made  to  unsuccosful  contestant,  1106. 
nor  to  a  person  not  a  party.  HOG.  n. 
contestant  may  be  charged  personally  with.   1112. 
on  new  trial,  after  appeal,   HOS. 

where  one  named  as  executor  pro])ounds  will,  entitled  of  course,  1110, 
otherwise   where   propounded   by   tliird   persons.    HIO. 
where  executor   contests   proof  of  subsequent    will.    1110. 
on  jury  trial  in  proceedirgs  to  sell  lands,  etc.,  H09. 
of  appeal  after  jury  trial  in  such  proceedings.  805. 
to  special  guardians  must  be  fixed  by  surrogate,  1111. 

on  appeal,  H  19.  n. 

for  services  on  ai)peal,  cannot  be  made  by  surrogate,  Hll. 

on  probate.  HOG. 

on  accounting,  1111.  ». 

in  transfer  tax  proceedings,  1111.  n. 

on  ]iroceediiigs  to  sell  lands,  etc..  904.  h. 
on  application    for.   or   revocation    of,   letters,    1113. 
on  transfer  tax  ]ir(iceedin2's.  733. 
on  accounting  ])roceediiigs.   1114. 

additional  allowance  on.  5."9.   HI.", 
to  accounting  party,  559,  1115. 


1110  Geneuai.  I™ex.  't'SZr 

COSTS  IN  SURROGATE'S  COURT  —  continued. 

when  charged  against  representative  personally,  1114. 
when  against  contestant  personally,  1114. 
should  be  to  parties,  not  to  counsel,  1105,  /(.,  111.5.  . 
where  no  objections  filed,  no  allowance  to  legatees,  etc.,  1104,  n. 
nor  where  account  has  not  been  surcharged,   1114,  n. 
may  be  payable  out  of  estate,  or  by  party  personally,  1110. 
where  accountant  has  been  removed,    1114,   n. 
restricted,  where  estate  less  than  $1,000,   lllG. 
direction  for  payment  by  temporary  administrator,  414,  870,  n., 
1116. 
on  proceedings  to  sell  lands  for  debts,  904. 
Amount  of,  1117  et  seq. 

provisions  as  to,  apply  to  hearing  before  referee,  1118,  n. 
includes  disbursements,  1118. 
in  contested  cases,   1118. 

on  motion  for  new  trial  upon  a  case,  1117,  1118. 
upon  appeal,  1119. 

rule  in  New  York  county  as  to  taxation  of,  1118,  n. 
to  be  fixed  by  surrogate  and  inserted  in  decree,  1118. 
security  for,  no  statutory  provision  for,  1103,  n. 
stay  of  proceedings  to  collect  interlocutory,  1090. 
COSTS  OF  APPEAL: 

special  direction  by  appellate  court,   1106,  1107. 
award  of,  is  discretionary  with  appellate  court,  1107,  1119. 
may  be  awarded  to  either  party.  1119. 
to  infant  respondents,  when,  1119.  n. 

on  appeal  from  order  for  new  trial  in  proceedings  to  sell,  etc.,  865. 
absolutely,  or  to  abide  the  event.   1107. 
payable  out  of  the  estate  or  by  party,  1107. 
effect  of  failure  of  appellate  court  to  award,  1107. 
to  special  guardian,  surrogate  no  power  to  award,   112,  1111. 
not  made  on  new  trial  after  reversal,  1108. 
where  judgment  appealed  from  is  reversed,  1107,  n. 
COUNSEL  FEE: 

allowance  of,  on  settlement  of  account,  552,  554,  n.,  1115. 
COUNTERCLAIMS: 

in  actions  by  or  against  executors,  569. 

in  proceedings  on  rejected  claims,  effect  upon  questions  of  costs,  659. 
COUNTY  CLERK: 

when  to  docket  money  decree,  1091a. 
COUNTY  COURT:. 

supplementary  proceedings  in,  on  surrogate's  decree,  1092. 
jury  trial  in,  after  appeal  from  svirrogate's  court,  1146. 
on  proceedings  to  sell,  etc.,  lands,  121,  863. 
COUNTY  JUDGE : 

when  to  act  as  surrogate,  1,  4. 
COUNTY  TREASURER: 

right  to  administer,  after  creditors,  344,   378. 

on  estate  of  absentee,  404. 
may  receive  letters  of  administration,  etc.,  344. 
functions  of,  as  public  administrator.  381. 
deposit  of  legacies  to  minors  with.  792. 
decree  for  payment  of  unclaimed  legacy  to,  1012. 
when  made.  1012. 

how    such   legacies   paid   out.    1012. 
to  receive  proceeds  of  lands  sold  for  debts,  893. 

securities  in  such  proceedincs  to  he  in  name  of.  898. 
diity  of.  as  to  investing  widow's  dower,  etc..  899. 
deposit  by.  of  infanfs  share  in  proceeds  of  sale.  900. 
may  intervene  on  accounting,  on  question  of  transfer  tax,  970. 
proceedings  thereiipon.   970. 
commissions  of,  in  such  cases.  734. 


COURT  OF  APPEALS: 

appeals  to.  in  cause  originating  in  Surrogates  Court,  1147. 

See  Appeals. 
CREDITOR  OF  DECEDENT: 

as  party  to  proceeding  in  Surrogate's  Court,  9G. 

proof  of  character  as  sucli,  in  proceeding,  96. 

assignee  of,  as  a  party,  97. 

intervention  of,    100. 

when  unknown,  service  of  citation  on,  80. 

domestic,  protection  of,  where  ancilhiry  letters  issue,  314. 

may  apply  for  probate  of  will,  90,  n.,   148. 

for  api)ointnient  of  administrator,  c.  t.  a.,  329,  331. 

for  letters  of  administration,  350. 

for  accounting,  930. 
Claims  of,  litjuidation  of,  030  ct  srr/. 

publication  of  notice  to  present  claims,  630. 
in  what  ])a])ers  ]>ublislicd,  030. 
presentation  of  claim  of,  037. 
what  claims  need  not  be  presented,  037. 

may  be  presented,  037. 
when  claims  may  be  presented,  637. 
effect  of  omission  to  present,  039. 
kind  of  proof  required,  040. 
acceptance  or  rejection  of  claim,  045. 
what  amounts,  to  a  rejection,  048. 
rejection  of  claim  may  be  waived,  649. 
compromise  of  claim^  029. 

determination  of,  by  surrogate,  upon  consent,  045. 
surrogate  has  no  jurisdiction  except  upon  consent,  49,  908,  969. 

determining  dispvUed  claim  by  reference,  050  et  seq. 

steps  necessary  to  confer  jurisdiction,  051. 

what  claims  may  be  referred,  050. 

order  of  reference  and  hearing,  051. 

jiulgment  on   referee's   report,   055. 

awarding  costs  to  successful  party,  656,  657. 
action  on  disputed  claim,  when  barred,  639,  646. 
Payment  of  claim   of,  by  representative.  002. 

what  law  governs  as  to  priorities  between,  002. 

order  of  priority,  003. 

different  classes  of  preferred  debts,  0.03. 

out  of  what  fund  payable,  072,  073. 

mortgage  debts,  075. 

partnership  debts,  070. 

judgments  against  representatives,  007,  077,  678. 

vendor's  lien  on  sale  of  realty,  075,  ». 
by  ancillaiy  executor,  etc.,  317. 
by  temporary  administrator,  417. 
Coyyipulsori/  paiimcnt  <.f  clai)ii,  079  ef  seq. 

by  execution  on  judgment  against  executor,  etc.,  079. 
application  for  leave  to  issue  execution.  079.  OSO. 
in  case  of  judgment  for  legacy  or  distributive  share,  082. 
by  execution  on  judgment  against  decedent,  0S3. 

application  for  leave  to  issue  execution.  (!83,  684,  687. 

to  whom  application  made.  683,  684,  087. 

when  execution  issued  without  leave,  686. 
by  order  of  Surrogate's  Court,  089. 

nature  of  the  proceeding,  089. 

power  of  surrogate  in  such  proceeding,  692. 

when   proceeding  must   lie  dismissed.  691. 

effect  of  denial  of  apDlication.  093.  n. 

effect  of  decree  as  evidence  of  assets,  695. 

decree  will  protect  representative,  695. 


1119  Gf^fkm     Indfx  References  are 

CREDITOR  OF  DECEDENT  —  continued. 

docketing  decree  fo»  payment,  G96. 
enforcing  decree  for  payment,  (i'JG. 
See  Debts;  Decrees. 
CRIME: 

conviction  of,  as  affecting  competencj'  of  executor,  etc.,  303,  307,  3GK 
CRIMINAL  CONTEMPT.     See  Contempt. 
CROPS: 

when  are  assets  to  be  included  in  inventory,  491. 

cultivated  and  spontaneous,  distinguished,  491. 

cultivated,  deemed  assets,  491. 

spontaneous,  when  severed,  are  assets,   491. 

sale  of,  effects  a  severance,  when,  491. 

.status  of  growing,  on  land  devised,  491. 

growing  grass,  491,  n. 

fruit  ungathered,  491. 

included  in  conveyance  on  sale,  etc.,  of  land  for  debts,  889. 
CURTESY: 

estate  by,  not  affected  by  statute  of  descent,  813. 

right  of,  does  not  prevent  sale,  etc..  of  lands  for  debts.  841,  n. 

husband  having,  in  surplus  of  lands  sold,  etc.,  for  debts,  may  receive 
gross  sum,  901. 
OY  PRES: 

doctrine  of,  has  no  place  in  our  law,  2G8,  n. 

DAMAGES: 

for  causing  death,  not  assets  to  be  inventoried,  539. 
See  Assets. 


DATE 
DEATH 


DEBT: 


of  will  may  be  corrected  by  parol  evidence,  272,  n. 

damages  for  causing,  not  assets,  539. 

of  partv  in  Surrogate's  Court,  effect  of,  101  et  seq. 

of  witness  to  will,  elfect  of,  1G6,  1G9. 

words  in  will  referring  to,  relate  to  time  of  testator's  death,  269. 

of  decedent,  burden  of  proving,  ISG,  351. 

presumption  of,  180,  351. 

fact  of,  jurisdictional,  186.  342.  .351. 

sufficiency  of  proof  of.   186,  351. 

means  actual,  not  eivil,  342. 

civil,  does  not  confer  jurisdiction,  342. 


defined,  145,  n. 
is  personal  propertv,  145. 
DEBTS  OF  DECEDENT: 

to  be  paid  with  diligence,  631. 

whole  estate  liable  for,  G61. 

old  system  of  preferential  administration  described,  631,  632. 

action  by  creditor;  pleas  and  proceedings  therein,  631. 

present  system  aims  at  equality.  633. 

is  under  control  of  surrogate.  633. 

necessity  for  ascertaining  amount  of  assets,  634. 

as  Avell  as  amount  and  nature  of  debts.  634. 
restrictions  on  creditor's  actions  to  compel  payment,  635. 

execution  allowed  only  on  leave,  635. 

costs  not  recoverable,  except,  etc.,  635. 

right  of  action  not  absolutely  suspended,  635. 
notice  to  present  claims.  636. 

application  for  leave  to  publish,  636. 

may  be  published  at  any  time  after  letters,  636. 

in  what  papers  published,  636. 

contents  of  notice,  636. 


References  are  n  , 

DEBTS  OF  DECEDENT  — cor//iM?/c(/. 

errors  in  notice  immaterial,  (i;3G. 
no  absolute  ol)li^'ation  to  ;,'ive,  ()30. 
presentation  of  claini;--,  by  creditor,  U37. 
wiien  claims  may  be  presented,  (V.il . 
bill  of  ])articulars  may  be  re(|uired,  ()40. 
^vilat  claims  need  not  be  presented,  G.'iT. 
■what  claims  may  be  presented,  (i.'}7. 

decedent's  joint  ol)li<ration,  li38. 

ccntinj^ent  oblifrations,  (i.'JS. 

includes  those  both  lefjal  and  equitable,  638. 

as  to  unliquidated  claims,  G3S. 

tolls,  C38. 
effect  of  not  presenting,  030. 
when  action  barred,  on  failure  to  present,  G39. 
proof  of  claim.  (i40. 

vouchers  deniai'dable,   tUO. 

ellect  of  verifi^fation,  040 

Avhat  proof  representative  may  demand,  r.40. 

allowance  by  rej>resentative  implies  nonpayment  of  claim,  640,  n, 

of  personal  claim  of  representative,  041. 

power  of  surrogate  to  determine  such  claim.  49,  642.  972. 

power  does  not  include  joint  claim  of  representative  and  an- 
other, 642,  972. 

representative   cannot   retain  personal   claim.   641. 

character  of  proof  of  such  claims  required,   043. 

suspension  of  limitation  against  such  claims,  644. 
acceptance  of  claim,  645. 

dispute  or  rejection  of  claim,  what  amounts  to,  648. 
iinreasonable,  effect  of,  650,  657. 
short  limitation  of  action  in  case  of,  639,  046. 
extent  and  application  of  such  limitation,  646. 
when  statute  begins  to  run.  647. 
what  amounts  to  a  rejection  of  claim,  648. 
mere  silence  of  representative  not  an  admission,  648. 
may  be  oral  or  written,  648. 
must  be  made  to  chiimant  or  his  agent,  048. 
waiver  of  statute,  649. 
agreement  to  determination  of  claim  by  surrogate,  645. 

effect  of  failure  to  agree,  639,  645,  656,  n.,  660. 
reference  of  disputed  claim,  offer  of,  650. 
agreement  for,  650. 
approval  of  referee.  650. 
entry  of  order  in  Supreme  Count,  650,  651. 
form  of  order,  (iSl. 
what  claims  referable.  650. 
steps  necessary  to  confer  jurisdiction,  651. 
naming  the  referee,  652. 
proceedings  before  referee,  653. 
powers  of  referee,  ()53,  654. 
defenses  of  representative.  653. 
effect  on  proceeding,  of  amendment  of  1893,  654. 
referee's  report  and  judgment  thereon,  655. 
report  need  not  I>e  conllrmed.  654,  655. 
ap))eal  from  judgnunt.  ()54.  055. 
allowing  costs,  656,  657. 

rule  prior  to  amendment  of  1893,  656. 

present  rule  as  to  costs.  656. 

where  allowed  and  by  whom.  657. 

extra  alloMance  ma>'  be  granted.  057. 

three  conditions  necessarv  to  obtain  costs,  657  et  seq. 

to  what  actions  conditions  ai>ply,  657. 


1114  GE^.EHAL  I^-DEX.  "fo'Z'Z'nr 

DEBTS  OF  DECEDENT  —  contmued. 

claimant  iinist  I'ecover  more  than  $50  to  receive  costs,  C57. 

claimant  entitled  to  disbursements,  659,  n. 
comiironiise  of  claim,  ()2D. 

executor  has  power  for,  GOG,  «.,  629. 

surrogate's  power  to  authorize,  C29. 

does  not  extend  to  claims  against  estate,  G29,  645,  n. 

when  called   in  question,   629. 
order  of  preference  of,  what  law  governs,  602. 

as  between  foreign  and  domestic  creditors,  662. 

order  of  preference  stated,  663. 

at  common  law,  663. 

testator  cannot  create  different  order  by  will.  663,  n. 

funeral  and  administration  expenses  first,  663. 

other  preferences  prohibited,  664. 

rents  on  leases,  604,  670. 

pew  rents,  670,  n. 

status  of  debts  not  due,  GG4. 

debt  in  judgment,  664. 

debt  due  representative,  664. 

preference  under  United  States  laws,  665. 

taxes  and  assessments,  666. 

judgments  and  decrees,  664,  667. 

different   rule   of   priority   where   property   acquired   after   judg- 
ment, 667.  n. 

exjiiration  of  lien  of  judgment  immaterial,  667. 

judgment  against  representative,  667. 

judgments  for  costs,  607. 

status  of  judgments  entered  after  party's  death,  668. 

award  in  arl)itration  not  a  judgment,  667,  n. 

foreign  judgments,  669. 

judgments  of  Federal  courts,  669. 

debts  by  specialty,  671. 
payment,  from  ^^■hat  fund,  672,  673. 

personalty  primarily  liable,  673.  834 

but  not  when  land  specially  charged  with,  673. 

land  descended  liable  before  that  devised,  672,  674. 

land  not  charged  with  legacies  before  land  so  charged,  673,  n. 

residuary  legacies  iiefore  general   legacies.   680,  n. 

common-law  rule,  liow  far  applicable,  673. 

^vllere  personalty  specifically  bequeathed,  673. 
regarded  as  realty,  673. 

real  pro]ierty  equitably  converted,  673. 

where  assets  are  insufficient,  674, 

when  out  of  rents  of  real  estate,  674. 

out  of  proceeds  of  sale  under  a  power,  674. 

mortgage  debts.  675. 

deficiency  on  foreclosure,  675,  n. 

vendor's  lien  on  sale  of  realty.  675,  n. 

copartnership  debts,  676. 

judgments  against  re])resentatives,  667,  677,  678. 

by  ancillary  executor,  etc..  317. 

by  temporary  administrator,  417. 

by  public  administrator,  395. 
compelling,  jurisdiction  of  surrogate  as  to.  44,  689. 

by  execution  on  judgment  against  executor,  etc..  679. 

surrogate's  leave  for  execution  necessary,  679,  680. 

in  whose  name  issued.  679. 

to  what  claims  applicable,  680, 

for  what  sum  issued,  680. 

more  than  one  may  issue.  680. 

no  execution  for  costs,  when,  680. 


References  are  r '.....    t  ... 

to  sections.  Gk.nlkal  Index.  Ill, 

DEBTS  OF  DECEDENT  — CO,!/ i>M(cd. 

tin:e  to  apply  for  leave,  G81 

surrogate  may  require  intermciliate  account,  G81. 

pending  appeal   from  judgment,  081. 

notice  of  application,  (IS I. 

order  on,  appealable.  tiHl. 

execution  on  judgment  for  legacy  or  di^trilnitive  share,  682. 
undertaking  on  granting,  <iS2. 
form  of,  082. 

by  execution  on  judgment  against  decedent,  083. 

continuance  of  lien  of  judgment,  08.>. 

leave  necessary  from  court  rendering  judgment,  08.3.  084.  087. 

also  from  Surrogate's  Court  issuing  letters.  083,  084,  087. 

what  time  must  have  ex])ired  since  deatli.  083. 

•when  execution   issued  without  leave,  08(5. 

leave,  how  outained  fron;  court  rendering  judgment,  087. 

notice  of  apiilication,  to  whom  given,  087. 
how  given,  087. 

application  to  surrogate;  by  petition  and  citation,  087. 

contents  of  petition.  088. 

to  whom  citation  directed,  G8S. 

surrogate  may  require  intermediate  account,  088. 

power  of  surrogate  on  application.  688. 

when  proceeding  will  be  dismissed.  088. 

decree  of  surrogate  permitting.  088. 

by  original  proceeding  before  surrogate,  089. 

as  to  what  debts,  089. 

after  six  months  from  letters,  600. 

by  whom  made,  090. 

citation  to  show  cause,  090. 

dismissal  of  proceeding  on  the  answer,  091. 

form  of  answer,  091,  093. 

rules  as  to  claims  in  judgment,  092. 

])Ower,s  of  surrogate  on  application,  092. 

where  appeal  from  the  judgmeiit  is  p^niding.  092. 

as  to  claims,  not  in  judgment,  093. 

denial  of  application  not  conclusive,  093.  n. 

dismissal  for  want  of  assets,  094. 

burden  of  proof,  as  to  assets.  094. 

surrogate  may   require  iT'.tevmediaie  account,   094. 

pelition  cannot  pray  for  intermediate  accounting.  694. 

limitation   of  proceeding,   694. 

decree,  conclusive  evidence  of  assets  except  on  appeal.  69.5.  872. 
hoM'  far  provisional,  695. 

docketing  and  enforcement  of  decrees.   696. 

not  enforceable  by  supplementary  proceedings,  606. 

form  of  transcript,  690. 

etfcft  of  docket insr,  090. 
DEBTS  IXCrHllED  BY  EEPRESEXTATIVE : 
for  funeral  expenses  of  decedent.  540. 
for  exfienses  of  administration,   552. 
for  employment  of  couTisel.  552,  555.  ii.,  1115. 
for  employment  of  clerk  or  agent.  558. 
for  personal  services  of  representative,  557. 
on  contract  for  benefit  of  estate.  60(5. 
for  borrowed  money.  607. 
on  continuing  decedent's  business.  610. 
when  personallv  liable  on.  546,  552. 
DEBTS  DUE  TO  EST.VtE: 

with  respect  to  personal  property,  529. 

to  real  property.  542. 

to  decedent's  partnership  property,  533. 


-.^-lr<  n^^^^T  .^^..  References  ar& 

1116  General  Index.  /^  ^.^^.^.^„^._ 

DEBTS  DUE  TO  ESTATE  — co?j/inMed. 
to  property  in  action,  540. 
to  projierty  held  in  common,  533. 
to  injuries  to  decedent's  person,  544. 
to  wrongs  to  decedent's  ])roperty.  543. 
survival  of  riffht  of  action  on  decedent's  contract,  541,  564,  638. 
actions  by  representative  to  collect,  564  et  seq. 

beneficiary  cannot   maintain.   99,   7i. 
compromise  and  compounding  of.  629. 
uncollectible,  stale  or  doiu^tful,  >nay  be  sold,  599,  629. 
representative's  debt  to  estate,  628,  972. 
surrogate  may  determine  validity,  49,  628. 
liability  of  representative  for  loss  of,  628, 
by  representative,  application  of  commissions  to,  991,  n. 
DECISION: 

of  surrogate,  form  and  contents  of,  114, 
to  be  filed,   114. 
on  probate  generally,  243,  244. 
all  issues  to  be  decided  in,  244. 
ground  of,  to  be  entered,  244. 
may  contain  findings  stated  separately,  114. 

separate  findings  only  necessary  in  case  of  appeal,   114,  1143,  w_ 
of  referee.  118,  977. 

need  not  state  findings  separately,  118. 
DECLARATIOXS.     See  Evidence. 
DECREES  AND  OEDERS: 

intermediate   and   final   orders   distinguished,    1088. 

must  be  signed  and  recorded,  1088. 

may  be  signed,  during  vacation,  out  of  surrogate's  county,  6. 

orders  and  decrees  defined.  10S8. 

conclusive  effect  of,  in  general,   1009. 

in  the  nature  of  judgments  in  rem,  1069. 
on  probate,  as  to  personalty,  247,   1070. 
except  on  appeal,  1070. 

distinction  as  to,  where  construction  or  validity  of  will  in- 
volved, 1070. 
decree  of  probate  of  another  State,   1070,  n. 
of  wills  of  realty  under  Revised   Statutes,    1071. 

where  will  proved  on  testimony  of  subscribing  witnesses,, 
1071. 
by  other  evidence,  1071. 
under  the  Code,  1071, 
decree  evidence  against  \\hom,   1071. 
of  letters  testamentary,   1072. 
transcript  of  decree  to  be  recorded,  249. 
on  judicial   settlement  of  executors,   etc.,  account,    1073. 
effect  of,  to  protect  or  charge  accountant,  1073. 
how  far  conclusive  in  general,  1074. 
,  on  sureties  upon  accountant's  bond,  1070. 

as  to  payment  to  creditors,  1075. 
effect  of,  as  bar  to  action,  1074,  1075,  n. 
conclusive  as  evidence  only,   1070 
on  accounting  by  one  of  two  executors.   1074,  n. 
testamentary  guardian,  1005. 
on  sviccessive  accountings,  1074,  n. 
opening,  amending,  vacating,  etc.,  power  of  surrogate  as  to,  44, 
52,  54,  425,   1077,   1081. 
on  probate  by  motion,  276,  425,  1076. 

by  direct  proceedings,  277,  429  et  seq.,  1077. 
limitation  of  proceeding  in  probate,  279. 
effect  of  decree  of  revocation  of  probate.  287. 
notice  of  revocation  to  be  published,  288. 


Jirfcrniccfi  (ire  r,  i  _  ^  ^  -, 

to.tctiom.  Gi;.nki:al    I.m.kx.  HIT 

DECREES  AND  ORUFAIH  —  continued. 

apjilioation  of  iloftriiic  of  ostf)i)|)C'l   to  prcvc-nt,    lOT.!,  «., 
1077. 
in  ffciicral,  is  disr rctioiiaiv,   ')4.  27<». 
distinct idii    hctwccii   jiowcr   to  open,  and   to  arrant   now  trial, 

1077.  >i. 
power  to  be  cautiously  exercised,  54,  1077. 
that  flecree  iA  hased  on  erroneous  theory,  no  ;rround  for,  54. 
that  no  ^'■■•ardian  was  appointed  for  incompetent,  ground  for, 

lOS.  /,. 
application  to  oi)en.  etc..  liow  made,   ')'). 
when   <rranted,   or   refused.    .">4. 
grounds   for,    1077.  /(. 
laches  as  ground  for  refusal,  55,  1077. 
not  affected  bv  limitation  of  time  applicable  to  judgments, 

54,  55,  279. 
after  appeal,  1077. 

after  time  to  appeal  expired,   1077.  n. 

when   decree   void,   for   want   of   jurisdiction   of   the   subject- 
matter,  54,  1078. 
of  the   parties,   54,    1082. 
decrees  must  have  been  a  judicial  act.  lOSO. 
,        im])eacliiiig  hy  collateral  attack.  1()7S. 

when  proof  outside  the  record  admissible,   1081,  n. 
principles  governing,  1070,  n. 
burden  of  proof  on,   1081. 
recitals  in  pleadings  as  evidence  of  facts.  1070,  1081. 
in  decree,  effect  of,  77,  n.,  1081. 
rules  as  to  effect  of,  in  decrees,  etc.,  1081. 
effect  of  defective,  on  process   issued,   1082. 
effect  of,  where  all  ])arties  in  interest  not  cited.  1082. 
effect  of  irregularities  and  omissions  not   jurisdictional,   1083. 
objection  available  only  on  appeal,  1083. 
or  by  amendment.   1083. 
-enforcement  of,  1084,  1088. 

under  Revised   Statutes,    1084. 

by  attachment  and   execution  against  person,   1084. 
by  action  on  bond,,   1085. 

both  remedies  might  be  pursued  together,  1085,  n. 
by  execution   against    property,    1080. 
by  action  on  the  decree,  1087. 
under  the  Code  of  Civil   Procedure,   1088. 
of  intermediate  orders,  1089. 
costs  on  such   proceeding,    1089. 
by  i)roceedings  for  contempt.    1089. 
of  order   for   costs,    1089,    1090. 
by  execution,    1090. 
by  stay  of  proceedings,   1090. 
of  final  orders   for  money,   when   docketed.   1091. 

may  be  satisfied  in  same  manner  as  a  judgment.  1091a. 

docketing   order   for   money,    l()!)lr^ 

execution  thereon,    1090.    10!t2. 

how  issued,  1092. 

execution  irregular,  unless  decree  docketed.   1002.  1094. 

when  leave  to  issue  necessary,  1092.  ». 

supjilcmentary  procerdings  may  be  instituted.   1092. 

proceedings  to  ptinish  for  contempt,  1093. 

does  not  a]i])ly  to  order  for  costs.  1093.  Ji. 
by  action   on  bond  of  oflicial,  407.   1091. 
when  attachment  will   issue  witliout   execution.    1094,  h. 
of  orders  other  than  for  money.   1093. 
by  proceedings   for  contemjit.   1093. 


^  ^  ^  -  /^  T         „  References  are- 

1118  General  Index.  '   „,,..:.„o 


DECREES  AND  ORDERS  —  coHh/Jwcd. 

certified  order  to  be  served  before  proceedings,  1093. 

how  proceedings  conducted,  1093. 
final  process  against  person,  1094. 

by  attachment  on  return  of  execution  unsatisfied,  1094. 

when  wih   issue  without  execution,   1094,  7i. 

demand  necessary  before  attachment,  1094. 

when  warrant  to  commit  issued  witliout  notice,   1094. 

order  to  show  cause;   for  contempt,  109.5. 

hearing  and  determination  on  return  of,   1095. 

by  fine  or  imprisonment,   1095. 

defenses  to  proceeding,  1095. 

commitment  discretionary  with  surrogate,   1096. 

warrant  of  attachment:  to  whom  directed,  1097. 
may  be  executed  in  any  county,   1097. 
liability  of  sheriflf  for  default  in  executing,  1097. 

conmiitment  with  benefit  of  jail  liberties,  1098. 

undertaking  for  release,   1098. 
DEED: 

of  lands  sold  to  pay  debts,  etc.,  887. 

See  Real  Estate^  etc. 
DEFINITIONS : 

"alien,"  305. 

"  ancestor,"'  in  statute  of  descent,  807,  n. 

"  assets,"  340,  486. 

"  children,"  269,  n. 

"  contested  probate,"  290,  n. 

"death,"  342. 

"  estate  "  under  transfer  tax  act,  699. 

"executor,"  291,  513. 

"  fixtures,"  490. 

"  having  a  family,"  respecting  exempt  articles,  509, 

"  heirs-at-la^^',"  92,  269. 

"  inheritance."  under  statute  of  descent,  796,  n. 

"  intestate."  338. 

"  issue,""  209. 

"  legal  heirs."  269,  p. 

"judicial  settlement."  912,  n. 

"  letters  testamentary. '  290. 

"  lineal  descendant,"  under  transfer  tax  act,  705,  n, 

"  money,"  269,  n. 

"■  natural  heirs,"  269,  n. 

"next  of  kin,"  93,  269. 

"  now,"  in  wills,  269,  n. 

"persons  interested,"  98,  143,  437,  934,  936. 

"  personal  property,"  145,  340. 

"  presenting  for  probate,"  290,  n. 

"  probate,"'  290. 

"  property  "  generally,  486. 

imder  transfer  act,  699,  704. 
"  real  estate,"  under  statute  of  descent,  769,  n. 
"  relations,"  269. 

"relatives,"  in  statute  of  distribution,  816,  n. 
"  representatives,"  528. 
"  residence,"  341. 

"  testamentary  trustees."  319,  n.,  924,  n. 
"  to  admit  to  probate,"  290,  n. 
"  to  attend  probate,"  290,  n. 
"  transfer,'"  under  transfer  tax  act,  701. 
DEGREE  OF  CONSANGUINITY: 
how  computed,  820. 


References  are  General  Index.  1110 

to  sections, 

DELEGATlUX: 

of  right  to  letters,  none,  349. 
of  aiipointineiit  of  executor,  513. 
of  power,  by  executor,  513,  5!)4. 
of  sale,  594. 
DEMURRER : 

unknown  as  sucli  in  Surrogates'  Courts,  87. 
DEPOSIT: 

of  monej's  and  securities  paid  in  Surrogates'  Courts,  C6. 

liability  of  surrogate  for,  6li.  n. 

of  securities  to  reduce  penalty  of  bond,  4G0. 

of  moneys  and  proi)erty  on  disagreenicnt  of  executors,  520. 

of  moneys,  duty  of  representative  as  to.  OIR. 

with  county  treasurer  of  unehiimed  legacy,  1012. 
how  such  deposit  withdra^\n,  1012. 
by  temporary  administrator,  419. 
liability  of  representative  for  loss  of,  by  failure  of  bank,  G18. 
and  custody  of  will,  64a. 
fees  for  dei)osit  of  A\ills.  64ffl. 
to  whom  will  returned,  04a. 

of  books  of  estate,  power  of  surrogate  to  direct,  127,  520. 
DEPOSITARY : 

protected  in  paying  moneys  to  foreign  representative,  518,  n. 
DEPOSITIONS: 

taking,  in  the  State  for  use  in  Surrogates'  Courts,  123. 
in  another  county,  125,  167. 
without  the  State.  124,  127. 
by  conunission,  124,  i27,  166. 
by  letters  rogatory,  124,  127. 
by  open  commission,   124. 

as  pi-oof  in  probate  proceedings,  160,  166  et  seq. 
DESCENT: 

statute  of,  796. 

See  Intestate  Succession. 
DESIGNATION : 

of  beneficiary  in  will.  274. 
of  parties  to  apj)eal.  1135. 
of  officer  to  act  as  surrogate,  14. 
of  surrogate.  ofTicial,  4. 
DESTROYED  WILL.     See  Lost  ^Vm. 
DESTRUCTION :  _     « 

of  will,  how  proved,  237. 
See  Lost  Will. 
revocation  by,  224,  225. 
DEVISE: 

validity  of,  as  incident  to  partition,  etc.,  60,  13i. 

liow  questioned,  60. 
action  to  determine  validity  of,  00,  137. 
who  may  bring,  60,  137. 
proof  in,  137,  ». 
judgment  in,  137. 
lapsed,  falls  into  residuum.  769. 

validity  of,  not  to  affect  right  co  probate.  244,  ?j.,  255,  ??. 
suspension  of  power  of  alienation  of,  201. 
restrictions  on  power  to  create  trusts  by,  260. 
DISABILITY: 

of  surrogate.  7. 

See  Surropate. 
of  executor,  303. 

by  reason  of  drunkenness,  improvidence,  etc.,  303,  30  <. 
nonresident  aliens.  302. 
adversity  of  interest,  308. 


DISABILITY  —  continued. 
infancy,  303. 
conviction  of  crime,  303. 
renioMil  of  disability,  306. 
of  witness,  exaniinatiun  in  case  of,  1G6  et  seq. 
DISAGREEMENT' : 

of  executors,  surrogate  mav  order  deposit  of  property,  520. 
DISCONTINUANCE : 

of  proceedings  for  probate,  not  allowed,  156. 
DISCOVERY  AND  COLLECTION  OF  ASSETS: 
proceedings  before  issue  of  letters,  562. 
pursuit  of  legal  remedies  in  general,  562. 
actions  to  be  brought,  in  what  capacity,  567. 
limitation  of  actions,  565. 

special  proceeding  for,  when  concealed,  etc.,  573. 
by  whom  maintained,  573. 
object  of  the  proceeding  is  twofold,  574. 
is  to  determine  possession,  not  title,  579. 
debts  due  decedent  cannot  be  recovered  by,  574. 
petition  for,  575. 

if  more  than  one  representative,  all  must  join,  575. 

cannot  be  maintained  by  one  representative  against  another, 

575. 
to  whom  petition  presented,  576. 
substitutes,  in  case  of  surrogate's  absence,  576. 
powers  of  substitute,  576. 
evidence  accom]5anying  petition,   577. 
citation,  when  will  be  denied,  577. 
when  will  issue,  578. 

must  be  issued  by  surrogate,  not  his  clerk.  578,  n. 
when  person  cited  resides  in  another  county,  578. 
service  of  citation,  578. 
order  to  attend  in  addition  to,  578. 
citation  and  order  must  be  personally  served,  578. 
service  ineffectual  unless  accompanied  by  witness  fee,  578. 
failure  to  attend,  how  punislied,  578. 
answer,  disr.issal  on,  57fi. 
laches  as  a  defense.  577. 
A-arious  defenses,  considered,  579. 
issue  as  to  title,  not  triable,  579. 
how  such  issues  raised,  579. 
may  be  received  pending  examination,  579,  n. 
examination,  how  conducted.  580. 
evidence  on,  580. 

refusal  of  witness  to  answer,  how  punishable,  580. 
surrogate  acts  judicially  on,  580. 
limited  to  personal  property,  580. 
decree  for  possession,  581. 
contents  of,  581. 
security  to  prevent  decree,  582. 
effect  of  giving  security,  582. 
giving  security,  cannot  be  compelled,  582. 
form  of  bond,  582. 
enforcement  of  decree,  583. 
decree  not  an  adjudication  of  title,  581,  n, 
warrant  to  seize  property,  583. 
to  whom  issued.  583. 
execution  of.  583. 
proceedings  bv  public  administrator,   376. 
DISCOVERY"  OF  BOOKS  AND  PAPERS: 
surrogate's  power  to  compel,  127. 
DISCOVERY  OF  WILL: 

custodian  of  will  may  be  compelled  to  deliver  up  for  probate,  129. 


TSS;."  Ge-N-KKAL    1.NUEX.  1121 

DISINHKIUTAXCE: 

effect  of,  upon  intestate  succession,  82G. 
DISPUTED  CEAIM: 

of  creditor,  no  power  of  surrogate  to  determine,  49,  9G8,  969. 

of  distributee,  !)(iS,  909. 

of  legatee.  44.  7S4.  9()8,  969. 

surrogate's  jurisdiction  as  to,  on  accounting,  045,  908,  969. 

on  proceeding  to  sell  lands,  etc.,  858. 
reference  of.  etc.,  by  consent,  050. 
DISQUALIFICATION: 

of  surrogate,  7,  8. 

See  Surrogate. 
of  executors,  etc.,  303. 

See  Letters  Testamentary. 
of  witness,  170,  171,  172,  174.  170,  213  et  seq. 
DISTRIBUTION  OF  PERSONAL  PROPERTY: 
none,  without  administration,  833. 
intestate  defined.  338. 
partial  intestacy,  817. 

origin  and  policy  of  statute  of  distribution,  816. 
is  governed  by  law  of  intestate's  domicile.  795. 
of  nonresident,  when  w\[\  be  made  here.  795. 
classification  of  kindred  entitled  to.  816. 
order  of  distribution  stated,  810^. 
right  to  share   vests  on  intestate's  death,  818. 
doctrine  of  representation.  818. 
how  far  representation  restricted,  818. 
computing  degrees  of  kindred,  820. 
mode  of.  table  showing,  820. 

advancements,  when  chargeable  against  share,  830. 
rights  of  adopted  children,  819. 

of  widow.  821. 

of  divorced  wife.  823. 

of  widower,  824. 

of  lineal  kindred,  826. 

of  children.  826. 

of  illegitimate  children.  827. 

of  mother  of  illegitimate,  829. 

of  parents  of  intestate.  826. 

of  collateral  kindred.  831. 

of  children  of  the  half-blood,  826. 

of  after-born  children.  820. 

of  brothers,  sisters,  nephews,  and  nieces,  831. 

of  first  cousins.  831. 
payment  of  distributive  share  by  proceeding,  832. 

when  may  be  maintain.ed,  833. 

in  advance  of  accounting.  833. 

\\hen  Mill  be  ordered.  833. 

to  infant,  or  where  distributee  is  dead,  833. 

to  assignees  of  distributees.  97,  833,  /;. 

scope  of  inquiry  on.  833.  • 

notice,  to  whom  given.  833. 

action  at  law  for,  833.  n. 
DISTRIBUTION.  STATT'TE  OF.    See  Intestate  Succession. 
DISTRICT  ATTORNEY: 

when  to  act  as  temporary  surrogate.  10. 
to  collect  transfer  tax,  716. 

costs  to,  on  such  proceeding,  733. 
DI\'ORCE : 

of  wife,  deprives  her  of  right  to  administer  on  husband's  estate.  347, 
823. 

bars  her  right  to  share  in  husband's  estate,  823. 

71 


1 1  ciCi  n^^-r^^,^    T,^^^^  References  are 

1122  General  Index.  ^'^  sections. 

DOCKET: 

of  money  decree,  with  county  clerk,  1091a. 

of  transcript  of  decree  of  probate,  249. 
DOMICILE : 

right  to  probate  not  affected  by.  141,  143,  143a. 

distinction  between  "  residence  "  and,  143a. 
DOWER: 

surrogate  no  power  to  admeasure,  45. 

forfeiture  of,  .560,  n. 

estate  by  right  of,  not  affected  by  statute  of  descent,  813. 

right  of,  no  bar  to  widow  sharing  in  decedent's  assets,  822. 

not  assigned,  barred  by  conveyance  on  sale,  etc.,  of  lands,  889. 

how  provided  for,  on  sale  of  lands  to  pay  debts,  899. 
DRUNKENNESS : 

habitual,  as  affecting  validity  of  will,  211,  n. 

disqualities  one  ?.s  executor,  303,  307,  431. 
as  administrator.  361,  431. 

as  ground  for  revokini?  letters,  431. 
DUPLICATE  ^MLLS•. 

probate  of,  154. 

contents  of  petition  for  probate  of,  154. 

presmnption  as  to  revocation  of,  154. 

either  of,  may  be  proved  without  the  other,  154,  n. 

nonproduction  of  both  no  ground  for  revocation,  154,  n. 

EQUITABLE  CONVERSION; 

of  real  into  personal  property,  269,  529. 
when  real  estate  assets  and  vice  versa,  269,  531,  673. 
EQUITY: 

Surrogate's  Court  does  not  possess  general  powers  of  court  of,  47. 
ESTABLISHMENT: 

of  will  by  action,  61,  134. 

of  foreign  will  of  personalty,  61,  135. 

judgment  of.  137. 

of  lost  will.  59,  61,  134,  234. 

limitation  of  such  action,  234,  n.,  565,  n. 

judgment,  contents  of,  239. 
ESTOPPEL: 

effect  of  grant  of  letters,  by  way  of,  365. 

of  decree  on  settlement  of  accounts,  1073,  1074. 

of  decree  directing  payment  to  creditors,  etc.,   1013,   1075. 

of  decree  of  probate,  280,  ??.,  1071. 
doctrine  of,  not  applied  to  proceeding  to  revoke  decree,  1075,  n.,  1077. 

or  to  appeals   therefrom.   1077. 

applied  to  sureties  and  principal  on  administration  bond,  1076. 

applied  on  accountings,  9()6.  1074. 
of  legatee,  accepting  legacy  to  attack  will,  257,  280,  n.  , 

EVIDENCE : 

several  rules  of,  apply  to  Surrogates'  Courts,  113. 
depositions  of  witnesses  as,  123,  127,  160  et  seq. 
of  parties,  taken  before  trial,  124,  n.,  127. 
effect  of  surrogate's  certificate  as  proof  of  will,  247. 
record  of  ancient  will  as,  132,  252. 

of  foreign  will,  250,  n. 
i,  of  letters  testamentary,  325,  562,   1072. 

of  delivery,  etc.,  of  gifts  causa  mortis,  585,  589. 
in  proceeding  for  probate  of  wills,  160. 

of  testator's  handwriting.  169. 

of  witness's  handwriting,    169. 

dispensing  with  ])roof  of  handwriting,  when,  169. 

photographs  of  will  as,  169. 


References  are  r""^-"T,»-r    t^t^^^  -iioq 

to  sections.  G...N..RAL  Index.  1123 

EVIDENCE  —  continued. 

chemical   tests  as,    109. 
of  interested    ])arties,    170   et   seq. 
privilefj^ed  coniiiuinications,   174  et  seq. 
quest  idiis  of,  <j(iverried  by  lex  fori,  179. 
extrinsic,  only  competent  as  to  factum  of  will,  184. 
as  to  testamentary  intention,  220,  200. 
order  of  proof,  1S5. 

decedent's  death  and   identity,    18(),   ;3.")1. 
weight   of,    ISS.    204. 
formalities  of  execution.  189,  193,  194. 
subscription.  190. 

sufficiency  of,  as  to  publication.  19.5,  196. 
as  to  mark  of  testator,   109,   191,  202. 
as  to  death,   180,  351. 
atte.station  clause,  effect  of,  187,  203. 
effect  of  want  of,  203. 
of  subscribing  witness  does  not  control,  201,  204. 
corr()l)()ration  by  third  persons,  204,  n. 
conflict  of  testimony  of,  204. 
as  to  testamentary  capacity,   212.   214. 
of  experts  as  to  mental  capacity,  213. 

of  noni)rofes>ional  witness  as  to  capacity,  214,  215. 
declarations  of  testator,  on  question  of  undue  influence,  218,  n. 
on  question   of  capacity,   213,   n. 
on  proof  of  lost  will,  238,  n. 
on  question  of  publication   of  will,    196. 
of  intent  to  revoke  will^  225. 
of  revocation  of  will  by  destruction,  225. 
burden  of  proof,  on  probate,   187,  212. 

on  jjroponent,  to  show  testator's  knowledge  of  contents  of  will,  205, 
217. 
to  explain  unnatural  will,  217. 
to  show  general   competency  of  testator,   187,  212. 

that  testator  understood  nature  of  his  act,  217. 
in  case  of  presumptive  fraud,  217. 
to  show  existence  of  lost  will,   235. 
on  contestant,  when,  212. 

to  show  undue  influence.  212. 

that  influence  was  exerted  on  the  act,  216. 
delusions,  212. 
shifting  burden  on  question  of  .sanity,  212. 
as  to  death,  186,  351. 

on  proceeding  to  compel  payment  of  debt,  694. 
to  revoke  will.  285. 
to  revoke  letters,  439. 
on  contested  accounting,  976. 

to  show  sufliciency  of  assets,  when,   952,  n. 
on  proceeding  to  impeach  decree,   1081. 
parol,  to  impeach  validity  of  will.  220,  272. 
in  aid  of   interpretation.  270. 
to  varj-  meaning  of  words  in  will.  220.  271. 
to  correct  mistakes.  221.  259,  260. 
to  explain   ambiguities   as  to  beneficiary,   274. 
to  ascertain  testamentary  intention,  220,  260,  270. 
presumptions  of  death,  on  probate.   1S6. 

on  application   for  administration,   351. 
from  want  of  attestation  clause,  203. 
of  imdue  influence,  none  from  old  age  alone,  217. 
of  fraud,  217. 

from  injustice  of  will.  218. 
as  to  existence  of  lost  will.  235. 


11 OA  aTTA-TTT^^T    Tx-T^TTv  Rcferences  are 

EVIDENCE  —  contimicd. 

of  intention  to  revoke  will,  223. 

none  from  tearing,  etc.,  224,  225. 

from  change  of  property,  227. 

from  subsequent  marriage,  228. 

from  subsequent  birth  of  child,  229. 
of  genuineness  of  ancient  will,  132,  252. 
conclusive  effect  of  surrogate's  decrees,  generally,  1069. 
of  decrees  of  probate,   1070,   1071. 
of  inventory,  54,  985. 
of  letters  testamentary^,  325,  562,  1072. 
of  letters  of  administration,  365,  367. 
of  decrees  on  accounting,  1073. 
of  decrees  directing  paj^ment,  etc.,  1013,  1075. 

See  Decrees;  Probate. 
EXAMINATION: 

of  witnesses  within  the  State,  123,  127,  160. 

in  another  county,  125,  167. 

without  the  State  by  commission,  124,  127,  166. 

by  open  commission,  124. 

by  letters  rogatory,    124,   127. 
of  disabled  witnesses,  etc.,  125,  166  et  seq. 
of  persons,  not  parties,  before  trial,  124,  n.,  127. 

as  to  property  withheld,  580. 
EXCEPTIONS: 

to  surrogate's  rulings,  how  taken,   114.   116. 
to  referee's  reports,  how  taken,  118,  977. 
EXECUTION: 

on  judgment  against  representatives,  078,  679. 

leave  to  issue,  by  surrogate,  680. 
on  judgment  for  legacies  and  distributive  shares,  779. 
on  judgment  against  decedent,  683. 

leave  necessary  frorn  what  courts,  683,  684,  687. 

without  leave,  686. 
on  money  decree  of  surrogate,   1090,   1092. 

when  leave  to  issue  necessary.   1092,  n. 

decree  must  have  been  docketed.  680,  n. 

proceedings  on  return  of,  unsatisfied,   1093. 
supplementary  to,  696,  1092. 
EXECUTOR : 

meaning  of  the  term,  291,  513. 
nature  and  origin  of  office  of,  513. 
nomination  of,  in  will,  291. 
executor  by  the  tenor,  291. 

de  son   tort-,  513. 
quality  of  title  of,  514. 
number  of,  292. 
grant  of  letters  to,  291.  293. 
different  executors  for  different  States,  292. 
or  with  separate  functions,  292. 
selection  of,  under  a  power,  291,  294. 

within  Avhat  time  selection  must  be  made,  294. 
renunciation  and  acceptance  of  appointment,  295. 

right  to  renounce,  295. 

how  effected,  296. 

agreeinent  to  renounce,  void.  295,  n. 

retraction  of  renunciation.  297. 

cannot  retract  after  qualification.  297. 
must  qualify  within  thirty  days,  298. 
exclusion  on  failure  to  qualify  or  renounce,  298. 
only  when  named  in  letters  can  act,  299. 
acceptance  and  oath  of  office,  300. 


References  are  n^^^        ^     i  -,-,  ^- 

to  sections.  Gexekal   Ixi.kx.  112j 

EXECUTOR  —  continued. 

bond  of,  wlien  required,  .'502. 

ofiice  of,  distinguished  from  that  of  trustee,  31!),  514. 

not  made  trustee  by  probate,  319. 

need  not  separately  qualify  as  trustee,  320,  449. 

necessary  qualitications  of,  303. 

married  woman  comj)etent,  304. 

illiterate  persons,  303. 

nonresidents,  305. 

noiiresich'nt  alien.s,  303,  305. 

infants  ineonipetent.  303. 

one  incapable  of  making  a  contract,  303. 

conviction  of  crime  as  affecting  competency,  303,  307,  3G1. 

drunkards,  etc.,  303,  307,  431. 

certain  grounds  of  incompetency  considered,  307. 

adversity  of  interest,  308. 

dishone^ty  and  improvidence,  307. 

objections  alleging  incompetency,  309. 

disposition   of  objections,   310. 

staying  grant  of  letters  tiiereupon,  309. 

when  may  be  obviated  by  giving  bond,  311. 

removal  of  disability,  300. 

supplementary  letters,  306. 
EXECUTOR  BY  THE  TEXOR: 

defined,  291. 
EXECUTOR  DE  SOX  TORT: 

doctrine   of,   513. 
EXECUTORS  AXD  ADMIXISTRATORS: 
office  of  executors,  513. 

distinction  between,  and  that  of  trustee,  319,  514. 

quality  of  title  of,  514. 

of  administrator,  515. 

origin  of  office  of,  513,  515. 

no  distinction,  in  general,  between,  515. 
representative  character  of,  516. 
two  classes  of  rejiresentatives,  528. 
when  title  vests,  510,  521. 

are  also  trustees  for  benefit  of  persons  interested,  516,  522. 
represent  both  decedent  and  beneficiaries.  516,  522. 
as  to  representative  wlio  is  also  sole  legatee,  522,  n. 
foreign  executors  and  administrators,  517. 

right  and  lial)ilitics  here,  518. 

autliority  local,   518. 

may  collect  domestic  assets,  518. 

where  one  ai)pointed  here  removes  to  another  State,  518,  n. 

have  no  standing  as  plaintiffs  in  actions  here,  99,  518,  567. 

rule  does  not  apply  to  foreign  trustees,  99.  n. 

assignee  of.  may  bring  action  here.  99,  r?.,  518. 

cannot  be  sued  in  purely  legal  action,  518. 

nor  be  substituted  in  pending  action.  518. 

but  they  are  liable  to  action  in  equity,  under  proper  allegations, 
518. 

responsibility  extends  to  assets  in  their  liands  here.  518. 

no  defense  l)y  reason  of  their  being.  M'hen.  518. 

liability  of,  on  bringing  assets  into  the  State,  questioned,  518,  «^ 
surrogate's  control  over,  in  general,  519. 

extends  to  what,  519. 

illustrations  of,  519. 

does  not  extend  to  proceedings  in  other  courts.  519. 

nor  as  to  property  they  do  not  hold  as  such,  519. 

in  general  cannot  interfere  with,   in  orderly  discharge  of  duty, 
519. 


1126  Gekekal  I...EX.  ''T^^Zr 

EXECUTORS  AND  ADMINISTRATORS  —  con/iwued. 

powerless  to  overrule  decision  of,  excej^t  on  proof  of  misconduct, 

519. 
in  case  of  disagreement  between  executors,  520. 
may  grant  order  to  show  cause  why  he  should  not  give  directions, 

520. 
who  may  apply  for  such  order,  520. 
proceedings  in  such  case,  520. 
may  order  deposit  in  joint  custody,  520. 
disobedience  of  such  order  a  contempt,  520. 
may  authorize  compromise  of  debt  by,  029. 
interference  with  assets   before   probate,    130,    131,   540,   n.,   562. 
possession  of  assets  by,  before  probate,  131,  502. 
derive  title  from  will,   131,  562,  594. 
no  power  to  dispose  of  estate  before  letters,   131,  562. 
proceedings  before  issue  of  letters,  563. 
by  administrator,  563. 
by  executor,  503. 

letters,  how  far  retroactive,   130,  324,  563. 
estate  of,  521. 

general  power  over  assets,  521. 

distinction  between  assets  bequeathed  and  unbequeathed,  522,  n, 

is  in  autre  droit,  521. 

cannot  pledge  assets  in  payment  of  his  oa\ti  debt,  522,  n. 

qualified  title  of,  522. 

merger  of,  in  individual  estate,  523. 

joint  tenancy,  where  two  or  more,  524. 

act  of  one  is  act  of  all,  524. 

death  of  one  does  not  change  quality  of,  524. 

vests  in  the  survivor,  524. 

except  where  an  act  is  to  be  done  by  them  jointly,  524. 

as  testamentary  trustees,  must  act  jointly,  524. 

sale  by  one,  where  other  refused  to  act,  524. 

of  survivor,  526. 

of  substituted  trustee,  527. 

all  unexecuted  trusts  vest  in  Supreme  Court,  527. 

of  testamentary  trustee  cannot  be  continued  after  his  death,  by 

will,  527.  " 
includes  whole  of  personalty,  528,  529. 
but  not  realty,  528. 

in  personal  property  in  possession,  528,  529. 
in  foreign  assets,  529,  n. 
in  real  property  under  will,  530. 
in  rents  of  real  estate,  532. 

where  land  equitably  converted.  532. 
in  contract  to  purchase,  530. 

in  land  bought  by.  on  foreclosure  sale.  523.  ??.,  530,  617. 
in  proceeds  of  realty  directed  to  be  sold.  531. 

under  discretionary  power.  531. 

where  realty  is  in  another  State.  531,  n. 

where  proceeds  given  to  another.  530,  n..  531. 

as  donees  of  poAver.  531. 

estate  not  vested,  by  mere  nuthoritv  to  sell,  531. 

power  to  sell,  when  not  implied,  531. 

gifts  of  rents,  for  life,  532. 
of  property  held  in  joint  tenancy,  533. 
in  partnership  property,  533. 

partnership  property  a  question  of  intention,  533,  w. 

subject  to  rights  of  surviving  partner.   533. 

survivor  holds  decedent's  share  in  trust,  533. 

in  property  held  in  common.  533. 
good-will   of  testator's  business,  534. 

right  to  use  name  of,  534. 


T«Sr  GeNEKA.   INDE^.  11,7 

EXECUTORS  AND  AD:\IIX]STRAT0R,S  —  cojj^i^mcJ. 
literary  property,  5:}."). 
insuranee  policy  ])ayaljle  to  executors,  ij.'JG. 

iiisiiraiiee  on  life  of  nonresident,  52!),  n. 

interest  in  policy  on  life  of  another,  536. 

payable  to  widow,  etc.,  when,  53G. 

how  far  such  policy  applicable  to  debts,  5.3G. 

special  statutes  as  to  such,  53(5. 

where  proceeds  payable  to  one  as  trustee  for  cliildren,  536,  n. 

when'  specifically  bequeathed,  530. 

against  lire,  distinction  as  to  time  of  loss.  537. 

depends   on  character   of  property   insured,   537. 

fire  policy  taken  out  by  executor,  537. 

policy  taken  out  after  death  and  payable  to  estate,  537,  n. 
benefit  association  fund,  537o. 
trust  deposit,  537r/. 
pension  moneys,  538. 

government  |)ayment  of  Alabama  chxim,  538,  n. 
damages  for  decedent's  death,  539. 
in  property  in  action,  540. 

survival  of  rights  under  contract,  541. 

contract  for  purchase  of  land,  G30,  n. 

contracts  determinable  by  death,  542. 

personal  actions,  when  do  not  survive,  542. 
when  do,  542. 

rights  relating  to  realty  do  not.  542. 

covenants  runnintr  with  decedent's  lands.  542. 

those  whicl)  do  not  run  with  the  land,  542. 

wrongs  to  decedent's  projierty,  543. 

wrongs  to  his  jierson.  544. 

suit  to  disaffirm  decedent's  acts,  545. 
proceedings  by,  to  discover  property  concealed,  etc.,  573  et  seq. 
possession  and  control  of,  when  vests,  516,  521. 

who  entitled  to,  600. 

joint  tenancy  of  two  or  more  representatives,  524,  600. 

in  case  of  death  or  resignation  of  one,  524. 

in  case  of  disagreement,  520. 

when  estate  vests  in  two  or  more,  600. 

neither  as  against  the  other  has  exclusive  right  to,  600. 

acts  of  one  the  act  of  all,  524.  GOO. 

where  one  is  a  beneficiary,  601. 

cannot  act  in  both  capacities.  601. 
such  a  one  may  terminate  the  trust  as  to  him,  601. 
liability  of,  for  funeral  charges,  546. 

such  charges  have  a  preference,  546,  663. 

duty  as  to  burial.  546. 

right  of  relatives  to  desiofnate  place  of,  546,  n. 

charge  for,  as  a  debt  of  decedent.  546,  845. 

expenses,  wdieu  a  charge  against  estate,  546. 

executor  personally  liable,  when.  546. 

authority  of  executor  to  jiay  before  letters  issued.  546. 

who  primarily  liable,  546. 

liability  for,  when  incurred  by  third  person,  546. 

only  reasonable  expenses  allowed.  540. 

what  allowed  as  against  creditors,  550. 

includes  charge  for  a  tombstone,  549,  845,  n. 

as  \\p]\  as  burial  lot.  .■)50. 

expenses  incident  io  death.  551. 

constitute  a  debt  atr^inst  estate.  550,  v. 

mourning  for  family  gcTierally  a   charge.  551. 

proceedings  to  compel  payment  of,  547,  548. 


1128  General  Index.  Referrncr.  are 

to  scctiotts. 

EXECUTOKS  AND  AD.MIXISTIIATUHS  — co«<nmecZ. 
for  adiiiiiiisliatiou  expenses,  552. 

pviniarily   individual,  552. 

right   to   reinibin>;ciiicnt    paramount   to   claims   of    creditors, 
661,  n. 

for  reasonable  and  necessary  disbursements,  552. 
what  are,  552,  556. 

employment  of  counsel,  552,  555,  n.,  1115. 

executor  cannot  create  lien  for  services  of  attorney,  552. 

incurred  but  not  paid,  553. 

incurred  in  piovinir  will,  554. 

traveling:  exj)enses,  554.  555,  n. 

of  litigation  generally.  555. 

expert  witness  fees,  554. 

for  person,".!  services  of  representative,  557. 

reimbursement  for  costs  and  expenses,  555. 

employment  of  co-representative,  557. 
of  clerks  and  agents,  558. 

in  preparing  account  for  settlement.  559. 
for  misconduct  of  co-representative,  602. 

intrusting  property  to   co-representative,   603. 

evidence  rf  connivance  or  assent,  004. 

joining  in  account  as  evidence,  604.  n. 
for  waste  of  agent,  605. 
on  their  own  contracts,  606. 

when  such  contracts  bind  estate,  606. 

cannot  bind  estate  by  executory  contract,  606. 

exceptions  to  rule  exonerating  estate,  606. 

statute  of  frauds  as  to,  606. 

cannot  revive  demand  once  expired,  600.  630. 

may  settle  claim  or  state  an  account,  606,  n.,  629. 

confession    of    judonient   by.    606. 

may  submit  to  arbitration,  629,  n. 

borrowed  money,  607. 
for  re]its.  on  failure  to  terminate  decedent's  tenancy,  608. 

\\here   representative   is   co-tenant,   60S. 

on  covenants  in  lease,  609. 

effect  of  entry,  609. 
on  continuing  decedent's  business,  010. 

largely  at  representative's  risk,  611. 

for  debts  incurT'ed  for  so  doing.  533.  n.,   jll. 

exception  to  general  rule  of  liability,  611. 

losses  payable  irom  income,  611. 

status  of  creditors,  611,  667,  ;?. 

continuinL''  interest  in  co-parinershi])    612. 
/  where   representative  is   survivinti'  partner,   533,   n.,   612,  n., 

613. 

status  of  surviving  partner,  533,  612. 

forming  a  new  firm.  613. 
for  repaiis,  taxes,  and  incunibrances  on  realty,  614,  615. 
)  to  third  persons  for' condition  of  property,  614. 

for  not  insuring  against  lire.  616. 

on  foreclosing  mortgairo  and  buying  Ta  property,  617. 
for  moneys  nc.^t  deposited  in  bank,  61S. 
for  failure   of  deposit  bank.   OlS. 
for  mingling  trust  funds  v,  ith  their  owti,  618. 
for  n.ot  keeping  funds  at  interest.  019. 
for  interest  on  fund.  619.  620,  621. 

compound  interest    620,  n.,  621. 
where  they  deal  ^^!th  estate  for  their  own  benefit,  620. 
incurred  in  making  investments.  621. 

character  of  investment,  622. 


Refcreuoc!^  ore  Ge.nkkai.    Index.  1120 

jo  sections. 

EXECUTORS  AND  ADM  INIS'IRATORS  —  ccniimtcd. 
iiist  I  net  ions  in   will  as  to,  ()22. 
fontiiiuiiif,'  (ictcck'nt's  invcstiuciits,  (i23. 
speculation  forbidden,  022. 
duty  to  realize  on  assets,  021,  02.'i. 
cannot  loan  on  ])ersonal  security,  022. 
nor  upon  leasehold  interests.  022. 

may  purchase  land  to  straighten  boundaries,  022,  n. 
foreijiU  investments,  024. 
in  purchasing;  from  beneficiary,  025. 
administrator  may  do   so,   530. 
land  bouj.'Jit    in  on  foreclosure,  017. 
?or  profits  realized  or  losses  incurred  on  securities,  626. 
not  for  unavoidable  losses,  027. 
for  loss  on  sales  of  personalty,  598. 
by  robbery,  027. 
of  debts  due  estate,  628. 
for  their  own  debts  to  estate,  628. 
for  incompetency  of  attorney,   (i28,  n. 
for  misapplication  of  assets,  030. 
for  erroneous   payment  of  claims,  etc.,  630. 

payment  of  legacies,  6S0. 
actions,   between   co-executors,    525. 

at  law,  cannot  be  maintained,  525. 
otherwise  in  equity,  525. 
by  and  against,  in  wliat  character  brought,  567,  677. 
cannot  be  brought  before  letters  issued,  563,  567. 
■when  brought  in  individual  character,  567,  n. 
rules  of  survival  and  revivor,  564. 
extension    of   limitation   of,    565. 
CI  time  to  appeal,  500. 

joinder  of  parties  and  causes  of  action,  568. 
designation  of  parties,  507. 
pleadings    in ;    set-ofl",    5(i!). 
form  of  judgment  in,  570. 
lien  of  judgments  in,   570. 

real  estate  of  decedent  not  bound  by,  570. 
execution  on  judgments  in,  568,  n. 
costs  in,  571. 

security  for   costs   in,  572. 
proceedings  by  and  against  in  Surrogate's  Court,  99. 
all  must  be  joined  as  parties,  99. 
are  "  interested  parties,"  99. 
by  representative  against  co-representative,  99. 
power  of,  over  real  estate,  527.  594. 

terminates  at  death  of  trustee,  527. 
cannot  be  delegated,  594. 
exercise  of  power,  594. 
is  derived  from  the  will,  594. 
where  he  takes  as  donee  of  ])ower.  594. 
when  power  is  without  an  interest.  594. 
not  exercised  by  conveyance  to  legatee,  594. 
administraior  lias  no  power,  595. 
to  grant  easement.  594.  n. 
to  mortgage  or  lease,   594,  n. 
power  of  sale,  under  will.  594. 
when  implied.  594,  n. 
is  derived  solely  from  will.  594. 
probate  and  letters,  necessary,  594. 
must  be  exercised  in  n^ode  nrescribed,  594. 
whether  public  or  private,  594. 


1130  GE.N-EHAL  ixBEx.         "^1::!^:,^ 

EXECUTORS  AND  AD:MINISTRAT0RS  —  cow/ un/cd. 
effect  of  naked  power  of  sale,  594. 

of  collusive  sale,  594,   /(. 
by  one  where  other  refused  to  act,  valid,  524. 
joint  consent  to  exercise  of  power,  594. 
cannot  be  delegated,  594. 
discretion  vested  in  two  cannot  be  exercised  by  one,  594,  n. 

as  to  time  of  sale,  596. 
what  is  a  reasonable  time,  590. 
formalities  must  be  observed,  594,  n. 
nominal  conditions  may  be  disregarded,  594,  n. 
disposition  of  proceeds,  597. 
of  lands  in  another  State,  594,  n. 
power  of  sale  of  real  estate  to  pay  debts.     See  Real  Estate. 
sales  of  personal  property.  598. 
when  must  be  made,  598. 

if  necessary  to  pay  debts  of  legacies,  598. 
power  to  make,  though  not  so  necessary,  598. 
may  be  public  or  private,  598. 
terms  of  credit  on,  598. 
order  of  sale,  598. 
purchaser  protected.  598. 
of  stale  or  doubtful  claims,  599,  629. 
direction  in  will  as  to  disposal  of  personalty,  630. 
EXEMPT  ARTICLES : 

what  are  free  from  seizure  by  creditors,  506. 
interest  of  widow,  etc..  507. 
.cale  of,  before  inventory,  507. 
appraisers'  estimate  of  value  of.  508. 
compelling  setting  apart  of,  506,  510. 
EXEMPTIONS : 

from  transfer  tax,  705. 
See  Transfer  tax. 
EXPENSES  OF  ADMINISTRATION: 
what  are,  552,  556. 

representative's  duty  and  liability  in  respect  to.  552. 
right  to  reimbursement  paramount  to  claims  of  creditors,  661,  ru 
preference  in  payment  of,  663. 
EXPERTS : 

opinions  of,  as  evidence  of  testamentary  capacity,  213. 
classes  of,  treated,  213. 
subscribing  witnesses  as,  214. 
EXPOSITION   of'  WILL.     See  Will. 
EXPRESS  TRUSTS.     See  Will. 
EXTRINSIC  EVIDENCE: 

on  probate,  only  competent  as  to  factum  of  will,  184. 
to  correct  clerical  errors  in  will.  221.  259,  260. 
meaning  of  technical  words  in  will  cannot  be  varied  by,  270. 
to  explain  ambiguity  as  to  beneficiary,  274. 
to  aid  reading  of  will.  271. 
testing  of  will,  272. 
applying  will,  273. 
interpretation  of  will.  270. 

rules  of  admissibility,  270.  n. 
on  impeachment  of  decrees,  when  allowed.  1081. 
See  Evidence. 

FEDERAL  COURTS: 

concurrent   jurisdiction   of,   in  testamentary  cases,   63. 
FEES : 

of  appraiser,  494. 

taxing  bill  of,  494. 


JRcfrrrncm  are  Pivvfrvi     Ivdi-v  11  "1 

to   sections.  UL^EKAL    IMJtX.  llol 

I'EES  —  co)}ti)ruc(l. 

of  executor,  etc.,  spllinf!;  lands,  etc.,  904. 
of  freeliolder,  sc'llin<,'  lands,  etc.,  904. 
of  special  f^imrdian,  1111. 

on  appeal,   1111,   1119,  n. 

on  transfer  tax  proceedinfj,  1111,  w. 

on  proeeedinfT  to  sell  lands,  etc.,  904,  n. 

on  probate.  1 100. 
•on  accounting,  112,  1111,  n. 
of  referee,  TZO. 

taxation  of.   120. 

motion  to  tax,  where  party  refuses  to  proceed.  120,  n. 
of  stenoffrajjlier,  25,   n. 
of  surrofjfate.  39. 

for  searches,  .39. 

none  in  certain  cases,  40. 

book  of,  to  be  ke])t  and  annual  report  made,  41. 

for  travel infj  to  take  testimony,  .39. 

disposition  of,  in  New  York  county,  41. 
See  Costs. 
FINAL  ORDER : 

of  surrogate,  defined,  1088. 

See  Decree. 
FINDINGS: 

when  to  be  filed,  114. 

separate  statement  in  decision  of  surrogate,  114. 

in  referee's  report,  118. 
either  party  may  request,  114,  11.5,  1143. 
FIXTURES: 

■when  are  assets,  to  be  included  in  inventory,  490. 
question  as  to,  one  of  fact,  490,  v. 
FORECLOSURE: 

right  of  executor  to  buy  in  land  on,  617. 
surplus  on,  goes  to  heirs,  530. 

See  Surplus. 
FOREIGN: 

assets,  to  be  inventoried.  529,  n. 
investments,  liability  of  executor  on,  624, 
probate,  ancillary  letters  on,  312  et  seq. 

letters  c.   t.  a.  upon,   333. 
FOREIGN  REPRESENTATIVE: 

application  of  the  term,  517. 

not  a  party  to  i)roceeding  in  Surrogate's  Court,  99. 

cannot  sue  in  our  courts,  99,  51S,  567. 

rule  does  not  apply  to  foreign  trustees,  99,  n. 

not  required  to  give  bond  unless  objected  to,  477. 

power  of,  to  take  charge  of  estate  here,  312,  n.,  317,  518,  795,  n. 

to  sell  lands.  318. 
rights  and  liabilities  here,  318,  518. 
assiojinient  bv,  recognized  here,  99,  n. 
FOREIGN  WILL: 

meaning  of  term.  333. 

of  pej-sonalty.  establishment  by  action,  61,  135. 
probate  of,  149. 
recording  here.  250. 
record  of,  as  evidence.  250,  n. 
power  of  sale  under.  250,  n. 

certified  copy  of,  to  be  filed  with  secretary  of  state,  251. 
letters  c.   t.  a.  on   proof  of.   333. 
appointment  of  iruardian  by,  1060.  n. 
3T>RMS.     See  hidcx  to  Forms. 


1132  Genekal   Index.  References  are 

to  sections, 

FRAUD: 

in  procuring  execution  of  will,  21G,  217. 

declarations  of  testator  not  competem  to  prove,  218,  n. 

presumptions  of,  217. 

where  will  drawn  by  devisee,  217. 
family  physician,  217. 
attorney,  217. 
clergyman,  217. 
guardian,  217. 
where  testator  was  blind,  217. 
illiterate,  217. 

weak  in  body  and  mind,  217. 
not  presumed  from   old   age  alone,  217. 

from  injustice  of  testamentary  provisions,  218. 
from  opportunity  and  interest,  219. 
precise  mode  of,  need  not  be  proved,  218. 
illustrations  of  principles  respecting,  210,  n. 
FREEHOLDER : 

appointed  to  sell  lands,  etc.,  869. 
See  Real  Estate,  etc. 
FUNERAL  EXPENSES : 

payment  of.  by  temporary  administrator,  414. 

by  public  administrator,  390. 
preference  of  claim  for,  54G. 
whose  duty  to  incur,  546. 
where  a  charge  against  estate,  546. 
when  estate  relieved  of  liability  for,  546. 
not  a  debt  of  decedent,  546. 
third  persons  may  be  liable  for,  546. 
executor  personally  liable  for,  when,  546. 
allowance  for,  on  accounting,  549. 
proceedings  to  compel  payment  of,  547. 
hearing  and  decree  thereon,  548. 
who  primarily  liable  for,  546. 
must  be  reasonable  in  amount,  549. 
what  are  allowable,  as  against  creditors,  550. 
cost  of  tombstone  included  in,  549,  845,  n. 
as  well  as  burial  lot,  550. 
and  mourning  for  family,  551. 
expenses   incident  to  death  and  burial,   551. 
sale,  etc.,  of  lands  to  pay,  845. 

GIFTS  CAUSA  MORTIS: 
origin  of,  584. 

characteristics  of  such  gifts,  584. 
distinguished  from  other  dispositions,  584. 

from  nuncupative  will,  584. 

from  gift  inter  vivos,  584. 

from  legacy,  584. 
unchecked  by  statute,  584. 
strictly  viewed  by  courts,  584. 
power  of  surrogate  to  determine  validity  of,  584. 
svibject  of.  585. 

applies  only  to  personal  property,  585. 
presumption  as  to,  592.  n. 
requisites  of,  enumerated,   586. 

must  be  made  in  view  of  death,  587. 

time  of  death  immaterial,  587. 

donor's  death,  588. 

gift  must  be  absolute.  590. 

there  must  be  a  delivery,  589. 

what  constitutes  delivery,  585,  589. 


T';;sr'        g^ne,....  i.,.kx.  1133 

<;IFTS  CAUSA  yiOinifi  —  conliivifd. 

rules  governing  delivery,  r^Sd. 

transfer  of  dominion   necessary,   590. 

must  \k'  aeceiitiince  by  donee,  oSO. 

nuist  aeeoid  witli  nature  of  gift,  589. 

constructive  delivery,  589. 
of  shares  of  stocky  585.  ' 

of  promissory  note,  585. 
of  bonds,  585',  .590,  n. 
of  mortgage,  585.  590.  ?(. 
of  deposit  in  bank,  585,  589,  590,  n. 
in  escrow,  589,  592,  ». 
void  as  against  creditors,  when,  591. 
revocation  of,  592. 

by  reclaimer,  588,  592. 

by  any  act  whicii  would  eiTect  revocation  of  will,  592. 

bequest  of  all  testator's  property,  not  a,  592. 
evidence  of,  593. 

burden  of  proof  on  the  donee,  593. 

not  necessary  to  show  testamentary  capacity  of  donor,  593. 
prima  facie  case  made  out  bv  proof  of  requisites,  593. 
GUARDIAN  AD  LITEM: 

infant   jjarties   nuist  be  represented  by,   lOS,   974. 
general  guardian  of  infant  may  act  as,   108. 
connnittee  of  incompetent  may  act  as,   108. 
clerk  of  court  cannot  act  as,  22. 
surrogate's  jjower  to  appoint,  108,  109. 

for  infant,  108. 

for  incompetent,  108. 
appointment,  not  nullified  by  existence  of  general  guardian,  108. 
eil'ect  of  failure  to  appoint,   108. 
appointment  cannot  be  made  nunc  pro  iunc,   110. 
nor  until  after  service  of  citation,  110. 
on  appeal,   1134. 

evidence  of  appointment  in  proceedings  to  sell,  etc.,  906. 
application  for  appointment,   109. 

notice  of,  109. 

time  of  notice,  109. 

order  to  show  cause  on,  109.  ' 

rule  as  to,  in  New  York  county,  109,  n. 
A-acating  appointment,  108,  n. 
nomination  of,  109,  n. 
duties  and  responsibilities  of.   111. 
compensation  of,   112,  1111. 

entitled  to  costs,  though  unsuccessful.    112. 

as  counsel,  not  entitled  to  allowance.   112. 

on  appeal,  surrogate  cannot  award.  112,  1111.  1119,  h. 

on  accounting.   112,   1111,   n. 

on  proceedings  to  sell,  etc.,   lands,   90-1,   n. 

on  transfer  tax  proceeding,  1111,  n. 

on  contested  pro])ate,  HOG. 
bond  of,  483. 
GUARDIAN,  P.Y  WILL  OR  DEED: 

appointment  of,  by  whom,  and  how  made.  1058. 

l)ower  to  appoint  does  not  exist  except  by  statute,  1058. 

statutes   relate  only   to   domiciliary  guardianships,    1058. 

by  foreign  will,   1000,  n. 

foreign  guardian,   1058.  ?/. 

former   rule  as   to.    105S.   n. 

father  and  mother  joint  guardians  of  their  children.  lO.lS. 
the  survivor  only,  has  right  to  appoint,   1058. 


113i  Gbnehal  Inbex.  "TS^^T 

GUAKDTAX,  BY  \\1LL  OR  \yEED  —  continued. 

includes   guardianship   of  unboi'n   child,    1058. 

adopted  child,  1058. 
statute  refers  only  to  children  of  testator,  1058. 
of  joint  guardians,   1059. 

what  language  in  will  amounts  to,   1059,  n. 
not  confined  to  infants  with  property,   1059. 
is  valid  as  against  guardian   in  socage,   1059. 
operates  to  prevent  appointment  by  surrogate  of  infant  over  fourteen^ 

1059,   n. 
defeated  by  subsequent  appointment  by  surrogate,  when,  1060. 
letters  should  not  issue  to  nonresident  alien.   1000,  n. 
Powers  and  duties  of,  defined,   1059. 

of  joint  guardians,  where  one  refuses  to  act,  1059. 
prerequisites  to  authority  to  act,  1060. 

will   must  have  been   proved  and  letters  of  guardianship  issued^ 
1060. 

if  appointed  by  deed,  same  must  be  recorded,  1060. 

effect  of  not  recording  deed  within  three  months,   1000. 

presumption  as  to  renunciation,   1060,    1061. 
oath  of,  to  be  taken  within  thirty  days  from  probate,  1061. 

time  may  be  extended,  1061. 
filing  objections  to  issue  of  letters  to,  1061. 
renunciation  of  appointment,  1001. 
requiring  security  from,  1062. 

petition  for  security;   by  whom  presented,   1062. 

contents  of  petition,   1062. 

proceedings  thereon,  1062. 
compelling  filing  of  inventory  and  account  bj',   1063. 
judicial  settlement  of  account  by,   1064. 

may  be  voluntary  or  compulsory,  1064. 

decree  on,  effect  of,  1005. 
compensation  of,  1066. 

whether,    when    also    executor    entitled    to    double    commissions^ 
1040,  n. 

legacy  given  in  lieu  of,  1066,  n. 
Removal  of,  by  Surrogate's  Court,  1067. 

proceedings  for,  same  as  in  case  of  testamentary  trustee,  1067. 
validity  of  will  may  be  attacked  on  proceedings  for,  1067,  n. 
by    Supreme    Court,    1067,    n. 

suspension  of  guardian,  pending  proceedings,   1067. 
order  for,  when  revoked,  1067. 
Resignation  of,  permitted,   1068. 

to  what  surrogate  application  directed,  1042,  »..  1068. 
proceedings  on,  same  as  in  case  of  general  guardian,  1068. 
where  guardianship  is  sole,  successor  mav  be  appointed,   1068. 
GUARDIAN,  GENERAL: 

appointment  of,  1014  et  scq. 

general   jurisdiction  of  surrogate  to  appoint,    1014. 

extent  of  power  to  appoint,   1015. 
to  restrain  from  acting,  1014,  /(. 
of  married  female  infant,   1015. 

effect  of  marriage  upon   such   appointment.    1015,  n. 
jurisdiction   concurrent   with   other   courts,    1014. 

what  surrogate  has  jurisdiction,  1016. 

depending  on  residence  of  infant  in  surrogate's  county,  1016L 

on  property  therein,  if  infant  resides  out  of  State,  1016. 

actual,  not  merely  legal,  residence  intended,  1016. 
deemed  an  officer  of  the  court,  1014,  w. 
temporary  guardianship  of  infant  under  fourteen,  1017. 

must  be  nominated  by  surrogate.   1017,   1023. 

no  notice  to  infant  necessary,  1021,  n. 


mcrences  are  General  Index.  1135 

to  sections. 

OUAKDI  AX,  CEXKRAI  —  vonfinneu. 

when  ofliee  of,  expires,  1014. 

such   olliee   continues,    until    successor   appointed,    1017,   n. 
by  whom  apjjlication  n;ade,  1017. 
effect  of  prior  ap[)ointnient  <m  surro','ate's  powers,   1018,   1025. 
petition  for  aiipointment,  of  infant  over  fourteen,  contents  of,  1019. 
of  nonresident,  married  woman,   1015,  n. 

discretionary  with  surrogate  to  appoint  person  named,  1019,  n., 
1023, 
citation  not  always  essential,  1020. 

time  of  service  of,  on  infant  petitioners  father,   1020. 
to  relatives,   is  discretionary  with  surrogate,   1021. 
liusband  of  female  infant  to  be  cited,   1021,  «. 
hearing  of  application,  1022. 

inquiry  into  circumstances  where  no  citation,   1022. 
as'  to  infanfs  property,  1022. 
as  to  infanfs  relatives,  1021. 
siibjia-na  for  that  purpose,  1022. 
nomination  of,  by  whom  made,  1017,   1019. 
infant  under  fourteen,   1017. 
infant  over  fourteen  must  nominate,  1019. 

right  of  infant  to  nominate  not  absolute,  1017,  n.,  1019,  n.,  1023. 
guardian  of  person  of  married  woman  not  to  be  appointed,  1022, 
surrogate  must  approve  nomination,  1023. 
neglect  of  infant  to  nominate,  effect  of,   1023. 
principles  governing  appointment,   1023. 
preference  among  relatives,   1023.  /(. 
nonresident  relatives  not  ineligible,    1023,  n. 
surrogate  not  restricted  to  relatives,  1023. 
corporation  may  be  appointed.  1023,  »?. 
same  person  may  be  appointed  in  both  capacities,  1023. 
joint  guardians  of  infant's  person  not  to  be  appointed,  1023. 
limited  letters  to,  form  of,  478. 
decree,  valid  until  reversed  by  direct  proceeding,   1025. 
Office  of,  begins  from  delivery  of  letters,   1024. 
for  infant  under  fourteen,  is  temporary,  1017. 
how  affected  by  marriage  of  female  infant,   1015,  n. 
where   two  or  more,   is  joint   and  several,    1026. 
is  deemed  an  authority  coupled  with  an  interest,  1026. 
oath  of,  to  be  filed  before  letters  issue,   1027. 
bond  of,  guardian  of  property  must  give,  478,  1027. 

guardian  of  person  may  be  required  to  give,  481,  1027. 
where  trust  company  appointed,   1027.   "• 
rules  governing  prosecution  of,  1027,  ii. 
sureties  on,  liability  of.  480,  1027,  n. 

remain  liable  until  accounting  by,  480,  1044. 
See  Bonds. 
powers  and  duties  of,   1028. 

may  represent  infant  in  proceedings,  etc.,  108. 
keeping  up  inheritance.  1028. 
penalty  for  waste,  1028. 

applicati(m  of  infanfs  property,  generally,   1029. 
applying  property  to  support,  on  surrogate's  direction.   1029. 
turning^'oyer  legacies,  etc.,  to  minor  on  reaching  majority.   1011. 
ordering  ai)plication  of  property,  on  petition  of  creditor,  1029. 
revoked  by  death,   1049. 
annual  inventory  and  accoimt  In  be  filed,  1030. 

only  applies  to  guardianship  of  property,   1030. 
contents  of  inventory.   1030. 

of  account.   1030. 
must  be  verified.   1030. 
not  to  be  judicially  settled,  1030. 


HHor.  r^  T         ^  ReferPticffi  are 

1136  Gexeeal  Index.  ^^  ^^.^.^^.^„^. 

GUARDIAN,  GENERAL  —  contimted. 
object  of,    1030. 

scrutiny  of,  by  clerk   or  examiner,   1031. 
remedy  where  account,  etc.,  not  filed  or  defective,   1032. 
neglect  to  file  not  a  ground  for  removal,  1045. 
proceedings  to  supply  deficiency,    1032. 
rule  in  New  York  county  as  to.  1032,  n. 
how  annual  account  made  conclusive,   1033. 
final  account,  judicial  settlement  of,  1033. 
when   compellable,    1033. 

by  ward,   on  attaining  majority,   1033. 
by  executor,  etc.,  of  ward  who  has  died,   1033. 
by  guardian's  successor,  1033. 
by  surety  on  guardian's  bond,  1033. 
by  legal  representatives  of  such  surety,   1033. 
of  deceased  guardian.  1033. 
of  guardian  of  person  by  guardian  of  property,   1033. 

proceedings  thereon,    1033. 
of  executor,  etc.,  of  deceased  guardian,   1033. 
may  be  compelled  by  successor  or  ward  after  decree  on  resigna» 

tion,   1044. 
citation  on,  to  whom  directed,  1033. 
limitation  of  proceeding,   1036. 
procedure  on  judicial   settlement,   1035. 
separate  accounts  for  each  ward,  1035. 
vouchers  to  be  filed,   1035. 
examination  of  guardian,  1035. 
subject-matter  of  accovmting.   1037, 
accounting  limited  to  proceedings  under  letters,  1037. 
questions  determinable,   1037. 
voluntary  accounting  and  discharge  of,  1034. 
petition   for,   contents   of,    1034. 
when  may  be  presented,   1034. 
upon  whom  citation  to  be  served,  1034. 
procedure  on,  1035. 

separate  account  for  each  ward,   1035. 
compensation  and  expenses  allowed,  1038, 

same  rate  as  that  allowed  executors,   1035,  n.,  1038. 
not  allowed  for  extra  services,  1039. 

commissions  not  to  be  computed    till  end  of  guardianship,  1040l 
when  denied  compensation,   1038,  n. 
principles  governing  computation,   1040. 
of  temporary  guardian,  1040. 
on   annual   statements,    1041. 
resignation  of,  surrogate  may  permit,  1042. 

petition   for,  giiardian  may  j^resent,    1042, 
prayer  of,  1042. 

surrogate  may  decline  to  entertain,    1042. 
notice  to  third  persons,  in  surrogate's  discretion,  1042. 
guardian  ad  litem,  must  be  appointed.  1043. 
hearing,  reasons  must  be  shown,   1043. 
order  to  account   as   preliminary   to,    1043. 
decree  permitting,  on  accounting  and  delivery,    1044. 
decree  is  tentative  only.  1044. 

does  not  prevent  proceeding  for  compulsory  accounting,  1044. 
apportionment  of  costs  on.  1044,  n. 
removal  of,  grounds  for.  enumerated.  1045. 

surrogate  will  not  remove,  unless  for  cause  specified,   1045. 
neglect  to  file  inventory,  no  ground  for,  1045. 
who  may   apply   for,    104(5. 
petition  for,  prayer  of,  1046. 


''foTsr         «™=''^^  1"°^^-  1137 

GUARDIAN,  GENERAL  —  cnntir.ucd. 

inquiry   into   facts   before  citation   issued,   1046. 

siil)j)a'na  to  attend  for  sucli  purpose,  1040. 
citation,  when  to  i.-sue,  1040. 

suspending  guardian  on  issue  of,  1047. 

certified  copy,  order  of  suspension  to  accompany,  1047. 

proceedings  on  return  of,  1047. 
when  proceedings  dismissed,  1048. 
decree  of  revocation,  1049. 
appointment  of  sucet  sscr,    1049. 
appeal,  effect  of,   1049. 
foreign,  appointment  of.  dependent  on  wliat,   IO.'jO. 
of  property  cannot  act  here,   lO-lO. 
of  person  \\hen  recognized  here,  10.10. 
ancillary  letters,  when  granted,    1051. 

where  infant  resides  in  tlie  United  States,  1051. 

petition  for,  contents  of,  1051. 

vho  may  apply  for,  1051. 

proofs  to  accompany  petition,  1051. 

issue  of  citation  thereon  discretionary,  1053. 

security  by  ancillary  guardians  not  required,  when,  10.54. 

payment  of  debts  due  to  residents  before  issue  of,  1053. 

where  infant  resides  in  foreign  country,  1052. 

proof  necessary  on  application,   1052. 

security  not  condition   precedent  to  letters,  1054. 
decree  eranling  letters.   105.3. 
powers  of  ancilh^ry  guardian.  1055. 
when    authorized    to    receive    property   from    resident    guardian, 

etc.,  1055. 
revocation  of  ancillary  letters,  1057. 
G-UARDIAN,  in  socage,  has  power,  etc.,  as  general  guardian,  1028,  n. 

HALF-BUOOD: 

relatives  of.  entitled  equally  with  whole-blood,  805,  826. 
See  Intestate  Succession. 
HANDWRITING: 

proof  of,  when  allowed,   109. 

rule  as  to,  applied  to  proof  of  testator's  mark,  202. 

on  probate.  169. 

knowledge  of  contents  of  will  presumed  from  proof  of,  205. 

dispensing  with,  wlien,  169. 
HEARING: 

before  surrogate  or  referee,  113.  118,  964. 

adjournment  of,  surrogate's  power  to  order,  52. 
See  Surrogate's  Court ;  Trial  Practice. 
HEIRS- AT-LAW: 

defined,  92.  269. 

as  parties  in  Surrogate's  Court,  92,  93. 

descent  of  real  ])ro])erty  to,  790  ct  seq. 
as  tenants  in  common.  809. 

distribution  of  personal  property  to,  816(7,  826. 

land  aliened  by.  safe  for  debts,  etc..  879. 

may  sue  for  reimbursement,  after  lands  sold,  etc.,  907. 

must  satisfy  mortgage,  without  resort  to  representative,  595. 

heirship  of,  probate,  1120  ct  seq. 
HEIRSHIP,  PROBATE  OF: 

generally  considered.    1120. 

allowed,  of  what  estates,   1121. 

who  may  apjdy  for,   1122. 

what  court  has  jun'sdidinn  to  grant,  1122. 

petition  for,  contents  of,  1122. 

72 


1138  Geis^eeal  Index.  ^'Jrj'f'.T 

to  sections. 

HEIRSIUP.  PROBATE  OF  ~  confimicd. 
citation,  contents  of,   1122. 

to  whom   directed,    1122. 
heir  not  cited  may  appear  and  contest,  1122. 
rights  of  heir  not  a  party,  unaliected,   1122. 
proceedings  must  be  dismissed,  if  contested.  1123. 
what  petitioner  nivist  establish,  before  decree  granted,  1123. 
decree  granting,  must  recite  facts  established,  1123. 

etlect  of,  as  presumptive  evidence,  1124. 

may  be  recorded.  1124. 
revoking  or  modifying  decree  of,  1125. 

who  may  apply  for,  1125. 

limitation  of,  1125. 

must  be  made  by  written  petition,  1125. 

requisites    of    petition,    1125. 

to  whom  citation  directed,   1125. 

requisites  of  petition,  where  heir  has  died  or  aliened,  1126. 

decree  of  revocation,  etc.,  1127. 
niav  be  recorded,  1127. 
HEALTH  OFFICER: 

to  account  to  public  administi'ator  for  effects  of  those  dying  at  quar- 
antine, 388. 
HUSBAND: 

of  decedent,  not  her  next  of  kin,  94,  269,  n.,  821. 

liable  for  wife's  debts,  when,  346. 

right  to  share  in  assets  of,  346,  824. 

where  wife  left  no  descendants.   824. 

prior  right  of,  to  administer  wife's  estate.  346. 

relatives  of,  descent  of  property  of  wife  to,  806. 

IDIOTS,  LUNATICS,  ETC.: 

service  of  citation  on,  77. 

appearance  by  committee  in  Surrogate's  Court,  108. 

appointment  of  special  guardian  for,  108. 

wills  of.  invalid,  210. 

mere   imbecility  does  not  incapacitate,   210. 

insane  delusions.  211. 

monomaniac  competent,  when,  211. 

habitual   drunkards,  211,   n. 

descent  of  property  of,  796,  n. 
ILLEGITi:\IATE : 

meaning  of  term,  92. 

not  included  in  term  "  children."  in  will,  269,  n. 

status  of.  92. 

administration  on  estate  of.  343,  n. 

illegitimacy  not  presumed,  827.  n. 

what  law  governs  succession  to  property  of,  795. 

descent  of  real  estate  of.  804. 

cannot  inherit  real  estate.  804. 

when  may  inherit  personalty  from  mother,  827. 

mother  of,  mav  inherit  from,  when.  829. 
INCUMBRANCES : 

on  land,  riijht  and  dutv  of  executor,  etc.,  to  pay,  614,  615. 
INDIANS: 

not  subiect  to  surrogate's  jurisdiction,   341. 

disposition  of  property  of,  341. 
INFANT: 

age  of,  how  ascertained.  77,  v.,  208,  n. 

service  of  citation  on.  77. 

appearance  by  general  guardian  in  Surrogate's  Court,  108. 

party,  appointment  of  special  gTiardian  for.  108  ef  ftcq.,  974. 
where  infant  ordered  brought  in  as  a  party.  107. 


References  are  r\  -r 

to  sections.  Cjeneral  Index.  1139 

INFANT  —  confimied. 

inconipetont  to  make  will  of  realty,  208. 

at  what  a<,'e.  competent  to  bequeath  personalty,  208. 

may  be  administrator  through  general  guardian,  3G1. 

residence  of,  that  of  parent,  for  purposes  of  jurisdiction,  341. 

direction  as  to  i)ayment  of  share  of,  on  accounting,  101 1'. 

legacies  and  distributive  shares  of,  to  whom  paid,^792. 

children  of  ^lecedent,  exempt  articles  for,  508. 

guardians  of  person  and  property  of,  1014  et  seq. 

adopted,  right  of,  to  inlierit,  when,  815,  810. 

legacies,  etc.,  not  sul)ject  to  transfer  tax,  700, 
cancellation   of  adoj)tion,   when,  40. 
female,  though  married,  cannot  devise  realty,  208,  ti. 

guardianship  of,  how  affected  by  marriage.   1115,  n. 
investment  of  share  of,  in  proceeds  "of  lands  sold,  etc.,  90O. 
INHERITANCE: 

defined,  under  statute  of  descent,  796,  n. 
of  real  estate,  706  et  seq. 
of  personal  property.  816  e^  seq. 
See  Intestate  Succession. 
INJUNCTION: 

power  of  surrogate  to  issue,  52.  53. 
against  sale.  etc..  to  pay  debts,  866. 
INSANE  DELUSIONS.     See  Testamevtanj  Capacity;  Will. 
INSTRUMENTS : 

referred  to  in  will,  233. 
INSURANCE  POLICY : 

duty  of  executor  to  insure  against  fire,  616. 
on  life,  payable  to  executors,  as  an  asset,  536. 
of  another,  536. 
of  nonresident,  529,  n. 
payable  to  widow,  536. 
special  statutes  as  to  such,  536. 
when    specifically   bequeathed,    536. 
against  fire,  distinction  as  to  time  of  loss,  537. 
taken  out  by  executor,  537. 
INTENTION: 

of  testator.     See  Will. 
INTEREST : 

on  mortgage,  etc.,  when  to  be  paid  by  representative,  614. 
on  funds,  liability  of  executor,  etc.,  ifor,  619  et  seq. 

liability  of  temporary  administrator,  419,  420,  619,  n 
compound  for,  620,  ».,  621. 
when  payable  on  legacies,  776,  777. 

on  claims  of  representative,  642,  n. 
liability  of  general  guardian  for,    1037. 
INTEREST  IN  ESTATE : 

of  a  party,  what  is.  08.  934,  936. 
executor  is  one  possessing.  09.   104. 
effect  of.  on  comi)etencv  of  witness,  170,  172. 
what  interest  entitles  one  to  intervene,  104. 
ajiparent  interest  suiTiciont,  OS.  049. 
allegation  of.  when  sufficient.  OS.  040. 
in   petition   for  accoimt'ng.  049. 

may  be  litigated  as  a  preliminarv  issue,  when,  98,  104. 
INTERLINEAl  IONS : 

in  will,  effect  of,  224. 
See  Will. 
INTER:\rEDTATE   ACCOUNT.     See  Aceountinff. 
INTERPRETATION   OF   WILL.     See   Will. 
INTERVENTION  OF  PARTIES.     See  Parties;  Probate. 


1140  Gexekal  Index.  Refercnre.',  are 

to  sectiom. 

INTESTATE  SUCCESSION: 

intestate,  defined,  338. 

partial   intestacy,   817. 

object  of  statute  regulating,  794, 

"what  law  governs,  795. 

when  intestate  was  illegitimate,   795. 
descent  of  real  property ;  order  of  descent,  796. 
lineal  descendants  in  equal  degrees,  797. 
children  living,  and  descendants  of  dead  children,  798. 
descendants  of  unequal  degree,  798. 
Avhen  father  to   inherit,   799. 

Avhen  mother  to  inherit  for  life,  and  when  in  fee,  800. 
when  collateral  relatives  inherit,  SUl. 
brothers  and  sisters,  and  their  descendants,  802. 
when  such  descendants  are  of  unequal  degree,  802. 
doctrine  of  representation,  802.  «. 

brothers  and  sisters  of  father,  and  their  descendants,  803. 
when  uncles  and  aunts  inherit,  803. 
when  maternal  uncles  and  aunts  preferred,  803. 
Avhen  maternal  and   paternal  uncles  and  aunts  inherit  equally,   803. 
of  property  of  illegitimate,  804. 
of  property  of  insane  person,  79G,  n. 

relatives    of   half-blood    inherit   equally   with   whole-blood,    805. 
relatives  of  liusband  or  wife,  806. 

in  cases  unprovided  for,  common-law  rule  prevails,  807. 
heirs  to  take  as  tenants  in  common,  809. 
to  posthumous  descenda.its  and  relatives,  808. 
illegitimate  children  not  entitled  to  inherit.  804. 
estates  by  curtesy  and  dower  not  affected  by  statute,  813. 
of  estate  in  trust,  813. 
of  property  of  alien  ancestor,  810. 
advancements  to  be  set  off.  811. 

when  to  be  deducted,  811. 

hoAV  adjusted,  812. 
additional  portion  to  widow,  814. 
when  adopted  children  may  inherit,  815. 
of  personal   property,   816. 

such  property  has  no  locality,  795,  n. 
origin  and  policy  of  the  statute,  816. 
order  of  distribution,  816fl. 
doctrine  of  representation,  818. 
adopted  children,  819. 
computing  degrees  of  kindred,  820. 
mode  of  distribution,  table  showing.  820. 
rights   of   widow,   821. 

right  of  dower  no  bar,  822. 

effect  of  divorce,  823. 
rights  of  widower,   346,  824. 

of  next  of  kin  of  husbantl  or  wife,  825. 

of  lineal  kindred,  820. 

of  children,  826. 

of  child  disinherited,   826. 

of  posthumous  children,  826. 

of  illegitimate  children,  827. 

of  mother  of  illegitimate.  829. 

of  parents  of   intestate,  828. 

of  relatives  of  half-blood,  826. 
advancements  to  children.   830. 
rights  of  collateral  kindred.   831. 

proceedings  to  compel  payment  of  distributive  share,  832  et  seq. 
See  Distribution  of  Personal  Property. 


Iteferences  are  General  Index.  1141 

to  secHons. 

INVENTORY: 

of  decedent's  assets,  480  et  seq. 

to  be  filed  by  guardian,  1030. 

by  teiiipoiary  administrator,  500. 
by  public  :'.d"ii)inistrator.  380,  395. 
bv  countv  treasurer,  381. 
INVESTMENTS: 

temporary  administrator  cannot   make,  412. 

liability  of  representative  in  making,  G21. 

character  of,  by  representative.  022. 

foreign,   G24. 

of  legacies  to  minbrs.  792. 

of  infant's  share  of  lands  sold.  etc..  000. 

of  dower  fund,  on  proceedings  to  .sell,  etc.,  lands,  899. 
IRREGULARITY: 

surrogate's  power  to  correct.  44.  52,  54,  425,  1077,  1081. 

efiect  of,  on  surrogate's  decrees,   1078.  1083. 

when  cannot  be  corrected  on  motion,  1082. 

when   not   jurisdictional.    1083. 

when  may  be  corrected  by  amendment,  1083. 

cannot  be  urged  in  collateral  proceeding.  1083. 

when  available  only  on  appeal.  872,  1083. 

in  appeal  ])roceeding.  corrected,  how,  1138. 

in  proceedings  to  sell,  etc.,  lands,  cure  of,  872. 

JOINDER : 

of  person  not  entitled  in  administration,  348. 
of  parties  and  causes  in  action  bv  or  against  executors,  568. 
JUDGMENT : 

in  action  to  determine  validity  of  devise,  137. 

to  establish  foreign  will,  136. 
lost,  etc.,  will,  239. 

by  or  against  e.xecutor,  etc..  570,  677. 
against  decedent,  a  preferred  delit.  664,  667. 

representative,  status  of,  667,  677.  678. 
for  costs,  status  of.  667. 
entered  after  party's  death,  .status  of,  668. 
foreign.  (Hi!), 
of  Federal  courts.  660. 
execution  on,  679,  682. 

against  representative  not  a  lien  on  decedent's  real  property,  521,  n. 
effect  of,  as  evidence  of  debt.  637,  861. 

See  Actions;  Dehis ;  Decrees. 
JURISDICTION: 

of  Federal  courts  in  testamentary  cases.  63. 
of  Supreme  Court  in  probate,  etc..  cases,  59-61. 
of  Surrogate's  Court,  generally,  42. 

See  Surrogates'  Courts. 
JURY  TRIAL: 

surrogate  may  order,  when.   121.   164,  863. 

in  probate,  121,  164. 

contents  of  order  for,   121,   164. 

review  of  verdict,   164.   1146. 

new  trial,  when  granted,  164. 

appeal  from  order  granting.  1146. 

in  setting  aside  verdict,  issues  triable  before  another  jury,   121,  n. 

surrogate  has  no  power  to  direct  new  trial  after,  121. 

in  action  to  determine  validity  of  probate,  1.38. 

verdict  in   such   action,   conclusive.    138. 

in  jtroceedings  to  sell,  etc.,  lands.  121,  863. 

on  reversal  of  surrogate's  decree  of  probate,  1146. 


1142  Ge^sEKAL   Ixdex.  Reference.s  ore 

to  sections. 

LAPSE: 

of  legacy,  763. 

See  Legacy. 
LATENT  AMBIGl'ITY: 

in  will,  discussed,  270. 
extrinsic  evidence  to  explain,  270. 
LAW  OF  PLACE:     ' 

Avhat  law  governs  probate,  177  cf  seq. 

intestate  succession,  795. 

validity  of  devise,  179. 
LEASE : 

considered  personal  property,  489. 
of  lands  to  pay  debts,  etc.     See  Real  Estate,  etc. 
LEGACY: 

general  description,  735. 

when  vests,  765. 

different  kinds  and  characteristics  enumerated,  735. 

specific;  defined,  736. 

illustrations  of,  736,  n. 

not  subject  to  abatement,  736,  754. 

when  payable,  736,  754. 

necessary  description,  736. 

interest  on,  736. 
demonstrative;   defined,  736. 

qualities  of,  736. 

does  not  abate,  736. 
general;  defined,  737. 

presumption   of  generality,   737. 

includes  annuities,   737. 
residuary  legacies,  737. 

legacy  of  specific  amount  in  bonds  is,  754,  n. 
annuities;   defined,  737. 

are  general  legacies,  737. 

on  failure  of  fund,  how  payable,  737. 
residuary;    defined.  737. 

what  carried  by,  737. 
legacy  charged  on  land,  738. 

intention  to  charge  land,  necessary,  738. 

what  will  indicate  such  intention,  738. 

personal  liability  of  devisee  for,  739. 
vested  and  contingent ;  defined,  740. 

principles    for   distinguishing  between,   740. 

distinction  relates  mainly  to  lapse,  740. 

test  of  contingency,  740. 

efi'ect  of  futurity  on  vesting,  740. 

law  favors   vesting,   740. 

vested  right  to  a  contingent  estate,  741. 

in  case  of  gift  by  direction  to  pay,  740,  n. 
legacy  pur  autre  vie,  how  vests,  740. 
absolute  and  conditional ;   defined,  742. 

conditions  precedent  and  subsequent,  742. 

failure   of  condition,   742. 

accepting  condition  of,  742. 

disposition  of  rejected  conditional.  742. 

legacy  to  executor,  when  conditional,  743. 
presumption  as  to,  743. 
cumulative:  defined,  744. 

presumption  is  against.   744. 

intent  of  will  governs  as  to.  744. 
legacy  of  rents,  restrictions  on,  260  et  seq.  • 

legacv  to  a  class,  269. 


''jj'^sr        G^"^"^^  i««=^-  11*3 

LEGACY  —  conlinucd. 

legacy  in  Heu  of  dower,  745. 

legatee  iinist  elect,  745. 

princi])les  governing,  745. 
legacy  to  exc'ciit(jr,  743,  740. 

when   deemed  conditional  on   acting,   743. 

in  lien  of  commissions,  74(i. 

election  in  such  case,  740. 
legacj'  to  guardian  in  lieu  of  commissions,  lOGG,  n. 
legacy  to  creditor,  747. 

in  general  implies  bounty,  not  jiaymcnt,  747. 

when  deeir.ed  satis-faction  of  debt,   747. 
legacy  to  debtor,  748. 

presiim])tion  as  to,  748. 

of  amount  of  debt  in  terms,  748. 

efi'ect   of   debtor's   nomination   as   executor,    748. 

validity  of,  as  against  creditors,  748. 
legacy  to  witness  of  will,  when  not  avoided,  171. 

to  witness,  effect  of,   171. 
legacy  to  corporation,  208. 

foreign  corporation,  208. 

designation  of  corporation,  274. 

to  the  United  States,  2G8. 

to  the  city  of  New  York,  268,  n. 
legacy  to  unincorporated  society,  validity  of,  268. 

executory  bequest  to,  268. 

to  literary  institutions,  204. 
legacy  for  charitaljle  uses,  206  et  seq. 

restrictions  on,  200  et  seq. 

limitation  on,  267. 

foreign  charities,  267. 
legacy  for  life,  749. 

if  specific  and  perishable,  is  absolute,  749. 

right  of  life  tenant  to  possession  of,  749. 

security  by  life  tenant,  749. 

dividends  on  securities,  749. 

if  general,  legatee  has  only  income,  749. 

on  what  remainder  may  be  limited,  749. 
ademption  and  satisfaction,  defined,  750. 

distinction  between,  750. 

of  specific  legacies,  751. 

wliat  eti'ects,  751. 

by  alteration  of  fund,  751,  n. 

intent  of  testator  immaterial,  751. 

advancements  as  ademption  of  legacy,  751. 

bj^  extinction  of  fund,  etc.,  751. 

case  of  bond  and  mortgage  foreclosed,  751. 

sale  of  lands  devised,  751. 

of  demonstrative  legacies,  752. 

satisfaction  of  general  legacies  by  advancement.  753. 

adem])tion  by  subsecpient  jiortion  not  apjjlied  to  devises,  753. 

advancement,   when   presumed   a   satisfaction,   753. 

parol  evidence  of  testator's  intention,  753. 

testator  must  stand  in  loco  parentis,  753. 

as  to  advancements,  elc,  after  execution  of  will,  753,  n. 

evidence  of  advancement,  753. 

testator's  books  as  evidence.  753. 

declarations  of  testator  as  to,  753. 

burden  on  executor  to  establi.sh  satisfaction,  753,  72. 
abatement,  rule  as  fo  specific  legacies,  736,  754. 

of  general  legacies,  755. 


^  ^  ,  .  /n  T  References  are 

1144  General  Index.  ^  sections. 

LEGACY  —  continued. 

distinction  between  mere  bounties  and  those  given  for  prior  in- 
debtedness, 755. 

of  legacies  for  maintenance,  etc.,  755. 

of  legacies  for  piety,  755. 

of  legacies  to  widow,  756. 

of  legacies  to  executors,  757. 

of  residuary  bequests,  758. 

of  legacy  given  by  codicil,  759. 

testator's  intention  governs,  759. 

order  of,  700. 

occurring  after  payment,  refunding,  761. 

where  deticit  caused  by  waste  of  executor,  761. 

surrogate  cannot  require  legatee  to  refund,  47,  761,  n.,  774» 

bj^  birth  of  child  after  will,  762. 

action  by,  for  contributive  share,  762. 
design  of  the  statute,  762. 
lapse  of  legacies,  763. 

effected  by  legatee's  death,  before  testator's,  763. 

statutory  exception  in  favor  of  descendants,  763. 

of  legacy  to  one  "  and  his  heirs,"'  763. 

of  legacy  "  pur  autre  vie,"  740. 

death  of  legatee  prior  to  execution  of  will,  764. 

death  of  legatee  after  that  of  testator,  765. 

in  such  case  confined  to  contingent  legacies,  7G5. 

of  bequest  to  joint  legatees,  on  death  of  one,  766. 

of  bequest  to  legatees  in  common,  766. 

when  bequest  depends  on  prior  estate,  767. 

where  legacy  to  debtor  is  accepted,  768. 

where  legacy  to  creditor,  whose  representative  accepts,  768.. 

legacy  subject  to,  falls  into  residue,  769. 

if  no  residuary  bequest,  falls  to  next  of  kin,  769. 

in  case  of  lapsed  devise,  769. 

where  legacy  charged  on  land,  770. 
interest  on,  begins  to  run  on  general  legacies,  when,  776. 

where  will  revoked  and  a  later  one  proved,  777,  n. 

not  allowed  on  arrears  of  annuity,  777,  n. 

on  legacy  of  income  for  life,  776. 

on  legacy  from  parent  to  child,  777. 

on  legacy  for  maintenance,  777. 

on  legacy  to  posthumous  child,  777,  n. 

on  legacy  of  such  securities  as  may  be  selected,  776,  n. 

on  legacy  to  widow  in  lieu  of  dower,  777. 

on  legacy  payable  at  a  certain  date,  777. 

on  trust  income,  776. 

on  legacy  payable  out  of  lands  to  be  sold,  777. 

when  directed  to  be  paid  by  will,  777. 

on  legacy  of  a  debt,  777. 

on  legacy  to  executor,  777. 
validity  of,  to  colleges  and  literary  institutions,  264. 

depends  on  law  of  legatee's  domicile,  179. 

limitation  on  amount  of  charitable  bequests,  267. 

not  to  be  determined  on  probate,  255. 

effect  on,  of  direction  for  accumulation,  262. 

legacy  of  rents,  260  et  seq. 

suspending  absolute  ownership,  how  far  illegal,  261. 

effect  of  mistake  in  number  of  class,  on  legacy,  273,  n. 

description  of  subject-matter  of  legacy,  275. 

identity  of  legatee,  how  proved,  274. 
payment  of,  771. 

executor's  assent  to.  771. 

when  legatee  entitled  to,  772. 


References  are  c^^^^-^t^k^    t-v-t^t--^  111- 

to  sections.  GejsEKAL  I^dex.  114i> 

LEG>\<JY  —  continued. 

luulcr  coimnon  law,  one  year  after  death,  772. 

under  present  statute,  one  year  after  letters,  772. 

"  letters  "  includes  letters  of  temporary  administration,  772,  n. 

ohjcet  of  statute,  772. 

executor's  option  to  make,  before  year  ends,  773. 

liability  of  executor  for  erroneous  pajnient,   773,  774. 

surro<jate  cannot  require  le<^atce  to  retund,  47,  701,  n.,  774. 

remedy    of    executor,    wiiere    paid    le<,'acy    is    afterward    declared 

void,  774. 
within  the  year,  direction  in  will  for,  775. 

bond  n.ay   be  leijuired   in  such   case,  775. 
form  of  bond,  775. 
action  to  compel,  after  one  year,  778. 
when  right  of  action  accrues,  778. 
lies   upon  demand  and   refusal,  778. 
defenses  to,  77!). 
execution  in,  leave  to  issue,  779. 
imdertakin<r,  before  execution,  082,  778,  779. 
form  of  undertaking,  082. 
special  proceeding  to  compel,  alter  the  year,  780. 
jurisdiction   of  surrogate  to  entertain,   780. 
who  may  bring,  781. 
remedj'  of  assignee  of  legacy,  781. 
when  may  be  brought,  781. 
must  bo  founded  upon  a   petition,  782,  n. 
contents  of  petition,  782. 
limitation  of,  782. 
ans-wer  to  petition,  783. 
contents  of  answer,  783,  784. 
dismissing  proceeding  on  answer,  784. 
dismissing  proceeding  on  the  merits,  780. 
questions  to  be  determined,  785. 

payment  should  not  be  ordered  pending  accounting,  786,  n. 
powers  of  surrogate  upon,  785. 

proceeding  s-tayed  pending  action  in  another  court,  786. 
special   proceeding  to  compel,  within  the  year.  787. 
surrogate  has  discretion  to  entertain,  787. 
pending  probate  contest,  788. 
requisites  of  petition  and  ))roof,  787,  789. 
decree  in,  bond  necessary,  790. 

bond  must   conform  to  terms  of  the  statute,   790. 
special   proceeding  against   testamentary   trustee,   791. 
Avhcn  may  be  brought,  791. 
procedure  in,  791. 

supplemental   citation  to  persons  interested,   791. 
answer  to,  791. 

value  of  specific  property  bequeathed  may  be  ordered  paid,  791. 
to  minors,  payment  and  investment  of,  792. 

bond  ui)()ii   ordering  payment  to  general  guardian,   792. 

for?n  of  bond,  792. 
deposit  with  county  treasurer,  792. 
applying  ])rincipal   of  fund,   793. 
deposit  of  unclaimed  legacy  with  county  treasurer,  1012. 
when   made,    1012. 
how  \vithdra^^'n,   1012. 
LEGATEE: 

as  party  to  proceedings  in  Surrogate's  Court,  91,  98. 
assignee  of,  as  party,  etc.,  97. 

accepting  legacy.  estop])ed  from  attacking  will,  257,  280,  n. 
as  witness  to  will,  effect   on   legacy.   171. 
LETTERS  OF  ADMIXISTEATIOX.     See  Administration. 


ilJ-R  OT^^rTTT^AT    Txnvv  References  are 

11^0  trE^EEAL    i^DEX.  ^p  sections. 

LETTEES   OF   GUARDIANSHIP.     See  Guardian. 
LETTERS  OF  TRUSTEESHIP.     See  Trustee. 
LETTERS  ROGATORY: 

power   of   surrogate   to   issue,    124,    127. 
LETTERS  TESTAMENTARY : 

general  "  letters  testamentary  "  defined,  290. 
are  merely  evidence  of  title,   131,  290,  293,  325. 
**  executor  "  defined,  291,  513. 
"  probate  "  and  "  letters  '"  distinguished,  290. 
executor  nominated   in   will,   entitled  to,  291. 

express  nomination,  291. 

implied  nomination,  291. 

selection  under  power,  291,  294. 

must  be  made  within  thirty  days,  294. 

mode  of  such  selection,  294. 

when  power  of  selection  deemed  exhaustive,  294. 

no  limit  on  number  of  persons  nominated,  292. 

need  not  i-:eparately  qualify  as  trustee,  320. 
those  receiving  deemed  one  person,  292. 
granting,  for  dift'erent  States,  292. 

for  separate  functions,  292. 

for  definite  period,  292. 

limited  letters,   292. 
jurisdiction  of  surrogate  to  grant,  293. 
only  svirrogate  has  power  to  grant,  29.3. 
when  surrogate  may  grant,  293. 

on  proof  of  will  before  him,  293. 

on  establishment  of  will  by  action,  293. 

on  recording  foreign  will,  293,  333. 

pendency  of  proceeding  to  revoke  probate,  effect  of,  291,  n. 
renunciation  of  right  to,   295. 

mode  of,   296. 

agreement  to  renounce,  void,  295,  n. 

surrogate  no   discretion   as   to,   295. 

retraction  of  renunciation,  297. 

cannot  retract  after  qualification,  297. 

surrogate's  discretion  as  to,  297. 

implied  renunciation  of  right  to,  298. 

what  omissions  construed  as,  298. 

order  requiring  executor  to  qualify,  298. 
declaring  renunciation,  298. 

discretion  as  to  granting  letters  after  renunciation,  298. 
executor  named  in,  can  act  only,  299. 

one  not  named  in,  deemed  superseded,  299. 

limited    ]iowers    under,    pending    proceeding    to    revoke    probate, 
291,  n. 
form,   signing,   test   and   recording   of,    301. 

where  issued  from  another  court,  301. 
bond  on,  302. 

where  nonresident  executor  must  give  bond  on,  302. 
to  whom  letters  may  issue,  303. 

married  women,  304. 

nonresidents.  302. 

nonresident  aliens,   305. 

infants,    incompetents,   etc.,   303. 

one  incapable  of  making  a  contract,  303. 

one   convicted   of   crime.   303. 

drunkards,  etc.,  303.  307. 
objections  to  granting,  309. 

adversity  of  interest,  308. 

drunkenness,  dishonesty,  and   improvidence  defined,  307. 

staying  issue  of  letters  thereupon,  309. 


LETTERS  TESTAMENTARY  —  co«<in«ed. 
specification  of,  30!). 
disposition  of,  310. 
in  what  cases  obviated  hy  bond,  311. 
removal   of  disability,    30t). 
suppienientaiy  letters,  30(). 
successive  letters,  how  time  reckoned  on,  323. 
priority  among  dillerent,  324. 
effect  of,  as  evidence,  325,  5()2,   1072. 
are  retroactive,   130,  324,  5()3. 
of  trusteeship,  not  usually  necessary,  321. 
exception,  321. 

on  appointing  successor,   322. 
bond  of  successor,  322. 
ancillary  letters,  on  foreign  probat?,  312. 

practice  to  grant,  independently  of  statute,  312. 

includes  ancillary  letters  of  administration,  c.  t.  a.,  312. 

which  Surrogate's  Court  lias  jurisdiction,  312,  313. 

will  must  be  one  of  resident  of  State  where  probated,  312,  n. 

existence  of  assets  in  surrogate's  county,  necessary,  313. 

when  granted,   312. 

may  be  granted   on   probate  bv   court   of   United   States   consul, 

312,  n. 
proof  necessary,  312. 
application   for,   how  made,   313. 

where  made,  313. 

petition   for,   313,    718. 

notice  of,  to  creditors,  314. 

proceedings  on  hearing,  314. 
to  whom  issued,  315. 

where  two  or  more  named  in  foreign  letters,  315. 
qiialification  of  grantee,  315. 
bond  of  grantee,  31G. 
rights  and  powers,  .318. 
revocation  of,  by  action  to  set  aside  probate,  424. 

under  surrogate's  general  power  to  open,  etc.,  decree,  425. 
power  to  decree,  specially  given  to  surrogate,  44,  50,  59,  425,  429. 
power  confined  to  our  courts,  424. 
incidental  to  other  proceedings,  426. 

to  decree  revoking  probate,  425. 
on  failure  to  renew  bond  on  request  of  creditor,  426.  462. 

on  request  of  surety,  426,  465. 
on  proof  of  later  will.  427. 

on  stay  pending  appeal  in  certain  cases.  427. 
summary,  on  surrogate's  own  motion.  428. 

for  failure  of  nonresident,  etc..  to  account,  when  cited.  428. 

for  absconding,  etc.,  to  avoid  citation.  428.  505. 

for  lying  in  jail,  in  inventory  iiroceeding,  428.  505. 

in    case    of    temporary    administrator    neglecting   to    deposit 
funds,  428. 

who  may  apjdy,  429,  437. 
on  petition  of  creditor  or  person  interested.  429.  437. 

who  deemed  a  j)erson  interested.  437. 

incom])etency  and  disqualification  as  cause  for,  430. 

malfeasance,  dishonesty,  etc..  431. 

grr)ss  negligence,  431. 

failure  to  assert  decedent's  title  to  ]iro])erty.  431. 

particular  grounds  staled.  431. 

asserting  wrongfid   claini  to  property.  431. 

dissensions  betwe(>n  rey>resentatives,  431. 

false  suggestion  of  fact,  433. 

refusal  to  account  when  ordered,  954. 
to  inventory  certain  assets,  431,  n. 


114S  GB.ERAL    I.BEX.  "^'^^^^^^j:^ 

LETTERS  TESTAMENTARY  —  co»/in«ctZ. 

defiance  of  directions  in  will,  431,  n. 

removal  from  State^  435. 

disobedience  of  direction  by  surrogate,  432. 

willful  violation  of  law,  432. 

on  happening-  of  contingency  named  in  will,  435. 

j)articular  grounds  against  executors,  434. 

against  temporary  administrator  of  absentee,  436. 
petition  for,  438. 

surrogate  no  power  to  grant,  except  by  statute,  429. 
power  discretionary,  429. 
discretion,  how  far  reviewable,  429. 
pendency  of  action  for,  no  bar,  437. 

cannot  be  granted  ex  parte,  except  in  summary  cases,  438.^ 
citation  and  service,  438. 
proceedings  on  the  hearing,  439. 
answer  to  be  filed,  439. 
burden  of  proof,  439. 

dismissing  proceedings  notwithstanding  proof,  440. 
bond  to  prevent  removal,  440. 
decree  of  revocation,  costs,  441. 
must  be  recorded,  441. 
on  resignation  of  executor,  442. 
grounds  for  allowing,  442. 
granting,   discretionary,   442. 
petition  for,  and  order  to  account,  443. 
proceeding  same  as  on  accounting,  443. 
citation  and  service,  443. 
accounting  on  revocation,   444. 
reappointment,  when  allowable,  447. 
appointment   and  powers  of  successor,  445. 
petition  for  accounting  by  successor,  444. 
effect  of,  on  powers  of  executor  as  trustee,  446. 
of  authority  of  executor  in  both  capacities,  446. 
cessation  of  powers,  448. 
effect  of,  448,  1072. 

no  stay,  though  decree  appealed  from,  441,  448. 
validity   of   prior   acts,    130,   448. 
relate  back  to  death  of  testator,  130. 
of  authoritv  of  testamentarv  trustees,  449. 
LIFE  TEXAXT: 

of  chattel,  security  to  remainderman  by,  987. 
of  legacy,  security  for,   749. 

where  legatee  is  also  trustee,  749,  n. 
appointment  of  receiver  for  legacy  to,  749. 
security  by,  for  proceeds  of  sale  of  realty,  464,  n. 
LIMITATION: 

of  action  on  surrogate's  decree,   1087. 

of  contest  of  will,  after  probate,  279. 

of  proceeding  to  compel   filing  of  inventory,  501. 

of  action  on  claim  rejected,  039,  046. 

waiver  of  limitation  in  such  case,  049. 
of  action  for  legacy,  778. 

of  proceeding  to  compel   payment   of  legacy,   782. 
to  compel  payment  of  distributive  share,  833. 
to  com])el   accounting,  932. 
to  revoke  probate  of  heirship,   1125. 
to  sell,  etc..  lands,   840. 
of  time  to  appeal  from  surrogate's  court,  1137. 
of  action  to  recover  chattel  from  representative,  565. 

by  and  against  representatives,  505. 
suspension  of,  as  to  claims  by  and  against  executor,  etc.,  644. 


.■References  are  Genekal   Ixdex.  1141) 

t(j  sections. 

LIMITATION  —  continued. 

of  action  to  establish  lost  will,  234,  ?).,  505,  n. 
to  determine  validity  of  probate,   138. 
on  surrogate's  decree,   1087. 

of  actions  surviving  to  representatives.  505. 

on  debts  due  re])resentatives  from  estate,  644. 

of  action  to  establish  will,  234,  n.,  505,  n. 
by  executor,  etc.,  to  collect  assets,  565. 
LINEAL  RELATIONS : 

right  of,  to  share  in  decedent's  assets,   709  et  seq.,  826. 

descent  of  real  property  to,  797. 
LIQUIDATION : 

of  claims  against  decedent,  031  ct  scq. 
I.OST  PROPERTY : 

allowance  for,  on  accounting,  027,  028. 
XOST  WILL: 

establishment  of,  by  action,  59,  01,  134,  234. 

limitation  of  such  action,  234,  v.,  565,  ». 

jurisdiction  of  Federal  court,  (i3. 

jurisdiction  of  surrogate  to  take  proof  of,  234. 
coextensive  with  that  of  supreme  court,  234. 

existence  of,  235. 

burden  on  proponent  to  show,  235. 

due  execution,  230. 

fraudulent  destruction,  237. 

contents  of,  238. 

theory  as  to  proof  of,  238. 

issuing  letters  on,  239. 

declarations  of  testator  on  probate  of,  238,  n. 

judgment  establishing,  contents  of,  239. 
XUNATl'C.     See  Idiots,  etc. 

MANDAMUS : 

will  not  lie  to  compel  surrogate  to  sign  decree,  905.  n. 

to  compel  hearing  "of  an  application  by  surrogate.   1130,  n. 

to  compel  surrogate  to  proceed  and  decree  distribution,   1130,  n. 
1L\RK : 

will  signed  by,   191. 

signature  by,  whether  provable  by  one  subscribing  witness,  109,  202. 
See  Probate;  Wills. 
T\L\RRIAGE: 

as  presumption  of  revocation  of  will,  228. 

republication  of  will  after,  197,  228. 

of  female  infant,  effect  of,  on  guardianship,  1115,  n. 
effect  of,  on  power  to  devise  realty,  208,  n. 
IVIARRIED  WO:\IAN: 

status  of.  as  party  in  Surrogate's  Court,  100,  148. 

competent  to  make  will,  208.  v. 

marriage  revokes  previous  will,  228. 

republication  of  will  by.  after  marriage.  197,  228. 

Avill   of,  not  revoked  by  sidisequent   marriage,  228. 

may  be  executor  or  administrator,   100.   148,  344.  u. 

surviving  Inisband's  right  to  administer  estate  of,  340,  824. 
personalty  of,  824. 

interest  of.  in  estate  of  deceased  husband,  821. 

petition  of,  for  appointment  of  guardian,  1015,  n. 

guardian  of  nonresident.   1015,   ii. 

of  person  of,  not  allowed,  1022. 
MARSHALLING  ASSETS: 

to  pay  debts,  mode  of,  672  ct  seq. 
See  Debts. 


1150  genebal  i™ex.        ^^rs:*" 

MISTAKES  : 

power  of  surrogate  to  correct,  by  amendment,  57. 

will  invalidated  by,  220. 

immaterial  errors,  221. 

clerical  mistakes  in  will,  221,  259,  200,  274. 

jiower  of  surrogate  to  correct,  in  wi-11,  59,  221, 

in  will,  not  ground  for  refusing  probate,  221. 
MORTGAGE : 

of  decedent's  land,  payable  from  what  fund,  595,  n.,  675. 
must  be  paid  by  heir,  or  devisee,  595,  675. 

of  decedent's  lands,  to  pay  debts,  809,  870. 
See  Debts;  Real  Estate,  etc. 
MOTIONS: 

what  proceedings  commenced  by,  68,  69. 

no  one  not  a  j^arty  can  make,  105. 
MUTUAL  \^ILL: 

petition  for  probate  of,  contents,  154. 

of  husband  and  ^vife.  how  operates,  154,  n. 

operation  of,  generally,  154. 

if  revoked,  enforceable  in  equity,  154,  n. 

NATURALIZATION : 

surrogate  has  power  to  grant,  51. 
NEW  TRIAL  r 

surrogate's  power  to  grant,  52,  54. 

on  ap])eal  from  Surrogate's  Court,  1145. 

costs  on,  after  appeal,  1108. 

motion  for,  in  proceeding  to  sell,  etc.,  real  estate,  864. 

to  what  court  made,  864. 

appeal  from  order  for,  865,  1146. 

costs  of  motion  for,  1117. 
NEXT  OF  KIN: 

defined,  93,  269. 

service  of  citation  on,  when  luiknown,  75. 

as  parties  to  proceedings,  92.  9.3. 

widow  and  husband  not,  94,  269,  n.,  821. 

may  contest  validity  of  will  after  j^robate,  93. 

adopted  children  are,  92,  819. 

rights  of,  in  intestate's  estate,  819. 

See  Intestate  Succession. 
NONRESIDENT: 

copy  of  will,  etc.,  sent  to  secretary  of  state,  251. 

may  receive  letters,  302,  343. 

as  executor,  when  required  to  give  bond,  302,  473. 

alien  cannot  be  executor  or  administrator,  305,  361. 

intestate,  jurisdiction  of  surrogate  as  to,  338,  344. 

will  of,  establishment  by  action.  61,  135. 

service  of  citation  on.  by  publication,  79. 

personally  without  the  State.  82. 

personally  witlnn  the  State,  void,  when  publication  ordered,  76, «. 
See   Administrator ;  Citation;  Letters. 
NUNCUPATIVE  WILL-. 

wlio  may  make,  240. 

when  mariner  deemed  at  sea,  240. 

history  of  law  of,  240,  n. 

mode  of  execution  of,  241. 

proof  of,  242. 

contents  of  petition.  242. 
of  citation,  242. 
OATH: 

of  representative.     See  Administrator ;  Letters. 
of  appraiser.     See  Assets. 


OBJECTIONS: 

to  appointiiiont  of  oxor-ator,  30!).     See  Letters. 

disposition  of,  310. 

obviatintr,  by  giving  bond,  311. 
to  account,  9{il. 
to  probate  of  will,  l(il. 
ORDE  R : 

of  surrogate,  defined,  1088. 
must  be  signed  hy  surrogate,  1088. 
intermediate,  how  enfdrced,  1089. 
final,  how  enforced,  101)1  et  secj. 

See  Decrees. 

PARENTS: 

includes  both  fatlier  and  mother,  229. 
when  entitled  to  distributive  share,  828. 
descent  of  real  estate  to,  799,  800. 
of  illegitimate,  right  of  inheritance  of,  804,  829. 
PARTIES  IN  SURROGA'rE'S  COURT: 
in  general,  89. 

jurisdiction  of,  how  acquired  and  proved,  71,  1079,  1081. 
not  ever}'  person  interested  may  institute  proceeding,  89. 
having  some  interest,  to  proceed  separately,  when,  89. 
who  are  necessary,  90. 

persons  constituting  a  class,  89. 

rules  of  equity  not  altogether  prevalent,  89. 
designations  of,  90. 
"  interested,"  who  are,  98,  143,  437,  934,  93G. 

as  witnesses  on  probate,  170,  172. 
various  classes  of,  enumerated  and  considered,  91. 

heirs-at-law  and  next  of  kin,  92,  93. 

adopted  children,  92. 

illegitimate  cliildren,  92. 

post-testamentary  children,  92. 

aliens,  92,  n. 

widow  and  husband  are  not  next  of  kin,  94,  269,  n. 

creditors,  90. 

assignee  of  creditor,  97. 

assignee  of  legatee,  97. 

receiver  of  distributee,  97. 

persons  interested  in  estate,  98,  143,  437,  934,  936. 

executors  and  administrators,  99. 

co-executors,  etc.,  99. 

foreign  representatives,  99. 

temporary  administrator,  97,  n. 

married  women,  100. 

legatees,  91,  98. 

though  their  interest  be  assigned,  97,  n. 

infants  and  incoinpetents,  108. 

divorced  husband  or  wife,  95. 
death  of,  effect  of;  revivor  after,  101  ct  seq. 
intervention  of,  104  ct  seq.  ' 

who  may  intervene,  104. 

ajiplication  for  l(>iive  to  intervene,  lOfi. 

Avhat  inierest  entitles  one  to  intervene,  104. 

must  be  before  final  decree,  106. 

no  one  not  inter(>sted  can  ajjply,  89,  ll)."). 

right  to  a])p]y  does  not  arise  until  hearing.  106,  n. 

right  of  creditor  to  a])ply  not  lost  by  failure  to  file  claim,  106. 

order  permitting.   107. 

order  bringing  in   third   jiarties,   107. 

in  probate  ])rocee(liitgs,   104.   107.   l.T4a. 

of  beneliciarv   under  former  will,   154rt,  n. 


1152  GE.EUAL    1.DKX.  ^^^^^ 

PARTIES  IN  SURROGATE'S  COURT  — cow <m! wed. 
after  probate,  of  person  not  cited,  107. 
on  accounting,  105,  958. 

county  treasurer  may  intervene  for  purposes  of  transfer  tax,  970. 
in  other  proceedings,  105. 
on  appeals.  1132.  1133. 
on  probate  of  heirsliip,  1122. 

examination  of.  before  trial,   127. 

attendance  of,  power  of  surrogate  to  order,  52. 

infant,  to  be  represented  by  guardian  ad  litem,  108. 

to  be  cited  on  probate,  '.)9,  157. 

public  administrator,  158.    ■ 
attorney-general.  104,  n.,  158. 
on  accountings,  940,  957. 
PARTIES  10  ACTIONS : 

by  and  against  representatives,  508. 
PARTNERSHIP:^ 

surviving  partner  a  trustee  for  estate  of  deceased  partner,  533,  n.,  612. 

liability  of  representative  for  continuing,  612. 

debts,  marshalling  assets  to  pav,  C7G. 
PARTNERSHIP  PROPEETY: 

when  assets  of  deceased  partner,  533. 

surviving  partner  entitled  to  possession  of.  533. 
holds  decedent's  share  as  trustee.  533. 

purchaser  takes  subject  to  equities,  533,  n. 
PERPETUITY: 

rule  against  creating,  in  land,  2(51. 

rule  against  creating,   in  personalty,  261. 

elfect  of  creating,  263. 

rule  against,  applied  to  gifts,  2(>7. 
PERSON.\L  PROPERTY: 

defined.  145. 

a  debt  is.  145. 
PERSON  INTERESTED: 

in  estate  or  fimd,  defined,  98,  143,  437,  934,  936. 

proof  of  interest  of,  as  party,  98. 

may  ap])ly  for  revocation  of  probate.  280. 

as  witness  on  probate  proceedings,  170,  172. 
PETITION : 

presentation  of,  Mhen  deemed  commencement  of  proceeding,  70. 

a  preliminary  to  citation,  72. 

must  be  in  writing,  ^\hen,  72. 

verification  of,  72. 

in  New  Y'ork  county,  when  must  be  served  with  citation,  76,  n. 

improper  joinder  of  different  grounds  for  relief,  88. 

irregularities  in,  cured  by  appearance,  85,  ?!. 
PLEADINGS: 

in  Surrogate's  Court,  niuiiber  and  form  of,  87. 

may  be  oral,  87. 

but  may  be  required  to  be  written,  87. 

amendment  of,  57. 

verification  of.  87. 

effect  of  failure  to  verify,  when  required.  87. 

in  New  York  county,  must  be  in  writing,  87.  n. 

demurrers  unknown  in  Surrogate's  Court,  87. 

in  action  bv  or  against  executors,  569. 
POSTHU^IOUS  CHILD: 

descent  of  real  property  to,  808. 

share  of.  in  personalty,  82G. 

will  impliedly  revoked  by  birth  of,  229. 

may'  compel  accounting,  933. 


deferences  arc  Gexekai.   I.ndex.  1153 

to  ntxtiona. 

POST-TESTAMKX TARY  CHILi:) : 

a  party  in  .Surioiiate's  Court,  !J2. 

may  maintain  avtion  for  distributive  share,  92,  229,  762. 
birtli  of,  no  groiiiul  for  rofusini^  proliate,  229. 
may  coiuik'I  accounting  bv  executor,  etc.,  933. 
POWERS: 

of  sale,  under  foreign  will.  2.>0,  n. 
of  appointment,  selection  of  executor  under,  291,  294. 
delegation  of,  by  e.vecutor,  513,  594. 
PREFER  I^NCF:: 

of  claim  to  administration,  343. 
in  payment  of  decedents  debts,  0G2  et  seq. 
PRESUMPTION: 

of  death  of  decedent,  186,  351. 

of  request  that  witnesses  sign  will,  198.  201. 

as  to  due  execution,  from  attestation  clause.  187,  203. 

want  of  attestation  clause  raises  no.  against  will,  203. 

of  testator's  knowledge  of  contents  of  will.  when.  205,  206. 

as  affected  by  fact  of  impaired  faculties,  206,  217. 
of  fraud  and  undue  influence,  when,  217. 

none  from  old  age,  alone,  217. 

nor  from  injustice  of  testamentary  provisions,  218. 

none  from  opportunity  or  interest,  219. 
of  revocation  of  will,  none  from  tearing,  etc.,  224,  225. 

of  duplicate  will.  154. 

from  charge  of  property.  227. 

from  subsequent  birth  of  child.  229. 

from  subsequent  marriage,  228. 
as  to  existence  of  lost  will,  235. 
of  geniiineness  of  ancient  will,  132,  252. 
as   to   marriage,   etc.,   on   application   for   letters   of   administration, 

358,  ?2. 
PRIVILEGED  C0M:\IUXICATI0XS: 

rule  as  to  evidence  of,  in  probate  proceedings,  174. 
between  testator  and  clergA'man,  174. 

and  attorneys,  174.  176. 

and  physicians,  174.  175. 
right  to  exclude,  survives,  174. 

See  Evidence;  Prohate. 
PROBATE  OF  WILL: 

preliminary  oliservations,  128. 

necessity  for,  132. 

will  never  ])resumed  in  absence  of,  132. 

when  not  required,  in  case  of  ancient  will,  132,  252. 

production  of  will  for  purposes  of,  129,  149. 

not  a  condition  of.  149. 
poAAcr  of  snrrooate  to  direct  deposit  companv  to  produce  will,  129. 
duty  to  apply  for,  129.  149. 

eflect  of  interfering  wMth  assets  before,  130,  131. 
right  of  executor  to  assets  before.  131. 
proceedintis  bef(ire  apjilic.ition   for,   128  rt  fieq. 
protection  of  purchaser  unless  had  in  four  years,  132,  889. 
caveat  against,  before  Reviseil  Statutes,  133. 

by  whom  filed.  133. 

abolished.   133. 
establishment  of  wills  by  civil  action.  61.  134. 

where  original  cannot  be  obtained,  61,  134. 

in  case  of  lost  or  destroyed  will.  61.  134,  234. 

of  foreign  wills  of  personalty.  61.  135. 

iudgment  eslablishinir  will.  136. 
action  to  determine  validity  of,  60,  138. 

by  whom  brought,  138. 

73 


^  ^  K  J  r\  T  References  ure^ 

115^  Genekal  Index.  /^  ^^^^.^^^^ 

PEOBATE  OF  \YlLJj  — coniimicd. 

triable  by  jury,  138. 

issues  in,  coutiiied  to  what,  138. 

verdict  conclusive,  138. 

verdict  may  be  directed,  138,  n. 

limitation  of  such  action,  138. 
what  wills  provable  by  surrogate,  139,  143. 
jurisdiction  of  surroirate,  when  exclusive,  59,  143,  147. 

before  the  ITevised  Statutes,  59,  182. 

when  concun'eiit,    147. 

extent  of,  255. 

us  aflected  l)y  place  and  mode  of  execution,  140. 

as  aflected  by  residence  and  locus  of  property.  140,  141. 

distinction  between  wills  of  realty  and  personalty,  140^  14L 

residence  considered,  140,  143a. 

declarations  of  testator  as  to  his  residence,  143a,  n. 

is  one  of  intention,  143a. 

personal  property  distinguished  from  assets,  141,  n. 

in  case  of  residents  of  the  State,  141,  143,  143a. 

in  case  of  nonresidents,   141,   143,  149,  n. 

in  case  of  foreign  will  not  produced,  149. 

existence  of  personal  or  real  property  as  basis  for,  141,  144. 
application  for,  when  sliould  be  made,  143. 

right,  how  affected  by  question  of  residence,  143,  143a. 

where  assets  come  into  State  after  death,  142. 

nature  and  locality  of  personal  property,  145. 

nature  and  locality  of  real  property,  146. 

where  application  made,  144. 

to  be  made  to  which  surrogate.  144. 

right  to  make,  irrespective  of  validity  of  devise,  244,  n.,  255,  n. 

who  may  make.  148. 

creditors,  96,  «.,  148. 

may  be  made  by  agent,  148. 

in  case  of  foreign  will,  150. 

in  case  will  is  inaccessible.  149. 

in  case  will  is  in  foreign  language.  153. 

in  case  of  duplicate  and  mutual  wills,  154. 

in  case  of  lost  or  destroyed  will.  234. 

in  case  of  will  of  monomaniac,  211. 

in  case  of  nuncupative  will,  240. 
petition ;  contents  of,  92,  n.,  152. 

to  be  in  writing,  151. 

verification  of,  151. 

supplemental.  154a. 

Avithdl■a^^■al  of,  156. 

dismissal  of,  when,  156. 

in  case  of  duplicate  will,  contents  of,  154. 

copy  of,  to  be  served  with  citation,  in  New  York  county,  76,  «. 

in  case  of  nuncupatiA'e  will,  242. 
citation,  when  to  issue,  159. 

supplemental,  154a. 

when  unnecessary,  151. 

contents  and  service  of,  159. 

service  of,  how  made.  159. 
by  A\liom  made,  159. 
1  original  to  be  filed,  159. 

who  to  be  cited  on,  99,  157. 

where  decedent  was  a  married  woman,  157. 

beneficiaries  need  not  be  cited,  99 

public    administrator,    158. 

attorney-general,   104,  n..   158. 

person  not  cited  may  appear,  154a. 


to  sections.  General  Lndex.  115o 

PROBATE  OF  WILL— contimicd. 

person  cited  need  not  bo  re-served,  on  supplemental  citation,  154a. 
intervention  of  parties  on,  104,  107,  1.54«. 

of  beneficiary  under  former  will,  I54a,  n. 
death  of  party,  effect  of.  101  et  seq. 
appointing  special  guardian  on,  159. 
hearing,  geneial  regulations  as  to,  ICO. 

practice -on.  where  no  contest,  151,  100. 

doubt  as  to  compliance  with  statute  requires  rejection,  187. 
surrogate's  duty  of  inquiry.  100,  10.3,  188. 
no  duty  to  admit  will  because  not  contested,  163,  n. 
proofs  to  be  in  writing,  100. 
what  jjroof  required,  100. 

oral  examination  of  witnesses  may  be  demanded,  160,  164. 
may  be  taken  by  assistant  in  New  York  county,  160,  n. 
may  be  taken  bv  surrogate  though  begun  before  predecessor, 
56. 
contest,  method  of.  101. 
filing  objections.  101. 

may  be  filed  after  witnesses  examined,  161,  n. 
acts  as  cnvent,  161,  ii. 

no  particular  form  of  objections  necessary.  161. 
amending  objections.  Kil. 
requiring  written  pleadings,  101. 

notice  of  hearing  of.  must  be  given  beneficiaries,  162. 
determining  contestant's  interest.  104,  133,  163. 
executor  of  former,  may  contest  later  will.  104. 
creditor  of  devisee  may  contest  codicil  which  supersedes  will, 
96,  n.,  104,  n. 
consolidating  proceedings,  155. 
reference  and  jury  trial  on,  121,  164. 

reference  to  surrogate's  assistant  in  Xew  York,  117,  160,  n. 
contents  of  order  for  jury  trial,  164. 
transfer  to  Su]jreme  Court,  164.  • 

review  of  verdict,  164. 

motion  for  new  trial,  where  made,  164,  n. 
what  questions  may  be  raised  on,  180,  184,  256. 
by  intervening  party.  10-i,  n. 

court  not  confined  to  issues  raised  by  answer,  184. 
questions  relating  to  factum  of  will,'l80,  181,  184,  254. 

meaning  of  factum,  180,  181. 
questions  relating  to  exposition  of  will,   180. 
questions  relating  to  validity,  etc.,  of  will  of  personalty,  255. 
facts  material  1o  question  of  probate.  180. 
testamentarv  cliaracter  of  tlie  will.  182. 

need  not  conlain  technical   language,  182. 
memorandum  of  testamentary  intention  insufficient,  182. 
an'))ius  testdiuli  must  be  ])rosent.  182. 
Avill  must  conform  to  testator's  intention.  220. 
depends  on  substance,  not  on  form,  182. 
re(iuirements  before  Revised  Statutes,  182. 
conditional  will.  183. 
circumstances  of  execution,  delivery,  and  custody,  184. 
formalities  of  execution.   189. 
subscription,  190. 
I  must  be  siirned  at  erd.  190. 

effect  of  instnnnents  annexed.  189. 
■  meaning  of  '"  end  "  of  will.  190. 

*^  sub><tiintial  com])liaiU'e  with  statute  suflicient.   190.  195. 

intention  of  testator  to  comply  with  statute  immaterial.  180. 

niav  be  signed  bv  mark.  191. 

by  hand  of  third  person.  191.  192. 


^-(KC  r^^^T-o'^Kr    J^^T^-c-^r  References  are 

PROBATE  OF  WILL  —  continued. 

must  be  signed  or  acl;noA\ledged  in  presence  of  witnesses,  193: 

attestation  by  witness,   1U3,   1"J8. 

acknowledgment  of  signature.  193. 

what  is  a  sufficient  acknowledgment,  193. 

vitness'  additions.  200. 

publication  by  testator,  194. 

by  third  person  in  testator's  presence,  195. 

publication  must  be  unequivocal,  195. 

testamentary  character  of  paper  must  be  declared,  194. 

sufficiency  of  proof  of  publication,  195,  196. 

object  of  publication,  194,  205. 

republication  by  testator,  197. 

what  formalities  necessary  to  republication,  etc.,  199. 

sequence  of  acts  of  execution,  publication,  etc.,  199. 

formalities  must  be  completed  before  death,  189,  n. 
law  of  place  as  affecting  execution,  177. 

law  at  time  of  testator's  death.  177. 

as  to  wills  of  real  property,  178. 

wills  of  personalty,  179. 
testator's  knowledge  of  contents  of  will,  205. 

presumption  of  testator's  knowledge  of  contents,  205,  206. 
testator's  competency  as  to  age.  208. 

old  age  as  affecting  capacity,  210. 
alterations  in  will,  effect  of,  in,  224. 
in  case  of  will  of  monomaniac,  211. 
in  case  of  los,t  or  destroyed  will,  234. 

existence  of  will,  235. 

due  execution,  236. 

fraudulent  destruction,  237. 

contents  of  will,  238. 

declaration  of  testator  as  to  contents  of.  2.38,  n. 

theory  as  to  proof  of.  238. 
•  issuing  letters  on,  239. 

in  case  of  nuncupative  will,  241. 
in  case  of  conditional  will,  183. 

birth  of  post-testamentary  child,  no  ground  for  refusing,  229. 
evidence  on  hearing,  160. 

attestation  clause,  prima  facie  proof  of  due  execution,  187,  203. 

due  execution,  never  presumed  without  proof.  132.  201. 

except  in  case  of  ancient  will,  132,  252. 

order  of  proof,  185. 

death  and  identity  of  decedent.  186. 

law  existing  at  time  of  probate  governs,   174. 

questions  of  evidence  governed  by  lex  fori,  179. 

custodian  of  will  may  be  examined,  184. 

will  may  be  photographed,  169. 

photographs  of  will  cannot  be  received,  169. 

■will  may  be  subjected  to  chemical  tests,  169. 

subscribing  witnesses  to  be  examined,  165. 

production  of,  165. 

all  need  not  be  produced,  188. 

when  in  another  county.  125.  167. 
s\irrogate  may  compel  attendance  of  witnesses,  165. 
proof  of  disability  of  witness,  166. 
dead,  disabled,  or  absent  witnesses,  125,  166.  169. 
dispensing  with  testimoiiy  of  absent  witness,  when,  166. 
commission  to  procure.  16G. 
death  of  subscribing  witness,  effect  of.  169. 

qualification  of  'iurvivnr  to  prni-e  testator's  mark,  202,  203. 
aged,  sick,  and  infirm  witnesses,  168. 


Rejcrcnccj^  are  General  Index.  1157 

to  sections.  x-i.^  • 

PROBATE  OF  WILL  —  cant hiued. 

])ro<)f  of  li:uul\vritiii;.s   wlicii   allowed,    ICi). 

ill  ojiso  of  ■will  i<ii;n('cl  by  mark,  lOii,  202. 

diH.i)ensinf,'  with  proof  of  handwriting,  when,   169. 
olhor  than  siiliscribing  witnesses,  170. 
qualification  of  ^\itnc■sse.s  as  to  execution,  171. 

upon  other  issues,  172. 
corroboration  bv  third  ])ersons,  204,  n. 
contracridinir  subsoribinfi  witnesses,  204. 
interested  jicrsons  as  witnesses,  170. 

when  called  by  contestant.  172. 

what  interest  will  disqualify,   172. 

test  of  disqualifying  interest,  172. 

executor,   170,   172,  n. 

legatees,  171,  172. 

heirs-at-law,   172. 

husband  or  wife  of  party,  170. 

widow,  172. 

mother  of  beneficiary,  172,  n. 

releasing  interest,   173. 
privileged  coinmunieations,  174. 

physician,   competency  of,    174,   175. 

of  attorney,   174,   176. 

when  subscribing  witness,    176. 

right  to  exclude,  survives,   174. 

waiver  of  right  to  exclude,  174,  n.,  175. 

how  waiver  made.  175,  n. 
opinions  as  to  testator's  sanity,  213. 
of  medical  experts,  213. 
of  subscribing  witnesses,  214. 
of  nonprofessional  witnesses.  214,  215. 
declarations  of  testator  on  proof  of  lost  will,  238,  n, 
as  to  revocation.  225. 
in  aid  of  proof  of  publication.  19G. 
upon  question  of  mental  capacity,  213,  n. 
as  to  undue  influence,  218,  n. 
burden  of  proof,  rules  as  to,  187,  212. 

on  proponent  to  show  testator's  knowledge  of  contents,  205. 

as  to  want  of  undue  influence,  217. 

to  explain  unnatural  will,  217. 

that  testator  was  of  lawful  age,  187. 

as  to  mental  capacity,  187,  212. 

but  slight  evidence  of  capacity  necessary,  212,  n. 
on  contestant,  when.  212. 

to  show  delusions.  212. 

undue  influence,  212,  216. 
shifting  burden  as  to  testamentary  capacity,  212. 
presum|)fion  of  fraud,  undue  influence,  etc.,  217. 

of  death,  186. 

of  testator's  knowledge  of  contents  of  will,  205,  206. 

from  lack  of  attestation  clause,  203. 
question  of  testamentary  capacity  for  a  jury,  wlien,  207,  n. 
weight  of  evidence,  ISS,  204. 

testimony  of  subscribing  witness  does  not  control,  201,  204. 
effect  of  witnesses'  failure  of  recollection,  201,  204. 
extrinsic  evidence  as  to  factum,  184. 
in  aid  of  interpretation,  270. 
to  correct  clerical  errors  in  will.  221,  259,  200. 
meaning  of  technical  words  cannot  be  varied  by,  270. 
to  explain  ambiguity  as  to  beneficiary.  274. 
to  aid  in  reading,  testing,  and  applying  will,  271,  272,  273. 
rule  of  admissibility  of,  270,  n. 


1158  GE.EBAL  iKDEx.        ''r/eSr 

PROBATE  OF  WILL — continued. 

decree  granting  or  refusing  probate,  243. 

must  state  whether  probate  contested,  243. 

grounds  of  decision  may  be  entered  in,  244. 

all   issues  to  be  decided  in,  244. 

may  admit  part  of  will,  245. 

may   admit    will    without    reference   to   validity   of   dispositions. 

244,  n.,  255,  n. 
may  construe  will,  244. 

oflfensive   passage   in  will   omitted,   245,  n. 
effect  of,  generally,  2'47. 
'  as  to  personalty,  1070. 

conclusive  as  to  what,  1070. 

as  to  factum  of  will,  1070. 

as  to  question  of  construction  and  validity,   J070. 

as  to  real  property,  1071. 

when  subscribing  witness  not  examined,  1071. 

on  persons  not  cited,  152,  n. 

as  evidence,  1071. 
when  surrogate  may  open,  27G.  277. 
record  of,  249. 

filing  nonresident  will  with  secretary  of  state,  251. 
recording  foreign  wills,  250. 

will  established  in  action.   115.  249. 
disposition   of  will   after   probate,   248. 
certificate  to  be  indorsed  on  proved  will,  246. 

effect  of   record  as   evidence,   249. 
record   of  ancient   wills  as   evidence,    132,   252. 
revocation  of,  on  motion.  276. 

not  affected  by  limitation  of  one  year,  54,  55,  279. 

grounds   of,   276. 

granting,  discretionary,  276. 

by  action,  424. 

by  Supreme  Court,  276,  ?!. 

by  direct  proceeding,  277. 

matter  of  right,  277. 

applies  only  to  wills  of  personalty,  278. 

limitation  of  proceeding,  279. 

who  may  maintain,  280. 

effect  of  pendency  of  appeal  from  decree,  on,  279,  n. 

of  prior  adjudication  by  Supreme  Court,  279,  n. 
doctrine  of  estoppel,  applied  to,  257,  280,  n. 
petition,  contents  of,  281. 
persons  to  be  cited,  282. 
service  and  return  of  citation,  283. 
suspension  of  executor's  proceedings  pending,  284. 
proceeding  on  return  of  citation,  285. 

burden  of  proof,  285. 

will  must  be  jiroved  dc  novo,  285. 

issues  triable,  286. 

validity  of  will  not  an  issue,  286. 

testimony  of  probate  witness  on,  285. 

decision  and  decree,  287. 

notice  of  decree,  to  be  published,  288. 

appeal  from  decree,  289. 

appeal  does  not  stay  execution  of  decree,  289. 

effect  of  decree,  287. 

must  also  revoke  letters,  290. 
PROHIBITION,  WRIT  OF: 

where  surrogate  revokes  letters  ex  parte,  when,   438. 

not  granted  to  restrain  surrogate  from  proving  will,   1081,  n. 


■References  are  Geneku    1\dex  115<) 

to  sections.  vji.xM.kai.  x.ndj^x.  iio\f 

PROOF : 

of  claim  against  docedent.     See  Debts. 
of  licirsliij).      See   Jlcirship. 
of  will.     See   I'rohatf. 
PUBLIC   ADMIXISTKATOR : 

the  office  of,  its  nature  and  object,  374. 

who  are   incumbents,  374. 
powers  and  duties  of,  as  collector,  376. 

as  administrator,   343.   344,  340,  «.,   378. 
as  temporary  administrator,  402,  404. 
as  administrator,  c.  t.  a.,  328. 
as  administrator  de  bonis  non,  370,  n.,  378,  n. 
without  letters  being  issued  to  him,  374. 
when  entitled  to  citation   on  probate,   158. 
sales  of  perishable  jjroperty,  370. 
seizing  efl'ects  to  prevent  waste,  etc.,  37G. 
liability  for  seizing  property  of  third  person,  374,  n. 
may  sue  on  bond  of  predecessor,  374,  n. 
discovery  of   pro])erty   withheld,   376. 
when  permitted,  370. 
authority,  extent  of,  375. 
how  evidenced,  377. 
how  superseded,  379. 

is  that  of  administrator,  as  well  as  pul)lic  officer,  374. 
must  have  letters  issued  in  order  to  pay  debts,  370. 
filing  affidavit  equivalent  to  issue  of  letters,  when,  376. 
application  for  letters   in  right  of  priority,  378. 
as  administrator  with  will  annexed,  328. 
dc  bonis  non,  370,  ».,  378,  n. 
actions  by,  not  abated  liy  supersedure  of  authority,  379. 
to  set  aside  fraudulent  transfer  by  decedent,  374,  n. 
upon  bond  of  temporary  administrator,  his  predecessor,  374,  n. 
may  be  continued  by  successor,   379. 
annual  statement  of,  to  be  published,  380. 
time  when  publication  required,  380. 
contents   of,  380. 
eflFect  of  letters  as  evidence,  377. 
county  treasurer  is,  viriute  officii,  381. 

functions,  as  collector,  in  right  of  office,  381. 

to  collect  and  preserve  certain   intestate's  effects,  381. 
in  enumerated  cases  of  intestacy,  381. 
minimum   value   of  effects,   381. 
seizure  of  effects,  on  surrogate's  order,  to  prevent  waste,  381. 
limited  powers  of,  before  letters,  381. 
bond  of,  382. 

appraisal  and  inventory  of  assets,  381. 
to  be  filed,  381. 

penalty  for  failure  to  make,  381. 
letters  of  collection  to,  382. 

notice  of  issuing  of,  to  persons  claiming  administration,  382. 
of  right  to  administer,  to  be  served,  382. 
letters  of  administration  to.  344.  378. 

preferential  right  to,  after  creditors,  344,  378. 
duty  to  apply   for,  when,  378,  n. 
when  granted,   382. 
bond  to  be  filed.  382. 

certified  copy  of,  sent  to  State  comptroller,  382. 
are  conclusive  evidence  of  authority,  377,  382. 
are  subject  to  revocation,  when.  383,  u. 
accounting  within  one  year  after.  384. 
when   accounting   comjiellable,   384. 
at  whose  instance,  384. 


1160  GE-X..A.    I.XDEX.  "t'Zu.r 

PUBLIC  ADMIXISTEATOK  — con/i};HecZ. 
must  accept  appointment,  382. 
powers   and  duties   under   letters,   383. 
subject  to  surrogate's  supervision,   383. 
supersedure  of  authority,  385. 

by  letters  testamentary  to  another,  385. 

of  administration   to  another,   385. 

delivery  of  estate  upon,  385. 

validity  of  prior  acts,  385. 

suits  begun  by,  continued  by  successor,  385. 
compensation  and  expenses  of,  384,  385. 
to  pay  balance  into  State  treasury,  384. 

moneys  so  paid,  how  obtained  by  person  entitled,  384,  n. 
in  counties  in  which  office  of  treasurer  abolished,  381,  n. 
in  New  York  county,  is  officer  of  county,  386. 
formerly  a  city  officer,  380. 
appointed  and  removed  by  surrogate,  38G. 
monthly  reports  by,  to  be  made  and  published,  380. 
functions  as  collector,  in   right  of  office,  387. 

to  collect  and  preserve  certain  intestate  effect- ,  387. 

five  cases  of  intestacy  enumerated.  387. 

to  sell  property  not  exceeding  .$20  in  vakie,  387. 

restriction  in  case  of  death  without  State,  or  on  foreign  vessel, 

387,  n. 
in  cases  where  executor  refuses  to  act  or  has  died,  387. 
innkeepers  to  report  deaths  to,  388. 
coroners  to  report  inquests  to,  388. 
undertakers  to  report  burials  to,  388. 
penalty  for  failure  to  report,  388. 
to  serve  copy  of  statute  on  innkeepers,  388. 
health  officer  to  account  to,  388. 
proceedings  by,  before  letters  or  tneir  equivalent,  390. 

may  pay  funeral  charges.  390. 

collect  and  preserve  estate.  390. 

discovery  of  property  withheld,  390.  n. 

take  steps  to  procure  letters,  etc.,  390. 

make  advances  to  intestate's  relatives,  390. 

seize  effects  by  surrogate's  order,  to  prevent  waste,  etc.,  390. 

delivery  of  estate  to  one  producing  letters,  393,  394. 

expenses  deducted  in  .such  case,  393,  394. 
to  apply  for  letters  if  estate  exceeds  .$100,  391. 

when  letters  dispensed  with,  389. 

where  less  than  .$100,  notice  to  be  given,  etc.,  389. 
proceedings  if  no  claims  to  property  made,  389. 

affidavit  of  no  claim,  to  be  filed,  389. 
as  evidence,  389. 
letters  of  administration   to,   343,   344,   391. 
duty  to  apply  for.  when,  378,  n.,  391. 
when  to  be  applied  for,  391. 
preferential  right  to,  over  creditors,  344,  378. 
notice  of  application  for.  391. 
to  whom  notice  given.  391. 

in  case  of  nonresident  alien.  391. 
court  obtains  jurisdiction  by  filing  of  petition,  391. 
facts  upon  which   jurisdiction   depends,   391. 
when  application  for,  will  be  denied,  392. 
any  one  may  appear  and  contest  granting  of,  392. 
consul-general  n'ay  appear  for  foreigner.  391,  n. 
no  other  than  official  bor.d  necessary.  392. 
cessation  of  puthoritv  rn  denial  of.  393. 
duty  of  public  administrator  on  refusal  of,  393. 


T:^.r  Gi.:..KK.L  Index.  IIGI 

PUBLIC  AD.MIXIftTRATOR  —  contimied. 

suiiorsc'duic  of  autjiorit}',  379,   394. 

any  lolalivc  may  apply  for  letters  within  three  months,  395. 

facts   to   be   ]>roved.   39"). 

notice  of  application  to  l)e  ^'iven,  395. 
by  letters  testamentary  to  anotiier,  379,  393,   394. 

of  administration  to  another,  379,  393,  394, 
delivery  of  estate  upon,  379,  393,  394. 
suits  to  be  continued  by  his  successor,  394. 
powers,  duties,  etc.,  under  letters,   39.5. 

in  general  like  ordinary  administrator's,  395. 

may  sue  and  be  sued,  395. 

must  make  and  return  inventory,  380,  395. 

to  discover  assets  withheld,  etc.,  395. 

sales  b.y,  how  conducted,  395. 

proceeds  payable  to  city  treasury,  387. 

to  give  notice  to  creditors  to  exhibit  claims,  when,  395. 

to  distribute  without  notice  to  creditors,  when,  395. 

to  pay  debts,  395. 

to  accovint.  after  six  months,  395. 

final    settlement   of   account,   395. 

citation  and  its  service  in  such  case,  395. 
allowances  on  such  accounting.  395. 
to  pay  legacies  and  shares,  395. 

balance  into  treasury,  38G.  395. 
to  deposit  moneys  in  designated  bank,  390. 

except  a   sum   for  current   expenses,   39G. 

within  two  days  after  receipt.  39(j. 

how  such  moneys  obtained  by  person  entitled,  395,  n. 

interest  on  such  moneys  belongs  to  next  of  kin,  390. 

object  of   requiring  deposit.  390. 
disposal  of  money  in  hands  of,  subject  to  court's  direction,  390,  n. 
salary  of,  380. 
commissions  of.  380,   397. 

rate  of,  397. 

a  preferred  claim,  397. 

none  where  application   for  letters   denied,    397. 
»  expenses  allowed  him   in  any  event,   397. 

but   payable. into   city  treasury,    380. 

may  maintain  action  therefor,  397. 
liability  of,  to  citv,  though  a  county  officer,  380. 

city  for  acts  'of,  380,  397. 

such  liability  direct  and  primary,  397. 
personal  liability  of,  in  addition,  399. 
surrender  of  papers,  money,  etc.,  to  successor,  394,  399. 
upon  appeal  by,  no  undertaking  necessary,  395. 
in  Kiiif/s  county,  peculiarity  of  statute  as  to,  401. 

rules  governing  ofhcer,  in  other  counties,  extended  to,  400. 
preference  to,  after  next  of  kin,  378. 

applies  only  to  nonresident  decedents,  401,  n. 

over  Brooklyn  Trust  Co.,  401.  ». 
letters  of  temporary  administration   to,  402. 
functions  of,  in  right  of  oflice,  401. 

not  only  to  collect,  but  to  administer,  401. 

in  enumerated  cases  of  intestacy,  401. 

suits  may  lie  maintaijied  by,  when,  401. 

presumption  of  intestacy.  401. 
commissions  and  expenses  of.  402. 
letters  of  collection  to,  without  security,  402. 
in  Richmond   count)/,    possesses    powers    of   county   treasurer,    381. 
cannot  act   in  cases  where  New  York  public  administrator  has 

jurisdiction,  381. 


1162  Gexeh-vl  I^-bex.  "^SLr 

PUBLICATION: 

of  citation  to  nonresidents,  79. 

order  for,  how  made;   contents,  81. 
upon  whom  service  by,  maj'  be  made,  79. 
of  notice  to  creditors  to  present  claims,  636. 
of  decree  revoking  probate,  288. 
PUECHASER: 

from  heir  protected,  unless  probate  had,  etc.,  132,  247,  846. 
from  executor,  in  payment  of  latter's  debt  not  protected,  908. 

QUARANTINE: 

of  widow,  statutory  provision  as  to,  500. 

period  of,  560. 

not  affected  by  nonassignment  of  dower,  500. 

relates  only  to  lands  in  which  widow  is  dowable,  560. 

as  to  lands  held  by  husband  as  tenant  in  common,  560,  n. 

right  ceases  after  forty  days,  500. 

what  is  reasonable  sustenance,  501. 

right  not  affected  by  insolvency  of  estate,  561. 

is  irrespective  of  the  articles  set  apart,  561. 

is  a  personal  right,  501. 

discretion  of  surrogate  as  to  amount,  561. 

subject  to  appeal,  561. 

cannot  include  maintenance   of  children,   561. 

nor  mourning  outfit,  561. 

includes  supplies  left  on  hand,  561. 

and  reasonable  cost  of  board,  561. 
administration  of  intestate's  goods  arriving  at,  387. 
QUALIFICATION: 

of  representatives.     See  Administrator ;  Executor;  Letters. 

REAL  ESTATE_,  PROCEEDINGS  TO  SELL: 

executor,  etc.,  no  power  over  land,  unless  given  by  will,  528,  530. 

land  made  liable  for  debts,  if  personalty  insufficient,  834. 

objects  aimed  at,  by  the  statute,  835. 

history  of  the  statute,  836.  , 

nature  of  proceedings,  837. 

action  in  Supreme  Court  not  maintainable,  834,  839,  n. 

jurisdictional    facts,   rulings    as    to,    838,    850. 

statutory  requirements  must  be  strictly  pursued,  835. 

■what  surrogate  has  jurisdiction,  839. 

what  confers  jurisdiction,  839,  850,  n. 

not  confined  to  lands  in  surrogate's  county,  839. 
what  property  liable  to  be  applied,  840. 

decedent's  interest  in  contract  for  purchase,  840,  841. 

property  purchased  with  pension  money,  844,  n. 
effect  of  power  of  sale  in  will,  842. 
Avhen  power  of  sale  implied,  594,  n.,  842. 
where  lands  charged  with  payment  of  debts.  840,  843. 
when  intention  to  charge  lands  im])lied.  843. 
husband's  right  of  curtesy  does  not  prevent  sale,  841,  n. 
lands  exempt,   840,   844. 
for  what  purposes  sale,  etc.,  may  be  had,  845. 

decedent's  debts  and  funeral   expenses,   845. 

debts,  other  than  decedent's,  excluded,   845. 

"  costs  payable  out  of  estate,"'  excluded,  845,  n._ 

claims  of  representative  for  reimbursement.   845,  n. 
;  taxes  accruing  subseouetit  to  decedent's  death,  845. 

!;  surplus  on  foreclosure,  applicable  to  payment  of  debts,  846,  n. 

when  application  to  be  made,  846. 


to   sections.  GLM-AiXL     1  M.KX.  IKJ 

HEAL  KSTATF,  PROCEEDIXOS  TO  SELL  — continued. 
limitation  of  procccdiiijr,  84G. 

policy  of  statute  as  to  limitation,  840. 

lien  of  creditor  for  three  years,   08.3,  840. 

purchasers  from  heirs  take  at  their  peril,  840. 

creditor's  time  extended,  if  claim  in  litigation,  848. 
filing  notice  to  i)roc'Vire  such  extension,  848. 
ap])lication  to  cancel  such  notice,  848. 
sale  in  partition  will  not  prevent  proceeding,  840. 
■\vho  may  ap])ly  for  sale,  849. 
petition ;   contents  of,  850. 

jurisdiction  depends  upon  petition,  850,  n. 

inquiry  by  surrogate,  in  order  to  frame,  850. 

prayer  of,   851. 
accounting  by  representative  may  be  required,  852. 
jurisdiction  of  the  person  of  parties,  853. 
who  necessary  parties,  851,  n.,  853. 
infant  parties.  854. 
citation,  when  to  issue,  contents  of,  855. 

to  whom  directed,  855. 

may  be  issued  to  persons  not  named  in  i)etition,  855. 

when  to  be  made  returnable,  855. 

when   publication  necessary,   855,   n. 
hearing  before  surrogate,  850. 

intervention  of  creditors  on.  850. 

disputed  claims  of  strangers  determinable  on,  858. 

jurisdiction  of  surrogate  as  to  disputed  claims,  858. 

determining  insufficiency  of  assets-,  859. 
"who  may  oppose  application,  850,  857. 

defenses  allowed,  857. 

of  statute  of  limitation  against  debt,  858. 

sufficiency  of  assets  to  pay  debt,  859. 
effect  of  admissions  of  re)>resentativcs  to  bind  heirs,  860. 
■effect  of  judgment  as  evidence  of  debt,  861. 

how  proved,  801. 

must  have  been  rendered  on  the  merits,  861. 

on  offer,  excluded,  861. 

on  inquest,  801. 

costs  in,  excluded,  801,  802. 
jury  trial  in  reference  to  question  of  fact,  121.  803. 

form  of  order  directing,  121,  803. 

motion  for  new  trial,  804. 

to  what  court  made,  864. 

verdict  of  jury  to  be  certified  to  surrogate,  864. 

appeal  from  order  for  new  jury  trial,  865. 

co.sts  of  such  appeal.  865. 
reference  may  be  ordered,  803. 

staying  proceedings  pending  accounting,  806. 
enjoining  sale,  866,  v. 
discontinuance  of  proceeding,  807. 
proof  necessary  for  decree,  868. 

vouchers  of  debt  to  be  filed.  SOD. 
decree,  genernl  requisites  of.  809. 

conclusive  as  to  iu'iifficioncy  of  assets,  869. 

must  describe  property,  F09,  874. 

must  specify  del)ts  allowed  or  rejected,  809. 

must    direct   mortgage,   lease,    or   sale.    869, 

executor  must  give  bond,  869,  874.  876. 

if  not,  freeholder  a]>pointed  to  sell,  869. 

must  direct  mortgage  or  lease,  if  feasible,  870. 

three  appraisers  to  ])e  anpointed,  870. 
duty  of  appraisers.  870. 
report  of  appraisers,  870. 


1 -I  n  4  n^,^^„.^    T^-^^^  References  are: 

1164  General  Index.  ^J  sections. 

REAL  ESTATE,  PROCEEDINGS  TO  SELL  — cortfinwed. 
when  must  direct  sale.  87  L 
all  of  decedent's  realty  need  not  be  sold,  87  L 
who  may  impeach  decree,  872. 

cannot  be  attacked  collaterally,  in  general,  872. 

questioned  only  on  appeal,  872. 

heirs-at-law  may  appeal   from  allowance  of  disputed  claim, 
872. 
defects  and  irregularities  in,  not  affecting  title,  873. 
when  sale  delaj'ed  if  title  controverted,  869. 
executor  to  give  bond  before  executing,  869,  874,  876. 

form  and  penalty  of  bond,  876. 
freeholder,  when  appointed  to  execute,  877. 

bond  cf,  similar  to  that  of  representative,  877. 

how  nominated,  877. 

vacating  his  appointment,  877. 
effect  of  death  of  representative  or  freeholder  on  execution  of, 

875. 
successor  to  complete  sale,  875. 

must  give  security,  875. 
order  directing  execution  of,  878. 
provision  in.  for  investment  of  infant's  surplus,  900. 

for  investment  of  dower  fund,  899. 
effect  of  other  pending  proceedings  for  same  object,  902. 

stay   pending  such   proceedings,   902. 

decree,  where  sale  had  in  such  other  proceeding,  902. 

surplus  in  such  other  proceeding  payable  to  surrogate,  903. 

surplus,  how  distributable,  903. 

proceeding  therefor,  903. 
lease  or  mortgage  instead  of  sale,  870. 

lease,  maximum  length  of,  870. 
'  effect  of,  870. 

who  to  execute,  874. 
sale  mav  be  private,  871,  874,  884. 
or  public,  871,  884. 
minimum  price  allowable,  874. 

of  distinct  parcels,  to  be  made  in  what  order,  879. 
where  heir  has  aliened  such  estate,  879. 

where  devisee  of  two  undivided  interests  has  aliened  one,  879. 
where  undivided  share  devised  or  aliened,  880. 

or  a  precedent  estate  created,  880. 

application   of  proceeds   in   such  cases,   880. 
may  be  subject  to  inciunbrances.  871. 
when  allowed  pending  appeal  relating  to  debt,  881. 

leave  given  by  appellate  court,  881. 

on  notice  to  all  parties.  881. 

distribution  of  proceeds  in  such  case,  881. 

disposition  of  surplus.  881. 
terms  of  credit  allowed  on,  882. 

in  case  of  sale  of  interest  under  a  contract,  882. 
manner,  place,  and  notice  of.  883. 
penaltv  for  selling  without  notice,  883. 
validity  of,  not  affected  by  failure  to  sell  all  property  advertised, 

883. 
if  private,  must  be  by  contract  subject  to  approval  of  surrogate, 

884. 
who  may  not  buy  at,  885. 
effect  of  purchase  by  forbidden  persons.  885. 
penalty  for  making  fraudulent  sale,  884,  n. 
report  of,  to  be  filed.  886. 
application  to  set  aside  sale,  885. 


References  are  General  Index.  1165 

to  sections. 

REAL  ESTATP:,  PROrEEDTXHS  TO  SELL —  cow fumed, 
order  vacatinf(,  wlu-n  to  be  made,  880. 
ii])on  notice,  880. 
])artial   vacation,  880. 
resale,  when  to  he  directed,  880. 

surrojfate  may  direct  repayment  of  deposit  by  purchaser,  880. 
order  conlirminj,',  wlien   must  he  made,  887. 
form  of  order  conflrminff,  887. 
cannot  compel  jmrchaser  to  comjjlete,  888. 
of  interest  in  land  contract,  81)0. 
subject  to  all  ]iayments  thereon,  890. 
terms  of  sale  on,  890. 

bond  of  purchaser,  to  secure  i)ayments,  when  required,  890. 
penalty  of,  890. 

of  part  of  interest  in   land  contract,  892. 
right  of  ))urchascr  to  enforce  performance.  892. 
further  sale  after  })artial,  895. 
conveyance  must  be  executed  by  person  selling,   887. 
form  of,  887. 
limited  eft'ect  of,  889. 

where  land  aliened,  and  letters  delayed  four  years,  889. 
bars  dower,  not  assigned,  889. 
subject  to  subsisting  charges,  889. 

priority  of,  over  one  executed  before,  but  not  recorded,  889. 
carries  growing  crops,  889. 
of  interest  in  land  contract,  effect  of,  891. 
of  partial  interest  in  such  contract,  effect  of,  892. 
proceeds  to  be  paid  into  court,   893. 

such  payment  exonerates  heirs,  etc.,  and  other  lands,  893. 
notice  of  distribution,  to  be  published,  893. 

new  hearing  as  to  debts,  etc.,  on  return  of.  894. 
established  debt  again  controvertible,  894. 
upon  notice  to  claimant,  894. 
further  sale  to  be  had,  when,  895. 

proceedings  thereon  and  thereafter,  895. 
supplementary  decree  awarding  proceeds,  890. 
disposal  of  surplus  by,  890. 
appeal  from  such  decree,  890. 

parties  to  appeal,  890. 
must  fix  sums  to  be  paid  or  invested,  897. 
'  certified  copy  of,  served  on   county  treasurer,  897. 
securities  to  be  in  county  treasurer's  name,  898. 

to  be  a])i)roved  l)y  surrogate,  898. 
investment  of  dower-fund,  899. 
investment  of  dejMisit  of  infant's  surplus,  900. 
order  of  distribution  of,  901. 
surplus,  final  distribution  of,  901. 

application  to  claims  cut  off  by  sale,  901. 
of  proceeds  of  lands  converted  l)y  will,  901. 
husband  entitled  to  curtesy  in.  may  receive  gross  sum,  901. 
accounting  by  representative  for  proceeds  of  sale.  905. 
costs  and  expenses  of  the  proceeding,  904. 
amount  of,  904. 

rules  governing  allowance  of.  904. 
allowance  to  special  gmirdian,  904,  7). 
evidence  of  appointment  of  special  guardian  after  twenty-five  years,  906. 
reimbursement  nf  heir,  out  of  assets  subsequently  discovered,  907. 
not    ordered  where  unsecured  creditors  remain.   907. 
EEAL  PROPEETY: 

order  of  descent  of,  790. 

defined  with  respect  to  descent,  790,  n. 


-,-,/> /I  .  r^  T  References  are 

1166  '  General  Index.  ^^  sections. 

EEAL  PROPERTY  —  continued. 

conversion  of,  into  personal  property,  269,  529. 

interest  in,  to  be  inventoried  as  assets,  489,  530. 

sales,  etc.,  of,  by  executor,  59-4. 
EEAEGUMENT: 

when  allowed,  54. 
RECEIVER: 

as  party  to  proceedings,  97. 

with  powers  of  administration  c.  t.  a.  appointed  by  Supreme  Court, 
326,  n. 

of  property,  may  petition  for  payment  of  distributive  share,  97. 
RECORDS : 

books  for,  to  be  kept  by  surrogate,  24. 

what  must  be  recorded,  24,  41,  249. 

of  predecessor,  surrogate  to  certify,  249. 

surrogate  must  record  will,  after  probate,  249. 

such  record,  or  a  copy,  made  evidence,  247,  249. 

of  proceedings  taken  before  special  officer,  or  court,  18,  19 

what  decrees  must  be  noted  in  margin,  24. 

recording  domestic  will  of  realty  in  surrogate's  office,  247,  249. 

copy  of  record  of  ancient  will  as  evidence,  132,  252. 

surrogate  to  record  will  proved  by  action,  136,  249. 

recording  copy  foreign  will  in  surrogate's  office,  250. 
in  office  of  secretary  of  state,  251. 

custody  of,  27. 

search  of,  26,  n. 

fees  for  copies  of,  39. 

to  be  delivered  to  successor,  26. 
REFERENCE: 

officials  appointed  by  surrogate,  not  to  act  as  referee,  22. 

surrogate's  power  to  order,   117. 

cannot  refer  intermediate  account,  817,  n. 
to  take  testimony  in  probate  cases,  117. 
to  examine  accoimt,  963. 

powers  and  duties  of  referee,   118,  964. 

trial   before  referee,   975. 

referee's  report  and  exceptions  thereto,  118,  977. 
need  not  state  findings  separately,  118. 

power  of  referee  where  party  refuses  to  proceed,  120,  «, 

of  account,  963. 

of  claims  against  decedent,  117,  n.,  963,  n.  v 

compensation  of  referee,  120. 

taxing  fees  of,  in  New  York  county,  120. 

sending  report  back  for  further  finding,  etc.,  118,  119,  965. 

confirming  report,   119. 
RELIGIOUS  CORPORATIONS: 

transfers  to,  not  taxable,  etc.,  907. 
REMAINDERMAN : 

protection  of  interest  of,  in  chattel,  subject  to  life  estate,  987. 

may  require  security  of  legatee  for  life,  749. 
REMEDIES: 

must  be  pursued  separatelv,  88,  944. 
RENTS: 

accumulation  of.  restriction  on  power  to  direct  by  will,  262. 

recovery  of,  by  executor,  etc.,  532. 

liability  of  executor  for,  608. 

due  from  decedent,  preference  in  payment  of,  664,  670. 
See  Assets. 
RENUNCIATION: 

of  appointment  by  executor,  295. 

right  to  renounce,  295.  ^ 

how  effected,  296. 

agreement  to  renounce,  void,  295,  n. 


References  are  Gexekal  Index.  HOT 

tu  sections. 

RENUNCIATION  —  coniinueil. 

rctraition  of,  297. 

executor  cannot  retract  after  qualification,  297. 

exclusion  on  failure  to  renounce,  298. 

effect  of,  on  probate,  :V.M,  n. 

of  prior  right  to  administration  in  intestacy,  352. 
with    will    aniiexed.    '.i'A\. 

of  provision  in  will  in  lieu  of  commissions,  746. 

of  testamentary  guardianship,   lUtil. 
PvEPEESEXTATION : 

doctrine  of,   818. 

among  collateral  relatives,  as  to  descent,  802,  «. 
as  to  distribution,  818. 
REPUBLICATION: 

of  will,  197. 

by  married  woman,  of  will  executed  before  marriage,  19  <,  228,  n. 

bv  execution  of  codicil,  231. 
RESIDENT:  ...,.,.  ,    . 

meaning   of   term,   as    affecting    surrogate  s    jurisdiction   on   probate, 

140,  143«. 
RESIDUARY  LEGATEE: 

priority  of  right  to  administration  with  will  annexed,  328. 
RESIGNATION: 

of  executor  or  administrator,  442. 

right  to  resign,  not  absolute,  295,  442. 
after   acceptance,   cannot  be  retracted,   295,  n. 
of  testamentary  trustee,  451. 
of  general  guardian,  1042. 
REVIVOR:  ^   „     . 

of  proceedings  on  death  of  party.     See  Abatement  and  Revivor, 

REVOCATION : 

generally,  222. 

by  later  will,  223. 

by  cancellation  or  destruction,  224,  225. 

to  be  proved  by  two   witnesses,  224. 
in  writing,  must  be  executed  with  same  formalities  as  will,  223. 
by  codicil,  223. 
irrevocable  will,  223,  n. 

complete    destruction    not   necessary    to   prove,    224. 
intention  to  revoke  necessary,  225.  227. 
effect  of  alterations  on  probate,  224. 
of  later  will  does  not  revive  the  first,  230. 
effect  of.  on  codicil,  220. 

declarations  as  evidence  of  intention  to  revoke,  225. 
implied  from  change  of  property,  227. 

from  inconsistency  of  later  disposition,  223,  227. 

from  subsequent  marriage.  228. 

from  subsequent  birth  of  child,  229. 
of  probate  of  will.  27(),  277. 
of  probate  of  heirship.  1125. 
of  letters  testamentary.  429  ct  seq. 

of  administration.   429   et  seq. 

of  guardianship,   1045. 

See  Admi)nstra1or;  Letters:  Will. 
RULES: 

power  of  surrogate  to  make,  58. 

Wigram's,  as  to  interpretation  of  wills,  270,  n. 

SAILOR: 

will  of.     See  yuneujxitire  Will. 
SALES  • 

'  equity  will  follow  assets  in  hands  of  purchaser  with  notice,  522. 
purchase  by  trustee  presumptively  fraudulent,  02o. 


1168  Ge.eb.1.  I^•BEX.  ^^^^rT 

SALES  —  continued. 

effect  of  purchase  by  executor  without  power,  522. 
by  one  executor,  where  other  refused  to  act,  valid,  524. 
of  stale  and  doubtful  claims,  599,  029. 
authority  of  representative  to  make,  494. 
by  public  administrator,  395. 
by  temporary  administrator,  411. 
power  of.  under  foreign  will,  250,  n. 
cannot  be  delegated,  594. 
of  executor  under  will,  594. 
probate  and  letters  necessary.  594. 
directions  in  will  to  be  followed.  594. 
of  administrator,  on  deficiency  of  assets,  595. 
to  bid  in  property  for  benefit  of  estate,  617. 
to  pay  debts,  etc.     See  L'eal  Estate,  etc. 
proceeds  of,  how  applied.  594,  597. 
when  to  be  paid  into  court,  66. 
of  personal  property,  when  and  how  made,  598. 
SEAL: 

of  Surrogate's  Court,  5. 
not  necessary  to  execution  of  will,  192. 
SECRETARY  OF  STATE: 

filing  foreign  will  with,  251. 
SECURITY  FOR  COSTS: 

in  actions  by  executors,  572. 
surrogate  cannot  require,  1103,  n. 
SECURITIES: 

deposit  of,  in  Surrogate's  Court,  66. 
to  reduce  penalty  of  bond,  460. 
SERVICE: 

of  citation  within  State,  76. 

on  nonresident  within  State,  when  publication  ordered,  void,  76,  w. 
on  corporations,  infants,  and  incompetents,  77. 
substituted,   78. 
by  publication,  79. 

when  complete,  81,  n. 
how  made,  82,  83. 
where  residence  or  person  imknown,  80. 
Avithout  the  State,  personally,  82. 
of  papers  on  attorneys,  86. 

irregularities  in,  waived  by  answering  on  the  merits,  85,  n, 
classes  of  persons  upon  whom,  to  be  made,  75,  157. 
SET-OFF: 

surrogate  cannot  entertain  defense  of,  966. 
SPECIAL  COLXTY  JUDGE: 

when  to  act  as  surrogate,  4,  10. 
bond  of,  when  acting  as  surrogate,  28,  29. 
SPECIAL  GUARDIAN".     See  Guardian  ad  Litem. 
SPECIAL  PROCEEDINGS: 

all  proceedings  in  Surrogate's  Court  are,  67. 
what  deemed  commencement  of,  70. 
SPECIAL  SURROGATE: 

when  to  act  as  surrogate,  4. 
bond  of,  28. 
SPECIFIC  LEGATEE: 

priority  of  right  to  administration,  c.  t.  a.,  328. 
when  legacy  to,  abates,  736,  754. 
when  such  legacy  payable,  730,  754. 
SOLDIER: 

will  of.     See  Nuncupative  Will. 
STATE  TREASURER: 

surplus,  on  public  administration,  paid  to,  384,  386,  395. 


"tfZrom"  Geni^kal  I..EX.  1169 

STATUTE  OF  DESCENTS: 

provisions  of,  stated  and  construed,  790  ct  seq. 
STATUTE  OF  DISTRIBUTIONS: 

provisions  of,  stated  and  construed,  81G  et  seq. 
STATUTE  OF  FRAUDS: 

application  of,  to  executors  and  administrators,  006. 
STATUTE  OF  LIMITATIONS.     See  Limitations. 
STAY: 

of  proceedings  to  sell,  etc.,  lands,  pending  accounting,  866. 
STENOGRAPHER: 

appointment  and  duties  of,  25. 
minutes  of,  when  to  be  bound  and  filed,  25. 
fees  of,  2.5,  n. 
SUBPCENA : 

power  of  surrogate  to  issue,  .52. 
SUBSCRIBING  WITNESS.     See  Probate;  Wills. 
SUBSTITUTION: 

of  other  officer,  etc.,  for  surrogate,  10,  II. 
of  attorneys,  power  of  surrogate  as  to,  48,  552. 
SUPERVISORS: 

board  of,  to  appoint  substitute  for  surrogate,  when,  10. 
to  fix  salary  of  surrogate's  clerks,  20. 
SUPPLEMENTARY  PROCEEDINGS : 
on  money  decree,   1092. 

cannot  be  maintained  upon  decree  for  payment  of  debt,  696. 
SUPREME  COURT: 

power  of,  to  relieve  against  decree  of  probate,  276.  n. 
transfer  of  proceedings  to,  on  disability  of  surrogate,  12,  13. 
jury  trial  in,  121,  164,  863. 
SURPLUS: 

on  public  administration,  paid  into  State  treasury,  384,  386,  395. 
on  foreclosure  after  death,  goes  to  heirs,  530. 
application  of,  to  pay  debts,  846,  n.,  903. 
payment  of.  into  Surrogate's  Court,  66,  903. 
distributable  as  real  estate,  903. 
on  sale,  etc.,  of  lands  for  debts,  how  distributed,  901. 
SURROGATE: 

may  be  also  county  judge,  1,  4. 

may  be  separate  officer,   1 . 

discontinuing  separate  office  of,  1. 

term  of  office,  1. 

elected  by  the  people,  1. 

must  reside  in  county  where  elected,  1. 

a  local  officer,  1. 

must  hold  court  in  his  own  county,  1. 

official  designation  of,  4. 

county  judge  as  surrogate,  4,  10. 
special,  4. 
acting,  4. 
temporary,  4. 
is  a  judge  of  a  court  of  record,  7. 
disqualifications,  general,  7. 

by  interest  or  relationship,   8. 

by  having  acted  as  attorney  for  party,  7. 

where  he  is  executor  or  witness,  in  will  before  him,  8. 

to  act  as  referee,  7,  n. 

partner  of,  cannot  act  as  attorney  before  him,  7,  85. 

to  act  as  attorney,  7,  8. 

as  to  charging  for  advice,  7. 

waiver  of.  9. 

objection  to,  deemed  waived  unless  taken  at  joinder  of  issue,  9. 

discretionary  in  certain  cases,  whether  he  will  act,  8. 

74 


^^-r.  r\  T  References  are 

11*0  General  Index.  to  sections. 

SURROGATE  —  continued. 

disqualifications,  special,   8. 

to  be  counsel,  etc.,  for  or  against  certain  parties,  7,  8. 
in  probate,  8. 
cannot  be  waived,  9. 
disability,  7,  10. 
substitute  for,  10. 

in  case  of  vacancy  or  disability,  who  is,  10. 

vacancy,  how  filled,  2,  n. 

in  counties  other  than  New  York,  1,  n.,  10. 

in  New  York  county,  12. 

appointment  of  temporary  surrogate,  10. 
in  case  of  disqualifics^tion,  11. 
in  counties  other  than  New  York,  11. 
•certificate  of  disqualification  to  be  filed,  11. 
contents  of  certificate,  11. 
in  New  York  county,   12. 
in  Kings  county,  13. 
Supreme  Court    to  act,  when,  12,  13. 
proof  of  authority  of  other  officer  or  court  to  act,  14. 
Supreme  Court's  appointment,   15. 

\\hat  order  to  contain,  15. 

who  may  apply  for,  15. 

granting,  is  discretionary,  when,  15. 
proceedings  in  Supreme  Court,  16. 

title  of,  1,  16. 
revoking  authority  of  appointee,  17. 

order  of  apjjointment  superseded  by  filling  of  vacancy,  17.. 
remitting  proceedings  to  surrogate,  17,  18. 

surrogate  to  make  entries  of  papers,  etc.,  18. 
proceedings  before  special  officer  to  be  recorded,  19. 

in  Kings  county,  13,  n. 
may  complete  unfinished  business  of  predecessor,  52,  56. 
record  books  to  be  kept  by,  24. 

are  public  records,  24. 

custody  and  renewal  of  records  kept  by,  27. 

must  preserve  papers  filed,   26. 

must  record  will  established  by  action.  136. 

must  file  stenographer's  notes  of  proceedings,  25. 

must  search  records  on  request,  26,  n, 
salary  of,  37. 

of  temporary  and  acting,  38. 
fees  of,  39. 

none  in  certain  cases,  40. 

report  of,  41. 

disposition  of,  in  New  York  county,  41. 
official  bond  of,  28. 

of  officer  acting  as,  28,  29. 

penalty  of,  28. 

county  clerk,  judge  of  sufficiency  of,  28. 
/     .  liability  on.  30. 

for  moneys  deposited  in  court,  30,  66,  w. 

prosecution  of,  30,  31,  32. 
grounds  for,  30. 
application  for  leave,  31,  32. 
proof  in  action  on,  33. 

defenses  in  such  action,  34. 

execution  in,  35. 

apportionment   of  recovery  in,  36. 
•ppointment  of  clerks  for  office  of,  20.  21. 

liabilitv  of  surrogate  for  acts  of  clerk,  23. 


Referencf.'i  are  Gexerat    Ixdex  1171 

to  sections.  vj^^i^KAi.   x.nui^x.  iid 

SURROGATES  COURT: 

is  suffossor  to  English  ecclesiastical  courts,   1, 

designation    of,    1,   4. 

recognized  by  the  Constitution,  1. 

creation  of,  1. 

in  new  or  altered  counties,  3. 
in  New  York  county,  consists  of  two  surrogates,  2. 

additionc!  surrogate,  election  of,  2. 

is  independent  of  Constitution,  2. 
relief  of,  in  populous  counties,   1. 
is  a  local  office.  1. 

vacancy  in  New  York  and  Kings  counties,  how  filled,  2,  n.,  13. 
seal  of,  5. 
office  clerks,  20. 

compensation  of,  fixed  by  supervisors,  20. 

in  New  York  county,  20. 

surrogate  may  require  security  from,  20. 
clerk  of.  20,  21. 

appointment  of,  20,  21. 

powers  of,  21. 

in  Xew  York  county,  surrogate  may  authorize  exercise  of  certain 
powers,  21. 

additional  powers  of,  in  probate  cases,  21. 

surrogate  may  restrict  powers  of,  21. 

surrogate  liable  for  acts  of,  2.3. 

surrogate  may  require  security  of,  20,  23. 

disabled  to  act  in  certain  capacities,  22. 

may  take  oaths  and  acknowledgments,  21,  456. 

mav  act  as  referee  by  consent,  22,  n. 

fees  of,  39. 
records  of,  to  be  kept,  24. 

to  be  open  for  inspection  at  all  reasonable  times,  24. 
stenographer  of,  appointment  and  duties,  25. 

may  act  as  referee,  22,  )i. 

notes  of,  to  be  filed.  25. 
how  authenticated.  25. 
time  and  place  of  holding,  (i. 

always  open  for  transaction  of  business,  6. 

no  stated  terms  of,  except  in  New  Y'ork  county,  6, 

surrogate  to  appoint  terms  for  holding.  0. 

two  or  more  terms  may  be  held  at  same  time,  6. 

publication  of  appointment  of  terms.  0. 

surrogate  may  designate  when  he  will  attend  at  office,  G 
jurisdiction  of.  in  general.  42. 

under  Revised  Statutes,  42. 

before  Revised  Statutes.  42.  n. 

when  authority  inferred,  42. 

not  a  court  of  record  prior  to  Cotle  of  Civil  Procedure,  43. 

is  limited,  though  a  court  of  record,  43. 

surrogate  cannot  by  rule  limit  his  own  powers,  58. 

no  jurisdiction  except  as  conferred  by  statute,  43,  47,  968. 

though  possessing  some  of  the  characteristics  of  a  court  of  gen* 
eral  jurisdiction,  43. 

general  section  bestowing.  44. 

thougli  limited,  is  conclusi\-e  until  reversed,  43.  n. 

proceeds  according  to  course  of  common  law,  43. 

over  nonresident,  how  acouircd.  81,  n. 

once  acquired,  continues.  71. 

not  lost  by  failure  to  adjourn  proceeding  to  a  day  certain,  71. 

when  exclusive.  59.  04. 

Avhen  concurrent.  64. 

as  aflfected  by  residence  or  locality  of  property.   140,   141. 


1172  General    Ixdex.  References  are 

•^-^"^  to  sectwtis. 

SURROGATE'S  COUTIT —  continved. 

power  of,  to  administer  oaths  and  take  acknowledofments,  44,  n. 
to  appoint  and  remove  guardians,  etc.,  44,  10 i  4. 
to  grant  naturalization.  .11. 

to  confirm  and  cancel  adojition  of  children,  46. 
to  probate  and  revoke  probate  of  will,  44,  50,  59. 

See  Probate. 
to  take  and  revoke  probate  of  heirship,  44. 
to  deal  with  irrevocable  will,  223,  n. 
to   appoint   successor   to   deceased   trustee,   44. 
to  appoint  administrator,  44. 

to  grant  ancillary  letters  of  administration.  .S71. 
to  gi-ant  letters  of  temporary  administration,  40.3. 
to  revoke  letters  of  testamentary  trustee,  44. 
to  pass  on  disputed  claims  against  estate,  49,  968,  969. 
to  determine  claim  of  representative  against  estate.  49. 
to  try  claim  due  estate  from  representative,  49,  628. 
to  construe  wills,  253,  254,  970. 
to  establish  lost  wills,  59. 

to  settle  accounts  of  executors  and  trvistees.  44. 
to  control  conduct  of  executors,   etc.,  44. 
cannot  restrain  suits  by  them  in  other  courts,  53 
to  determine  disputes  as  to  legacies.  44. 
to  enforce  payment  of  debts,  legacies,  etc.,  44. 
to  direct  sale,  etc.,  of  lands  to  pay  debts.  44. 
to  determine  validity  of  gifts  causa  mortis.  50. 
to  administer  justice,  generally,  in  relation  to   estates,  44. 
limitation  on  powers  of,  47. 

has  not  general  equity  powers,   47. 

no  power  to  set  off  mutual  judgments.  47,  986. 

f'.annot  pass  on  claim  of  indebtedness  of  legatee.  47. 

nor  specifically  perform  contract  by  representative,  49,  n. 

cannot  admeasure  dower,  45. 

cannot  entertain  motion  for  new  trial  after  verdict  of  juiy,  121, 

cannot  direct  deposit  of  bocks  of  estate,  when.   127,  520. 

no  power  to  direct  deposit  company  to  produce  will,   129. 

no  power  to  correct  mistakes  in  will.  221. 

cannot  require  next  of  kin  to  contribute  to  debts,  47. 

no  power  to  pass  on  validity  of  release,  47,  949.  968. 

nor  on  validity  of  sale  of  real  estate  by  representative,  alleged 

to  be  fraudulent^  47. 
no  power  to  order  payment  to  widow  of  funds  not  assets,  47. 
nor  direct  delivery  of  assets  to  claimant,  53. 
nor  try  validity  of  claim  of  representative   against  beneficiary, 

47.  n. 
nor  the  validity  of  transfers  by  decedent  as  against  creditors,  47. 
nor  to  try  validity  of  assignment,  47,  47,  n.,  97,  968. 
nor    to    require   legatee    to    refund    overpavment    of    legacv,  •  47, 

761,  «.,  774. 
to  pass  on  right  of  inheritance  to  money,  treated  as  realty,  47,  n. 
cannot   tiy   claim   of   administrator   as    mortgagee   of   decedent's 

realty,  47,  n. 
to  construe  antenuptial  agi'eement,  47,  n. 
cannot  entertain  defense  of  set-ofT.  966. 
to  compel  attorney  to  account.  48. 
cannot  enforce  attorney's  liability  for  costs,   48    m. 
to  prescribe  terms  on  change  of  attorneys.  48,  352. 
to  determine  amount   of  attorney's  compensation,  552. 
to  enforce  attorney's  lien,  48,  552,  n. 
incidental  statutory  powers  of,  52. 
to  issue  citation,  52. 
to  compel  attendance  of  parties,  52. 
to  adjourn  hearings,  52, 


References  are  r' ....,..,.-     t..^  ^^  -n^o 

to  sections.  Ge.nlka^  Index.  11(3 

SURROCtATE"S  court  —  continued. 

to  issue  siibi)anas.  52. 

to  enjoin  representatives,  52,  53. 

to  punisli  for  contempt,  52,  1089. 

to  complete   jircdeccsxirV-   unfmislied   i)usiness,   52,   5G,   249. 

to  exeni])lify  records,  52. 

to  direct  new  trial  for  fraud,  etc.,  52,  54. 

to  make  rules,  58. 

to  correct  mistakes,  etc.,  by  amendment.  57. 

to  open,  etc.,  orders  and  decrees,  52,  54,  55,  1077,  1081. 

though  made  by  predecessor,  54. 

to   issue   conniiissions.    124,    127. 

to  issue  letters  rogatory,  124,  127. 

to  order  discovery,  etc..  of  books  and  papers,  127. 

to  order  deposit  of  moneys  and  property  of  estate,  127,  520. 

to  order  examination  of  persons  not  parties,   127. 

to  order  inspection  of  will  before  contest,  127,  n. 

may  sign  decrees  and  orders  in  vacation.  6. 

to  amend  orders,  etc.,  nunc  pro  tunc,  117,  n. 

may  order  jury  trial  when,  164. 

may  appoint  referee,  117. 
incidental  nonstatutory  powers  of.  50. 
all  proceedings  in.  are  special  proceedings,   67. 
commencement  of  proceedings  in,  68. 

under  former  practice,  68. 

by  citation  or  order  to  show  cause.  68,  69. 
"what  deemed  commencement  of  proceeding,  68,  70. 
appearance  in,  mode  of,   85. 

effect  of,  57,  n.,  85,  n. 
pleadings  in,  87. 
amendments  in,  57. 
hearings  in.  13. 
decision  in.  to  be  filed,  114. 

to  contain  findings  stated  separately,  114,  1143,  n. 
evidence  in.     See  Evidence. 

See  Trial  Practice. 
SURVIVAL: 

of  probate  proceedings  on   death   of  party,  101. 
of  other  proceedings,  103.     See  Abatement,  etc. 
of  powers  of  representative,  on  death  of  one,  524,  526. 
of  rights  of  action  under  contract.  541. 
contracts  which  do  not  survive,  .542. 
of  torts  to  property  of  deredent.  543. 
of  torts  to  person  of  decedent.  544. 
SURVIVORSHIP: 

words  of,  in  will.  269. 
SUSPENSION: 

of  power  of  alienation,  restriction  of.  261. 
of  absolute  ownership,  261. 

penod  of.  261. 

effect  of.  illegal.  263. 
of  powers  of  guardian  pending  proceeding  to  remove,  1047,  1067. 
SUSTENANCE: 

of  widow,  for  forty  days  after  husband's  death,  560. 

TAXES: 

as  preferred  debts.  666. 

no  apportionment  of,  666. 
term  does  not  include  assessment,  615.  666. 
,  right  and  duty  of  executor,  etc..  to  pay.  614.  615.  C\(\0. 

liability  for.  as  between  devisee  and  general  estate.  615,  666. 
on  transfers  under  New  York  statute,  697  et  seq. 


1174  General  Ixdex.  References  are 

to  sections. 

TEMPORARY  ADMINISTRATOR.     See  Administrator,  Temporary. 
TESTAMENTARY  CAPACITY: 
what  law  governs,  175. 
as  affected  by  old  age,  215,  n, 

paralysis,  215,  «. 

deafness,    215,   n. 

blindness,  215,  n. 

loss  of  memory,  215,  n. 

illness  and  stupor,  215,  n. 

intemperance,  211,  «.,  215,  n. 

iheart  disease,  215,   «. 

absurd  beliefs,  215,  n. 

incipient  paresis,  215,  n. 

lunacy,  215,  n. 

suicide,   215,   n. 
effect  of  age  upon,  208. 

marriage    upon,    208,    n. 

delusions  upon,  211,  215,  n. 

previous  insanity,  212,  n.,  215,  n, 
effect  of  citizenship  upon,  209. 
how  proved,  213. 
burden  of  proving  on  proponent,  187,  212. 

subscribing  witnesses  may  testify  as  to.  214. 

opinion  of  experts  as  evidence  of,  213. 

shifting  of  burden  of  proof  on  question  of,  212. 

proponent  need  produce   but  slight  evidence  of,   187. 

opinions  of  nonprofessional  witness  as  to.  215. 

declarations  of  testator  as  evidence  of,  213,  n. 
illustrations  of  various  principles  respecting,  215,  n. 
finding  of,  not  inconsistent  with  that  of  undue  influence,  216. 
lack  of,  not  presumed  from  old  age  alone.  210. 

from  injustice  of  testamentary  provisions,  211. 

burden  on  contestant  to  show,  212. 
mental  capacity,  210. 

mere  imbecility  does  not  incapacitate,  210. 

test  of,  210,  211. 

insane  delusions,  211. 
what  are,  211,  n. 
effect  of,  on  probate,  211. 
eccentricities,   21 1,  n..  215,   n. 
habitual  drunkards,  211,  n. 
monomaniacs,  211. 

will  of,  refused  probate,  when,  211. 
TESTAMENTARY  GUARDIAN.     See  Guardian  hi/  Will,  etc. 
TESTAMENTARY  TRUSTEE.     See  Trustee,  Testamentary. 
TESTATOR.     See  Probate;  Will. 
TORTS: 

to  property  of  decedent,  when  survive,  543. 
to  person  of  decedent,  when  survive,  544. 
damages  for,  causing  death,  not  assets,  539. 
TRANSCRIPT : 

of  probate  to  be  recorded,  247,  24fl. 

of  suiTogate's  decree,  to  be  furnished  for  docketing,  1091a. 
TRANSFER  TAX: 

history  of  statute,  697. 

what  transfers  taxable  under  act  of  1892,  608. 

effect  of  act  of  1892  on  those  of  1885  and  1887,  697,  n. 

"  estate  and  property  "  defined,  699. 

scheme  of  statute,  to  tax  succession,  not  property,  701. 

"  transfer  "  defined,  701. 

subject  of  the  tax,  701. 

possession  need  not  be  actual,  701. 


to  mtion^.  Glnehai.  Index.  11<5 

TRANSFER  TAX  — coMfi«i/ed. 

when  right  to  tax  accrues,  097,  n.,  728. 

retroa('ti\e  "rt'ect  of  act,  t)'J7,  ti..  W.)<t. 

rules  of  construction,  700. 

taxability,  how  allected  by  character  and  location  of  property,  702. 

as  aii'cctecl   by  residence  of  decedent,  703. 

of  estates  for  years,  life,  etc.,  12.1. 

of  estates  in  remainder,  722. 

of  estates  in  reversion.,  722. 

of  estates  in  expectancy,  722. 

of  {jifts  cdusn  Dioififi,  (iOS,  n. 

of  transfers  under  power  of  appointment,  723. 

of  lefjacy  payable  out  of  proceeds  of  United  States  bonds,  701,  n, 

of  lejiacy  to  the  United  States.  701,.  n. 

pi  property  of  nonresident  testators,  etc.,  703. 

of  nonresident  intestates^  703. 

of  property  "  within   this  State,'"  702. 
exemptions  from  tax,  enumerated,  70.5. 

of  transfers  under  $.")00  in  value.  704. 

value  at  time  of  taking,  controls,  704,  ri. 

all  property  passing  must  be  less  than,  $500,  704. 

of  transfers  of  personalty  less  than  $10,000,  to   certain  persons, 
705. 

of  transfer  of  realty  with  direction  to  sell.  705. 

of  legacy  to  bishops  and  religious  corporations,  707. 
to  a  city  for  certain  purposes,  709. 
to  adopted  children,  70(i. 
to  charitable,  etc.,  institutions,  708. 
to  cemetery  association,  709,  n. 
to  lineal  descendants,  705. 

of  property  exempt  by  law,  709. 

corporations  claiming,  must  be  exempt  on  both  realty  and  per- 
sonalty, 710. 

of  legacy  not  to  or  for  the  use  of  the  legatee,  712. 

of  bequests  in  trust,  712. 

of  legacy  to  creditor,  712. 

of  legacy  for  services,  712. 

of  legacy  to  executor  in  lieu  of  commissions,  713. 
excess  taxable,  713. 
application  of  the  statutory  exemption,  710. 

to  corporations  generally,  710. 

to  almshou.ses,    711. 

to  nuitual  benefit  associations,  711,  n. 

to  incorporated  companies.  70S. 

only  apjjlies  to  domestic  corporations,  708. 

to  beneficial  interest  of  legatee,  712. 

to  legacy  for  masses,  712. 

to  proceeds  of  i".surance  policy,  712. 
personal  liability  of  representative  for.  714. 
a  lien  on  ]iro]ierty  transferred,  714,  715. 
lien  subject  to  debts  and  administrative  expenses.  720. 
representative  not  entitled  to  accounting  until  tax  paid,  714. 
not  excused  from  ])ayment  because  estate  distributed,  714,  n. 
collection  of  tax  by  representative.  715. 
has  power  to  sell  property  for,  715. 
shall  dedvu't  tax  from  legacy,  715. 
must  i)ay  tax  witliiu  thirty  days,  when.  715. 
appoitioiiment  of  tax,  715. 
comi)osition  of  tax  on  expectant  estates,  715. 
collection  of  tax  by  district  attorney,  71(1. 

county  treasurer  nuiy  intervene  on   accounting,  etc..  970. 

application  for  citation,  71(>. 

to  whom  citation  directed.  710. 


1176  G.«.BAL  I^•BEz.  TSZr 

TRANSFER  TAX  —  continued. 

statute  of  limitations  not  a  defense,  7 16,  n. 

composition  of  tax  where  controversies  arise,  716. 
duty  of  corporations  on  stock  transfers,  717. 

of  safe  deposit  companies,  banks,  etc.,  717. 

examination  of  securities  by  comptroller,  etc.,  717. 

penalty  imposed  for  not  allowing  examination,  717. 
proceedings  to  assess  the  tax,  718. 

application  for  appraisal,  719. 

powers  of  surrogate  on,  718. 

by  whom  jurisdiction  invoked,  718. 

in  case  of  estates  of  nonresidents,  718. 

proceedings  by  appraiser,  720. 

notice  of  appraisal,  720,  724. 

when  appraisal  not  necessary,  718,  n. 

powers  and  duties  of  appraiser,  720. 

what  deductions  made,  720. 

A-aluing  future,  vested  and  contingent  estate,  722. 
lands  subject  to  a   moilgage,  720. 
estates  subject  to  defeat,  721. 
transfers  under  power  of  appointment,  723. 

appraiser's  report,  72.5. 

must  be  made  in  duplicate  and  filed,  725. 

proceedings  on  appraiser's  I'eport,  726. 

order  fixing  tax,  726. 

practice  in  New  York  county,  726,  /(. 

power  of  surrogate  to  modify  order  fixing  tax,  715,  n. 
appeal  to  suiTogate  from  appraisement,  727. 

who  may  appeal,   727,  n. 

to  Supreme  Court,  727. 
reappraisement  at  instance  of  comptroller,  727. 

based  on  errors  of  fact  only,  727,  n. 
payment  of  tax,  to  whom,  728. 

receipt  for,  to  be  given  in  duplicate,  728. 

disposition  of  receipt,  728. 

Avhen  tax  payable,  728. 

on  contingent  interests  to  be  postponed,  728. 
when  payable,  728. 

on  successive  estates,  from  what  fund  payable,  715, 

discount  for  prompt  payment,  729. 

penalty  for  nonpayment,  729. 
remission  of  penalty,  730. 
grounds  for  remission.  730. 

sale  of  property  to  pay,  715. 

giving  bond  on  deferring  payment,  731. 
form  of,  731. 

bond  to  be  filed  and  renewed,  731. 
refunding  tax  by  representative,  at  instance  of  legatee,  etc.,  732. 

in  case  of  after-discovered  debts,  720. 

by  State  comptroller  to  representative,  732. 

limitation  of  application  for,  732. 

Supreme  Court  on  reversing  assessment,  no  power  to  direct,  732. 
representative  chargeable  with  amount  of  tax  erroneously  paid,  732. 
costs  of  compulsory  proceedings  to  assess  tax,  733. 
commissions  of  county  treasurer  and  comptroller,  734. 
TRIAL  PRACTICE: 

trials  to  be  conducted  as  in  other  courts,   113. 
compelling  attendance  of  witnesses,  113,  n. 
Code  sections  applicable  to  Surrogate's  Court,  122. 
depositions  within  the  State,  123,  127. 

without  the  State.  124. 
commission,  power  of  siirrogate  to  issue,  124,  127. 
examination  before  trial,  124,  n.,  127. 


TRIAL  rKACTICE  —  continued. 

exaniiiiution  of  disabled,  etc.,  witness,  125,  126. 

referee  inay  be  appointed,  125. 

notice  of  huch  examination,   125. 

of  witnesses  on  uncontested  probate,   100. 

in  anoither  county,  125,  107. 
See  Depositions. 
adjournments,  surrogate's  power  to  order,  52. 
surrogate's  decision  to  be  filed,  114. 
decision  to  contain  findings  stated  separately,  114. 
failure  to  file  findings  a  mere  irregularity,  114. 
only  necessary  in  case  of  appeal,  114,  1143,  n. 
either  party  may  request  a  finding,   114,  115. 
request  to  be  made  on  settlement  of  case,  115. 
surrogate  must  pass  on  requests  to  find,  115. 
failure  to  do  so,  a  ground  for  reversal,  115,  n. 
exceptions  to  surrogate's  rulings,  114,   110,  1143. 

on  questions  of  law,  1 143. 

on  questions  of  fact,  110,  1143. 

when  to  be  taken^   110,  1143. 
before  a  referee,  117. 

when  reference  may  be  ordered,  117. 

order  may  be  amended  nunc  pro  tunc,  117,  n. 

sending  back  report  for  further  findings,  118,  119,  9G5. 

referee's  duties  and  po^\•1ers,   118. 

confirming  report,    11!). 

within  what  time  report   must  be   acted  on,    119. 

rvile  in  New  York  county  as  to  confirmation,  119,  n. 

surrogate  need  not  make  new  findings,  119. 

proceedings  where  party  refuses  to  proceed,  120,  n. 
See  Reference. 
before  a  jury,  121. 

order  for  such  trial,   121. 

review  of  verdict,  104,  1146. 

motion  for  new  trial  after,  104,  804. 
TRUSTEE,  TESTAMEXTARY: 

term,  includes  what,   319.  514,  924.  n. 
distinguished  from   executor,  319,  514. 
where  trustee  is  also  executor,  320,  514. 
each  ollicer  separate  and  distinct,  321,  514. 
separate  qualification  vmnecessary,  320,  449. 
to  what  courts  accountable,  321,  724,  729. 
takes  title  from  the  will.  319,  321. 
surrogate  has  control  over,  519. 

is  shared  by  other  courts,  519. 

limited  jurisdiction  over,  449,  519. 

cannot  instruct  trustee  as  to  execution  of  trust,  519. 

where  two  or  more  disagree,  520. 
powers  of,  how  performed  where  more  than  one,  524. 
acts  of,  when  void,  524. 
trust  not  defeated  by  death,  527. 
disaHirming  decedent's  wrongful   acts,   545. 
letters  to,  wlien  surrogate  may  grant,  322,  449. 

ordinarily  unnecessary,   wlien  also  executor,  321,  449. 

on  appointing  successor,  322,  449. 

remedy  \\here  trustee  fails  to  qualify,  449,  n. 

qualification  of  recipient,  320. 

efTect  of  qualification  as  executor,  320. 

official  oath.  320. 

bond  may  be  required  from,  449,  452. 

from  one  ajijiointed  as  successor,  322. 

of  executor,  security  as  tiiistee,  when,  320,  452. 


117S  GE^•EB..L  I»BKX,  TS^r 

TRUSTEE,  TESTA:\IENTARY  —  continued. 

petition  for  decree  requiring,  452. 

citation  and  its  return,  452. 

decree  requiring  bond,  452. 

form  of  bond,  452. 
having  once  renounced  cannot  be  reappointed,  449. 
resignation,   petition  for,  451. 

independently  of  statute,  no  resignation  without  consent  of  all 

parties,  527,  n. 
settlement  of  accounts,  condition  precedent  to,  451. 
acceptance  of,  discretionary  with  surrogate,  451. 
conditions  may  be  imposed  upon  acceptance,  451. 
revocation,  jurisdiction  of  surrogate,  449. 

not  so  broad  as  that  of  Supreme  Court,  453. 

when  trustee  is  also  executor,  450. 

does  not  aft'ect  function  as  executor,  450,  454. 

when  effected  by  removal,  etc.,  as  executor,  446. 

for  failure  to  give  security,  453. 

on  petition  of  beneficiary,  453. 

grounds  for,  453. 

same  grounds  as  in  case  of  executors,  453. 

notice  of,  application  for,  453. 

all  trustees  must  be  made  parties,  99,  n.,  453. 

.summary  removal,  when,  453. 

aj^pointment  of  successor^   321,  454. 

beneficiary  as  successor,  454,  n. 

letters  to'  322. 

limitation  on  power  of  surrogate,  449,  454. 

bond  of  successor,  322,  455,  n. 

power  not  confined  to  case  of  one  trustee,  454. 

until  appointment,  remaining  trustees  to  execute  trust,  454. 

qualification  of  successor,  322,  455. 
duty  of,  to  protect  trust  estate.  602. 
liability  of,  for  allowing  waste  by  co-trustee,  603., 
for  misconduct  of  co-trustee,  602. 
for  waste  of  agent,  605. 
purchase  of  trust  property  presumptively  fraudulent,  625. 
accounting  by,  in  Surrogate's  Court,  924,  929. 

may  file  intermediate  account  at  any  time,  913,  915. 
intermediate  account,   may  be  compelled,  915. 
commissions  of,  same  as  executors,  990. 
ground  of  right  to,  991. 

in  case  of  specific  compensation  in  will,  557,  n.,  992. 
may  be  estopped  from  claiming,  994. 
of  trustee  who  is  also  executor,  996  et  seq. 
■double,  when  allowed,  996  et  seq. 
one-half,  when  allowed,  998. 
to  each  of  several  trustees,  999,   1003. 
on  trust  income,  999,  1001. 
annual  rests,  1001. 
basis   for   charging,    1002. 

apportioning  of,  between  two  or  more,  999,   1003, 
among  three  or  more..   1003,  1004. 
when  are  payable,  1005. 

See  Accountings;  Commissions ;  Executors,  etc. 
TRUSTS: 

restrictions  on  power  to  create,  260  et  seq. 
for  literary  institutions,  264. 
for  city  or  village  corporations,  265. 
for  religious  corporations,  262,  n. 
for  the  saying  of  masses,  266. 
other  trusts,  266. 
indefiniteness  of  beneficiary,  effect  of,  266. 


References  are  General  Ixdex.  1179 

to  sections. 

TRUSTS  —  continued. 

for  charitable  purpose  made  within  two  months  of  death,  eflfect 

of,  267. 
who  may  insist  on,  257. 
foreif^n  trusts,  207. 
accumulations  of  income,  262. 
extinguishment  of^  201,  n. 

UNDERTAKERS: 

in  New  York  to  report  burials   to  public   administrator,  .388. 

claim  of,  for  funeral  expenses,  a  charge  against   whjm,  546. 
UNDERTAKING: 

on  granting  execution  upon  judgment  for  legacy,  082,  778,  779. 

on  payment  of  legacy  -within  the  year,  775,  790. 
UNDUE  INFLUENCE: 

in  general,  217. 

distinguished  from  testamentary  incapacity,  216. 

effect  of,  on  will,  216  ct  aeq. 

not  subject  of  direct  proof,  218. 

burden  of  proving,  on  conestant,  212. 
when  on  proponent,  217. 

declarations  of  testator,  not  competent  to  prove,  218,  n. 
of  beneficiary,  when  competent,  218,  n. 

finding  of  capacity  not  inconsistent  with  that  of,  216. 

must  be  exercised  by  coercion,  etc.,  21!). 

exertion  of,  upon  the  testamentary  act,  must  be  proved,  216. 

presumptions  of,  generally,  217. 

will  not  be  presumed  from  old  age  alone,  217. 

from  sudden  change  of  testamentary  intention,  217,  n. 

from  injustice  of  will,  218. 

from  confidential  relations,  when,  217. 

from  fact  that  testator  was  weak  and  easily  influenced,  219. 

opportunity  and  interest  as  inferring,  219. 

argument  and  persuasion  do  not  amount  to,  219. 

illustrations  of  principles  respecting,  219,  n. 
UNINCORPORATED  SOCIETY: 

bequest  to,  validity  of,  208. 
UNITED  STATES: 

devise  to,  validity  of,  268. 

courts  of,  jurisdiction  of,  in  probate  cases,  63. 

preference  of  debts  due  under  laws  of,  665. 
UNKNOWN  PARTIES: 

service  of  citation,  where  party  or  residence  unknown,  80. 

disposition  of  legacy,  etc.,  where  party  entitled  unkaowD,  1012. 
UNNATURAL  WILL: 

burden  on  proponent  to  explain,  217. 

VACANCY: 

in  office  of  surrogate,  how  filled,  2,  n.,  10  et  seq. 
VERIFICATION: 

of  pleading  in  Surrogate's  Court.  87. 

rule  in  New  York  county  as  to,  87,  n. 

of  claim  against   decedent's  estate,  640. 

of  claim  of  representative,  64."{. 

of  account  of  executor,  etc.,  S7.  it..  982. 

of  account  of  testamentary  trustee.  97.3. 

of  annual  account  of  guardian,  10;iO. 
VOUCHERS: 

required  from  creditor  presenting  claim,  640. 

to  be  filed  on  decree  of  sale,  etc..  of  lands  fcr  debts,  869. 


1180  Ge2^EKAL    I^'DEX.  References  are. 

to  sections. 

VOUCHERS  —  Continued. 

on  accounting  of  executors,  etc.,  production  of,  983. 

effect  of  nonproduction,  984. 

when  deemed  waived,  984. 
on  accounting  of  guardians,  1035. 
what  payments  allowed  without,  983. 

Waiver  : 

of  disqualification  of  surrogate,  9. 
of  personal  service  of  citation,  84. 

of  right  to  exempt  articles,  by  antenuptial  agreement,  507,  w. 
of  disqualification   of  physician   to  testify,    175. 
must  be  made  in  open  court,   175,  n. 
WARD.     See  Guardian,  etc. 
WASTE: 

committed  by  one  representative,  liability  of  the  other  for,  603. 
of  agent  of  representative,  liability  of  latter  for,  605. 
WIDOW : 

not  next  of  kin  to  decedent,  94,  209,  n.,  821. 
quarantine  of,  560. 

origin   of   right,   560. 
in  what  States,  560. 
sustenance  of,  561. 

reasonable  amount,  561. 
surrogate's  discretion  as  to,  561. 
does  not  include  mourning,  561. 
nor  children's  maintenance,  561. 
by  temporary  administrator,  415. 
See  Quarantine. 
exemption  of  articles  for,  507. 
right  of,  to  share  in  decedent's  assets,  821,  831. 
dower  of,  does  not  bar,  822. 
effect  of  divorce.  823. 
right  of,  to  administer  on  husband's  estate,  343. 
effect  of  divorce  on  right  to  administer,  347. 
additional  portion  to.  under  statute  of  descent,  814. 
right  of,  to  guardianship  of  minor  child.  10.58. 
investment  of  dower  fund  for,  on  sale  of  land  for  debts,  899^ 
WILLS : 

execution  of,  governed  by  law  existing  at  time  of  death,  177. 
governed  by  law  of  what  place,   177. 
in  case  of  will  of  porsonaltv,    179. 
in  case  of  will  of  realtv.  178. 
circumstances  of  execution  of,  184. 
effect  of  change   of  residence.   179. 
in  case  of  will  of  nonresidents,  141,  143,  149,  n. 
meaning  of  factum.   180,  181. 
formalities   of  execution,   189. 

governed  by  law  of  domicile.  179. 

before  the  Revised  Statutes,   182. 

subscription  of  testator,  190. 

must  be  at  end  of  will,   190. 

substantial  compliance  with  statute,  sufficient,    190,   19d„ 

may  be  signed  by  mark.  191. 

by  hand  of  third  person,  191,  192. 
signature  by  another  person,   191,  192. 
seal  unnecessary.  192. 
publication  by  testator.  194. 
must  be  unequivocal,  195. 
sufficiency  of  proof  of.  195,  190. 
acknowledgment   of   signature,   193.    195. 
bv  illiterate  testator,  considered,  201,  n. 


^TsTction'r  General  Index.  1181 

WILLS  —  continued. 

evidence  of,  wher,^  will  sij^ned  by  mark.  KW.  202. 

object  of  statutory  reciuircment,  194,  205. 
attestation  by  witnesses,   l!tH. 

must  bo  at  end  of  will,  IDS. 

sufTiciency  of  signature  at  end  of  will,  198. 

may  be  by  mark,   19S. 

or  by  aid  of  another,  198. 

intention  must  bo  present.   198. 

when  one  witness  may  sign  for  another,  198. 

must  sijjn  after  signature  by  testator,  198. 

need  not  sign  in  ]jresence  of  each  other.  19S. 

must  be  at  time  of  execution  or  acknowledgment,  198. 

request  to  sign,  presumed,  when,  198,  201. 

no  precise  form  of  woids  necessary,  198. 

request  may  be  made  by  third  person.  198,  n. 

residence  of  witncss-es  to  be  affixed,  200. 

will,  not  affected  by  failure  to  affix  residence.  200. 

attestation  clause,  as  evidence  of  execution.  187.  201.  202.  203. 

lack  of,  creates  no  presumption  against  will,  201,  203. 

no  presumption  of  due  execution  in  absence  of,  201,  20.3. 
sequence  of  necessary  acts  of  execution,  199. 
proof  of  observance  of  requisites,  201. 
republication.   197. 

what  formalities  necessary  to  republish.  197. 
proof  of  signature  of  testator  where  witnesses  dead,  1G9. 

where  will  signed  by  mark,  1U9,  202. 
additions  by  witnesses,  200. 
of  nuncupative  will.  241. 

proof  of,  242. 
Talidity  depending  on  testator's  knowledge  of  contents,  205. 

necessary  to  render  will  valid,   205. 

subsequent  ratification,  not  enough,  205,  n. 

in  case  of  impaired  faculties,  207. 

will  need  not  luive  been  read  to  testator,  20G,  n. 

burden  on  proponent  to  show,  205. 

presumption  as  to  knowledge,  205,  206. 
testamentary  age,  208. 

nonage,  liow  proved,  208,  n. 

old  age  as  affecting  validity.  210. 
of  will  of  married  women,  208,  //, 

monomaniac,  211. 

habitual    drunkard,  211,   n. 
of  mutual  wills.   154. 
of  duplicate  wills,   154. 
of  conditional   wills,   183. 
of  irrevocable  wills,  223.  n. 
as  affected  by  citizenship.  209. 
mental  capacity  of  testator,  210. 

question  of,  determined  bv  law  of  domicile,  179. 

test  of,  210,  211. 

insane  delusions,   211. 

unnatural    wills.   211. 
effect  of  fraud  or  undue  influence.  210  ct  seq. 
mi.stakes  in  will.  220. 

inquiry  as  to  testamentary  intention,  220. 
immaterial  errors,  221. 

parol  evidence  as  to  mistakes.  221,  259,  200,  274, 
omissions  in    will.   221. 

accidental  omissions  no  ground  for  refusing  probate.  22L 
as  affected  by  statutes  affecting  substance  of  will.  2fi0. 

surrogate's    )urisdiction    to    determine    legalitA-    of    Avill,    59, 
253,  254. 


1182  General  I.dex.  ^^HS^r 

WILLS  —  continued. 

jurisdiction  of  other  courts,  GO,  CL 

bequests  to  literary  institutions,  2G4. 

limitation  on  charitable  betjuests,  2G7  et  seq. 

bequests  to  city  or  village  corporations,  2G5. 

other  trusts,  20G. 

suspension  of  absolute  power  of  alienation  of  lands,  261. 

suspension  of  absolute  ownership  of  personalty,  26L 

effect  of  illegal  suspension,  2G3. 

accumulation  of  income,  2G2. 
of  rents  and  profits,  2G2,  n. 

rights  of  corporations  to  take  by  will,  2G8. 

effect    of    charitable    bequest    of    more    than    one-half    t\i9 
estate,   267. 

or  when  made  v,'ithin  two  months  of  death,  267. 

rights  of  unincoi-porated  society  to  take,  268. 

bequests  to  foreign  charities,  267. 
testamentary  character  of  will,  182. 

need  not  contain  technical  language,  182. 

aninms  tcstandi  must  be  present.  182. 

depends  on  substance,  not  on  form,  182. 

conditional  will.  183. 
construction  and  interpretation  of,  253  et  seq. 
what  law  go\-erns,  179. 
court  of  equity,  jurisdiction  of,  60. 
limits  of  surrogate's  powei",  255. 

surrogate's  power  as  to,  on  probate,  confined  to  wills  of  person- 
alty, 254,  255. 

and  to  those  executed  within  the  State,  254,  255. 

express  and  implied  power  of  surrogate,  253,  254. 

express  power  limited  to  probate  proceedings,  255. 

in  accounting  proceedings,  253,  254,  970. 

provision  relating  to  resident's  will  of  personalty,  255. 

no  power  as  to  will  of  realty,  255. 
from  what  time  will  speaks,  269. 
testator's  intention  governs.  258. 

how  collected  in  general,  220,  259. 

clerical  errors  correctible,  221,  259,  260,  274. 
principles  governing,  258. 

effect  to  be  given  to  all  parts  of  will,  258,  269. 
intestacy  to  be  avoided.  25S,  2G9. 
resort  to  punctuation  for,  260. 
transposition  of  words,  258,  n. 
scope  of  construction,  256. 
who  may  raise  question  of,  257,  280. 
canons  of.  enumerated,  269. 
inconsistent  clauses,  how  construed,  269. 
extrinsic  evidence  in  aid  of.  270. 

to  aid  in  reading  and  testing  will,  271,  272. 
in  applying  will.  273. 

direct  evidence  of  intention  not  admissible,  220,  260,  270* 

to  impeach  validity  of  will,  220.  272. 

Wigram's  rules  of  evidence,  270,  n. 
ambiguities,  patent  and  latent.  270. 
words  to  be  taken  in  their  ordinary  sense,  269. 
technical  words,  269. 

use  of  peculiar  words  or  foreign  language,  271. 
parol  evidence  to  test  validity.  220,  272. 
to  correct  date  of  will.  272,  n. 
inquiring  into  testator's  position,  272. 
designation  of  beneficiary  or  subject-matter,  274. 
falsa  demonstratio  r.on  nocet,  274. 


WILLS  —  continued. 

cases  of  adverso  claimants  to  same  {rift,  274,  n. 

description  of  subject-niiitter  of  legacy,  275. 
revocation  of,  generally  considered,  222. 

of  written  will,  modes  of  direct,  222. 

by  writing,  modes  of,  223. 

how  executed,  222. 

mere  existence  of  later  will  does  not  amount  to,  223. 

efVect  iij)on  irrevocable  will,  of  later  one,  22.3,  n. 

by  destruction  and  cancellation.  224.  22.t. 

complete  destruction  not  necessary,  224. 

by  execution  of  later  will  or  codicil,  223. 

intention  to  revoke  necessary,  22.5,  227. 

declarations  of  testator  incompetent,  22.5. 

implied,  223. 

from  inconsistency  of  later  disjxisition,  223,  227. 
from  change  of  property,  227. 
alterations  in  will.  224. 
from  subsc(|uent  marriage,  228. 
birth  of  child.   229. 

effect  of  revoking  subsequent  will,  230. 
of  revoking  will,  upon  codicil,  22G. 
codicil,  execution  and  effect  of,  223,  23L 

effect  of,  on  will,  223,  23L 

revocation  of  will  by,  223. 

republication  of  will  by,  23L 

effect  on,  of  revocation  of  will,  220. 

included  in  term  "  will,"  232. 

distinguished  from  instrument  referred  to  in  will,  233. 

revocation   of,   230. 

probate  of,  232. 
establishment  of,  by  action,  61,  134. 

will  of  real  or  personal  property,  61. 

where  will  inaccessible,  61,  134. 

judgment  in,  136. 

"lost  or  destroyed  will,  59,  61,  134,  234. 

foreign  will  of  personalty,  61,  135. 

jurisdiction  of  Federal  courts,  63. 
probate   of,   in   Surrogate's   Court.     See   Probate. 

what  wills  provable,  139,  143. 

will  written  in  foreign  language.   153. 

right  to,  not  afi'ected  by  domicile,  143,  143a. 

of  lost  or  destroyed  will.  59.  234. 

inspection  of  will  before  contest,  127,  n. 

of  nuncupative  wills,  240. 

production  of  will   for,   129,  149. 

revocation  of,  276  et  scq. 

mode  of,  governed  by  what  law,  177. 
performance  of,  by  administrator,  c.   t.  a.,  335. 
deposit  and  custody  of,  before  probate,  64o. 
record  of  will,  when  proved,  249. 

of  ancient  wills,  252. 

foreign  wills,  "150. 

will  estal)!ished  in  civil  action,  136,  240. 

filing  nonresident's  will  with  secretary  of  st^te,  25L 
certificate  to  be  indorsed  on.  when  proved,  246. 
disposition  of  original,  after  probate,  248. 

See  Evidence;  Probate. 
WITNESS: 

surrogate's  power  to  compel  attendance  of,  52,  165. 
competency  of,  170  et  fteq. 

disabled,  examination  of.  125,  166.  109. 


WITNESS  —  continued. 

notice  of  examination,  125. 

punishment  by  commitment,  1089,  n. 

isubscribing,  examination  of,  in  another  county,  125,  167. 

when  may  be  taken,  125,  167. 

notice  of  examination.  125. 
effect  of  provision  in  will  for,  171. 

rule  as  to  personal  transactions  with  deceased,  170  et  seq. 
party,  interested  as,   170  et  seq. 

surety  as  interested  witness,  172,  n. 
releasing  interest,  173. 
death  of  subscribing  witness,  effect  of.  169. 

qualification  of  survivor  to  prove  testator's  mark,  169,  202. 
professional  experts  as,  213. 
nonprofessional  opinions,  214,  215. 
privileged  communications,  174  et  seq. 
qualification  of,  as  to  execution  of  will,  171. 

as  to  other  issues,  172. 
attestation  of  will  by,  193,  198. 
conflict  of  testimony  of,  204. 
con'oboration  of,  by  third  persons,  204,  n. 
WORDS: 

ascertaining  meaning  of,  in  will,  269. 
See  Definitions. 


Whole  Number  of  Pages,  1274. 


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